MEDIA AND ENTERTAINMENT LAW

SYMBIOSIS LAW SCHOOL, PUNE

SUBJECT – Media and Entertainment Law

Alternative Internal Assessment

DATE OF SUBMISSION: 12.04.2020

Submitted to the Faculty-in-Charge

By:
Girishma Sai Chintalacheruvu –
(16010126341)
Division D , 4th Year (2016-21)
COURSE: B.B.A. LL.B.(Hons.)

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INDEX

Index...........................................................................................................................................2

1. What are Celebrity Endorsements? Explain the types of Celebrity Endorsement. Discuss

a legal dispute with respect to Celebrity endorsements with the help of relevant case law......3

2. Write a critical analysis on the applicability of Self-Regulation model to Over-the-top

(OTT) platforms like Netflix & Hotstar, in tandem with the reasoning given by the Indian

Judiciary in the case of Justice For Rights Foundation v. Union of India, (WP(C)

11164/2018) (based on Dominic’s lecture)................................................................................5

3. Mention the applicability of Copyright in the arena of Internet Gaming. Write a critical

analysis of the Indian case 'Mattel v. Jayanth Agarwalla, IA No. 2532/2008 in CS (OS)

344/2008, with an explanation on the doctrine of merger & scenes a faire...............................8

4. whether the composer of lyric or musical work retains a copyright in the lyric or musical

work if he grants a license or permission to an author (owner) of a cinematograph film?

Explain with the help of Indian Performing Right Society vs. Eastern India Motion Picture

Association case law................................................................................................................10

5. Short notes........................................................................................................................12

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1. WHAT ARE CELEBRITY ENDORSEMENTS? EXPLAIN THE TYPES OF CELEBRITY

ENDORSEMENT. DISCUSS A LEGAL DISPUTE WITH RESPECT TO CELEBRITY

ENDORSEMENTS WITH THE HELP OF RELEVANT CASE LAW.

Celebrity endorsements have given new domains to branding techniques embraced by

companies around the world. While evident focal points of brand review is the availing of
more prominent acknowledgment in the market that the brand is targeting, and also the
relationship of the brand with the celebrity's stature and character are consistently there.
However, it is accompanied with the potential drawback when the brand gets related with the
traits of the endorser and the latter’s conduct gets in opposition to the satisfactory societal
standards.1

The best use of celebrity endorsement in India, before this method went opular amongst other
brands was seen about more than a decade ago, when the country's largest and most admired
chocolate brand, was struggling to regain its consumer confidence due to the worm
infestation reports in its chocolates.2 To combat this, it came up with probably its best PR
strategy. After revamping their packaging, they soon adopted what actually helped in
reinstating the brand's emotional equity, image, and confidence with consumers. They chose
the film star Amitabh Bachchan for endorsement of their brand. This move worked wonders,
and Cadbury India was able to recover smoothly.

There exist six types of celebrity endorsements. They are:

1. Testimonial Celebrity Endorsements: It’s a recommendation by a celebrity affirming

the performance, quality of a branded product or service. For example, Aishwarya Rai
Bachchan advertising for L’oreal, where she testifies that she uses the product herself.

2. Imported Celebrity Endorsements: In this form of endorsement, the celebrity performs

a role known to the audience. In other words, in this kind of endorsement, the
celebrity performs a role which the audience has prior knowledge about. A good
1
Lucy Rana and Rishu Srivastava, India: Celebrity Endorsement, SS Rana & Co. Advocates, Mondaq,
December 29, 2015.
2
TNN, THE TIMES OF INDIA, Worms creep out of Cadbury, October 12, 2003,
https://timesofindia.indiatimes.com/india/Worms-creep-out-of-Cadbury/articleshow/229817.cms.

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example for this would be A.R. Rahman advertising for Airtel with the Airtel jingle
tune, which was composed by him.

3. Invented Celebrity Endorsements: The celebrity plays a new, original role. As in, the
celebrity performs a role which is new and a sense of originality is present. For
example – Amitabh Bachchan acting like a co-passenger, educating his fellow
passenger about the JustDial App.

4. Observer Celebrity Endorsements: The celebrity assumes the role of an observer

commenting on the brand. In this, the celebrity comments on the brand through mere
observation only. For example – Salman Khan advertising Revital energy pills.

5. Harnessed Celebrity Endorsements: Lastly, the harnessed type of celebrity

endorsement is when the celebrity's image is integrated with the ad's storyline. For
example, the famous cricketer Sachin Tendulkar endorsing Boost as the secret of his
energy while practicing the sport.

Having a legal dispute in celebrity endorsements is not a rare occurrence. One such incident
has been elaborated on below:

Michael Phelps, the holder of the all-time records for Olympic gold medals had lost several
endorsement deals. His remarkable performance in 2008 earned Phelps Sports Illustrated
Magazine's Sportsman of the Year Award. However, this image of victory was soon erased
when a photograph showing Phelps inhaling from a marijuana pipe surfaced on the internet.
Even a public apology from the Olympic swimmer could not save his major sponsorship deal
when Kellogg refused to renew a deal worth $500,000 (£312,325). AT&T and Rosetta Stone
also decided not to extend their deals at the end of the year.3

In another case, it was the renowned supermodel – Kate Moss that caused trouble to fashion
brands such as H&M, who were planning to sign her up to endorse their new autumn
collection and were ready to sign her a deal of a whopping 4 million Euros a year. However,
this was called off due to the jarring photographs of the British model indulging in cosmetic
recreational narcotics surfaced online. She also lost endorsement deals with fashion houses –
Burberry and Chanel.4

3
Juliet Macur, THE NEW YORK TIMES, Phelps Disciplined over Marijuana Pipe Incident, February 5, 2009,
https://www.nytimes.com/2009/02/06/sports/othersports/06phelps.html.
4
THE TELEGRAPH, Controversial Fashion Moments, October 8, 20015,
https://www.telegraph.co.uk/fashion/people/controversial-fashion-moments/kate-moss-cocaine-scandal/.

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2.  WRITE A CRITICAL ANALYSIS ON THE APPLICABILITY OF SELF-REGULATION

MODEL TO OVER-THE-TOP (OTT) PLATFORMS LIKE NETFLIX & HOTSTAR, IN

TANDEM WITH THE REASONING GIVEN BY THE INDIAN JUDICIARY IN THE CASE OF

JUSTICE FOR RIGHTS FOUNDATION V. UNION OF INDIA, (WP(C) 11164/2018)

(BASED ON DOMINIC’S LECTURE)

A Public Interest Litigation was filed by the Justice for Rights foundation in February 2019
under which a plea was made for separate guidelines to be made applicable to content on
online streaming platforms. This was dismissed by the Delhi High Court. However, an appeal
was made by the appellants in the Supreme Court, which is still yet to deliver its decision.

However, the reasoning given by the High Court before dismissing the plea is noteworthy.
The primary demand of the plaintiffs in the plea was the regulation of online streaming
content and videos on demand due to the large number of content containing elements of
obscene language, pornographic, sexually explicit and women objectifying content, that too
without any license or being governed by any regulations. They also contended that online
streaming platforms should not be exempted from any regulations unlike DTH cable
operators. They sought to a writ of mandamus to the respondents to bring into place
regulation that enables a governing body to control the contents of the broadcast made by
these platforms. They had even supplied a reply from the Ministry of Information and
Broadcasting, Government of India, wherein it was stated that online platforms were not
required to obtain any license for displaying their contents and the same is not regulated by
the Ministry of Information and Broadcasting, who also later informed the courts that they
did not regulate the content as there is no provision for regulating or licensing for an
organization or establishment for putting up content on the internet.

Further, the Ministry of Information and Broadcasting had also supplied a list of provisions
which enables them to govern the misuse of content, or content that carried information or
material which were not permissible under law. The provisions and relevant sections fell

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under the Information and Technology Act, 2000, and the same have been briefly elucidated
on below:

i. Section 66A – punishment for sending “offensive” messages through a computer

or any other communication device like a mobile phone or a tablet.5
ii. Section 67 – Punishment for publishing or transmitting obscene material in
electronic form.
iii. Section 67A – Punishment for publishing or transmitting of material containing
sexually explicit act, etc., in electronic form.
iv. Section 67B – Punishment for publishing or transmitting of material depicting
children in sexually explicit act, etc., in electronic form.
v. Section 68 –  Power of Controller to give directions
vi. Section 69 – Power to issue directions for interception or monitoring or decryption
of any information through any computer resource

Further, the Ministry of Law and Justice had also clarified that the matter was out of their
domain.

After taking into consideration all of the above, the High Court of Delhi decided to dismiss
the plea on the grounds that since there is no provision under the law, which requires such
platforms to acquire a license, it cannot direct them to get one. Further, it added that a
complaint under the list of provisions provided by the Ministry, under the Information an d
Technology Act, 2000 may be made if organizations which exhibits or violates such statutory
provisions and contains prohibitory material.

In conclusion, the Court held that there is no reason for bringing into place guidelines or
statutory regulation for the said purpose when the Information and Technology Act itself
provides for enough procedural safeguards for taking action in the event of any prohibited act
being undertaken by the broadcasters or organizations in the internet/online platform.

At this stage, the Self-regulation model comes into picture. In January 2019 an initial self-
regulation code was signed by nine platforms including Hotstar and Netflix. The code
mandated signatories not to stream content which were:

a. Banned by courts
b. That disrespects the national emblem and the flag
5
However, this Section has now been repealed by the Supreme Court.

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c. Promotes terrorism or violence against the state

d. Shows children in sexual acts
e. Promotes and encourages disrespect to the sovereignty and integrity of India.

The code was subsequently revised and a two-tier grievance mechanism for the platforms
was included in the agreement. The first tier would mandate streaming platforms to set up a
digital content complaints forum and resolve consumer complaints within 30 days of
receiving them. According the code, consumers could escalate complaints to Tier 2 – which
was the New Digital Council. The government could also forward a complaint to the council
for a decision.

The move to create a Digital Content Complaint Council (DCCC), headed by a retired judge
and having representation from the government and entertainment industry, however, did not
go unopposed. The government response to this has been to maintain that it does not wish to
regulate content; however, there is an emphasis on the need for some form of self-regulation,
in which case, the quicker OTT platforms can come to an understanding, the better.6

Therefore, in conclusion, it is submitted that self-regulatory models are fine, as long as they
are not in violation of any of the provisions, or are crossing the line of the permissible content
that can be exhibited online. However, there definitely is a scope for the setting up of a
statutory authority that keeps track of the legal publishing of content, and in a way patrols
across various platforms to keep in check that no illegal material is available online, and if
such content is found, they are in a position to take the appropriate action against them.

3. MENTION THE APPLICABILITY OF COPYRIGHT IN THE ARENA OF INTERNET

GAMING. WRITE A CRITICAL ANALYSIS OF THE INDIAN CASE 'MATTEL V.

JAYANTH AGARWALLA, IA NO. 2532/2008 IN CS (OS) 344/2008, WITH AN

EXPLANATION ON THE DOCTRINE OF MERGER & SCENES A FAIRE.

6
Kartikeya Saigal, Understanding the self-regulation debate on over-the-top platforms in India, Strategic
Investment Research Unit (SIRU), March 19, 2020, https://www.investindia.gov.in/team-india-
blogs/understanding-self-regulation-debate-over-top-platforms-india.

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Copyright Laws bestows upon gaming works and any ancillary creation. In light of the
various works in play that forms a video game, there are prominent isolated fields that can be
protected by Copyright Laws. A list of these works are as follows:

 The characters in the game.

 The gameplay of the game.

 The sounds (including dialogues) & music involved in the game.

 The artwork and visual design of the game.

 Game codes.

 Player license.

The above-mentioned list is not exhaustive in nature but is isolated for the purpose of this
answer as they are the most essential parts of any game. A video game comprises of various
segments that convert into what we, as clients, experience. All the segments are as software
coding that convert into the UI of a game. Despite the fact that copyright is now conceded
over software coding, the subsequent work in a video game can be copyright excessively, for
example, the story line/content of a game, the characters just as parts of the code
independently.

Despite the fact that, substance that structure some portion of the video game are
copyrightable, any topic or idea depicted in a game can't be copyrighted, as this is the general
standard of copyright , that no topic or idea can bring in copyright protection. However just
its demeanor in literary, artistic and musical structure can. This is imperative to understand
as, a character of a trooper from a game emanating on World War can be copyrighted, though
it would not have the option to limit either another character of an officer in a game or a
game dependent on World War.

A game is a mixture of various creative and interactive outputs that translate beautifully into
a technologically immersive experience for the users / players. The emphasis on copyright is
strong as the gaming industry is witnessing constant changes in modern times in way of
playable platforms as well as enhanced user experience. 7 However, there are no copyright

7
Reetika Wadhwa and Meril Mathew Joy, India: Copyright in the Gaming Industry, Mondaq, SS Rana & CO.
Advocates, January 3, 2020.

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provisions related to gaming in India as of now. But the uproar of the gaming industry in
India calls for the need to set in place the provisions for the field.

This brings us to the case of Mattel v. Jayanth Agarwalla, which is also known as the famous
‘Scrabulous’ case. In this case, the plaintiffs claimed that the game ‘scrabulous’ that was
created by the defendant was deceptively similar to Mattel’s trademark game ‘Scrabble’.
Their main contention was that the use of the term ‘Scrabulous’ was a trademar infringement.
In response to this, the defendants argued that the word ‘Scrabble’ is a generic English term
that is not capable to be trademarked.

The plaintiffs on the other hand argued that the mark was descriptive but also distinctive. A
descriptive mark is entitled to protection if it has assumed a meaning which identifies it with
a particular product or source. The Court looked at the cited dictionary meanings of the word
‘scrabble’ (scrape or grope frenetically with the hands, etc.), and was of the opinion that the
word is not per se descriptive of the game. On this basis, the Court held that the use of
‘Scrabulous’ would infringe the trademark of the plaintiffs, and the defendants were
restrained from doing so.

While deciding the same, the Courts also gave specific importance to the Doctrine of Merger
– Scene a Faire. Te definition of ‘Scene a Faire’ is that elements of an original work those are
so trite or common that they are not captured by copyright.8

The policy rationale of the doctrine of scènes à faire is that granting a first comer exclusivity
over scenes à faire would greatly hinder others in the subsequent creation of other expressive
works. That would be against the constitutionally mandated policy of the copyright law to
promote progress in the creation of works, and it would be an impediment to the public's
enjoyment of such further creative expressions. By the same token, little benefit to society
would flow from grants of copyright exclusivity over scènes à faire.

In Herbert Rosenthal Jewelry Corporation v. Kalpakian,9 446 F.2d 738(1971), the plaintiffs
sued the defendants asking them to refrain from manufacturing bee shaped jewel pins. The
Court held that the jewel shaped bee pin was an idea that anyone was free to copy, the
expression of which could be possible only in a few ways; therefore, no copyright could
subsist in it.

8
Duhaime’s Law Dictionary.
9
Herbert Rosenthal Jewelry Corporation v. Kalpakian, 446 F.2d 738 (1971).

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Further, in the current case of The Delhi High Court in the case of MATTEL, INC. and ORS.
Vs. Jayant Agarwalla and others, explained the doctrine of merger in following words:

“In the realm of copyright law the doctrine of merger postulates that were the idea and
expression are inextricably connected, it would not possible to distinguish between two. In
other words, the expression should be such that it is the idea, and vice-versa, resulting in an
inseparable merger of the two. Applying this doctrine courts have refused to protect (through
copyright) the expression of an idea, which can be expressed only in a very limited manner,
because doing so would confer monopoly on the ides itself “.

Therefore, by applying this doctrine courts have refused to protect (through copyright) the
expression of an idea, which can be expressed only in a very limited manner, because doing
so would confer monopoly on the idea itself.

4. WHETHER THE COMPOSER OF LYRIC OR MUSICAL WORKS RETAINS A COPYRIGHT

IN THE LYRIC OR MUSICAL WORKS IF HE GRANTS A LICENSE OR PERMISSION TO

AN AUTHOR (OWNER) OF A CINEMATOGRAPH FILM? EXPLAIN WITH THE HELP OF

INDIAN PERFORMING RIGHT SOCIETY VS. EASTERN INDIA MOTION PICTURE

ASSOCIATION CASE LAW.

It was in the case of Indian Performing Right Society (IPRS) v. Eastern India Motion Picture
Association10 that the IPRS had raised claims stating that they are entitled to royalty for
literary work used in cinematograph films staying affirmed towards the fact that they were
the assignees of those literary. Whereas on the other hand, the Cinematograph Exhibitors’
Association failed to accept any of the contentions made by the IPRS stating that the real
owners of the copyrights of the literary work in question was the production house. This
contention was backed by the statement that the IPRS lose their rights over the copyrights as
both the parties have entered a contract of service, where a consideration was also involved.

Indian performing Right Society v. Eastern India Motion Picture Association, AIR 1977 SC 1443, (1977) 2
10

SCC 820, [1977] 3 SCR 206.

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The Appellants appealed at the Supreme Court upon dissatisfaction with the High Court’s
judgment which was in favour of the defendants.

This brings to the forefront two major issues that were primarily raised in the case in the case
of Indian Performing Right Society v. Eastern India Motion Picture Association 11 was in light
of Section 30 of the Indian Copyright Act, 1957, which deals with the assignment of
copyrighted work through licensing. However, what is relevant to this particular question was
the second issue put forth which was in light of Section 17(c) of the Copyright Act, 1957. It
was for the Hon’ble Apex Court to decide whether the composer of lyric or musical work
retains the copyright ownership in the said work, after he has allowed the producer to use that
lyric or music in a cinematograph film.

The Court delivered a judgment in favour of the producers, i.e. the defendants, ordering that
the defendants are the first and rightful owners of the cinematographic film. And owing to
that fact, the Court also pointed out the existence of a contract of service, and that the film is
made on the direction of the producers., and therefore it was ordered that the producers have
a right over the soundtrack and the appellants cannot charge a fee for the same.

The rule which was applied to this judgment was Section 17(b) and Section 17(c) of the
Copyright Act, which reads as follows:

“b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or
portrait drawn, or an engraving or 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;”12

“c) in the case of a work made in the course of the author's employment under a contract of
service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer
shall, in the absence of any agreement to the contrary, be the first owner of the copyright
therein;”13

For further analysis, it is observed that a composer, who composes a lyric for the first time a
valuable consideration for a cinematographic film, does not acquire any copyright. The owner

11

12
Section 17(b), Copyright Act, 1957.
13
Section 179(c), Copyright Act, 1957.

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of the film at whose instance the composition has been made becomes the first owner of the
copyright in the composition. Further, it is established that a composer can claim a copyright
in his work only if there is an express agreement between him and the owner of the
cinematographic film reserving is copyright.

Therefore, in conclusion, it has been held by the Supreme Courts that the composer of lyric or
musical work cannot and does not retain a copyright in the lyric or musical work if he grants
a license or permission to an author (owner) of a cinematograph film.

5. SHORT NOTES

a. INTERNET PIRACY

Piracy refers to the illegal viewing of content, without giving it due credit and and infringing
on the copyright of the owner of the particular work. Internet Piracy refers to everything
mentioned previously, just via the internet, in other words - Online.

In the present day, piracy is an increasingly pertinent and ordinarily utilized term, which
comprises theft on copyrighted and trademarked grounds for example unlawfully taking and
encroaching another person’s work and produces it as one's own.

Piracy in the digital domain can be contrasted with physical robbery and piracy. This can be
observed because when an individual unlawfully appropriates a digital document on the
internet or locally without paying for it in any form; he keeps the benefit that should have
been earned by the work from the actual owner of the work, thus, making a monetary profit
similar to when genuine pirates robbed ships that were used as cargo.

Online piracy is still a new arena in the world of piracy as compared to its offline older
methods like Counterfeiting, End-User Piracy, etc. However, online piracy has only grown
more complex with the rapid and fast paced technological advancements. All forms of
copyrightable works such as movies, music or games, are now accessible and easily available
to download from the internet through the most commonly used application – The BitTorrent

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client service. It basically strings together several pieces of the data from a vast group of
users, and then downloads and compiles them onto the user’s computer. It’s simple, efficient,
widely used. The main feature of it is that, since it is completely user generated, it is difficult
to crack down on, which is why it is still prevalent, despite of the several measures taken by
the government by blocking websites. Still, proxy websites pop up.

Coming to the regulation part of it, under International laws, no such regulations have been
set for online piracy as of now. Regulations have been set in place on for the physical type of
piracy – i.e. the one involving actual looting. Moreover, in India it is the Copyright Act, 1957
which is the closest one can get to seek relief from piracy. Section 13 of the Act confers
copyright protection to all literary works, dramatic works, musical works, artistic works,
cinematograph films, and sound recordings. 

The Union of India recently issued an amendment to the Cinematograph Act, 1952, in order
to clearly define the punishment which can be faced by pirates who, without the written
authorisation of the copyright owner, use any recording device to make or transmit a copy of
a film. It is not necessary for the film to be fully recorded, or even distributed via the internet.
If the perpetrator attempts to record the movie while inside the theatre, he is guilty under the
act. This amendment has not been made yet. However, one can seek relief also under the
Cinematograph Act, 1952.14 Provisions have been given for the licensing of every
cinematographic work that is to be exhibited for public view.

b. CELEBRITY MANAGEMENT

The term ‘celebrity’ has not been defined under the Indian Copyright Act, 1957. However,
what have been defined are the terms ‘author’ 15 and ‘performer’16. These are two of the terms
that have the potential to be ‘celebrities’, however there does exist a certain ambiguity about
who qualifies as a celebrity, under the ambit of Indian laws. However, the general acceptance
for the definition of a celebrity is one who is famous, and is known amongst people. The
dictionary states that a celebrity is the state of being well known.17

14
Section 10, Cinematograph Act, 1952.
15
Section 2(d), The Copyrights Act 1957.
16
Section 2(qq), The Copyrights Act 1957.
17
Online Thesaurus.

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One of the aspects that celebrities are to be assured, in return of them endorsing a brand or
being associated with a brand, is their protection of rights. Therefore, what majorly lies under
the scope of celebrity management is the management of the rights of celebrities. There are
several agencies that carry out these functions of the implementation and availing of such
rights. It is currently a booming business, at a global scale, growing and engaging rapidly.
Celebrity management is important in order to be protected from the unauthorized
commercial exploitation of that identity. The famous have an exclusive legal right during life
to control and profit from the commercial use of their name and personality. 18 The rights that
are to be protected are that of Copyrights, Moral Rights, and Privacy Rights. They are also
entitled to Rights of Publicity, Right to Identity. Additionally, a celebrity is also entitled to
Image rights; however, it is still a developing concept in India. The crux of all these rights
that a celebrity is entitled to is the welfare and the personal interest of the celebrity. These
ensure that the use of the ‘name and fame’ of the celebrity if not being used in an exploitative
manner, wich ultimately tarnishes the image of the celebrities.

c. TALENT MANAGEMENT COMPANIES

Talent Management companies refer to those agencies who look for persons with specific
talents and propel them to ultimately make a career out of their talents, in exchange for
monetary fees. In the case of Marathon Entertainment, Inc. v. Rosa Blasi 19, a talent agent was
defined as a person or corporation who engages in the occupation of procuring, offering,
promising, or attempting to procure employment or engagements for an artist or artists. 

Talent managers, on the other hand, focus “on advising and counseling each artist with an eye
to making the artist as marketable and attractive to talent buyers as possible, as well as
managing the artist’s personal and professional life in a way that allows the artist to focus on
creative productivity. ‘Personal managers primarily advise, counsel, direct, and coordinate
the development of the artist’s career. They advise in both business and personal matters,
frequently lend money to young artists, and serve as spokespersons for the artists.

For many artists, particularly those getting established or on the way up, these professional
relationships with agent and manager are seen simply as different paths to more and better
work. With regard to talent management relationships, as talent managers are not regulated

18
Judge Leggatt LJ, Carson v. Here's Johnny Portable Toilets Inc 698 F 2d 831, 835 (1983)
19
Marathon Entertainment, Inc. v. Rosa Blasi , (2008), 42 Cal. 4th 974.

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the way that agents are, talent managers often do not enter into formal written contracts with
their artists. While oral contracts are as valid and enforceable as written contracts, they are
also often subject to ambiguities and differing interpretations. Additionally, oral contracts are
governed by the statute of frauds, which states that any oral agreement that, by its terms, is
not to be performed within a year from the making thereof, is invalid. This is a perspective of
talent managing companies in the United States.

However, in India, it being the hub of the multi-million industry of Bollywood, there do exist
a vast number of talent management agencies across the country, however, the law currently
seems to be silent on the functioning and workings of such agencies.

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