WAKE UP: IT IS COPYRIGHT INFRINGEMENT!

A recent Lay’s commercial starring Ranbir Kapoor has caught my fancy; Lay’s newest ad campaign is titled ‘Lay’s Best Buddies’ and the storyline of the commercials revolve around the “loveable rascal ‘Sid’” who was the protagonist of the 2009 film ‘Wake Up Sid!’

While the ad successfully captured the essence of the campaign, it got me thinking along the lines of whether this kind of advertisement strategy which is built around characters popularized in films, may inadvertently be infringing copyright.

The vilification of this argument of mine will invariably be that if there was no protest from Ranbir Kapoor against the use of his character in the advertisement (evidenced by this that it is the actor himself who plays ‘Sid’ in the commercial) and presumably, none from the film producers, why are we even debating the issue of copyright infringement.

I acknowledge and accept that for this particular commercial, a claim of copyright infringement is not one that can be easily sustained. However, consider a scenario where it was not Ranbir Kapoor but another actor who played the role of ‘Sid’ in the commercials. In such a case, would this not amount to copyright infringement given that the producer of the film (in this case, Dharma Productions) enjoys copyright over the film’s characters?

Parody or Copyright Infringement?                  

At this juncture, I would like to distinguish between parody and the use of a film character in the plot of a commercial.

A parody has not been defined in The Copyright Act, 1957 but what is recognized is “fair dealing with any work for the purpose of criticism or review” [given in S.52 (1) (a) (ii)] – ‘fair dealing’ is a defence under The Copyright Act. Parody, in a literal sense, refers to a work, which humorously and critically comments on an existing work in order to expose the flaws of the original work. When I think of an advertisement which parodied a film character, an advertisement which comes to my mind is the advertisement campaign launched by Mc Donald’s a few years ago; with the punch-line ‘Hamare Zamane ke Daam’. One particular advertisement featured the iconic ‘Thakur’ from the 1975 blockbuster ‘Sholay’. The advertisement was intended humorously with the idea being that Mc Donald’s offers food at affordable prices which are comparable with those of the yesteryears. In my opinion, an advertisement of this kind cannot be termed ‘copyright infringement’; the idea behind using Sholay’s ‘Thakur’ in the commercial was to represent an era which people would now relate with cheaper prices.

Contrast this with a hypothetical example of an advertisement which features the characters ‘Sid, Aakash and Sameer’ from ‘Dil Chahta Hai’. If all these characters are played by people different from those who originally played them in the 2001 film and if such an advertisement is not a parody, it might very well give rise to a claim of copyright infringement. (There have been many instances of this kind of advertising in the past including  a commercial made by LG in 2008 which featured ‘Iron Man’.)

Where the defence of the ad film makers is almost invariably ‘fair dealing’ in the form of parody, one might argue that where copyrighted characters are used commercially, the ‘dealing in the work’ by the defendant is no longer restricted to “criticism or review”, which is the main purport of a parody.

Further, one may analogize the use of copyrighted characters in the plot of a commercial with writing fan-fiction. In both, characters which have already been developed by another (the copyright holder) are used.

A related concept is that of ‘character merchandising’ where unauthorized use of a copyrighted character on the merchandise sold by any person would give rise to a claim of copyright infringement.

The advertisers may argue that the use of the character of ‘Sid’ in this particular commercial was for a relatively short duration and is hardly a substantial claim of copyright infringement; however, it is to be noted that Lay’s has launched ‘Lay’s Best Buddies’ as a campaign and intends to produce many such commercials featuring ‘Sid’.

One might recall an Alpenliebe ad in 2008 which featured Kajol Mukherjee with Ajay Devgan. The commercial was intended to introduce the actors in the roles which they played for their film ‘U, Me Aur Hum’ which released sometime after the commercial. Here again, the movie characters were played by the same actors who played them in the film and the commercial was clearly part of the film promotion strategy.

Going back to the Sid commercial, another question which crossed my mind was ‘Can Lay’s be made liable for copyright infringement if Dharma Productions objects to the portrayal of Sid’s character in the commercial (despite Ranbir Kapoor consenting to the same)?

The copyright over a character in a film belongs to the producer of the film. This is by virtue of proviso (b) of section 17 of The Copyright Act in India which states that “in the case of …a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.” This means that Dharma Productions have the right to sue for copyright infringement for the unauthorized use of a character from their film.

Commercials often make for interesting studies in copyright law; the Lay’s commercial is a unique one because unlike other celebrity endorsements, this one actually had the actor play a role from his own film. It would be interesting to watch the case play out if the producers of Wake Up Sid sue Lay’s for copyright infringement.

(Click to view the Lay’s commercial here)