Why Dhanush is suing ‘Lady Superstar’ Nayanthara

On Wednesday (November 27), the Madras High Court allowed Dhanush to sue Netflix, Nayanthara, and Vignesh Shivan, Nayanthara’s husband and the director of Naanum Rowdy Dhaan. The couple met on the sets of the 2015 film, and their love story is a central theme of the latest Netflix documentary.

What is the case and controversy about?

On November 16, two days before the release of her documentary, Nayanthara put out an open letter on Instagram in which she lambasted Dhanush for the “vengeance” he had been “festering against the film”.

 

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She wrote that she spent two years “battling it out” with Dhanush for a No Objection Certificate (NOC) granting Netflix permission to use songs and clips from the movie — which Dhanush refused due to a “personal grudge” against her. Instead, she wrote that the influential movie personality sent her a legal notice demanding Rs 10 crore in damages for the use of “a mere 3 seconds” of BTS footage.

The exact length of the BTS footage used is debated, with several people on social media saying that close to 37 seconds of footage was featured in the documentary.

On Wednesday, the Madras High Court allowed Wunderbar Films, the Dhanush co-owned production house behind Naanum Rowdy Dhaan, to file a civil suit against those involved with the Nayanthara documentary. In an affidavit filed with the court, Wunderbar Films has stated that it is seeking a permanent injunction restraining the defendants from using anything that might infringe upon their copyright over Naanum Rowdy Dhaan, including “its Behind the Scenes Footage or any other Footage in connection with the said film or the making thereof”.

The defendants dispute the ownership of the BTS footage. According to the affidavit, they are claiming that the footage was personal, and shot by persons not commissioned by Wunderbar Films. However, Wunderbar is arguing that the footage was shot by persons they hired including the director, Vignesh Shivan, and was uploaded to their YouTube channel in 2015. The use of this footage, according to Wunderbar, “clearly violates the copyrights of the applicant”, and has caused “irreparable loss” following the worldwide release of the documentary.

The affidavit also refers to an “Artist agreement” signed by Nayanthara in 2014 through which the rights over her “performance appearance, likeness, name and/or voice (the Performance) in connection with the said film” were vested with Wunderbar “in perpetuity” (forever). Wunderbar is seeking compensation of Rs 1 crore for losses incurred by infringing the copyright.

What are the legal issues in the case? What are the defenses available to Nayanthara?

Under the Copyright Act, 1957, the “author” of a work has a bundle of legal rights including the right to reproduce, issue copies, perform, adapt, or translate the work in question. Upon the death of the author, the ownership of the copyright falls to her legal heirs. Under Section 18 however, the author can “assign” the copyright “wholly or partially” to anyone she pleases, in return for compensation.

In this case, the court will have to see if the agreements signed by Nayanthara or Vignesh Shivan include an assignment of copyright of any videos, photos or other works created on the set of Naanum Rowdy Dhaan, and determine if the agreement would cover BTS footage taken on personal devices. If the court does find that Wunderbar Films holds the copyright over this footage, certain defenses may still be available.

One defense would be the de minimis doctrine, an abbreviated version of the legal maxim de minimis non curat lex which translates to “the law does not concern itself with trifles”. As the Delhi High Court stated in a 2012 decision, “To put it simply. The maxim basically means that law will not resolve petty or unimportant disputes”.

The Delhi High Court applied this doctrine in the case of India TV Independent News Service vs Yash Raj Films. The court was considering a case where, on the chat-show INDIA BEATS, a guest sang portions of nine different songs, seven of which Yash Raj Films claimed they had a copyright over. The court applied the doctrine and rejected Yash Raj Films’ claims of copyright infringement. It stated that “We cannot separate from the life of the performer her performances” and that in the setting of a chat show “as long as the singing duration is limited to a minute or so at a time, it would be a case of de minimis use, and hence the appropriation of the lyrics would not constitute an actionable violation of the copyright in the sound recording.

The court also noted that, in a 45-minute show, the guest sang “only nine songs and the total time consumed in the singing is less than 10 minutes” and that the intention was to show viewers how the guest was introduced to music, not to “appropriate something belonging to the other”.

In Nayanthara’s case, if the court applies this doctrine, it will have to see what was the intention in using the BTS footage from Naanum Rowdy Dhaan and the ‘size’ of the harm caused to the parties.