A life in film –
Bollywood and beyond
GC takes a look at the thriving – and evolving – Indian entertainment industry, and the lawyers
working behind the scenes.
Entertainment in India
Everyone wants to work in the movies, right? In India, plenty of people do. Figures quoted in Deloitte’s 2016 Indywood report put India as the world’s largest film producer, churning out between 1500 and 2000 a year, and driving a $2.1bn industry – which is expected to reach $3.7bn by 2020.
‘Bollywood’ – the centre of the Hindi film industry, and a play on Bombay, as Mumbai was once known, and Hollywood – is the main feather in the Indywood cap, although films made in India’s other regional languages, particularly South Indian languages Telugu and Tamil, are also abundant.
Famed for escapist musicals and epic love stories, though the industry offers much more besides, the colour, exuberance and creativity of the Indian film scene has meant that in recent years, its appeal has spread far beyond India – across Asia (Chinese audiences are hooked) and into the West, to markets like the UK and US.
Behind the scenes is an army of creative minds, not least a canny band of in-house lawyers, directing the studios and production houses in the legal and commercial side of the movie business.
Historically governed by trust and relationships, this dynamic and increasingly global industry has redoubled efforts to protect every aspect of IP, putting the role of in-house counsel at the centre of commercial life. And in addition to ‘dissecting’ (as Phantom Films’ senior legal manager Persis Hodiwalla terms it) and monetising the intellectual property rights (such as music, satellite, or digital rights) of content, the typically lean in-house teams are required to do much more. As creative and financial partnerships thrive, and with consolidation on the rise, counsel could be called upon to structure and draft deals such as joint ventures with other production houses or directors, licensing agreements, or to ensure that (often hugely high-profile) talent is successfully engaged.
‘On average, each film takes approximately one year to complete, with 150 to 200 agreements. Mainly I am involved in drafting and negotiating actors’, directors’, writers’, heads’ of department agreements, and the below-the-line cast and crew are handled by my team on a daily basis,’ explains Hodiwalla.
‘At times, if we have to quickly turn around a document for hiring a big talent on the film, then it becomes a high-pressure job, as we have to draft and execute the agreements with the respective talents within stipulated timelines, safeguarding our company’s and the talent’s rights and interest in the deal. An actor agreement on average takes six or seven hours to draft, then negotiate, and finally execute.’
In an industry dominated by big names, whose legendary status can be fundamental to box office success, the stakes can be high for general counsel.
Lightly regulated compared to other sectors, the lack of standard operating procedures can be a challenge in itself for in-house counsel. But there have been regulatory adjustments in recent years: a 2012 amendment to the Copyright Act redrew, among other things, the boundaries of IP rights in artistic works, while changes to India’s Goods and Service Tax in 2017, which removes the previous tax exemption on the transfer of IP rights – including those relating to film production – placed an additional compliance burden on in-house teams. Incoming policy frameworks for e-commerce and data privacy could also impact entertainment companies, while those operating in the broadcast arena play on a more heavily regulated field to begin with.
One of the biggest headaches for counsel working in India’s content space is censorship.
‘Setting up channels to get them up and running, get all their permissions in place, to make sure that a broadcasting business is set up, is an achievement,’ says Aamod Gupte, group general counsel of Eros International, a major Indian film producer and distributor.
‘You look back and see a channel successfully running today, which has gone through regulatory clearances, security clearances, the actual transmission is cleared, to getting into multiple international deals across satellite providers. It’s a huge responsibility to get that thing done.’
Another pair of eyes
One of the biggest headaches for counsel working in India’s content space is censorship. Under the 1952 Cinematograph Act, all films must pass the eyes – and the guidelines – of the Central Board of Film Certification (CBFC) before screening in India. But in-house counsel charged with getting their studio’s content past the censors uncut often find themselves confronted with shades of grey when it comes to making the right calls. The political, cultural and social overtones of a film are all scrutinised, with different subjects falling out of favour as the climate changes. Religion, and depictions of women and children appear to be sensitive areas at present.
But speculation is now rife that the Act could be in for an overhaul – and so in-house counsel wait to hear whether the whispering will remain just that, or if seismic changes are afoot.
‘We have to read and legally scrutinise the script, and raise a red flag on the scenes/dialogues/products that would require permissions or No Objection Certificates before usage. Then we brief the production team accordingly,’ explains Hodiwalla.
‘On shoot completion, the legal team will watch the entire film once again and mark up the portions that would need permissions before usage, and inform the production team accordingly. Then the production team will get the same resolved before the film is being sent to the censor board for certification.
‘Since each and every film before theatrical release goes through the CBFC, we as in-house lawyers do prepare the paper work as required by them in case of any suggested modifications in the film and ensure smooth processing of the film before the theatrical release.’
A technological twist
Perhaps the major plotline in the Indian entertainment industry, as elsewhere in the world, is technological disruption. For in-house counsel at the cutting edge of technological change, these are exciting times, professionally. In 2011, Hodiwalla was working for Scrabble Entertainment, just when India made the cinematic transition from 35mm film projection to digital.
‘The Digital Cinema Initiative (DCI) is a format which specifies the security and quality standards of digital cinemas to be followed worldwide. DCI norms were established and laid down by the six major Hollywood studios – Sony, Paramount, Warner, Universal, Fox, Disney. Scrabble was the only conduit for the deployment of the required servers and projectors in the theatres that were DCI-compliant in India, the Middle East and Latin America,’ says Hodiwalla.
‘In order to procure content from Hollywood, and exhibit it on the DCI Platform (2K format), Scrabble entered into “Digital Cinema Deployment Agreements” with the six Hollywood studios, and I was the key person involved in drafting and negotiating these contracts.’
Digitalisation has made substantial cost savings for producers and distributors, replacing the need to make 35mm negative prints for each individual cinema screen. Now, a master drive containing the film is cloned, and each screen operator has only to copy, upload and play. One hard drive can cater to multiple screens at a theatre, with only a virtual print fee for the content and transportation due.
But digitalisation comes at a cost to box offices and other channels, as OTT [over-the-top] or SVOD [subscription-video-on-demand] rights are being pre-sold to online platforms 60 days after theatrical release, and to satellite platforms after 90 days.
‘Sometimes the audiences prefer to wait for a film to come out on these platforms rather than going to the theatres with their families, which is expensive for an average middle-class family. This has been a reason of concern for most of the major multiplex owners in India,’ Hodiwalla says.
Eros International is focused on the opportunity afforded by digital platforms, however. The company has an online digital platform (ODP) of over 11,000 films and is engaged in producing a range of original content specifically for a digital audience.
‘The fact is that we can’t run away from technology – it’s going to catch us sooner rather than later. The more one accepts it, the more one embraces it, you’re actually ready for the future, rather than keeping lamenting about things. It’s something which we are excited about, actually,’ says Gupte.
‘The ODP platforms are the drivers today. The falling price of mobile data and access to good, high-speed broadband and wifi makes them easier to access. So the trend we find is people actually moving subscriptions straight to the ODP platform. It’s much more convenient and what this generation loves is: it’s on demand.’
For those living outside India’s metropolises, who might not have access to a multiplex, mobile data-streaming has opened up huge new markets for entertainment content.
‘Tier two and tier three towns have a humongous amount of data which is consumed. The smartphone, for me, is the equaliser. It’s brought your cities, your tier two towns, your tier three towns all at par,’ says Gupte.
‘Devices are really improved in terms of their pixels, intensities, their colours, and it’s a really nice experience for somebody who’s not in a big city to sit and watch content across the genres and the platforms that he likes, in a language he is comfortable with. So at Eros, we have multiple-language productions, plus we have dubbing and subtitling in multiple languages.’
At Eros, Gupte sees a demographic difference between theatrical and digital audiences, and content made for a younger, online-only audience opening up the industry creatively, as short films and other experimental content disrupt the traditional model of the full-length, multiplex-screened feature film.
‘You are able to experiment a lot more in the ODP space – you can try new stories and experiment with newer actors. The themes can be different, stories can be told in different, interesting ways, you can try out new directors with a new vision. You can actually take a chance,’ he explains.
‘There are many directors out there wanting to tell their stories, but everybody does not get the break on the silver screen. Now the small screen is their area, and today you don’t need high-end, fancy equipment, as long as you tell the story in an interesting, engaging way. You have a lot of content that otherwise would not have seen the light of day because a film studio or a big movie might not have been the most suitable platform. Something which is a little bit off the regular track, which is not in the regular mode, can give a break to multiple talented people across multiple languages and multiple cities.’
From risk to risqué?
The potential for pushing boundaries in online content is enhanced by the relative freedom enjoyed by digital-only entertainment compared to films, which fall under the yoke of the CBFC. Sitting behind a paywall, with the potential for in-built levels of control such as parental locks, on-demand content is inherently more secure than live media.
‘It is not something that is out there in the open. The customer or viewer chooses to come to your platform for the kind of content which you carry – he or she can choose to walk out or opt out,’ explains Gupte.
‘With the freedom of watching it within the four walls of your own house, that’s a private viewing, so legally you are far more in control of the content than in a situation like broadcast, which is available to anybody who’s opening up their television set and watching.’
But the industry is not leaving it to chance – or to government intervention. Broadcast industry bodies are working to come up with self-regulation guidelines.
‘We will decide that these are the boundaries within which we will operate, and these are the parameters which we will follow, so that the customers, the viewers and the platform subscribers are protected – they feel less threatened,’ says Gupte.
‘It’s best to let your viewers know that they are likely to encounter certain types of content and it’s their choice. You can choose to continue, you can go ahead and watch it. If you don’t want to watch it, you can always opt out. There’s no compulsion.’