Recently, Actor Dhanush has moved the Madras High Court against actor Nayanthara and her husband and film director Vignesh Sivan for using video clips shot during the making of the Tamil movie Naanum Rowdy Dhaan, produced by him, in a docudrama released by Netflix on the actor titled ‘Nayanthara: Beyond the fairytale.’
This was in the aftermath of a legal notice sent to Nayanthara, demanding ₹ 10 crore for allegedly infringing the copyright over the movie Naanum Rowdy Dhaan.
The Question of Copyright to Behind-the-scenes (BTS) Footage from a Film?
Behind-the-scenes footage usually offers a different perspective throughout the making of the firm. These clips capture the raw, unfiltered moments on set, revealing the hard work, creativity, and occasional chaos that bring a film to life.
The same can be understood as an extended part of the movie, with copyright likely subsisting with the production company. The same is subject to the agreement, considering the personality rights of an individual.”Under the Indian Copyright Act of 1957, copyright ownership largely depends on the nature of the footage and any agreements in place. The thumb rule is that the person who takes the footage in question is the owner,” said Suvigya Awasthy, Partner, PSL Advocates & Solicitors.
He highlights an exception wherein the footage is taken at the instance of any other person for valuable consideration. In such a situation, the person at whose instance the footage or photograph, or cinematographic film is made is the owner.
“As a general rule, the “author” of the work is the owner of the work. Specifically, in cinemograph works, the person at who’s instance the work is made for a valuable consideration, in the absence of any contract to the contrary, shall be the owner of the work,” said Mehndi Singhal, Advocate, Punjab and Haryana High Court
He added that if the video is shot on a personal device independently, outside the contract of service, the producer would not automatically become the owner of such work.
The law provides protection to the “transformative work” which is a creative/ artistic work that takes existing material (text, music, art) and significantly modify, reinterprets, or builds upon it to create something new and distinct. “Works such as BTS footage are “Derivative Work” being derived from the copyrighted material e.g., scenes from the film or project it documents,” said Sanjay Sethiya, Partner, Law Square.
In such works, the producer’s control extends in derivative nature. If someone other than the producer wants to use the BTS footage, they generally need explicit permission from the producer to avoid copyright infringement.Sanjay Sethiya, Partner, Law Square
A copyrighted work is considered “infringed” only if a substantial part is made use of without authorization. “Using short clips or segments of BTS footage is more likely to be considered fair use than using substantial portions. However, if the used portion is considered “the heart” of the work, it may weigh against fair use,” said Sanjay Sethia.
This issue relates to “commercial use,” considering the nature of the usage of the behind-the-scene footage that has been monetized. The same does not qualify as fair dealing. “The idea is that any use that damages the commercial value of the film or competes with the producer’s official promotional materials is unlikely to be considered fair dealing,” said Shashank Agarwal, Advocate, Delhi High Court.
The four likely factors determining whether it is a case of fair use are as follows: (i) The purpose of character of the use, including whether such use is of a commercial nature or is for non-profit educational purpose; (ii) The nature of copyrighted work. (iii) The amount and substantiality of the portion used in relation to copyrighted work as a whole; and (iv) The effect of the use upon the potential market or value of the copyrighted work.”Fair use, it allows limited use of copyrighted material without permission under specific conditions such as for commentary, criticism or educational purposes. However, applying fair use to BTS footage shared on personal social media accounts is complex,” said Alay Razvi, Managing Partner, Accord Juris.
The fundamental issue revolves around copyright ownership. On complexities related to the usage of the alleged copyright material, Yeshasvi Shrivastva, Associate, Anand Sharma & Associates said, “Adding another layer of complexity is the principle of fair use, which allows limited use of copyrighted material without prior permission,” highlighting, “fair use applicability depends on factors like the purpose of use (e.g., commercial vs. educational), the nature of the copyrighted work, the amount of material used, and its impact on the market value of the original content.”
Producer’s ownership of the film’s related content i.e., behind-the-scene
The producer’s ownership of the behind-the-scene is most likely to be subject to commercial agreements. “Producers can claim copyright of BTS footage only if it is explicitly addressed in the agreement and recorded by a cameraman authorized by the producer and at the producer’s expense,” said Suvigya Awasthy, Partner, PSL Advocates & Solicitors.
The other critical point of consideration is the copyright subsisting in the case of the footage produced during the production process. “The producer may hold the copyright if the BTS footage was created as part of the production process,” he added.
Section 52 of the Copyright Act of 1957 provides exemptions from copyright infringement, including fair dealing with works that are not computer programs. “Posting BTS footage on personal social media for non-commercial, personal purposes may fall within fair use. However, if the use is promotional or monetized, it could breach copyright unless permission is obtained,” said Aviral Kapoor, Partner, Alagh & Kapoor Law Offices.
The purpose of use significantly impacts legal standing, with promotional use often requiring explicit authorization from the copyright holder.Aviral Kapoor, Partner, Alagh & Kapoor Law Offices
The usage of the footage for personal purposes is not in itself an absolute exemption. “Even in cases of personal use, the presence of copyrighted elements, such as sets, costumes, or performances, can complicate matters. Moreover, fair use is not a defense against breach of contract. If an individual has signed agreements explicitly restricting the use of BTS content, sharing it on social media could lead to legal repercussions regardless of intent,” said Mohit Garg, Managing Partner at Lex Panacea LLP.
Ultimately, the legality depends on the context—whether the use is personal or promotional—and the contractual obligations in place.Mohit Garg, Managing Partner at Lex Panacea LLP
The reason for the infringement for using the footage for promotional or commercial reasons—such as in a Netflix production as the same, “may infringe on the producer’s copyright, as it competes with their exclusive rights,” said Ekta Rai, Advocate, Delhi High Court
“While Nayanthara claimed efforts to obtain a No Objection Certificate, this case underscores the legal risks of using copyrighted material without formal authorization, Ekta added.
Ronil Goger, Managing Partner, Blaze Legal draws unique criteria that when BTS footage is recorded on personal devices by individuals not affiliated with the production team, the rights to such content may not automatically belong to the producer. “In the absence of a clear contractual agreement, the individual who captured the footage could claim ownership, provided they can demonstrate that the material was produced independently and not as part of the official production activities,” he added.
Lastly, the contractual arrangement shall be the fundamental piece of contention on which debate and deliberation shall be addressed. “In the present case, one cannot overlook the potential existence of a binding contractual arrangement—whether between film producer and any third party authorized to record the BTS footage, or between the actors and the producer, which may impose restrictions on her right to capture such content,” said Sudarshan Singh Shekhawat, Founder, Shekhawat Law.
The civil suit by Dhanush’s film production company Wunderbar Films was filed against Los Gatos Production Services India LLP, a company based in Mumbai through which Netflix operates in India.
Since the company is based in Mumbai, Dhanush moved an application under Section 12 of the Letter Patent Act seeking to allow him to sue the company along with the other respondents before the Madras High Court.
When the plea came up for hearing, Justice Abdul Quddhose permitted the memo since a major part of the cause of action arose in Chennai.
