Nayanthara’s battle for film footage bares copyright conflict between actors, producers

Actor Nayanthara’s public dispute with actor-producer Dhanush may stem from the denial to use a three-second behind-the-scenes clip from her film for a documentary. Yet, according to copyright law experts, producers are well within their rights to protect their content and it’s up to actors to draw up contracts that legally allow them to use footage in such cases.

“Disputes of such nature underline the critical need for precise contracts and obtaining express consent,” said Gaurav Sahay, practice head, technology and general corporate, Fox Mandal & Associates LLP said. “From a creator’s perspective, the obvious bone of contention lingers around any alleged reuse of the footage, how the footage is used and modified, the purpose or intent behind the use of such footage and what the footage can be interpreted as.”

The controversy relates to the 2015 film Naanum Rowdy Dhaan, starring Nayanthara. While the film was produced by Dhanush, it was written and directed by the actor’s now-husband Vignesh Shivan. In an Instagram post, Nayanthara said she and Shivan spent two years seeking permission to use footage from the film for the Netflix documentary Nayanthara: Beyond the Fairytale but were unable to obtain a no-objection certificate. She accused Dhanush of seeking compensation for a minor clip. 

The actor-producer's lawyers rejected her claims, asserting that the clip was not personal footage but belonged to the production team. His company Wunderbar Films Pvt. Ltd has filed a civil suit in the Madras high court against Nayanthara, Shivan, her company Rowdy Pictures Pvt. Ltd and two others for using visuals from Naanum Rowdy Dhaan in the documentary.

Sahay said it is imperative that actors ensure access to film footage legally that would curtail any impeding objection or financial repercussions. They must ensure that their contracts explicitly include clauses that provide clarity to their rights and grant the right to access and use specific film footage for defined purposes, such as personal promotion, creating portfolios or educational projects, he said.

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To be sure, actors are often allowed to use film footage for promotional purposes such as showcasing their roles in interviews, showreels, or award submissions. This is typically accompanied by the producer’s approval to ensure alignment with marketing strategies. If footage is intended to be used for secondary purposes, such as documentaries or additional content, actors may negotiate revenue-sharing arrangements, providing financial benefits in return for allowing use of their image or performances.

The question, however, is whether this type of use can amount to a ‘fair dealing of the copyrighted work in question for the purposes of research, review, criticism, or reporting on current affairs’, said Ameet Datta, partner, Saikrishna & Associates. Section 52 of the Copyright Act, 1957 allows for some instances where the use of a copyrighted work is deemed not to infringe copyright, he said. The other issue could perhaps be the “de minimis” defence or the use is so small or trifling that the court would not be bothered about this use.

According to Abhishek Chansoria, principal associate at Saraf and Partners, the use of three seconds of behind-the-scenes footage for a documentary may be argued to qualify as fair use. Chansoria cited reasons: First, the footage serves a transformative purpose by contributing to a personal narrative about Nayanthara's life and her relationship with Shivan, rather than replicating the original film’s creative intent. Second, the work is already available on social media which limits its impact on the original work. Third, only three seconds of content is used. Finally, this use is unlikely to harm the market value of Naanum Rowdy Dhaan as the footage does not compete with the film but instead contextualizes a significant personal milestone.

But, he said, from the Indian fair dealing perspective, the matter may not qualify for an exemption under the Copyright Act as the purpose of use does not seem to be covered under the list included under ‘fair dealing’.

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Aasish Somasi, associate partner, SNG & Partners, Advocates & Solicitors, said actors are generally bound by confidentiality obligations and copyright restrictions in their contracts, which prohibit them from using film footage without permission. “Courts have recognized that minimal use of copyrighted material in natural settings—such as brief performances on talk shows—may not constitute infringement.”

But he, too, advised that actors may negotiate specific publicity clauses in their contracts that permit them to promote the film on social media or allow third parties to publish promotional material on their behalf. “This is particularly common when actors have significant social media influence and can contribute to the film's marketing efforts.”

Nayanthara’s dispute with Dhanush is not unique. In 2011, Yash Raj Films sued India TV after the channel broadcast a show featuring an interview with singer Vasundhara Das. Yash Raj Films claimed that the snippets of songs sung by the singer during the interview constituted copyright infringement.

Even in Hollywood, film studio Miramax sued Pulp Fiction director Quentin Tarantino for breach of contract, copyright infringement and trademark infringement arising from a collection of non-fungible tokens (NFTs) based on the film which were said to comprise “exclusive scenes” from Tarantino's hand-written script of the movie.

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A senior film producer, who didn’t want to be named, said in most cases, as far as copyright to film footage goes, only the producer is assigned these rights and can choose the medium he wants to disseminate film content on. However, there can be exceptions such as social media posts and reels.

According to Anupam Shukla, partner, Pioneer Legal, while producers don’t usually make an issue for these, given that actors’ massive fan following will only help marketing around the film, they can still take objection to things not made public yet, such as say, an actor’s look in a particular film.