Copyrightability of Characters: A study in light of

proper allocation of Performers’ rights

Submitted to:

Ms. Kuhu Tiwari

Submitted by:

Saurabh Bara

Roll No. - 142

Semester – VII, Section-C

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

1|Page
Acknowledgment
I, Saurabh Bara, feel myself highly elated, as it gives me tremendous pleasure to come out with
work on the topic “Copyrightability of Characters: A study in light of proper allocation of
Performers’ rights”. I, started this project a month ago and on its completion I feel that I have not
only successfully completed it but also earned an invaluable learning experience.

First of all I express my sincere gratitude to my teachers who enlightened me with such a
wonderful and elucidating research topic. Without HIM, I think I would have accomplished only
a fraction of what I eventually did. I thank him for putting his trust in me and giving me a project
topic such as this and for having the faith in me to deliver. His sincere and honest approach have
always inspired me and pulled me back on track whenever I went off track. Sir, thank you for an
opportunity to help me grow.

I also express my heartfelt gratitude to staff and administration of HNLU in library and IT lab
that was a source of great help for the completion of this project.

Next I express my humble gratitude to my parents for their constant motivation and selfless
support. I also express my gratitude to all the class mates for helping me as and when required
and must say that working on this project was a great experience. I bow my head to the almighty
god for being ever graceful to me.

Thanks,

Saurabh Bara

Roll no. – 142

Semester – VII, Section – C

2|Page
Declaration

I, Saurabh Bara hereby declare that, the thesis of the project work entitled, “Copyrightability of
Characters: A study in light of proper allocation of Performers’ rights” is of my own and
this project work is submitted to H.N.L.U. Raipur. It is record of an original work done by me
under the able guidance of Ms. Kuhu Tiwari, Faculty of Law, H.N.L.U., Raipur.

Saurabh Bara

Roll No. – 142

Semester – IV, Section - C

3|Page
Contents

INTRODUCTION...........................................................................................................................5

1.NEED FOR PROTECTION OF PERFORMERS’ RIGHTS.......................................................6

2. POSITION IN US AND UK.......................................................................................................7

3. RIGHTS OVER FICTIONAL CHARACTERS: UNKNOTTING THE GUTTHI OF

PERFORMERS’ RIGHT.................................................................................................................8

4. PERFORMERS’ RIGHTS UNDER S.38A OF COPYRIGHT ACT..........................................9

5. CONSTITUTIONAL BASIS FOR COPYRIGHTABILITY OF CHARACTER....................13

CONCLUSION..............................................................................................................................14

REFERENCES..............................................................................................................................15

4|Page
Introduction
Copyright is the part of intellectual property which gives exclusive legal right to the original
creator of the work. The copyright law protects the intellectual creations in works that are
original. It protects the work as soon as it is created and no registration formalities are required. 
Lexical Analysis as per the Oxford English Dictionary, tells us that ‘copyright’ is “the exclusive
right given by the law for certain term of years to an author, composer etc ( or his assignee) to
print, publish and sell copies of his original work.”

The Copyright Act, 1957 was silent on the performers’ rights. The 1994 amendment of the
Copyright Act recognised the rights of the performers. Under Section 2(qq) of the Act
“performer” includes an acrobat, musician, singer, actor, juggler, snake charmer, a person
delivering lecture, or any other person who makes a performance. Section 38 of the Act gave
protection to actors, musicians, jugglers, dancers etc under the head of ‘Performers Rights’. This
ensured that the rights are not exploited and the creative efforts of the person who does the work
are rewarded.

In November 2013, the copyright notice given by Viacom18 for ‘Gutthi’- a character created
in Comedy Nights with Kapil1 prompted me to think that is it justified that an actor perceive a
character and infuse life in it[ and the copyright over it is demanded by the producers who are
not creators of the work but distributors of the work created by actor. On the other hand, there
was another argument at the back of mind that producers invest hugely in their shows and incur
advertising and promotion costs to popularise the character. Even their copyright claim cannot be
denied. I believe this is a point of research as characters created by actors are not included in the
IPR jurisprudence and therefore I have taken this topic for my project in order to research that
what is the law on this point and who is and who should be given protection in this regard.

1
http://www.hindustantimes.com/entertainment/television/gutthi-the-larger-debate-of-copyright/article1-
1155408.aspx

5|Page
1.NEED FOR PROTECTION OF PERFORMERS’
RIGHTS
The need for the protection of performers’ right arose with the passage of time. The fundamental
reason was the technological development that enabled recording & broadcasting of the
performers’ right. But earlier these rights were not there and according to Adam Smith, there
could be mainly two reasons for not recognizing the performers’ rights.

1) Social and Historical Reasons- During the formative period of copyright, the actors were
regarded as ‘vagrants’ by law. The players, buffoons, musicians, opera-singers, opera dancers,
etc. were the classical examples of ‘unproductive labour’.

2) Historical and Technological Reasons- The work of all the performers used to perish in the
instant of its production.2

However, the development of technology in the late nineteenth and early twentieth century
enabled performances to be recorded and broadcasted to the public locally, regionally, nationally
and eventually internationally. The Copyright Act divides the performers into three categories:

 Performers giving live performances- The performer when he performers in front of

the audience (live) or engages in any performance he has right over that performance.

 Performers in a cinematograph film with credits in the film- The performer when he

gives his rights to the person with any written agreement to make it a part of any
commercial use, the performer shall be entitle to have royalties or some monetary benefit.

 Performers in a cinematograph film without credits in the film- There are many

performers in supporting cast which are commonly termed as “extras” in any play, film
etc. The Copyright Act till now doesn’t give any protection to such people except moral
rights which might be prejudicial to their reputation.

The acts of stand-up comedians will be covered under the first category. Hence, we can safely
say that Sunil Grover has a right over the character- ‘Gutthi’- created by him.

2
Dr.V K Ahuja, Law Relating to Intellectual Property Rights, 110, (2007).

6|Page
2. POSITION IN US AND UK
The law in India which governs the Performers’ Right are weak when compared with the laws in
U.K and U.S.A which are quite intricate. Although the protection given by USA is in a similar
form as in India, but the principle mechanism in US is the law of tort. Although there is no
specific legislation which gives protection to the performers, their rights are protected by the
right of publicity- tortious doctrine-which has been evolved by the American Courts in direct
response to claims of infringement of performers’ right. This makes the American system
distinctly different from Indian and English regimes.3

In England, the Performers Protection Act was passed in 1925. The performers’ rights in
England are on an equal footing with India. In England, the performers are granted economic
rights. The inadequacy in the English legal system is primarily with respect to unprotected moral
rights and non tangible rights. As in the Indian system, this is primarily because England uses a
system of copyright to protect performers’ interest.

Thus, the legal system of USA is stronger as compared to that of India. The right of publicity is a
useful judicial innovation; its applicability is limited only in a country like India, where the
judicial system has not developed a jurisprudence of publicity rights.

3
http://nopr.niscair.res.in/bitstream/123456789/2432/1/JIPR%2013%286%29%20574-582.pdf 

7|Page
3. RIGHTS OVER FICTIONAL CHARACTERS:
UNKNOTTING THE GUTTHI OF PERFORMERS’
RIGHT
The commercial and popular appeal of fictional characters makes it important to ensure that the
characters’ creators are fairly and uniformly protected from unauthorized exploitation of their
creations. Thus, the important question which arises is that who owns the copyright over a
character- an actor who perceives a character and infuses life into it by adding his own
innovation and expressions or the producers who, though not the creators of the work, but are its
distributors and who invest hugely in the shows as well as incur advertising and promotion costs
to popularise the character.

Sunil Grover’s exit from ‘Comedy Nights with Kapil’, a comedy show aired on Colors TV, was
tragic for all the faithful viewers of the show, me being one of them. A public notice was issued
by the producers of the show on 23rd November:

“A certain artist and a stand-up comedian associated with the programme Comedy Nights With
Kapil aired on Colors television channel is planning to launch or be associated with other
shows…. Take notice that Viacom18 has sole, exclusive, absolute and unlimited ownership
rights of all the intellectual property rights of the artist associated with the programme including
the rights in the format of the programme.”4

This means that the character of Gutthi which all of us have come to know and love can no
longer be essayed by Sunil Grover on any other show.

4
http://archive.indianexpress.com/news/dont-copy-gutthi-warn-comedy-nights-with-kapil-producers/1197206/

8|Page
4. PERFORMERS’ RIGHTS UNDER S.38A OF
COPYRIGHT ACT
Section 2(q) of the Act defines ‘performance’ as “any mode of visual or acoustic presentation,
including any such presentation by the exhibition of a cinematograph film, or by means of radio-
diffusion, or by the use of a record, or by any other means and , in relation to a lecture, includes
the delivery of such lecture.”

Section 2 (qq) of the Act defines a ‘performer’ as “an actor, singer, musician, dancer, acrobat,
juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a
performance”

Section 38A Clause 2 of The Copyright Act, 1957 is relevant in this regard clearly that the
performers’ rights detailed in s. 38A(1) are enjoyed by the producers of a cinematographic film
once an artist’s performance is incorporated in the film. Section 38A(2) of The Copyright Act,
1957 makes it clear that the performers’ rights detailed in S. 38A(1) are enjoyed by the producers
of a cinematographic film once an artist’s performance is incorporated in the film. This position
was also emphasized in Fortune Films International v. Dev Anand5. In this case, the question
whether copyright subsisted in the performance of a performer was decided by the Bombay High
Court. The court held that copyright protection is available only to film including the soundtrack,
the cine artists who act in the film are not protected by copyright law for their acting.

However, the instant case of ‘Gutthi’ involves an issue unanticipated by the 1957 Act – ‘whether
the right to ‘copy’ the character in a subsequent different show where the character is played by
the actor who had originally played the character, is a right of the actor?’

A similar case on the issue was decided by the Kerala High Court in Malayala Manorama v. V T
Thomas6 where a publishing house was injuncted from claiming ownership over the characters
created by the cartoonist before joining the publishing house and the Court held that the
publishing house could not restrain the cartoonist from continuing to draw the cartoons after
leaving employment. This is because the characters had been created by V T Thomas before
joining Malayala Manorama and the publishing house had no role in the creation of the

5
AIR 1979 Bom 17
6
AIR 1989 Ker 49

9|Page
characters. The Kerala High Court did not directly address the issue of copyrightability of
characters but it decided the issue of ownership of copyright on character; one may therefore
conclude that copyright on character could be claimed successfully by the cartoonist.

An important distinction made by the Court was between ownership of the characters per se and
ownership of the cartoon strips made by V T Thomas while he was gainfully employed by the
publishing house; while the former was a right vesting in the cartoonist, the latter would be
considered property of the publishing house. The ‘character delineation test’ (popularly known
as Nichols test), laid down in Nichols v Universal Pictures  is a yardstick to determine
copyrightability of a character in United States. The test is to see whether a character is
sufficiently evolved in the mind of the reader/viewer so as to warrant legal protection, i.e., the
character must be distinct and must not be a “stock character” (typical characters such as ‘girl
next door’, ‘angry young man’ etc).

The case of stand-up comedians on TV shows is unique because it cannot be said to be purely a
cinematic work nor is it a dramatic work. For example, in the Sunil Grover case, he himself had
created the character of Gutthi (evidenced by the fact that he had played Gutthi on shows prior to
Comedy Nights with Kapil).  While Sunil Grover, the actor who plays Gutthi, declined to
comment on the issue, fellow artistes had opined that Gutthi had become popular because of the
efforts of the actor playing it and therefore, the copyright on the character should belong to the
actor and not the channel.  Further, according to Sunil Grover, he had Gutthi on other TV shows
prior to his stint on Comedy Nights with Kapil and Viacom18 was erroneously claiming that
they had created Gutthi. [Sunil Grover had played Gutthi on an earlier show ‘Comedy Circus’.]

INTERNATIONAL CONVENTIONS PROTECTING PERFORMERS’ RIGHTS

The rights given to performers are a result of many conventions and treaty. The concern of the
performers has been addressed in four major international instruments: Rome Convention, 1961;
TRIPS 1994, WPPT, 1996 and Beijing Treaty, 2012.

10 | P a g e
 1. International Convention for the protection of Performers, Producers, Phonograms
and Broadcasting Organizations (Rome Convention 1961)- Rome Convention, 1961
granted following rights to the performers under Article 7:

 Right to prevent the broadcasting and communication to the public of their live
performances without their consent.

 Right to prevent fixation to their live performances without their consent.

 Right to prevent reproduction of the fixation to their live performances without their
consent under the following circumstances:

 If the original fixation was made without their consent

 If reproduction is made for purposes different from these for which the performers gave
their consent if the original fixation is made in accordance with permitted exceptions
under Article 15 and the reproduction is made for purposes different from referred to in
Article 15.

Article 7 further deals with relations between performers and broadcasting organizations. If the
performers and broadcasting then, it shall be a matter for the domestic law of the contracting
State where protection is claimed to regulate the protection against re-broadcasting, fixation for
broadcasting purposes and the reproduction of such fixation for broadcasting purposes. However,
domestic law shall not operate to deprive performers of their ability to control by contract, their
relations with broadcasting with broadcasting organizations.

2. Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS,

1994)- India being a signatory of TRIPS it had to bring some amendment in the Indian
Copyright law, provisions were made for adopting performers’ right under Article 14 of
TRIPS.

Article 14(1) state that in respect of fixation the performers shall have the right to prevent the
acts of their unfixed performances, acts undertaken without their authorization such as
broadcasting and communicating live performers to the public.

11 | P a g e
After the TRIPS agreement new issues arose which were due to the evolution in the digital
technologies. Due to this in the post TRIPS period, WIPO, Performance & Phonograms Treaty
(WPPT) 1996, this treaty replaces the Rome Convention, 1961 in respect of the Performers right.

3. WIPO Performances and Phonograms Treaty (WPPT, 1996)- The WPPT expanded

the horizon of protection for performers, producers of phonograms and broadcasters. The
WPPT, 1996 there was an amendment of 2012 which introduced moral rights that states
performer shall independently of his right after assignment, either wholly or partially of
his right, have the right to prohibit the unauthorized broadcast and public communication
of their performances.

3. Beijing Treaty on Audio-Visual Performance, 2012- The issue of protection of

performing artist in Audio-Visual treaty which includes television film and was not a part
of WPPT because there was no consensus between the negotiating countries. Many
discussions were held with the Committee of Experts and Standing Committee organized
by WIPO. But the negotiating countries could not come to one conclusion in the
Diplomatic Conference 2000, with respect to the issues related to performers’ right and
that made the adoption of treaty impossible.

The Beijing Treaty on Audio –Visual performance (June 26, 2012) which includes, the
traditional media and digital networks, such treaties will help in safeguarding the rights of the
performers against the unauthorized use of work.

12 | P a g e
5. CONSTITUTIONAL BASIS FOR
COPYRIGHTABILITY OF CHARACTER
It can be contended that the public notice issued by Viacom18 violates article 19(1)(g) of the
Indian Constitution; because, in restraining the artist from replicating Gutthi on any other show,
Viacom18 is interfering with the artist’s right to livelihood. A performer adds his own flavour to
the already existing/ created character thereby creating a distinct character- so in effect the
performer and the creator become one and the same- can such a claim be made under the law?

The basic aim behind copyright law is that the society should get information and the basic aim
of IPR law is to incentivise the right people so that the public benefits from the creation of
information. An actor perceives a character and infuses life in it and the copyright over it is
demanded by the producers who are not creators of the work but distributors of the work created
by actor. This is not in compliance with the theory of proper allocation of rights. The ‘sweat of
the brow’ doctrine demands that the actor who has created the character should be getting
copyright over his work.

13 | P a g e
CONCLUSION
Sunil Grover had himself created the character of Gutthi (evidenced by the fact that he had
played Gutthi on an earlier show ‘Comedy Circus’). This means that the producers did not play a
role in the creation of the character and therefore, would most likely not be able to claim
ownership over Gutthi. A performer adds his own flavour to the already existing/ created
character thereby creating a distinct character- so in effect the performer and the creator become
one and the same. Such a claim might also defeat the rights of producers over the character
created by an actor.

On the other hand, when production houses enter into agreements with artists, all rights including
IPR in the programme as well as the characters portrayed in the programme usually vest with the
broadcaster. The character “Gutthi” has become a household name because of its association
with the show “Comedy Nights with Kapil”. It has gained singular association in the minds of
the public not merely because of the artiste but majorly because of the programme. It may not be
appropriate to state that the public notice given by Viacom could possibly violate Art.19 (1)(g).
Artists are paid a reasonable amount of fees for the assignment of rights/ waiver of rights taken
by them. Huge amounts of money are invested by broadcasters for these shows. In the event the
channel decides to merchandise the characters of the show, it would fall in the realm of
trademark law. However, in the absence of contract to the contrary, it would indeed be
interesting to understand the legalities of character rights in India. Personality rights of
celebrities have been recognized in few cases in India.

Thus, this case is extraordinary with arguments equally strong both for and against the rights of
the artist, the decisive element is the additional fact that Gutthi had already been played by Sunil
Grover prior to Comedy Nights with Kapil. This means that the producers did not play a role in
the creation of the character and therefore, would most likely not be able to claim ownership
over Gutthi.

14 | P a g e
References
Websites

 http://www.med.govt.nz/business/intellectual-property/pdf-docslibrary/copyright/performers-

rights-discussion-paper-pdf

 http://www.wipo.int/pressroom/en/briefs/performers.html

 http://www.lawinfowire.com/articleinfo/performers-rights-india

 https://www.artslaw.com.au/info-sheets/info-sheet/performers-rights/

Articles

 Competition and Enterprise Branch Ministry of Economic Development, Performers’ Right A

Discussion Paper, 

15 | P a g e