This article has been written by Mr. Abdulla, a 4th year B.A.LL.B student of Aligarh Muslim University, Uttar Pradesh.

Introduction

Late actor Irrfan Khan’s movie “Maqbool”, directed by Vishal Bhardwaj was an adaptation of Shakespeare’s play “Macbeth”. Let’s suppose that Shakespeare is alive and he’s presenting his play Macbeth on the stage and Mr. Bhardwaj was there to watch the play. He watched Shakespeare’s play and liked it and decided to make a movie on it. Now question arises that is this permissible for Mr. Bhardwaj to exploit Shakespeare’s exclusive rights that are given to him by the Copyright Act,1957 and if yes the what Shakespeare will get in return? Let’s discuss and try to find out about the copyright in theatrical works and its licensing as well as royalties in this article. 

For plays performed on stage the creator is a playwright, also called a script writer. A dramatist may adapt an existing book into a stage play, with the permission of the original writer. In this case the dramatist obtains a copyright to the adapted version and may share any income from the performance with the writer, depending on the contract governing the basis on which the adaptation was made.

Copyright Act, 1957 about Dramatic Works

Section 2 (h) of the Copyright Act 1957 defines dramatic works as it includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film.

One thing that should be kept in mind while reading Section 2 (h) is that the dramatic works do not include cinematography films. Meaning thereby, those movies that are recorded and presented do not come under the purview of dramatic works in the Copyright Act,1957.

Further, Section 13 (1) (a) includes the dramatic works that are subjected to be protected under the copyright act. It also includes dramatic works in the meaning of copyright given under Section 14 of the Act.

In other words, Copyright subsists inoriginal dramatic work and its adaptation. Adaptation in relation to the dramatic work means:

1. The conversion of the work into a non-dramatic works,
2. The abridgement of the work or any version of the book in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a news paper, magazine or periodical.

A very interesting case came up before the court. In case of  Indian Express Newspapers (Bombay) Pvt. Ltd. v. Dr. Jagmohan Mundhara, the plaintiff argued that the defendants made a stage play and movie in which they used the central theme of the series of articles published by the newspaper based on a story where a journalist purchased a woman named Kanta and the sole purpose of the series of article published by the newspaper is to highlight the flesh trade flourishing in some parts of the country. The article published contained an autobiographical account of the part actually played by the author in the affair. In the film, the emphasis was on human bondage, particularly of Indian women. The court held that stage play on the movie was not an infringement of the copyright in the series published by the plaintiff.

In another case of Academy of General Education v. B. Malini Mallya, The Supreme Court noted that dramatic work can also refer to literary works that are parts of dramatic literature when resolving the question. According to the court, the Copyright Act, of 1957 distinguishes between the “literary work” and “dramatic work”. It held that the form of dance will come under the form of “dramatic work” for claiming the copyright over it and it won’t come under the “literary” work.

In the case of The State v.  Baboo Lal And Ors., the question before the court was whether the Dramatic Performances Act, 1876 (Act 19 of 1876) was unconstitutional or not in view of Articles 13 & 19 of the Constitution of India. The court held that in its opinion this act is unconstitutional because it clearly violates Article 19 of the Indian Constitution which enshrined the Right to freedom of speech and expression.

Licensing in Theatre

The dictionary meaning of License is to give official permission for something. As we’re very well aware of the fact that the copyright over the original literary or dramatic work belongs to the person who is the first and real owner of that piece of work. When the person who holds an intellectual property right gives the right to someone else, permanently or for a short period of time,  to exploit his intellectual property, it is called Licensing. Intellectual property is in a layman’s language is like a physical property that can be bought, sold, transferred, etc. 

Licensing is a process by which the right to use intangible intellectual property is granted by one person to another. For instance, Mr. A wrote a drama on the important life events of Princess Diana and he gave the license of that written drama to Mr. X by signing an agreement to stage a play in his theatre. Here, Mr. X was not the real author of the drama but because of licensing, he’s eligible to stage a play without infringing any rights of Mr. A (the real owner of Intellectual Property).

A license is effectively a contractual agreement and should set out precisely what a licensee is permitted to do and any terms and conditions applying to this use, including the amount of any payment or royalty to be paid to the real owner of the intellectual property i.e. the licensor. The process of licensing is beneficial for both the licensor as well as the licensee. The licensee doesn’t have to give time in R&D to invent intellectual property and he could exploit the readymade intellectual property of the licensor and the licensor will get the monetary benefits in return. Playwrights and other creators often work with licensing agencies to manage the rights to their works. These agencies facilitate the process of granting licenses to theaters while ensuring proper compensation.  The owner of the copyright may grant the license to do any acts which merely and exclusively he owns in capacity of the real owner. The license can be classified into two categories:

• Voluntary License

Section 30 of The Copyright Act empowers the owner of the copyright in any existing or the prospective owner of the copyright in any future work to grant any interest in the right by license in writing signed by him or his duly authorized agent. The licensing which is scheduled to be applicable in the future will only comes into the effect when the work for which the( license is granted) comes in existence.

1. Compulsory License of an Indian Work

Earlier, the registrar was empowered to grant the compulsory license but now the Copyright board under section 31 is empowered to grant the compulsory license under certain circumstances on suitable terms and conditions in respect of an Indian work. Following the necessary conditions for grant of such compulsory license:

1. The work must have been performed or published in public.
2. If it comes in public domain as mentioned above but the author of the work refuse to republish or allow republication,
3. Because of that refusal by the author, that work is withheld from the public or,
4. the author must have refused to allow communication to the public of such work by broadcast, or in the case of a sound recording the work is recorded in such record, on reasonable terms.

In other words, the compulsory license was necessary because it was in the public domain but the author or owner refused to grant the license and the grounds for refusal was unreasonable.

Performance License

Performing artists and creative professionals sign contracts with the theatre outlining their working conditions and pay. These agreements might be based on framework agreements negotiated by unions, such as an actors’ union. Copyright clauses in employment contracts might govern, for example, the rules for prospective live performance recording. If this is not the case, the terms and conditions for a recording must be arranged separately. The cast does not necessarily prefer recordings of live performances, arguing that live and recorded performances are two distinct genres that must be rehearsed and performed individually. Any recording of live performances requires the agreement of both the performers and the makers. Performers who control related rights typically have the exclusive right to authorise the recording (reproduction) of their performances. Foreign works, such as major musicals, are also performed locally. The screenplay business is global, and writers require representation not only in their home nations, but globally. Collective management organisations can act as representatives in other countries as part of a network of similar organisations.

Published Plays

In some cases plays are published by a commercial publisher who has concluded a publishing agreement with the playwright. This situation necessitates that a distinction is made between two types of contracts: 

− A representation contract that the playwright concludes with the theater or other user to publicly perform the dramatic work;

 − A publishing contract that is concluded between the playwright and the book publisher to bring a published version of the play to the market. The latter contract customarily includes a transfer of rights to the book publisher for relevant rights: reproduction in graphic form, including distribution of copies of the literary work. A distinction of these contracts and rights therein is important.

Royalties in Published Theater Works

According to dictionary meaning, Royalty means an amount of money that is paid to the person who wrote a book, piece of music, etc. every time his/her work is sold or performed.

In simple words when a writer or publisher or content creator sold his exclusive rights over his intellectual property to the other person by granting license or by agreement or by contract the person who bought it will give the original writer or publisher or content creator monetary benefits out of the benefits he gained from exploiting the intellectual property of the original copyright holder. For example, Mr. A grant the license of his play to Mr. X and in return Mr. X promised to give him the 50% share of all the earnings of the total collection of the play. Now, if Mr. X collected 2 Million Dollars from the play he will have to give 1 Million Dollars to Mr. A as a royalty.

The terms of the royalty agreement vary and are negotiated between the rights holders and the producing entity. The agreement specifies the amount and conditions under which royalties are paid. Royalties paid based on the number of performances of the play. The more a play is performed, the more royalties are earned. In some cases, the rights holders receive an upfront payment, known as an advance, against future royalties. Besides stage performances, rights holders may also receive royalties for other uses of their work, such as film adaptations, television productions, or merchandise. The duration for which royalties are paid is specified in the agreement. It may cover the initial run of the production, subsequent revivals, or other specific time frames. The producing entity is typically responsible for keeping track of performances and sales and reporting these to the rights holders. This ensures accurate royalty payments. If there are multiple rights holders (for example, a playwright and a composer/lyricist in the case of a musical), the royalties are distributed according to the terms of their agreement.

Conclusion

Licensing and royalties play a crucial role in the world of theater, ensuring that creators, producers, and performers are fairly compensated for their contributions. Licensing is essential for protecting the intellectual property of theatrical works. It grants specific rights to use the work while maintaining the creator’s control over how it is presented. By providing a mechanism for creators to earn income from their work, licensing and royalties encourage artistic innovation. Playwrights and other contributors are more likely to invest time and effort in creating new works if they know they can be compensated for their success. Licensing agreements establish a clear framework for collaboration between rights holders and producers. This clarity helps in avoiding disputes and allows for a smoother production process. Royalties serve as a form of compensation for the creators and contributors to a theatrical work. This includes playwrights, composers, lyricists, and sometimes even directors and choreographers. Licensing and royalties are integral components of the theater ecosystem. They strike a balance between protecting the rights of creators and enabling the widespread performance of theatrical works, ultimately contributing to the vibrancy and sustainability of the theatrical arts. As the industry continues to evolve, adapting licensing models to new formats and technologies will be essential for its continued success.

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