Table of Contents
Background:
The issue came to light back in May 2024, when the founder of Dorje Teas, Mr. Sparsh Agarwal put up a post on LinkedIn stating the company to have been served with a copyright infringement notice[1] by Shark Tank India. The notice alleged unauthorized usage of clips concerning Dorje Teas pitch on the show, and advertisement of the same on YouTube and Meta ads.
Introduction:
‘Shark Tank India’ is an Indian franchise of the American television show ‘Shark Tank’ directed towards promoting small businesses, particularly startups, by providing assistance with funding and sponsorship. The entrepreneurs pitch their businesses to a panel of investors known as ‘sharks’ who help them in converting these ideas into commercially viable and profitable products. The show is aired on Sony Entertainment Television and SonyLIV, being owned and managed by Culver Max Entertainment, trading as Sony Pictures Networks India.
A legal controversy has sparked recently wherein, the producer of Shark Tank India has issued legal notices to approximately 18 startups claiming copyright infringement on their end. The startups have revealed that Google and Meta have flagged their social media posts and videos for copyright violation, and subsequently it has been taken down. In some cases, it had led to suspension of their social media accounts.
Arguments presented by Startups:
The founder of Dorje Teas questioned Shark Tank’s ultimate goal of supporting Indian Startups stating their actions to be contrary to their goals. It was further stated that it was an unfair decision given by Sony executives, commenting on their notice to be against the “ethos of promoting small startups”. It was further argued that the startups have paid heavy sums to amplify Shark Tank India’s content, providing free publicity and increased reach for the show. The startups opined that their participation and significant contribution to boosting viewership of the show, must leverage them to some usage of the content that can benefit both, the entrepreneurs and the show.
Arguments presented by Shark Tank India:
It was argued that copyright laws in India mandate action against unauthorized usage in order to safeguard one’s intellectual property rights and brand image. Further it was stated that asserting control over Shark Tank India’s content is imperative for securing and preserving brand integrity and value. The legal experts came out in support of Sony stating the channel to be well within rights to assert ownership.
Subsequent to the controversy coming to light, Shark Tank India has issued guidelines[2] for participating startups with respect to content usage. The show has explicitly stated that Companies have the leverage to upload photos and videos on social media, but strictly those that are provided by Shark Tank India:
“These Terms permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as otherwise provided in these Terms.”
Adding to this, it also mentioned that the participants are refrained from using Sony’s logos, fonts, or videos elsewhere. Participants are obligated to use the phrase “As seen on Shark Tank India” are prohibited to seek approval of the Sharks. It is stated as follows:
“The Company name and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.”
Through these practices, the show aims towards preventing copyright infringement, while simultaneously permitting restricted promotion of the show appearances.
Applicability of Copyright Law, 1957:
Shark Tank India falls well within the purview of a “Cinematograph Film” as per Section 2(d)(v)[3] of the Copyright Act, 1957. The term “cinematograph films” refers to any visual work or video recording on any medium generated using a method that is likely to create an image in motion. Video films and related works created using a technique resembling a cinematograph is called ‘cinematography’ in legal terms. Copyright with regards to cinematographic films is a protection wherein the producer has the exclusive right to protect his work and enjoys the right to do or authorize a party to do the same. In the case of Balwinder Singh v Delhi Administration[4], it was observed that both, video and television are covered under the definition cinematograph and that both are jointly and severally apparatus for the representation of moving pictures or series of pictures.
In the case of Shark Tank India, the producer, that is Culver Max Entertainment is entitled to act as the ‘author’ and ‘copyright owner’ of the show and therefore, has full authority over all video clips and other recordings. In order to use the same, one must first seek permission of the producer, or else it will lead to copyright infringement.
Available Defenses in favor of Startups:
The Copyright Act,1957, gives the owners of the content certain ‘exclusive rights’ however, the principles of “fair use[5]” or “fair dealing” act as exceptions to these rights. The doctrine of Fair use permits limited use of the copyrighted work without prior permission of the owner. The ultimate goal here is to ensure creativity and progress. Gyles v Wilcox[6] was the first ever case decided on the concept of Fair Use, decided by the Court of Chancery of England.
The Copyright Act, 1957 codifies the principle of fair use, that has been developed by the Indian Courts over a period of time.
The provisions state that fair dealing with a literary, dramatic, musical, or artistic work that is not a computer program does not result into copyright infringement. This means that it includes anything except a computer used for the purpose of:
- “private or personal use”, including research
- criticism or review of that work or any other work
- reporting on current events and affairs, including reporting on a lecture given in public.[7]
Taking into consideration the case of startups and producers of Shark Tank India, the scope of fair dealing still remains quite narrow in the Indian context, as compared to a larger broader scope provided under the US Counterpart of the show. One of the primary reasons for this is that in the India scenario, the concept of fair dealing remains highly fact specific and based on the discretion of the court. However, the same has continued to remain progressive in the US counterpart through judicial interpretations and legal activism. Additonally, the Indian courts are often primarily concerned with the economic impact on the copyright holder along with several other factors such as purpose and character of use, nature of the copyrighted work, substantiality of the portion used and the result of such use on the target market to assess fair usage.
For instance, in the case of Myspace Inc. v. Super Cassettes Industries (2016)[8], the Delhi High Court was of the view that online posting of content is fair if such content is authorized, licensed, or falls under the purview of fair dealing in case of copyrighted works. The Court was unclear on the existence of licensing agreement between the producers and the startups with respect to the use of clips from the show.
Another defense available in favor of the startups might be invoking Section 2(q)[9] of the Copyright Act,1957, which provides for “any live visual or acoustic presentation by one or more performers”. This defense will stand valid in case no prior agreement exists between Shark Tank India and the startups, to include and cast their performance on national television. This provision aims to shield alleged infringers against infringement notices.
Furthermore, the startups may invoke is the principle of de minimis[10] meaning “the law does not concern itself with trivial matters”, claiming that short video clips of negligible duration are not intended to cause infringement on the producer’s copyrighted work or it ancillary benefits. In the case of Saregama India Ltd. v. Viacom 18 Motion Picture & Ors.[11], the Supreme Court of India was of the view that usage of the song ‘mere sapno ki raani’ for a minimal amount of time, 7 seconds as in this case, is a case of de minimis and therefore, does not result into copyright infringement. The application was subsequently dismissed.
Conclusion:
This controversy gives rise to certain important questions regarding balance of rights and balance of interests. It is a battle between protecting exclusive rights while also developing a supportive environment for startups and small businesses. Shark Tank India has justified its actions in their arguments aligning with provisions provided under the Copyright Act, 1957 and thereby, retaining its commercial brand value. However, at the same time, their actions question and contradict Shark Tank India’s core values of “promoting and supporting small businesses and startups.” The tussle calls for the need of clear guidelines with respect to licensing between reality shows and its participants.
This article is authored by Ms. Ananya Brajesh Anand, student at Symbiosis Law School, Hyderabad.
[1] @IndianStartupNews, LinkedIn (July 25, 2024, 11:04 AM).
[2] Terms & Conditions governing participation in Shark Tank Eco-preneur special episode @SonyLiv (July 25, 2024, 11:30 AM).
[3] The Copyright Act, 1957, Section 2(d)(v).
[4] Balwinder Singh v Delhi Administration (1996) AIR 607 (India).
[5] Mihir Wagh, Fair Dealings And Fair Use: Critically Analysing The Copyright Exemption Doctrines In Place In India And The United States, MANUPATRA Articles (July 25,2024, 1:00 PM).
[6] Gyles v Wilcox (1740) 26 ER 489 (U.K.).
[7] Muskaan Mandhyan, What is Fair Use of Copyright Doctrine?, MONDAQ (July 31, 2024, 3:24 PM).
[8] Myspace Inc. v. Super Cassettes Industries (2016) SCC Online Del 6382 (India).
[9] The Copyright Act, 1957, Section 2(q).
[10] Nirupam Lodha & Malika Nandkeolyar, Defense of ‘De Minimis’ in IP matters, Kluwer Copyright Blog (July 26, 31, 2024, 12:02 PM).
[11] Saregama India Ltd. v. Viacom 18 Motion Picture & Ors. (2013) SCC OnLine Cal 3729 (India).
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