Rights, sensitivity and publicity: The ever-changing landscape of film litigation in India

Indian courts have time and again dealt with cases pertaining to films and web content, whether on aspects like defamation recently alleged in the case of Gangubai Kathiawadi, or an allegation of a derogatory portrayal in Netflix’s Sacred Games.

Most recently, the Shahid Kapoor-starrer Jersey made headlines when someone sued its makers for copyright infringement.

In Jersey's case, the Bombay High Court's single-judge Bench refused to stay the film's release. Subsequently, the plea challenging this order was withdrawn.

While allowing the withdrawal, the Bench made an interesting remark: 

"If you see, whenever movies have been dragged to court, those movies have bombed. It is a curse!"

It is often left to judges to decide on releases and examine whether the content in question is appropriate or not. From the perspective of content makers, this situation calls for sound legal expertise and novel ways to tackle lawsuits.

Bar and Bench spoke to some of the frontrunners such as DSK Legal, Naik Naik & Company, in film and entertainment litigation circuit — providing legal assistance to the Bollywood's biggest names — to understand the situation.

How film litigation has evolved over the years

A few names stand out when it comes to defending films and filmmakers before Indian courts. Advocate Ameet Naik and his firm Naik Naik & Company are among the most prominent.

Having represented the makers of more than 400 films, Naik’s firm has seen film litigation evolve over the years. They have represented bigger banners such as Phantom Films and Amazon Studios, in addition to advising the BBC and arguing for acclaimed Indian film producers and directors.

Naik, who was recently among the long list of lawyers in the case of Gangubai Kathiawadi, explained,

“I have seen litigation evolve over a period of time - about 5-10 years ago, when a lot of remakes started happening. First, (it was) foreign studios for an international film. Basically, foreign studios wanted to enforce rights in relation to transgression to any remake rights; you made a film and did it without rights.”

With people using legal remedies to assert rights and seek damages, courts started coming down heavily on people who violated the underlying work of such remakes.

“That was a good step and the courts’ intervention has always been in the right direction,” Naik felt.

His firm got several injunctions against film adaptations that were made without acquiring copyrights from the foreign counterparts.

“I worked for a film called My Cousin Vinny. A very important litigation in my career. That started and opened on how foreign studios started working,” he recalled.

When Warner Bros sought Naik’s expertise in a copyright infringement suit claiming that Zoya Akhtar’s Zindagi Na Milegi Dobara was a remake of Hangover, the matter was settled outside court.

“I gave that opinion. We didn’t go to court,” he recollected, adding that responsible lawyers do not want people to litigate.

In August 2015, Naik Naik & Company represented Viacom18 in a copyright-infringement case pertaining to the movie Manjhi, starring Nawazuddin Siddiqui. The Bombay High Court had dismissed the copyright claim, saying,

“It is an entirely different and independent work in its own right.”

Apart from copyright-related issues, there has been a substantial number of cases where filmmakers invoke the fundamental right to freedom of expression, given the fact that people often drag writers and producers to courts on the ground that their religious or cultural sentiments were hurt.

Courts in such cases have referred to the makers’ artistic expression and freedoms, and refused to interfere with releases.

In 2015, the Delhi High Court dealt with a petition against the movie PK and said,

“The choice of an artist to in the storyline refer to one and not other religion cannot be interfered with.”

The Supreme Court recently dismissed a plea seeking an injunction on the release of Sanjay Leela Bhansali’s Gangubai Kathiawadi.

“Prima facie, it appears that the movie is an artistic expression within the parameters of law,” the order underscored.

Ten years ago, filmmaker Prakash Jha had to move the Supreme Court against the banning of his film Aarakshan in Uttar Pradesh. The order stressed that reservation was one of the social issues open to public discussion and debate in “a vibrant democracy like ours for smooth functioning of a healthy democracy”. The State government’s order suspending the firm’s screening was thus set aside.

Naik recollected filing an Article 32 (right to Constitutional remedies) petition and the arguments made by Senior Counsel Harish Salve in that case. Salve stressed that the power of censorship was vested with the Central Board of Film Certification (CBFC) and the Central government as provided for under the Cinematograph Act of 1952.

“That became a reported judgment. And then we evolved this entire law, including Dirty Picture, etc., where we said that Aarakshan was a case in point in time where laid down the entire ultimately you cannot ban where a certification has happened,” added Naik.

Subsequent films like Padmaavat and Gangubai Kathiawadi faced similar predicaments, prompting the intervention of courts.

Reviewing scripts and rising sensitivity

At a roundtable with Film Companion founder and film-critic Anupama Chopra, some of the big producers in the Indian film fraternity revealed how essential vetting of scripts by legal experts had become lately.

Given the fact that Over-The-Top platforms (OTT) have wide-ranging content - some of which could be termed as “bold” - coupled with access to content on the internet, film and entertainment banners could see many hurdles regarding censorship and litigation in the coming times.

In the context of this evolution, production houses are increasingly keeping abreast with the changing legal landscape and preparing for foreseeable pitfalls.

Ameet Datta, Partner at Saikrishna & Associates, specialises in media and entertainment law relating to Intellectual Property, film, music and technology. Datta has been in the business for over two decades and notices a more "invested and professional" approach when it comes to filmmaking nowadays.

"The process of filmmaking has become more invested, with many professional processing rules, and similarly you see a lot of reportage in terms of litigation in media. Very often, it is not unheard of that people use these challenges as leverage to force financial settlements as well. I am not saying it happens in every case, but there are enough people out there who see this as their pay day as well,” he said.

But the courts have often been wise to this trigger-happy approach taken by those who want their fifteen minutes of fame. The Kerala High Court in February this year dismissed a plea seeking the removal of Malayalam movie Churuli from an OTT platform over its “usage of foul language”.

“A reading of the writ petition itself will show that the intention of the petitioner is only publicity,” the order observed.

Datta explained that when it came to matters of religion and social justice or caste, the police were generally quick to register an FIR in many states to try and contain the situation.

“There is the State of Punjab banning Udta Punjab. You’ll have various consequences in various cases. (It is) a more risk-oriented terrain right now. But not like there was no risk earlier. You are hearing about it because reportage is much more quicker and advanced,” he argued.

Udta Punjab saw unprecedented media attention days before its release, after the film’s producers moved the Bombay High Court against the CBFC's recommendation to make over a 100 cuts to the film.

In that case, a Bench of Justices SC Dharmadhikari and Shalini Phansalkar Joshi ordered for a fresh certificate and held,

"Blanket deletion without referring to the theme interferes with creative freedom of the petitioners."

Sensitivity towards content, he pointed out, was not new.

“Since we became an independent country, content has been interdicted by the State or by interested parties at every level. In fact, it was a feature in 60s, 70s as a regular basis. And what has changed is that today, the State is not really the player here, there are individual parties. Access to litigation is cheaper than one thought or one believes.”

Naik, who has been reviewing scripts for filmmakers, referred to the concept of “blackmail litigation” come every Thursday, a day before the release of a film.

“Every Thursday, what started happening was a blackmail litigation. What is the good and bad? The good is that people started enforcing rights, the bad is blackmail litigation."

Naik and his firm have appeared in 32 such matters. For filmmakers, the situation creates mounting pressure, as a lot is at stake when it comes to releases.

DSK Legal Managing Partner and Advocate Anand Desai disagreed with litigation in films being a recent phenomenon. However, he recognised that social media has played a role in the seemingly rising number of complaints against films and other content.

A team headed by Desai had appeared for Bhansali Productions in a recent court battle involving the film Gangubai Kathiawadi. Besides, his firm has represented some of the biggest film stars and production houses over the years across courts in India.

“People want to draw attention to themselves and a soft target is the film industry and Bollywood and stars, because people take notice. The growth of social media allows communication far more publicly to a larger audience than you could achieve earlier with other means of communication. So that could be one contributory factor as far as things like defamation are concerned,” Desai illustrated.

He went on to say,

“Today there is a level of sensitivity we are seeing which may not have been earlier in terms of depicting women, certain situations, certain religious beliefs. So that has also picked up possibly in terms of both the way depiction is sought to be done in the film and the way it is perceived by people."

According to the expert, Shekhar Kapoor’s Bandit Queen went all the way to the Supreme Court and that perhaps laid down the standard by which courts were supposed to be looking at films.

“But today there is a risk. Even then it was a risk and it is still a risk. Budgets are (now) higher. A whole bunch of factors are making people aware,” he added.

A brief, recent history of films and courts

A look at film-related litigation in the last decade or so broadly revealed three major categories of issues - defamation, hurting religious sentiments and copyright. An analysis of cases stemming from film-related disputes showed 16 films and one OTT series being dragged to court in the last nine years.

Datta placed cases from the film and entertainment industry into these three major “buckets”.

Naik shared an anecdote at the time of Ghajini's release when his friends and film producers Allu Arvind and Madhu Mantena had to carry a ₹5 crore cheque for it to see the light of the day.

“I can never forget the Ghajni litigation in the Madras High Court. Allu Arvind, Madhu Mantena and I were having idli sambhar and I told them to get a cheque or else we won’t be able to release the film. They got a demand draft and that is how we were able to release it. We had to settle it as a monetary claim. It was a frivolous claim, but we deposited the money in court to release the film. So you see blackmail litigation has to be countered then,” he recounted.

“Lawyers like us have a role to play. Entertainment law is not just entertainment law anymore. It is wider, money, arbitration - it is a great evolution. We did the entire litigation for Jhund. Gangubai. A film’s release is big thing for us,” indicated Naik.

With more biopics being made nowadays, there seems to be an urge to obtain rights from the family of the person concerned.

“Now, given the way succession laws in India work, to actually figure out who all are the people who can make the claim, is not easy,” explained Desai.

Desai argued that litigation in films was a “two-sided issue,” one that grows with the level of sophistication of films.

Secondly, historical films of the 1940s, 50s or 60s, he stated, were all works of fiction. Biopics, or films related to a specific event, were not common in movies back then. But today, a large number of real-life events attract good attention and are made into movies, he said.

“Bhaag Milkha Bhaag was one, Dangal was one. Another series doing well is on SonlyLiv - Rocket Boys - based on the relevant part of the lives of Homi Bhabha and Vikram Sarabhai. So viewership is getting more drawn to these kinds of films," Desai said.

He argued that this kind of content attracted more attention, as for many people, reading books was a thing of the past.

"So a lot of information now flowing into people, young people’s minds is coming from film as a media. Whether it is OTT platforms, YouTube videos or small clips, audio-visual is far more in use than reading.”

Adding his two cents on the depiction of historical events on screen, Datta remembered that at the time of the release of Aamir Khan’s Mangal Pandey, the producers of the film had argued that a dead man cannot be defamed.

“You can’t prevent someone from making a film on a historical figure, notwithstanding personality. So these elements have tempered jurisprudence a lot,” he revealed.

Datta added,

“Now somebody has gone after Kashmir Files. The fact is that there was series of incidents in the valley. These are factual details that people were murdered. The challenge is that it will show X, Y, Z in a bad light. Or a community in a bad light. So the worrying part of this trend is the propensity to challenge, has increased the exposure of content makers.”

Keeping up with the times

OTT platforms have changed the dynamics of content consumption, offering a wide array of media on a variety of topics. Regional films and shows feature in these platforms, narrowing the geographical gap.

Besides, the desire to make quality content is seemingly growing and creators are willing to experiment with different formulas.

“The likes of Amazon, Netflix, are really doing their best to put quality content out. People want to see reality. People want to see sex. People want to see violence. People want to see a film like Gehraiyyan. People want to go far and beyond,” Naik emphasised.

The process of the CBFC, which certifies films, cannot be applied to television shows. Given that there are thousands of serials with thousands of episodes, pre-publication censorship is unthinkable.

"Similarly, for OTT, you have series, etc., pre-publication censorship is impossible. Now if pre-publication censorship is not possible, then it’s post publication due diligence or regulatory process," Datta stressed.

With the entertainment industry evolving in terms of technology and other ways, he noted it was about the “ease of doing business” at the end of the day.

"A lot of investment happens in this country. A lot of the creative community is supported by the film industry, the television industry. I am not saying that it should not be regulated; it is important to regulate them. We have a country of multiple cultures and therefore multiple sensitivities, but at the same time we should have separate layers of exposure," the lawyer suggested.

He, therefore, hoped for certainty in law and exposure either through a civil process, a criminal court process or a self-regulatory mechanism by the government.

Desai added,

“Look at the way technology has developed in distribution. Today, you can buy medicines online. You can buy food online. That is a huge change. But because the film industry is viewed as a softer reason to talk and draw attention, people talk more about it. But the whole way of life on multiple counts has changed.

Filmmakers, crucially, were stated to be “quite receptive” to changes as their expectations have evolved and they are willing to adapt.

“The big risk for them is that they will go and make a film and suddenly somebody will stop them or they’ll be told by censor board - 'take out this, take out that', in which case the story line can go for a toss to some extent. So they are quite receptive,” Desai concluded.