India: Take A Look: Music On The Infringement Hook!

Last Updated: 6 July 2006

Music seems to be one of the most susceptible areas to copyright infringement. While the music of a movie is often its Unique Selling Point (USP), upcoming release, the music to the Bollywood "Aryan - the Unbreakable" seems to have landed itself into controversy. While singer Neha Bhasin (Plaintiff) claims to have sung the track "Ek look ek look", the music director Anand Raj Anand (Defendant No. 1) along with the producer Poonam Khubani (Defendant No.2) seem to portray a different picture.

The plaintiff claims to have been the lead vocalist, while the jacket /inlay of the Audio CD (containing three different versions of the song including a Remix and a Dhol version) credits her as a Backup Vocalist. She goes on to allege that each of the three versions has been recorded and is heard in her very own voice and not in that of defendant No. 2’s. As regards the credits, she alleged her voice to be "stolen", having been falsely attributed and held out as that of the producer.

In this regard, the plaintiff has moved to court to acquire a decree of permanent injunction, to prevent the use, sale, distribution and exhibition of the motion picture as well as its audiocassettes, compact discs, or promos without putting on view the plaintiff as the lead singer. The prayer further includes an order to prevent advertising and representing defendant no. 2 to be the lead singer. An order had been issued to prevent advertising the motion picture as well as its cassettes, CDs and promos containing the song "Ek look Ek look", without the name of the plaintiff being portrayed as the ‘lead singer’.

Defendant no. 1 approached the Plaintiff, through her manager. While she gladly accepted to sing for him, no remuneration was settled, prior to the first recording. Later, a series of recordings took place, the final version containing backup vocals and a RAP piece. The plaintiff claims to have learnt of the misrepresentation made, only when she saw the song on television. She confirmed the same on purchase of a cassette and an audio CD. In this regard, a notice was sent to Defendant no. 1. It was further stated that such an erroneous depiction was in violation of the performer’s rights in terms of the Copyright Act, 1957.

In pursuance of this notice, defendant No.1 and defendant No. 2 were called upon to give the plaintiff due credit on all entities bearing the erroneous representation apart from paying an amount of Rs. 10,00,000/- as damages towards loss of reputation and imputation of a bad name to plaintiff. A written apology was also to be submitted.

Defendant no. 2 left the notice unanswered. Defendant no. 1 in his reply stated that the plaintiff was invited for an audition, after which subsequent auditions were carried out. He stated that it was decided that Defendant no. 2’s voice be used.

Replying to the matter of the use of the plaintiff’s voice in the final version, defendant No. 1 attributed it to being a result of "inadvertence". The statements contained in the plaint were said to be of material importance and were carefully scrutinized by the Court. He did not offer any written apology either.

The plaintiff responded through a rejoinder, giving details of the earlier notices. Therein, she also stated that defendant No. 1’s claim of the lot of cassettes and CDs had been stopped from entering the market and that an attempt to call back those floating there were stated to be false. This was stated on the basis of the promos being continuingly aired on various channels and the CDs and cassettes freely available in the market. With regard to remuneration, it was stated that where the plaintiff’s voice was borne, irrespective of the fact that due credit was given or not, the plaintiff was entitled to remuneration, compensation and accreditation. Further in the absence of defendant No. 1 tendering an apology in public, they stated that they were forced to seek civil and criminal remedies. In this pursuit stood the present suit.

Lacking an apology or compensation, the suit at hand prayed for an ex-parte ad interim injunction. In response to this prayer, defendant No. 1 and defendant No. 2 filed a joint written statement, which was in consonance with their earlier statement. A brief background of a recording process was also rendered in the statement. In this regard, the vocalist spoke of the two voices being layered, to enable the lead singer’s as prominent as compared to those of the back up vocalists. Stating these details, defendant No. 1 contended that the sound engineer had overlapped the two voices. In certain layers, they claimed that the voice of the plaintiff still appeared on the background. The recording of the song though prior to the suit had been altered only to contain defendant No. 2’s voice. Defendant No. 1 and defendant No. 2, in this regard, relied and referred to the affidavit filed by the Sound Engineer deposing to the use of the technology with special reference to the song. The use of a plaintiff’s voice as a back up vocal was stated to be the cause for her name to appear as a back up singer.

The affidavit further stated that two recordings were sent with instructions to make a master setting out Defendant no. 2 as the lead singer, while Plaintiff as the back-up artist. Further, a reference was made to the two annexure, including a CD labeled ‘Original CD’ containing the plaintiff’s and Defendant no.2’s voice.

Another affidavit filed by the defendant stated that the voices of three female back up vocalists, instruments and male voices had been mixed along with that of Defendant No.2. This version was stated to incorporate the voice of defendant No. 2 alone and not that of the plaintiff. An agreement between Defendant No. 1 and the female back-up vocalists was also submitted to substantiate this contention.

The Court further calling for clarification, called for the sound engineer to be present in the court. The presiding Judge, clarifying his doubts regarding recording methodology, asked the sound engineer to submit two CDs containing only the voices of the plaintiff and defendant No.2. The same were handed over promptly the very next day.

The Court held that the defendants had stepped – up a two-pronged defence: one being based on facts and the other founded on law. While Defendant No. 1 had spoken of an "inadvertent overlapping", the affidavits filed, either by him or the sound engineer did not throw any light on such a blunder having been committed. On the contrary, a proposition of having been forwarded two recordings with instructions to use defendant No. 2’s voice as the lead while that of the plaintiff’s as a back-up artist was made. As stated in the written statement and the affidavit, the voice of the plaintiff in the song was a conscious design, with elements of the plaintiff’s voice being projected and that of defendant No.2’s being prominent. The representation on the inlay card of the CD was held to be correct and the assertion regarding an "inadvertence" having taken place was negated.

The Court shifted focus to the question of the lead voice being defendant No.2’s or not. Paying keen attention to the sequencing of the song and then comparing the vocals, it was observed that the word "sajNa" used in the song was sung in a radically different style. Defendant No.2’s rendition was not the projected voice in the CD. The Court comparing the two voices and lyrics under the microscopic eye, was convinced that prima facie the plaintiff had sung all the three versions of the song, and that defendant No. 2 was wrongly projected to be the lead singer.

A new CD was produced to circumvent the orders of the court. Herein, no ID tags or titles were given to the songs. On further perusal, the inlay card was found blank while the T.V. promos were still being aired. The song being in the plaintiff’s voice was yet contended to be that in the defendant’s. An ambiguous idea regarding the forthcoming lots of cassettes and CDs was given. Questions regarding this were left unanswered. There seemed to be no evidence regarding the CDs being called back. The song having gained popularity all over the country, the Court stated that the act of introducing a New CD without acknowledging the mischief and injury to the plaintiff would be like piling insult over the injury.

The Counsel for the defendants contended that there existed no contract between the plaintiff and the defendant and that the regulations under the Copyright Act, 1957 would also be inapplicable, in the absence of a registered copyright. Performers rights were also said to be applicable only with respect to live performances and not recorded songs.

The court referring to performers’ rights as stated in the Copyright Act, 1957 referred to the definition of "performer" and "performance" as under Sections 2 (q) and Section 2 (qq) respectively. Further, a reference was made to Section 70 of the Indian Contract Act, 1872. Taking aid of the judgment delivered in State of W.B. v. B.K. Mondal and Sons (1962 Supp (1) SCR 876), and then Suresh Jindal v. Rizsoli Corriere Della Sera Prodzioni T.V. (1991 Supp (2) SCC 3), and considering the averments made, the Court held the plaintiff entitled to an interim order restraining the defendants from using, selling, marketing the motion picture as well as the cassettes, CDs, promos etc of the movie containing the song in issue in any of the three versions, as in the original CD. The Court further provided that in case the new CD was to be marketed, then wide publicity would be given via all media giving due credit to the plaintiff. They were also ordered to prepare a statement indicating the number of copies of the original CDs produced, released and the number recalled, within four weeks of the order.

When it comes to infringement in the music industry these discordant notes somehow need to be tuned in sync with the law. As technology sophisticates, competition rises and IPR awareness grows, it seems the music industry shall be increasingly under the spotlight.

© Lex Orbis 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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