Is producer king? Legal experts weigh in on Nayanthara v. Dhanush

“Does a Producer become an Emperor controlling the lives, freedom and liberty of all the persons in the set? Any deviation from the Emperor’s dictum attracts legal ramifications?”

These are the questions posed by cine actress Nayanthara in her open letter to actor and film producer Dhanush criticising him for refusing to let her use a clip from a 2015 movie he produced in her Netflix docu-drama, Beyond the Fairytale.

The movie in question - Naanum Rowdy Dhaan - was produced by Dhanush under the banner of Wunderbar Films. The film had Nayanthara as the female lead, and was directed by her now husband Vignesh Shivan.

On November 16, Nayanthara published an open letter to Dhanush on her social media handles claiming that Dhanush had, for the past two years, been refusing to grant them a no-objection certificate to use a behind-the-scenes (BTS) clip from the movie.

Nayanthara claimed that the footage needed to be included in the Netflix show as her love story with Shivan, which the documentary covers rather extensively, began on the set of Naanum Rowdy Dhaan.

However, Dhanush refused to allow them to use the clip even though it was less than 30 seconds long.

The clip was subsequently edited out of the Netflix show, but a fraction of the BTS video is used in the trailer, which was released a few weeks ago.

Nayanthara said that she was shocked to receive a legal notice from Dhanush seeking damages of ₹10 crore after the release of the trailer.

Sivan added to the controversy by sharing the clip in question on his Instagram page saying, “The 10 crores clip that (he) wants to be taken down from our Netflix documentary. Please watch it here for free.”

Dhanush's production house, Wunderbar Films, has now moved the Madras High Court against Nayanthara, Sivan and others, alleging copyright infringement.

The entire controversy opens up an interesting question - who owns the rights to BTS footage from a film?

Who owns the copyright of BTS footage?

Under the Indian Copyright Act, 1957, copyright ownership largely depends on the nature of the footage and any agreements in place.

"The person who takes the footage in question is the owner. This is the thumb rule. The exception is when the footage is taken ‘at the instance’ of any other person for valuable consideration and in such a situation the person at whose instance the footage or photograph or cinematographic film is made, is the owner," said Dhruv Anand, Partner at Anand & Anand.

The producer may hold the copyright if the BTS footage was created as part of the production process.

"This is because the producer typically has control over the entire production, including any ancillary content created during the process," explains Swati Sharma, Partner and Head of Intellectual Property at Cyril Amarchand Mangaldas.

But does the producer of the film automatically own all related content, including BTS material filmed on personal devices?

"If the BTS footage was filmed on personal devices by individuals who are not part of the production team, the ownership might not automatically default to the producer. The person who filmed the footage could claim ownership, especially if they can demonstrate that the footage was created independently and not in the context of production," Sharma says.

According to Gladys Rosette Daniel, Partner at Daniel and Gladys, producers can claim copyright of BTS footage only if it is explicitly addressed in the agreement and recorded by a cameraman authorised by the producer and at the producer's expense.

"Footage recorded on personal devices during behind-the-scenes events does not automatically fall under the producer’s copyright. BTS footage captured on personal devices, unless specified in an agreement, does not belong to the producer," she added.

Another aspect to consider is if merely recording the BTS footage on personal devices may be a breach of contract, if there is one in place.

"If there is no contract in place, then this would become a tougher proposition for the producer since it would be hard for him to assert ownership over the footage which may not be of the actual scenes in the film or even sets but consisting of informal conversations etc," Anand said.

With the rise of online content creators, especially those who offer commentary and critique of copyrighted work, "fair use" is a concept that has become increasingly applicable to such content.

In India, the concept of "fair use" is referred to as "fair dealing" under the Copyright Act. The fair use concept, as laid down in Section 52, permits a party to use copyrighted work without the copyright owner's permission for purposes such as criticism, news reporting, research, etc.

Is fair use applicable in this case?

According to Sharma, fair dealing is affected mostly by the purpose for which the work was used, the amount of work used and its effect on the market value of the original work.

"The purpose for which the footage is used is crucial. Non-commercial uses for criticism, review, news reporting, research, or educational purposes are more likely to be considered fair dealing," she said.

However, since only around 3 seconds of BTS footage was included in the trailer, courts may not consider Dhanush's copyright claim to be actionable if it finds that it is likely not have any effect on the copyrighted work. But if the 3-second clip is found to be the heart of Naanum Rowdy Dhaan, the result may be different.

"Over and above fair use, a party can also escape liability if it is shown that the amount of work taken is fleeting and insubstantial. In another words, this attracts the Latin expression “de-minimis, non-curat lex” which means that the ‘law does not concern itself with trifles’...However, it is important to note that the test for infringement is qualitative and quantitative. In other words, at times, even a small portion of the work can constitute the heart of the work and if taken without permission, would amount to copyright infringement," Anand explained.

Concerns over privacy will also depend on who captured the footage.

"Footage captured personally belongs to the individual who recorded it. As the owner, I have the discretion to determine its privacy—whether to keep it private or make it public. Ownership of copyright gives me the legal authority to decide how to use or authorise the footage. Under the Copyright Act, I am entitled to exploit my copyright as I see fit, provided it aligns with legal provisions," Daniel explained.

In this case, another important question that pops up is whether the use of the BTS footage in the Netflix documentary amounted to fair use or copyright infringement.

Fair use in a Netflix documentary?

Anand noted that while commercial use often raised presumptions of unfairness, it was not always definitive. According to him, the evaluation of fair use centres on the "four factors" test. As per the first factor - character and purpose - the work must be "transformative," adding new meaning and identity that benefits the public.

“If the footage is used in a commercially released Netflix documentary, the presumption is that it is not fair use. However, there is no hard and fast rule that says that merely because the work is used in a commercial context, it is always unfair,” Anand explained.

In this instance, if the documentary significantly altered the context of the BTS footage to portray Nayanthara’s life, including her marriage and personal struggles, it could be deemed transformative. The fleeting and incidental use of the footage might have further minimised its impact on the market value of the original work.

However, Anand also highlighted a contractual issue.

“If the producer can show that he had commissioned somebody to take the BTS footage, then Nayanthara’s act of taking the footage may contractually interfere with the producer’s contract by which he commissioned the cameraman. This may have an effect on the market value, although it would be something which is minimal because the use is so fleeting and incidental in nature,” he explained.

Sharma observed that courts also considered market impact and audience perception. Using a minor, less significant portion of the footage might strengthen the argument for fair use.

"If the documentary generates revenue and competes in the marketplace with the original film, it could undermine a fair dealing claim,” Sharma said.

Damages and legal implications

If Nayanthara raises a fair use defence but the Court still finds that Dhanush's copyright has been infringed, what potential legal consequences would she be looking at?

This question becomes all the more significant because all information available in the public domain so far suggests that the BTS clip was used despite Dhanush explicitly denying permission for the same. In such cases, how do courts typically evaluate claims for damages like the ₹10 crore sought by Dhanush?

Anand pointed out that unauthorised use could be halted through injunctions, while damages were determined based on evidence presented in court.

“If permission is denied but the material is used anyway, this may have one of two repercussions. On the one hand, it may be indicative of the fact that the person sought permission and was therefore diligent in his approach and this may lessen the incidence of damages. On the other hand, it might also indicate that despite being refused permission, the person in any case went ahead and used that work, thereby making the use more blatant and liable of punitive measures,” he explained.

Daniel emphasised that copyright infringement constituted both civil and criminal offences under Indian law, leading to fines, imprisonment and injunctions. However, invoking copyright arbitrarily may defeat the purpose of the enactment itself.

“Copyright holders should not arbitrarily withhold consent, as copyright law is designed to enable the enjoyment and utilisation of creative works,” she said.

Sharma explained that courts evaluated damages by considering actual losses, the infringer’s profits, the nature of the infringement and its market impact.

“Considering the damages awarded by Indian courts in past, ₹10 crore damages are more exceptional than routine and on the higher end of the spectrum (completely dependent upon circumstances though),” she said.