'Hum Saat Saat Hai, but are we really?’ – the issues in disregarding Actor Royalties in TV Reruns
With the lockdown in place for over a month now in India, the historic Doordarshan Channel or better known as ‘DD’ has started reruns of old, iconic shows of the 80s and 90s such as the Mahabharata, Ramayana, Chanakya, etc. while other channels like Zee TV have brought back memories from the past with shows like ‘Hum Paanch’, evoking nostalgia among all its viewers. Reports suggest that there has been a massive increase in TV viewership in light of these favourite shows returning, with Hindi General Entertainment Channels witnessing mammoth highs of over 8.5 Billion in viewership and DD alone witnessing a 40,000 percent jump in viewership after the reruns began. The BARC (Broadcast Audience Research Council) reports suggest that there has been a 71% increase in TV viewership in comparison to the pre-covid period. This indicates massive revenue generation for these channels and the producers of the shows being broadcasted. But what about the individuals who made the show so popular, our beloved characters being brought to life with the impeccable performances by the Actors of these shows? Are they earning any benefit from the reruns of these shows?
Okay so you know the popular TV Show ‘FRIENDS’? Reports suggest that while Warner Bros, the producer of this show, earn an estimated amount of $1 Billion each year through reruns of this show, the six main characters of the show earn about $20 Million each per year from just the reruns. But how are they earning this amount long after the production of the show has ended? This income generated is known as ‘Residuals’. These are a form of royalties paid to the performers when the show or film has been re-broadcasted. This rebroadcast not only extends to TV reruns but has now also included on-demand streaming through platforms like Netflix, Prime, etc. This residual royalty is usually advocated for and negotiated by the different guilds in America representing these performers, such as the Screen Actors Guild, the Writers Guild of America. It is commonly known that actors of even popular shows do not always get more roles within the industry and earn enough to sustain a living. However, this form of royalty payment is not only a recognition of their contribution to the show/film itself but is also a means of income for many actors who struggle further in their career. And in the present economy, with bidding wars over which streaming platform gets to broadcast popular shows like FRIENDS, The Office, Seinfeld,etc., the actors in these shows are set to earn in millions from streaming revenues. While the American entertainment industry recognises the value of residual royalty, why have we never heard about this in the Indian entertainment industry?
The Indian Copyright Act, 1957 was amended in 2012 to include crucial rights for performers in India. The introduction of Sections 38A and 38B granted performers certain specific economic and moral rights, respectively. While Section 38A grants the performer the right to receive royalties they are entitled to when their performance is for commercial use, there is no legal recognition or industry practice seen in India where actors performing in a TV show/film receive royalties for reruns of these productions. It is usually the producer, who is considered the legal ‘owner’ of the produced film/Tv show, and who receives the royalty from the reruns of the production. Recently, various actors from the DD Channel shows which are now making a comeback through reruns, voiced their views on receiving royalty from the massive income generated through these reruns. But this view is also met with contradictory opinions of the producers of these shows, who believe that actors cannot demand royalty and must abide by the existing contracts and under the presumption that they must be earning well enough making royalties unnecessary. It’s interesting to note that though there is no international law specifically dealing with payment of residual royalties, the World Intellectual Property Organisation (WIPO)’s Beijing Treaty, which gives rights to performers on their audiovisual performances, states in one of it’s clauses (Article 12) that even though the performer may transfer their rights to the producer in respect to their performance in the TV show/film for the purpose of broadcasting it or making it available to the public, the performer still has the right to claim royalties as well, through collective agreements or otherwise. While India is not a signatory to this treaty specifically, this is a right which has been similarly incorporated in Section 38A of the Copyright (Amendment) Act, 2012. Even the newly introduced sub-sections in this Amendment Act, Section 18’s provisos 3 &4 and Section 19(8) & 19(9), also recognise the performers in such films have the right to receive continuing royalties irrespective of the assignment of their other economic rights.
Even with such introductions into India’s copyright law, the Indian entertainment industry fails to acknowledge the contributions of such performers by disregarding the concept of residual royalties. Even the existence of Actor Unions such as CINTAA (Cine & TV Artistes’ Association) who advocate for actors and resolve disputes between members, producers and other concerned parties, there is a gaping hole in the recognition of residual royalties for actors in industry contracts It's a well known fact that due to the vastness and other ’specific’ factors within the Indian entertainment industry, continuing success is difficult for many actors. Due to the lack of recognition of this form of royalty right, of having a stake in the TV show/film one performs in, many actors have turned producers whereby they solely or jointly produce the productions they perform in as a way of earning a continuing royalty from the production in the future. This has been seen in the Bollywood industry since quite some time with Shah Rukh Khan owning Red Chillies Entertainment, which produces all of his films or the more recent introductions of Anushka Sharma owning Clean Slate Films or Deepika Padukone’s newly created production house - KA Entertainment.
These have been one of the few alternative routes for the Bollywood actors to earn continuing royalties through their work and has been seen as a good investment. But this is an alternative only available to few of the many performers in the industry. Most of the struggling actors, even from popular TV shows like Ramayana and Chanakya, have failed to have successful careers and are unable to start production companies to generate a stake in their performances. And the contradictory views of producers in payment of actor royalties bring out an industry-wide practice, especially among TV cinema, where actors are not given their due in this growing industry and are forced into abiding by older contracts involving a one-time payment. The failure to recognize the performer’s efforts in the success of the show, especially with increasing re-runs and on-demand streaming options, brings out the concern that many of these actors are now voicing out. It is this reason why there is a desperate need, especially in such a lockdown where existing productions have stopped and new productions seem bleak, that actors should receive residual royalties from the reruns of their shows/films in order to recognise their contribution to the popularity of the production, along with ensuring that the economic benefits of such popularity are not amassed by the few. There is a need for industry contracts to be more inclusive towards performer rights because it’s important to remember that while the producer has invested the money, time and resources into generating such a production which is loved by many, it is the artists, the performers who truly steal the show and deserve to be given their dues.
This post was written by contributing writer, Diksha Arora. Diksha is a final year law student in Bangalore, India moving to Los Angeles soon to pursue her masters in Music and Entertainment Law at the UCLA Law School. She's an absolute music nerd, very passionate about artist rights and holds a keen interest in everything related to movies, music, and entertainment.