Author(s):Several

Bollywood Deals: Music Meets Dance

Who isn’t a fan of Dilwale Dulhaniya Le Jayenge? The lens takes us to the romance set in the mountains of Switzerland to a typical wedding household in India with dance, music, drama, and emotion. Bollywood is one of the most prolific centers of film production in the world. It dramatically affects Indian society and culture from the past few decades and has influenced day to day life and culture in India from fashion trends to choreography of dance numbers, where it has been the most significant media outlet. In regards to ticket deals, Bollywood offers approximately 3.6 billion tickets yearly over the globe, contrasted with Hollywood's 2.6 billion tickets sold.

Thousands of movies are signed each year, and it is essential to understand the contractual obligations to follow in the industry. The industry consistently goes into agreements under numerous types of unfulfilled promises from oral communications, casual correspondence, and draft contracts communicated through production and frequently stay unsigned. These unsigned arrangements refer to as "soft contracts" are sustained by a theoretical risk of legal requirement combined with some prospect of reputational risk. The Indian film industry has been social relationship driven, under which the game plans and claims were either oral or insufficiently reported, and the debates settle without going into litigation or court.

In the last couple of years, the Indian film industry has woken up to the requirement for composed contracts and security of Intellectual Property (the IP) rights. The need emerged because the Indian film industry saw a change in outlook in its structure in the recent period. After it was agreed the "industry status" in 2000 by the Government of India, the next years saw the movies accepting subsidizing from the banks, and Indian corporates, for example, Sahara, Reliance gathering, Mahindra and foreign studios, Warner Bros., Twentieth Century Fox and so forth. The banks, Indian enterprises, and remote financial specialists demanded composed contracts with the producers and required the producers to have legal agreements with the cast also, including a proper chain of title documentation. With the expansion in commercialization openings, the abilities that delayed to sign even a one-page contract until mid-2000 began introducing nitty gritty composed arrangements to safeguard their commercialization rights, e.g., marketing rights. On the one hand, however, the development of this industry has been spectacular, then again, the breath-taking universe of Bollywood has seen a surge of cases for breach of the agreement.

In the past, legal contracts in Bollywood were pretty straightforward. The producers drafted a standard one-page contract stating the music rights for the record studios and one with the wholesaler for appropriation to the silver screen. More critical than the paper was the customary handshake, as no one was comfortable by prosecuting anybody or taking each other to court. The contented course of action crumbled with the happening of home review innovation, when there was a whirlwind of the prosecution to decide if the rights to the video were vested with the maker or the merchant. Today, things are getting more intricate with incomes from music deals, including screenings on planes and luxury ships. Bollywood is marking a more significant number of agreements recently. Exploiting the rights of a film incorporates transforming it into a computer game, promoting garments associated with cinema, remix and copying the music, etc. The extent of the agreement can be as restricted as expected under the circumstances, while for those purchasing the rights, it is tied in with arranging terms that are as expansive based as would be prudent. For example, famous Indian actor Akshay Kumar has a clause that he won't be working on Sundays. Famous Indian actors have clauses in their legal contracts according to their ease. The famous Bollywood song “Khaike Paan Banaraswala” from the movie Don in 1978 claimed against the maker of the similar title, Don in 2006. The new Don had acquired the rights from Nariman Films, the makers of the first film, under a composed contract and joined the tunes in a different version.

The Bombay High Court held that the agreement between the makers of the first movie and the offended party (and Kalyanji) was an agreement of administration and along these lines, the rights were with the maker and not the authors. The maker had the legitimate and appropriate power to cut out any part or entire of the reasons in the melodies to the litigants, and in this manner, the agreement between them was substantial. As partners in the filmmaking and appropriation process go into a few composed contracts to record their legitimate and business understanding, the scholarly debate emerges out of non-execution of legally binding commitments or non-payment of sums. Under the Indian Contract Act, 1872 (the ICA), one cannot mainly implement all agreements, and courts don't allow break orders for particular execution. In Indian, the courts cannot principally uphold the individual contracts administrations.

India churns out over 1,100 films a year, more than any other country across the globe. Anupam Kher, famous Indian actor, and writer were one of the few skilled actors when he entered the film industry thirty-two (32) years ago, and that most of his 450 films did not even have scripts and with producers would have a casual talk and informally discuss the movie. They would only get paid after it was in the cinemas as there was the trust circle around the industry. However, times are changing, and actors are well informed about signing formal contracts. As investors in the filmmaking and dissemination process enter a few legally obliged contracts to record their right and business understanding, the lawfully binding question emerge out of non-execution of authoritative commitments or non-payment of the agreed amount.

On the other hand, considering the non-performance, it is hard to look for a quick court order for a particular execution of the agreement, as under Indian law, we cannot mainly implement all arrangements. Courts don't allow interval orders for specific performance, and one cannot perform the contracts for individual administrations. Henceforward, if the desired person does not give concurred dates or if he does not convey the music on time, then the only remedy available would be in the form of damages. In case the parties to such agreements have agreed that arbitration shall settle the disputes arising out of the contracts, the parties can still approach the court for specific interim measures. Section (9) of the Indian Arbitration Act, 1996 sets out specific situations where individuals may contact the court for specific of provisional measures. The court was of the opinion that this authority of the Court might be practised even before an arbitrator has been arranged, overruling the prior position that the court can exercise power if demand for mediation has been available. The judge may concede such as interim measures of protection as may appear to the judge to be fair and just. The parties seeking the judge should need to establish prima facie and a comfort zone. For instance, if a satellite merchant has secured satellite circulation rights and does not pay the maker in a timely fashion, then the filmmaker may approach the court to seek an interim injunction.

Indian Contract Act, 1872

Without the ICA, it would have been hard to exchange or carry out any business movement in the corporate world. According to the ICA, an ‘agreement’ is a statement enforceable by law. A ‘declaration’ signifies 'a guarantee or an arrangement of guarantees' framing consideration for each other. A statement comprises of an 'offer' and its 'acknowledgement.' The target of the Contract Act is to guarantee that the rights and commitments emerging out of an agreement are acknowledged and that the remedies are made accessible to the breach of rights individuals.

Hollywood Deals

Similarly, Hollywood regularly enters into promises under any backed up legal document. Oral correspondence, virtual communication, draft agreements, etc. negotiated between makers and production often remain unsigned and carry a threat of reputational liability. Decreasing formalization in agreements lessens its enforceability, which enhances adaptability and making it flexible with the terms to change contract terms at the party’s expense of execution. Increasing formalization builds enforceability, which reduces flexibility by distinguishing an arrangement of conditions in which a nonterminating party can debilitate a legal course of action in light of a threatened withdrawal. Unformalized contracts or as known as ‘soft contracts’ are the preferred option among the industry as it achieves the same probable outcome with lower cost. Making a film requires a lot of funding, and the capital prerequisites have a tendency to be high, the chances of the movie being a success are thin, and the contracting dangers are remarkable. These variables give the premise to distinguishing the monetary justification behind Hollywood's particular contracting practices. ‘The Motion Picture Association of the United States of America reported that in 2007, major studio films had an average production and distribution costs of US Dollars106.6 million.’ It takes a long time to create a movie, from the script writing to its release at the box office. At different points, parties must make what institutional financial experts call particular investments in the undertaking project that is, investments that have a lower value or no value in any alternative use-before having any authentic information as to the similarly commercial outcome. The high risk of business failure joined with the chance of uncertainty with the constant speculation and the disaggregated structure of the film business, represents what the Hollywood press calls the ‘waiting game.’

Exposure to conventional thinking and business-law practices show that parties favor formal enforceable contracts over oral communications or other casual interchanges that are uncertainly enforceable. Hollywood seems, by all accounts, to be a particular case: parties in high-stakes exchanges routinely select moderate levels of legally binding contracts that leave the enforceability of the parties’ responsibilities misty. Lawfully enforceable agreements give the most proficient administration component at whatever point any elective instrument, from formal contract to transactional exchange, can't autonomously accomplish an unrivalled expected result net of detail and requirement costs.

Validity of Soft Agreements

In India, it is only under certain circumstances where an unsigned agreement is considered to be valid. An example of the same is the case of Union of India v. Rallia Ram [AIR 1963 SC 1685] wherein the agreement in question was an arbitration agreement which was not signed. It was assumed that a valid contract existed between the two parties, but the arbitration agreement which has been reduced to writing was not signed by either party, the same being the subject matter of the consideration. The Supreme Court, in these circumstanced held that this unsigned agreement would be considered valid. In the United States, can an unsigned agreement still be considered a contract? Yes, it can be, for the purpose of statute of limitation as held in the case of Blanchard & associates v Lupin Pharmaceuticals, Inc and Lupin, Ltd., 7th Circuit Court of Appeal, No. 17-1903 dated 20 August 2018. In this case, Judge Sykes while quoting Illinois Supreme Court confirmed that a contract would be counted as a “written” contract even if the same is unsigned. The same was to be considered for the purpose of statute of limitation. Blanchard wished to bring a claim for breach of contract, and the question was whether it survived the limitation period. It was held that the ten-year limitation period applied to the engagement letter between the parties even though it had not been signed.

Indubitably, whether or not a soft contract is valid depends on the surrounding circumstances and additional evidence.

What if Indian filmmakers desire to shoot a film in Dubai or the United Arab Emirates?

Filiming in Dubai

Hollywood as well as Bollywood have increasingly shown interest in filming in Dubai and across the UAE. From nail-biting stunts to sci-fi blockbusters and from scaling the world's tallest tower in Dubai to shooting epic scenes in sand dunes, filmmakers have realised that shooting in Dubai adds immense production value to the film besides making them really exotic.

The Dubai Government vide Executive Council Decision Number 16 issued in 2012 established the Dubai Film and TV Commission (the DTFC) which has the sole authority to issue film shooting permits in the Emirate of Dubai. The DTFC works along side other government and semi-government entities including the Dubai Municipality, the General Directorate of Residency and Foreign Affairs, the Roads and Transport Authority, in addition to owners of specific location(s). As a pre-condition, any individual or corporate entity is required to appoint a UAE-licensed production company to obtain shooting permit. Likewise, permits are also required for any film recording in public or government controlled areas, or for filming in Dubai across any private locations (indoor as well as outdoor).

Having worked on multifarious Bollywood events in Dubai, STA's team of media and entertainment lawyers have worked and acted for mjor as well as independent motion picture studios based across India and MENA region, broadcast and cable television networks in addition to companies engaged in pre and post production works. New Bollywood film entrants desiring to enter Dubai or United Arab Emirates must fully understand the legal nuances when it comes to prevailing media laws and regulations, corporate structuring, mandatory shareholding distribution and types of licenses issued, understanding the key roles of different authorities (such as Department of Tourism and Commerce Marketing in Dubai, Department of Culture and Tourism in Abu Dhabi), visa requirements and working hours, types of no objection certificates required for holding events, ticketing, dealings with recording studios and internet streaming services, booking stadium(s) for events besides understanding copyrights and intellectual property and associated rights.

Filiming in Abu Dhabi

For instance, the Abu Dhabi Film Commission (the ADFC) in the UAE offers a thirty percent (30%) cash back rebate on film and television productions (these include TV series and commercials) and other formats including documentaries and short movies shot within the city of Abu Dhabi. There is however a formal requirement that production company must hold a valid media zone authority trade license. Prior approval from National Media Council and/or the ADFC approval must be sought prior to obtaining an interim certficiate for any pre-production works. Finally, applicants must obtain the final certificate from ADFC on the total amount of rebate that applicant is eligible for. Applicants who obtain Abu Dhabi public funding are excluded from applying for any rebates. There is also a formal requirement of giving ADFC a credit at the end credits or end of movie/series in all cases on all formats and prints of the film, documentary or series (as the case ma be) in the form and manner prescribed by ADFC. Similarly, there are various types of permits that be obtained for shooting in Abu Dhabi, like the aerial permit, private location permit, offshore permit, etc. Additionally, there are regulations governing the import of film equipments in Abu dhabi where temporary import license is granted upon completing the application process.

Bollywood Films Shot Abroad - The Tax Aspect

India's decision to reduce the corporate tax rate earlier this week has been welcomed by both - domestic as well as international investors. The reduction in tax rate which is among Asia's lowest prevailing tax rates and many consider it as a boon that may boost economic growth and reforms.

Bollywood has for long preferred shooting Indian films overseas for a multitude of reasons. For such overseas shooting, payments are made in foreign exchange to various overseas service providers. In Yash Raj Films Pvt. Ltd, Mumbai Vs The Income Tax Officer, Mumbai (ITA 2113/Mum/2009) , the Income Tax officer sought an explanation from the tax payer as to why no tax at source was deducted from payments made to overseas service providers. In response, the assessee (or; taxpayer) contended that payments made to overseas service providers were in fact profits of overseas companies that had no permanent establishment in India and accordingly no tax was required to be deducted at source. To this effect, the assesse placed reliance on Article 7 of the relevant Double Tax Avoidance Agreement. Additionally, the assessee also submitted that the services provided by overseas companies were not technical services and consequently there was no need to make any application under section 195 (2) of the Income Tax Act, 1961.

Interestingly, the same decision referred to the case of UPS SCS (Asia Ltd.) (2012) 18 Taxmann 302 (Mum ) wherein it was held that any services provided in nature of freight and logistics, customs clearance, warehousing and pickup services outside India, such services constituted 'fees for technical services'.

In the present case, Yash Raj Films had sought services in the nature of arranging of extras, arranging police and security, arranging location restoration(s), providing services of local line producer, location manager, etc. Based on a careful review of nature of services provided by overseas services providers and further referring to various court decision, the final decision was made in the favor of assessee and the appeal was dismissed.

In Endemol India P. Ltd. In re (No.4) (2014) 361 ITR 658/99 DTR 397/222 Taxman 67/266 CTR 142 (AAR) , the applicant (an Indian resident entity) engaged services of a foreign service provider for providing certain line production services including a line provider, local crew for stunt services, transportation, etc. The anchor and participants of the television show were appointed and paid by the broadcaster and were not the responsibility of overseas service provider. It was held that the payments made by the applicant to overseas service provider fell within the purview of section 194 (c) of the Income Tax Act and would not be taxable without permanent establishment in India. Accordingly, the payment by applicant to overseas service provider would not require any withholding under section 195 of the Income Tax Act.

The Income Tax Tribunal in India and the Authority for Advance Rulings have long been of the opinion that the fees paid to line producers towards their services should not be considered as fees towards technical services and accordingly, Indian film producers should not withhold taxes on same. That said, and as noted above, the fine print in the agreement between the parties and their intent inadvertently becomes the bone of contention which may result in or set a tone for possible future litigation. Such fees should be considered from the service tax perspective wherein the nature of services should instead be considered.

Hollywood Films Shot in India

With the rapid growth of Bollywood and its reach to the masses around the globe, the Indian Government is making efforts to promote India as a destination for film music concerts, due to which there have been various successful Hollywood movies being shot in India. Hence income of foreign producers should not be taxed in India in conditions wherein their operations are confined to shooting a film in India for the transmission of the same out of the country. The laws for taxation towards foreign artists are covered under Article 17 of Tax Treaties (Taxation of Entertainers and Sportspersons) Wherein income under by these actors from personal activities such as performances, events, etc. should be taxable in India. In case the income from the performance of an actor accrues not the actor but to another entity, then in that case too, the income should be taxable in India under Article 17(2). Foreign crew, included the team and staff behind the scene, such as technicians, make-up artist, etc. and hence, there are certain factors to be considered such as:-

• Nature of services provided

• The legal form of entity

• Period of stay in India

• Relevant Tax Treaty provisions

Based on the above, the foreign film producers/studios are required to undertake Indian tax compliances (such as withholding tax on payments), and contractual arrangements should be structured appropriately to avoid/ mitigate tax risks.

Film incentives

The Government of various countries do offer numerous incentives and grants in order to encourage shooting in that country. Generally, the issue that may arise with regards to the tax treatment of such subsidies/grants, in essence, is whether these need to be considered as an income, or reduced from the production cost of the film. The cost of production has to be reduced by the incentive and subsidiary received by the film producers under any scheme of the Government. Considering service tax in the present situation, any incentive or subsidiary disbursed by the Government cannot be considered to be a part of taxable services, unless the value of such services is directly affected by the subsidiaries and grants.

Post-production fees

With the rapid growth in the film industry and its use of technology, there are various post-production works such as virtual effect (commonly referred to as VFX), wherein the services are outsourced from foreign companies, and a fee is provided to such companies by the film producers. Subsequently, the issue arises as to whether the fees provided for these services shall be considered as fees towards technical services, and whether the same shall be subjected to the relevant tax treaty or respective domestic tax laws? Hence, it would depend upon the service provided, contractual documentation, and the relevant tax treaty with regards to the provision of the same towards technical services.

Conclusion

Bollywood films have progressively broken records on the box office accumulating millions of dollars, which have additionally influenced both multinational organizations and Indian companies to invest in Bollywood films. The Indian film industry has been social relationship-driven, under which the movies and arrangements were either oral or inadequately recorded, and the debate settles without going into mediation or litigation. It implies the absence of an appropriate chain of title documentation is promoting individual rights for the agreed parties. However, recently, the Indian film industry has woken up to the need for formal contracts to mention their powers and duties expressly.