Protecting Performers: Addressing Infringement and Securing Remedies

When a singer’s voice is used in a commercial without their permission, or a dancer’s performance is chopped and manipulated into content that damages their reputation, what recourse does the law offer? In India, the answer lies within the Copyright Act, 1957, which – through amendments, court interventions, and evolving interpretations – has built a legal framework specifically designed to protect performers when their rights are violated. Understanding what constitutes infringement, what exceptions exist, and what remedies are available is essential for anyone working in or studying the intersection of law and the creative industries.

What counts as infringement of a performer’s right? 🔗

A performer’s right, recognized under Section 38 of the Copyright Act, 1957, gives performers a special right over their performances lasting 50 years from the start of the calendar year following the year of performance. During this period, doing any of the reserved acts without the performer’s consent amounts to infringement.

After the Copyright (Amendment) Act, 2012 inserted Section 38A, the exclusive rights of performers were clearly codified. A person infringes a performer’s right when they, without authorization, do any of the following in respect of a performance or a substantial part of it: make a sound or visual recording of the performance; reproduce that recording in any form, including digitally; issue copies of the recording to the public; communicate the performance to the public, such as broadcasting or streaming it online; sell or commercially rent out copies of the performance recording; or broadcast the performance where it has not already been broadcast with consent.

The infringement need not involve the entire performance. Unauthorized use of even a substantial part of a performance is sufficient to trigger liability – a principle consistent with how copyright infringement operates generally under Indian law.

The landmark case that made it all possible: Fortune Films v. Dev Anand 🔗

To appreciate why these protections matter, it helps to look at where Indian law stood before them. In the 1979 judgment of Fortune Films International v. Dev Anand, the Bombay High Court held that performers had no copyright protection under the then-existing Copyright Act. The court’s reasoning was that an actor’s performance did not constitute a “work” within the meaning of the Act, and therefore no separate rights could vest in it. Actors, the court essentially held, had no legal authority to control how their performances in films were used once they had been paid for their services.

This judgment was a wake-up call. It exposed a significant gap in Indian intellectual property law and generated pressure for legislative reform. The Copyright (Second Amendment) Act, 1994 responded by inserting Sections 38, 39, and 39A, formally giving performers a dedicated set of rights for the first time. This was further strengthened by the 2012 amendment.

Permitted acts: when using a performance is not infringement 🔗

Not every use of a performance without explicit consent is an infringement. Section 39 of the Copyright Act carves out specific exceptions where using a performance is legally permissible. These include:

Private use and research: Making a sound or visual recording of a performance for private, personal use, or solely for purposes of genuine teaching or research is not an infringement.

Fair dealing for reporting and review: Using excerpts of a performance consistent with fair dealing, such as in reporting current events, for genuine review, or for bona fide teaching and research purposes, is also permitted.

It is important to note that India follows a fair dealing standard (not “fair use” as in the United States), which is narrower and limited to specific purposes enumerated in the Act. If a use falls outside these defined categories, it will not be shielded by the exception.

Additionally, if a performer has provided written consent for their performance to be incorporated into a cinematograph film, the film producer can generally exploit the performer’s rights within the film – but crucially, this does not extend to commercial use beyond the film. Under Section 38A(2), the performer retains the right to royalties whenever the performance is commercially exploited, regardless of any assignment.

Civil remedies available to performers 🔗

When infringement occurs, the performer is not left without recourse. Section 55 of the Copyright Act provides the civil remedies framework, making available all such remedies by way of injunction, damages, accounts, and otherwise as are conferred by law for infringement of a right. These remedies, read alongside Sections 63-70, give performers a comprehensive set of legal tools.

Injunctions 🔗

An injunction is often the most urgent remedy sought. Courts can grant a temporary (interlocutory) injunction to stop the infringing use immediately while the case is being decided, or a permanent injunction at the conclusion of the suit. The Delhi High Court, for instance, granted an injunction in IPRS v. Hello FM, restraining the radio station from playing music without obtaining the required license from the Indian Performing Rights Society. Injunctions are particularly vital in the digital age, where infringing content can spread rapidly and cause irreversible harm to a performer’s economic interests.

Damages 🔗

A performer who has suffered financial or reputational loss due to unauthorized use of their performance can claim compensatory damages – that is, compensation corresponding to the actual loss suffered. Courts assess the extent of the infringement, the commercial value of the performance, and the harm caused when quantifying damages. If the defendant was unaware of the existence of the performer’s right and had no reasonable grounds to believe it existed, the court may limit the remedy to an injunction and a share of the profits rather than full damages.

Account of profits 🔗

Rather than claiming damages, a performer can alternatively opt for an account of profits – a remedy that requires the infringer to hand over the profits they made through the unauthorized use of the performance. This remedy is especially useful where proving the exact loss to the performer is difficult, but the infringer’s gains from the wrongful act are demonstrable. The two remedies – damages and account of profits – are mutually exclusive; a performer must elect one or the other.

Anton Piller orders and other procedural tools 🔗

Courts also have the power to grant an Anton Piller Order, which allows the plaintiff and their attorney to enter the defendant’s premises and inspect and seize relevant documents and materials – without prior notice to the defendant. Named after the English case Anton Piller KG v. Manufacturing Process Ltd. (1976), this remedy is critical in cases where the defendant might destroy evidence if given advance warning. Indian courts have applied this tool in copyright matters where infringing copies or recordings are at risk of being removed.

The district court has jurisdiction over civil suits concerning performer’s right infringement, and the limitation period for filing such a suit is three years from the date of infringement. Since infringement can be a recurring act, each new violation provides a fresh cause of action.

Criminal remedies 🔗

Infringement of a performer’s right is not merely a civil wrong – it can attract criminal liability as well. Under Section 63 of the Copyright Act, knowingly infringing or abetting the infringement of performers’ rights is a criminal offence punishable with imprisonment of a minimum of six months and a maximum of three years, along with a fine ranging from ₹50,000 to ₹2,00,000. On a second or subsequent conviction, the minimum punishment increases. Courts can also order seizure and forfeiture of infringing copies and equipment used to make them.

The 2012 amendment further introduced Sections 65A and 65B, penalizing circumvention of technological protection measures and unauthorized removal of digital rights management information respectively – both directly relevant to the online exploitation of performances.

Moral rights of the performer 🔗

Beyond the economic remedies above, Section 38B of the Copyright Act, introduced by the 2012 amendment, recognizes moral rights for performers. These rights exist independently of economic rights – they survive even after a performer has assigned all economic rights to a producer or any other party.

Section 38B grants two specific moral rights. First, the right of attribution: a performer has the right to be identified and credited as the performer of their performance. A singer, for example, can insist on being named wherever their performance is used commercially. Second, the right of integrity: a performer can restrain or claim damages for any distortion, mutilation, or modification of their performance that would be prejudicial to their reputation. If a dancer’s performance is edited or recontextualized in a manner that makes it appear offensive or ridiculous, they have a legal basis to object and seek redress.

The Act is careful to clarify that routine editing – such as cutting a performance to fit within a limited duration or making modifications for purely technical reasons – does not automatically constitute a violation of the right of integrity. The test is whether the modification is prejudicial to reputation, not merely whether the performance was altered at all. This prevents moral rights from being used as a tool to block ordinary and reasonable editorial processes.

Key cases that have shaped performers’ rights enforcement 🔗

Apart from Fortune Films v. Dev Anand, several judgments have defined the contours of infringement and its remedies in India. In Super Cassettes Industries v. Bathla Cassette Industries, the Delhi High Court drew a clear distinction between copyright and performer’s rights, holding that if a song is re-recorded, the original singer’s permission must be obtained separately – the music label’s copyright does not cover the performer’s independent right in their vocal performance.

In Neha Bhasin v. Anand Raj Anand, the court clarified what constitutes a “live performance” – holding that a performance recorded in a studio or in front of an audience both qualify as live performances at the moment of capture. Any unauthorized use of such a performance is an infringement of the performer’s right. This was a practically significant ruling in an era when the line between studio recording and live performance had become blurred.

More recently, the Bombay High Court’s ruling in Indian Singers’ Rights Association v. Entertainment Network (India) Ltd. affirmed that radio stations bear responsibility for infringement when they broadcast protected content without consent. The court underscored that performers – not just music labels – hold exclusive rights to authorize public broadcasts of their performances.

Why these protections matter in practice 🔗

India’s entertainment industry is one of the largest in the world, yet individual performers – particularly those outside the top tier of stardom – have historically been vulnerable to exploitation. They often receive a one-time fee for their work, while their performances generate revenue for decades through rebroadcasts, streaming, and digital distribution. The legal framework built around Sections 38, 38A, 38B, 39, 39A, 55, and 63-70 attempts to correct this imbalance.

Despite the progress, challenges remain. Litigation is expensive and time-consuming, and awareness of these rights among performers themselves is still limited. Collective rights management organizations, such as the Indian Singers’ Rights Association (ISRA), play a critical role in filling this gap by collectively negotiating and enforcing rights on behalf of their members – a model that allows individual performers to benefit from legal protections without having to bear the full burden of enforcement alone.

What do you think? Given that performers’ moral rights under Section 38B survive even a complete assignment of economic rights, should there be clearer mechanisms in law for performers to enforce these rights against streaming platforms and broadcasters in real time? And with India’s digital entertainment economy growing rapidly, do you think the current criminal penalties – a maximum of three years’ imprisonment and a fine of up to ₹2,00,000 – are a sufficient deterrent against large-scale commercial infringement of performers’ rights?

References

1. https://www.copyright.gov.in/documents/handbook.html
2. https://www.indiacode.nic.in/show-data?actid=AC_CEN_9_30_00006_195714_1517807321712&sectionId=14552&sectionno=38&orderno=50
3. https://copyright.lawmatters.in/2012/06/the-performers-right-under-2012-act.html
4. https://indiankanoon.org/doc/1686803/
5. https://www.education.gov.in/sites/upload_files/mhrd/files/upload_document/CprAct.pdf
6. https://indiankanoon.org/doc/1520267/
7. https://lawbhoomi.com/performers-rights-and-broadcasters-rights-under-copyright-act/
8. https://www.maheshwariandco.com/blog/performers-rights-in-indian-copyright-law/
9. https://www.lexology.com/library/detail.aspx?g=6526199f-85cd-4291-989d-155a7dc50272
10. https://lawgist.in/copyright-act/38B
11. https://www.khuranaandkhurana.com/2024/02/22/performers-rights-under-copyright-act/