INTRODUCTION
A Problem free world is a Utopian vision! An industry as pleasant as music and arts being no exception to the above is a solid proof for the same. Music or art is born out of creativity and work and hence has to be protected by the owners to claim it as “theirs.” Malpractices and deceit are a common cakewalk in the music industry in particular. Copyrights is a type of legal protection provided to such art forms such as music to provide ownership rights and credit for the work made and published.
COPYRIGHT OWNERSHIP AND REGISTRATION
A producer of a song can claims several rights over his work just by registering and owing it. These rights may include showcasing the work anywhere, releasing and publishing it in public platforms, reproducing the work, performing it live, producing any other sound recording embodying it on any medium including retaining it on any medium, to sell or give on commercial rent or offer to sell such rental and communicate the sound recording to public.[1]
According to section 17(a) of the copyrights act, 1957[2], the author of a work shall be the first owner of the copyright therein: Provided that—
in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work.
The registration of creative work is not necessary or absolutely essential for availing copyright protection[3].
The music producer would be the first and the rightful owner of the work produced. Sharing copyright ownership rights could be done only with the approval of the first owner. Similarly, when the music is produced for a particular cause or to deliver to a particular party on a contract or an employer-employee basis then the work would belong to the party that receives the final, finished project.
In Indian Performing Right Society Vs Eastern India Motion Pictures[4], where it was initially agreed that only the music composer has complete copyright rights over the musical work, disentitling the singer and other musicians to those rights, it was later held that the artists associated with the work also play an equal role in the success and outcome of the album/ song, thus providing the rights to claim copyright protection to them too. Thus, the owners of a copyright pertaining to a musical work would include the lyricist, composer, singer, musician, and any other person that is associated with the recording of the album.
However, acquiring the title of ownership is not just sufficient to protect the work. It’s very easy to replicate and reproduce a song in a different form and sell or publish It. Registering the copyright is a stable way of acquiring ownership over it. The copyright would then include the exact content of the work and would lock the originality and distinctive feature of the song.
The registration process involves sending a copy of the manuscript with the application for seeking approval from the copyright office in proof of the work being submitted for registration. The copies sent will be kept safe and confidential by the registrars or concerned officials. The music producer can either send the whole work or parts of it and ask for return after the completion of the registration process[5]. The registration process however varies from state to state and involves various compliance procedures. In India however, once the copyright is published in form V of the register of copyright after the approval is being sought, the registration process is complete.
When a work is published under the authority of the copyright owner, a notice of copyright may be placed on all publicly distributed copies or phone records. The use of the notice is the responsibility of the copyright owner and does not require permission from, or registration with, the Copyright Office[6]. It is not necessary to use the symbol or identification of the copyright acquired.
The copyright amendments that were brought about in 2012, provided the music producers and authors a right to receive a minimum of 50% share of royalties from the application and use of the works created by them. This cannot be shared by the producer, but his legal descendants and a copyright authority are an exception.
SAMPLING
Sampling is the process of incorporating parts of an existing work into a new one. This is very common in the music industry and if done without consent and approval from copyright owners might lead to legal complications. The license fees for this process depends on many factors. They include the portion or portions of the recording that is to be used, the actual application of the extracts, the popularity of the extracts, the extent and amount being extracted etc. The penalty for the infringement of the work would again be based on similar other factors and would be majorly governed by the copyrights act, 1957.
Even though there are no explicit provisions on sampling in the act, section 14 broadly discusses the above. Section 14 provides complete rights to the music or art producer to cover some or all parts of the work. However, the owner of musical work, by virtue of Section 14(a), has exclusive right to make any adaptation of the work[7].
In the very recent, “Gendha phool” case, where the lines ”boroleker biti lo” was repeated in the song gendha phool composed by Badshah. It was understood that the extract was originally written by Ratan- Kahar when he was part of an organisation. If this statement is proved and if Gendha Phool is attributable to the copyrightable part of the original song then there would be violation of section 57(a) of the Act. It would even come into conflict with section 51 of the act or breaching Ratan Kohar’s sole rights over the song under section 14 of the act[8].
In case, a musical work includes a part of existing work and passes the test of originality then the copyright protection will not be provided to the work copied illegally as that part of the song would not have any creative side to its own. Thus, music sampling would also attract provisions pertaining to copyright infringement.
Courts determine the similarity of songs based on a classified analysis. The analysis proves how much of the original work is copied and whether the kind or type of work is very similar to the original work. Copying can sometimes be de minimis and not reach the level adequate to prove substantial similarity. The use is minimal if half the audience does not recognize the similarity and extraction[9]
Music sampling as an offence empowers the courts to issue orders to the offenders to pay for successful litigant. The U.S considers sampling as a trivial offence / issue and much light is not thrown upon this.
TRADEMARK POSSESSION
A trademark is defined as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours[10].
There are different types of trademarks including written representation, visual representation (logos, images), trade features (unique distinctions) of the product etc. These trademarks are used solely to determine the composer or creator of the song or music. For example, a published piece of music such as a song played in a film can derive protection under a trademark, but an unpublished song composed by acquiescence in its raw state cannot.
Trademarks applied for services are known as service marks. For example, a band can obtain one in its name to use in relation to shows and live performances. These service marks give a distinguished brad image and reputation to their services, at regional, provincial, national, or international market[11].
Choosing a brand name for a band or publishing agency could be a tedious process. A Thorough research on prevailing trademarks and service marks needs to be done. Name being searched should not be found on record or the trademark registry for the adoption and usage of the trademark by the party.
The party choosing to adopt the name must be using the name and must be performing under that name. Even though the names could be looked up in the internet and from other sources, it is best to seek the help of a lawyer who could carry out comprehensive research and complete the process sooner.
Music directors, composers and lyricists use various logos, symbols and names for identification and distribution. In order to do this, certification marks as under section 2(e) of the trademarks act need to be obtained. These are marks from a company that provide a product meeting the level of pre-confirmed, set standards.
The infringement of trademark could be claimed only upon the completion of the registration procedure. Infringement could mean copying or using the same/ similar marks. The whole purpose of these marks is to ensure that they are not being used by two or more parties for promoting the product/ service and for other commercial purposes.
In The famous case of DM Entertainment v. baby gift house and Ors, Daler Mehendi, a popular pop music artist owned DM entertainment incorporated in 1996, in order to promote and manage the artists fame and publicity. When it was found that another company had been making dolls under this name and had been selling them, the plaintiff filed a suit for infringing his brand name thus establishing passing off. It was held that since the artists consent and approval was not sought it was clearly violating the artists publicity and infringement could be proven[12].
MUSIC PUBLISHING RIGHTS
We have all grown up listening to the song’ masakali’ from Delhi 6, a super duper hit song. Now, there is a whole other generation grooving to masakali2.o, another version of the original. So, what happened here was that the original song was given a new flavour, modified and was transformed into something different, while keeping the basic song structure and tune as it is. Mixing, mastering, adding and removing few components were the major changes. But is this legal? Is it possible to do this without violating the original composers and artists rights?
Section 52 (1)(j) states that the use and additions or changes done to original work such as audios and recordings require the copyright owner’s permission[13]. The permission would then be construed as access to use the work if the necessary conditions and payment procedure for the work is complete. There are different types of publishing contracts between the party
that seeks to use the original work and the owner of the work. One of the major disputes between these parties is the determination of the royalty amount and it’s split. Royalty is the amount payable by one party to another to use and get access to ownership rights that the owner is entitled to.
A mechanical royalty for instance means the compensation paid to the the lyricist or the composer for the usage of the work by third parties. The party making the payment can then re-work or distribute the music. For example, when choosing to play a particular song on Spotify or apple or any other digital streaming platform, the royalty shall be directly paid to the DSP or the broadcasting stream and then the amount is distributed to the various artists involved in the project.
Next Comes Performance royalty. They are amounts paid to the original owners and performers of a song every time the composition is being performed. Whether it’s a radio broadcast, a background playlist at a restaurant, or a digital stream[14].In countries like UK and US, such royalties are collected and distributed by the performing rights organisations. There are two kinds of royalties. One being, royalties paid by mediums/fora’s providing access to the music and the other being royalties paid by the music broadcasters.
The revenue is split among the parties involved in the creation of the song after the royalty amount to be paid to each of the copyright owners is calculated, taking into consideration a wide range of determinants such as the most heard or viewed forum, time at which the work was broadcasted etc. Sections 33 to 36 of the Copyrights Act, 1957, deals with performance right societies rights in India.
Similarly, section 38 of the act, also lays down that a performer or artist engaging in any performance will have a separate right over that particular performance. The artist would hold the right for 50 years starting from the following year of the performance.
In the case of Super Cassette Industries Vs Chintamani Rao and Ors[15], where the plaintiff being the proprietor of the T-series brand of music cassettes and CDs claimed that it gives licenses to a huge number of broadcasting companies and forums in which it owns the right. However, they filed a suit restraining the defendants, Shri Chintamani Rao from using the work of the plaintiff i.e., the rightful copyright owner in any sort, including public performance. The suit was allowed and the restriction on the defendants was imposed by the court owing to the infringement committed. The plaintiffs were also awarded compensation amounting to Rs 2 lakhs.
LAW OF CONTRACTS
Every deal is formed through an agreement. A document that safeguards the artists and their rights is a contract. A contract involves all the essential ingredients for a deal such as offer, promise and consideration. The law of contracts is necessary as various agreements are entered into by the contracting parties for the production of music, its distribution, display, performance, remix, remake, split of the royalty amount, copyright and trademark rights etc. The Indian Contracts Act, 1872 governs the contracts and the necessary legal formalities and procedure required to comply with by the contracting parties.
Recording companies, studios and music distribution agencies carry out their functions through contracts and agreements for every deal with every client. This thus forms the basis of the musical work being created and rendered, thus making the law of contracts one of the most crucial ones for the music industry.
OTHER ISSUES
Another common crime that is prevalent in the industry is the unreported payment or acceptance by, employees of broadcast stations, program producers, or program suppliers of any money, service or valuable consideration to achieve fair play[16]. The record companies make these payments to the radio stations[17].For example, it was claimed that the “universal” was held liable for providing travel offers, deals, gadgets and show tickets in return for airplay. This crime is still persisting in US and other countries even after almost 40 years of its illegalization. Payola is just one of the various corruption techniques followed by the record labels and companies to receive profits.
Record labels have been known for “screwing over” their artists in order to increase their own funds[18]. This was initially viewed as a gross injustice and a scam for the artist or as complete negligence on the part of the artist while entering into an agreement. Record companies get to hold the money payable to the artist and also misrepresent certain figures in order to swindle the royalty amount due to the artist. Scams, kickbacks and fraud are some of the common terms to represent this kind of a crime.
The music industry is ever growing and always has its doors open for entrants, more so now with the spurt in the technological advancement. Naturally, the competition, the desire to succeed and to be the best is common. Thus, there may be times when an artist would attempt to overpower another by resorting to unhealthy, immoral, cruel and sometimes illegal ways. Fraud, deceit, defamation are just a few examples.
Sometimes, these crimes are not even evident and openly committed. For example, defamation could occur in the form of constructive criticism by a fellow artist or a third party.
It is always better for artists to keep an eye open in order to not pave way for such crimes. Similarly, to address such issues and to immediately take it up with a lawyer when even a shade of red light is spotted is of utmost importance!
[1]Tanvi Sapra, Ownership of Copyright and Rights of Copyright Owners in India,20th dcember,2020, https://lawcirca.com/ownership-of-copyright-and-rights-of-copyright-owners-in-india/
[2] Section 17 of the copyrights act, 1957, No.13, Acts of Parliament,1992(India)
[3] R.G Anand vs M/of Films & Or,1978 AIR 1613
[4] Indian Performing Right Society Vs Eastern India Motion Pictures,1977 AIR 1443
[5] Copyright Registration Process and procedure, Indian Filings, https://www.indiafilings.com/learn/copyright-registration-process-procedure/
[6] Sudhanshu Sahoo, The copyright Notice Requirement, IIPRD Blog, https://iiprd.wordpress.com/2020/06/13/the-copyright-notice-requirement/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
[7] Diganth Raj Sehgal, Music Sampling- A threat to Copyright, pleaders, April 28th, 2020, https://blog.ipleaders.in/music-sampling-threat-copyright/
[8] Shrija Verma, Indian Music Industry and The Copyright Controversy, The IP Press, January 29,2021, https://www.theippress.com/2021/01/29/indian-music-industry-and-the-copyright-controversy/
[9] Music Law 101: Copyright Infringement and Fair Use, ReverbNation, August 16,2018, https://blog.reverbnation.com/2018/08/16/music-law-101-copyright-infringement-fair-use/
[10] Section 2 of trademarks act, 1999,005 of 1940,
[11] Service Mark Registration in India, RFK Law, https://www.trademarkattorneyindia.com/index.php/patent-registration-india-faq/58-master/quick-view/390-service-mark-registration
[12] DM Entertainment v. baby gift house and Ors, MANU/DE/2043/2010
[13] Section 52 Of the Copyright (Amendments) Act, 1957, No.13, Acts of Parliament,1992(India
[14] Dmitry Pastukhov Music Publishing 101: Copyrights, Publishing, Common Deals, Types and Astakhov Blog, November 20, 2019
[15]Super Cassette Industries Vs Chintamani Rao and Ors, I.A NO. 9900/2006in CS(OS) 1706/2006
[16] Payola Plugola advisory ,Pilsbury Winthrop Shaw Pittman,02.09.2006, https://www.pillsburylaw.com/images/content/1/7/v2/1737/F5EBB90DE8FFD38F7083FE69D7588284.pdf
[17] None, Like Joshua, Crime and Corruption: Recognizing Unethical Practises in The Music Industry, Music Think Thank, https://www.musicthinktank.com/blog/crime-and-corruption-recognizing-unethical-practices-in-the.html
[18] Id
