[This post has been co-authored with SpicyIP Intern Suhani Chhaperwal. Suhani is a third year law student at NLSIU who loves to write on IP and tech issues.]
The recently signed Memorandum of Understanding (MoU) between the Screen Writers Association (SWA) and the Music Composer Association of India (MCAI), along with the talks of a standardised agreement for screenwriters give a huge impetus to the cause of due recognition and fair remuneration to these authors. The struggles of screenwriters, lyricists, and music composers have been extensively documented (as we’ll see below) and these agreements serve to further their cause by another step, aiming to give them greater bargaining power during their negotiations with the film producers and music labels.
While, the precise details of the MoU and Standard Agreement are not out in public yet, the important terms of both agreements can be comprehended from different news and media sources. This post aims to look at the important terms of the MoU and the Standard Agreement, as highlighted in these reports.
A Unified Approach for More Bargaining Power
The MoU is signed between the SWA and MCAI and concerns the rights of music composers and lyricists. Additionally, SWA is also taking forward the quest to have a standardised agreement for screenwriters, which is presently being negotiated with film and television production houses. The SWA is a trade union of screenwriters and lyricists, which is not to be confused with the recently registered Screenwriters Rights Association of India (SRAI), which is a copyright society. MCAI on the other hand is an association of music composers.
The MoU put forward a unified front, asserting the claims of music composers and lyricists for equitable credit and revenue sharing. Reportedly, under the MoU, it has been agreed that music directors and lyricists would be considered “co-authors” as they collaborate in the creation of songs, and both are to be considered “primary artists” while giving credits. This seems to address the common (mal?)practice where one would see singers’ and actors’ names being featured prominently and not the composers’ or the lyricists’. Further, the MoU also underscores the requirement of separate contracts of music directors and lyricists with producers whereby both will have the right to negotiate independently.
Now, coming to the Standard Agreement which is under work between SWA and production houses. As reported by Midday, this agreement aims to address the existing issues of missing credits, irregular and unfair pay, and unfair indemnity demanded from the screenwriters. Some of the key terms of the agreements have been explained by Anjum Rajabali, a Senior Executive Committee Member of the SWA and a noted screenwriter, in his interview with Midday. He says that there’ll be a proportionate approach toward determining the credits for a story (with at least 33% of the shooting draft to be the writer’s work), screenplay, and dialogue. The credits to the writer will be among the top three- including the credits to the director and the producer in all the promotional material. Rajabali further explains that the minimum fees of INR 13 lakhs have been decided for a full script with INR 4 lakhs for the story, INR 5 lakhs for the screenplay, and INR 4 lakhs for the dialogues. He further states that these terms have ‘in principle’ been agreed to and now the agreement is being drafted.
These efforts showcase how far the struggles of these artists have come. There is an interesting anecdote concerning noted writers Javed Akhtar and Salim Khan- where they had to hire painters to paint in their names as writers on the published promotional materials because these posters didn’t give them any credit for their work. As explained by Prof. Basheer and Prashant Reddy contracts between lyricists, composers, and film producers were signed to snatch away the copyright of lyricists and music composers in exchange for a one-time measly payment. Before the 2012 amendment, the right to a royalty of these composers and lyricists barely existed.
Things did improve after the 2012 amendment, however, there are still major issues holding back these authors from reaping the complete benefits of their works. As explained in interviews (here and here) by writers Anjum Rajabaali, Apurva Asrani Zeishan Quadri, screenwriters are still paid peanuts for their work, required to indemnify the producers for socio-political backlash, and often the agreements with production houses will contain clauses specifying that the credit for their work will be given at the discretion of the producers! Similarly, for the composers and lyricists things weren’t any better. As remarked by composer and MCAI chairperson Vishal Bharadwaj in his recent interview, producers often demand ownership over derivative rights, and music labels often force composers to let go of their moral rights. Similarly, as seen during Abhay Deol’s “One by Two” fiasco, many composers came out in support of the actor/ producer to clarify that the music label wanted them to assign their rights to collect royalties (this controversy has been discussed by Anubha Sinha for the blog here). More recently, we have seen composer Ilaiyaraaja face off against producers who have used his compositions without his approval (see here and here).
Hopefully, these steps will now enable these parties to put a united front against such ill practices and would help in bringing the required change by providing these authors with an opportunity to seek the fair share of what they deserve.
Interplay of These Terms and the Copyright Act
A musical work has three key contributors: the composer (who creates the melody), the lyricist (who writes the lyrics), and the producer (who records and distributes the final version). Under Section 2(d) of the Copyright Act, each of these contributors is recognized as an “author” of their respective work. Similarly, screenwriters would be regarded as authors of the script under Section 2(d)(i). Under Section 17 usually, the first authors are regarded as the owners of the work, however, film producers have historically held more bargaining power in comparison to these artists, often acquiring full ownership of copyright through assignment contracts under Section 18.
The MoU aims to level the playing field by reinforcing co-authorship rights under Sections 13(1)(a) and 13(1)(b), and thus strengthen the bargaining power of composers and lyricists in terms of negotiating their remuneration at the time of entering into any agreement for a particular music project. In addition to this, both the MoU and the standard agreement seek to extend the moral rights of these authors. Currently, under Section 57, an author can claim authorship of their work. Through this standard agreement and the MoU, the authors seek to ensure that all the promotional material carries due credit recognizing them as the authors of the work.
As seen above, the combination of the MoU and the Standard Agreement represents a significant step towards addressing historical inequities in the Indian music and film industry. However, its effectiveness remains uncertain, as producers are not legally bound to accept its terms, and non-compliance would not result in any legal consequences. Additionally, the terms of the MoU and Standard Agreement seem to align closely with global norms such as the EU’s copyright directive and the WGA Screen Writing Credit System. Depending on the actual terms of the Agreement and the MoU (once they are out in the public) there might be a further need for legislative amendments to the Copyright Act.
While the MoU and the Agreement establish a foundation for fairer industry practices, its effectiveness will be determined by how well it is upheld in actual contractual negotiations and whether it prompts further legislative refinement. These agreements thus might not be a definitive victory for composers, lyricists, and screenwriters but are undeniably a major step towards the recognition of these artists.