Guest post: Ankit Relan- Mashups, Cover Versions and all that Jazz under the Indian Copyright Law

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I am pleased to bring to you our first guest post by Ankit Relan. Ankit Relan, is a practicing attorney in the Delhi High Court, and represents some of the biggest names in the film and music industry in India. He handles the copyright and technology law practice at Mason & Associates, a top tier law firm that regularly advises the top companies in the film and music industry, media & technology sector, internet service providers, book publishing companies, pharmaceutical companies in India on a variety of issues. Ankit had earlier done a guest interview for us where he had dealt on the issue of performers’ rights, which can be viewed here.

Mashups, Cover Versions and all that Jazz under the Indian Copyright Law

In this post, I will try to explain the meaning and concept behind the terms “cover versions”, “mashups”, “remixes”, “version recordings” that are often used loosely and interchangeably in the Indian music circuit. I will also attempt to explain the position under the Indian Copyright Act, 1957 with respect to these concepts.

What is a “Cover Version”?

A cover version is nothing but a freshly performed rendition of an existing song with fresh artists and musicians where essentially the same song is sung/performed again[1]. The lyrics are left untouched, the melody is left unchanged. The song is simply sung/performed again in a new avatar with a new orchestra. This fresh recording is known as a “cover version”.

The Indian Copyright Act describes a cover version under Section 31C as –

…a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have (already) been made by or with the licence or consent of the owner of the right in the work…

(Emphasis Added)

Section 31C (3) adds a caveat that this recording must not contain any changes to the lyrics (or “literary work” as law calls it) and to the melody (or “musical work”), that have not been made previously or are not technically necessary. The provision reads as follows –

“The person making such a sound recording shall not make any alteration in the literary or musical work which has not been made previously by (the owner himself) or with the consent of the owner of rights, or (an alteration) which is not technically necessary for the purpose of making the sound recordings…

 (Emphasis Added)

**Think of Stand by Me originally sung by the legendary Ben E. King (click here to listen), later covered by John Lennon (click here to listen) or Knocking on Heavens’ Door, originally sung by Bob Dylan (click here to listen) and covered by artists like Guns N Roses (click here to listen) or Avril Lavigne (click here to listen) and the like, as an example. They sang the same song. Did not tinker with the lyrics and made magic.

The law permits anyone to make a cover version, if certain conditions spelt out under Section 31C are fulfilled. But, before we deal with the new provisions relating to cover versions, let’s first understand some of the other terms used in the music industry –

 What is a “Version Recording”?

There is no such thing as a version recording under the Indian Copyright Act, as it currently stands. The term version recording was colloquially used by the music industry to refer to song covers or cover versions under the old Copyright Act, before it was amended in the year 2012 and section 31C was brought in.

Version recordings were exactly what “Cover Versions” are understood to be now. They refer to a fresh rendition of a song that is sung again with a new set of musicians. Before Section 31C was introduced, song covers were made under Section 52(1)(j) of the Copyright Act, which was a “fair dealing” provision that provided the defendants with a defence that the cover version made by them was fair and non-infringing as it complied with the pre-conditions set out under Section 52(1)(j). These recordings were known as “version recordings” within the industry and the phrase was caught on by the Delhi High Court in a couple of orders in cases filed by Saregama[2] and T-Series[3]. Apart from the colloquial usage, the words “version recording” do not find a mention under the new Act. They never did, to my knowledge.

That section has now been deleted and re-introduced in the form of a Statutory License provision under Section 31C with some changes, though the essence of Section 52(1)(j) has been largely retained.

What is a Mashup?

A mashup refers to a combination of two or more songs that are synchronized (or mashed up, as they say) with each other in such a way that it becomes a single consistent track of its own.

A mashup does not really change the lyrics or the melody of the song, but involves a creative rearrangement of multiple sound recordings where a few seconds here and there of several songs are stitched together in a constant beat, to create a recording that sounds like a new song in itself.

Listen to this mashup of Aashiqui 2 songs that was officially released by T-Series (click here to listen) to get an idea.

The Indian Copyright Act does not define the expression “mashup”. Under the Act, an alteration or rearrangement of a copyrighted work is known as an “adaptation” and not a mashup. Adaptation is an exclusive right that is provided to the owner of copyright in the lyrics and melody of the song. A person who owns the rights in the lyrics and the melody of a song can therefore adapt it, re-arrange it, alter it or simply mash-it-up the way he wants to. No one else can do so, without his permission.

Apart from the right of adaptation, a mashup also involves the right to “make any sound recording” in the literary and musical works of a song. A mashed-up song is a new recording in itself and no new recording can be made unless the “right to make a sound recording” is taken from its owners.

Quite surprisingly, this right of adaptation has not been specifically provided to a sound recording owner under Section 14(e), as if to imply that the sound recording owner of a song cannot stop a rearrangement or mashup of his sound recording though the lyricist and music composer of the same song might. However, in my view that will be a difficult argument to sustain as the owner of a sound recording still has the exclusive right to communicate his sound recording including ‘every individual part of it’ and can therefore has a valid complaint to make, if a part of his sound recording is used to create a mashup without his permission. This, remember, would apply to the owner of each sound recording used in the mashup.

Besides, the owner of the lyrics and melody of the song may still complain, even if the owner of the sound recording may not.

What is a “Remix”?

The law does not define the expression remix either. Traditionally, a remix has been considered to be an alteration of just the beats and the tempo of a song, with minor additions and variations to the melody and lyrics of the song.

For instance, turning a slow love song like “Channa Mereya” from Aae Dil Hai Mushkil into a fast-paced dance number by adding a double-time feel to its beats. Listen to the official Remix released by Sony Music by clicking here.

Under the Indian Copyright Act, a remix is again considered to be an “adaptation” of the old song as it involves a “rearrangement” or an “alteration” of the literary and musical portions of the song, without really re-creating it or re-performing it.

The Indian music industry has been loosely using the term “remix” interchangeably with terms like a “remake” or a “recreated song” to include any and every modification that is made to the lyrics and the melody of the song. But that usage is incorrect in my view and a cause of confusion in the market which spreads into judicial pronouncements. For instance, the Delhi High Court in the landmark decision of Myspace vs Super Cassettes Industries Ltd. repeatedly recognized a “remix” as a “combination of two songs”, when it clearly is not.

What is a Recreated Song?

A recreated song is exactly what the word itself suggests, a “re-created” song. A song which has been “created-again” in all respects by changing its melody, its lyrics, its musical arrangement, singers, everything. In other words, it is a “remake”.

The catch is, the recreated song uses just enough portions of the original song so as to create an association between the two in the minds of a listener. The essential bits or the catch phrase of the original song is retained in a re-created song and therefore the new song does not fully disassociates itself from the old song (obviously, if it does so, it’s not a “re-created” song anymore but a different song altogether).

For instance, the recreated song “Dheere Dheere Se Meri Zindagi Main Aana” from the 1990 hit film Aashiqui was recently recreated by Honey Singh & Co., and by Zack Knight where the lyrics were changed but the punch line of the original song was retained; the melody was reworked but the chorus part of the original song was retained. Listen to the old song here and the new renditions here and here.

Under the Indian Copyright Act, a recreated song constitutes a new sound recording capable of having independent copyright in itself separate and distinct from the sound recording of the earlier song which has been recreated. Each and every aspect of the recreated song that has been freshly written, composed or produced is capable of sustaining an independent claim to copyright.

A recreated song normally comprises of the following works –

  • Old Lyrics, to the extent they are used in the new song.
  • Old Melody, to the extent the original melody or chorus has been used again
  • New Lyrics, which constitute an independently protectable literary work
  • New Melody, which constitutes an independently protectable musical work
  • New Sound Recording, which constitutes an independently protectable sound recording.
  • Old Sound Recording, which is also sometimes incorporated to give the new song a little bit of an old flavour.

Depending upon how the song is being recreated, different rights under Section 14 get invoked. Broadly speaking, any normal recreated song invokes the right of “adaptation” in the literary and musical works, the right of “making a sound recording” of the literary and musical work, the right of “reproducing” the literary and musical work, the right “communicating” the literary and musical work.

How to make a cover version, re-created song, mashup, remixes?

In India, you cannot touch someone’s copyrighted song without his express permission. That is the law, simply put and bluntly stated.

Doing so, is not only wrong, but is “deemed to be an infringement” under the Act and invites, both civil and criminal punishments. Even an infringement committed without knowledge (ie. Innocent Infringement) is not a defence under the Indian Law.

So, what’s the solution?

There are 3 options under the Indian Copyright Act, to use someone’s copyrighted work and remake/remix/recreate/cover it –

  • Be the owner;
  • Plead the owner;
  • Bleed the owner;

Let’s briefly discuss each option –

Be the Owner

Perhaps the cleanest solution here is to acquire the ownership in a copyrighted song and step into the shoes of the owner(s). This can be done by entering into, what we call an “assignment deed” with the owner of copyright, which is akin to entering into an agreement for sale of any property, broadly speaking.

Remember, a song has many components such as the (i) Lyrics, (ii) Melody, (iii) the Sound Recording and the law recognizes each component to have a separate and distinct copyright. Each component may be owned by different persons and therefore, depending upon which component you want to exploit, an assignment with such an owner (or owners) would be required.

The law does not prescribe any specific format, font colour, paper size or shubh muhurat for drafting a valid assignment deed. In fact, contrary to popular belief, the law also does not require an assignment agreement to be on a stamp paper (though certain States in India, such as Maharashtra have made specific laws, requiring stamp duty to be paid on copyright assignments, but its free in several other states).

All that the Copyright Law requires is that the assignment agreement should be in writing and signed by both parties and it should include certain basic details about the transaction as have been mentioned under Section 18 and 19 of the Copyright Act, such as who are the parties, what are the works being assigned, what are the rights being assigned, what is the term period of the agreement, which territory will the rights extend to, what is the consideration and/or royalty amount payable to him etc. (we will deal with these aspects in a separate post, someday!).

Once you become the assignee of a song, you get all the “exclusive” rights that the owner had under Section 14 of the Act and use/cover/recreate the song to your liking.

Plead the Owner

Owners don’t normally like to part with their ownership. If it were you, you wouldn’t do so either. So, if you cannot acquire ownership in a song, you can always plead the owner(s) to grant you the “permission to use” their copyrighted works in a song in return for a royalty. This is also known as a “License” under the Copyright Act.

Here again, the law does not prescribe any specific format of a license. You can write it by hand, or take it over an email or have it typed on a simple A4 paper. As long as a license agreement includes certain basic ingredients spelt out under Section 30 read with Section 19 of the Copyright Act, it is considered valid. These essentials are almost on the same lines as those required under an Assignment Agreement. For instance, a license agreement must be in writing and must mention the parties, the works, the rights being licensed, the term, the territory, the royalty amounts etc. These details are almost identical to those required for Assignment Agreements (already mentioned above).

However, unlike an assignment agreement, a license agreement is not required to be signed by both parties under the Indian Law [even an NOC from the owner is enough] and there is no exemption from paying the stamp duty to the State Government here.

Let’s now look at the last option.

Bleed the owner

 No, not literally!

If, for some reason, the owner is not available for taking rights or he is someone big, powerful and obdurate about his copyrights and is trying to lawyer you out of using his copyrighted works – the law provides certain options/remedies where you can create a version/remake/cover out of his song, without his permission.

Let’s look at some of these options –

(A) Statutory License for Cover Versions under Section 31C

As briefly mentioned above, you can make a cover version of an existing song if certain conditions under Section 31C apply, without asking for the owner’s consent. These conditions are briefly culled out below (only the principal ones) –

(a)The 5 year waiting period: Please note that to make a statutory license under Section 31C, a period of 5 years must have passed after the original song was first published. The law starts calculating these 5 years from the 1st of January of the next year regardless of which month the song was published in the previous year. (Yes, that’s how our legislature likes to do its math!)

(b) The written notification: Under Section 31C, a written notice is a must. A notice sent to the owner, conveying the intention to cover his song. This notice is supposed to be sent in advance and not after using/changing the song. (If you send it afterwards, it defeats the purposes of putting him to “notice”, right?)

(c) Who to send it to: This notice must be sent to the owner of each component of the song that you plan to cover. (Remember the different components in a song theory?)

(d) What do I need to pay: The notice must attach royalty for a minimum of 50,000 copies. Obviously, if you make more copies, you pay for those as well. The rate of this royalty will be decided by the Copyright Board and you cannot send the notice till the Board decides this rate. (I hope that happens before I turn 50)

(e) How can I market it: Market it the way you want but make sure that the artwork/album art/labels and covers of the new song clearly call out that it is a “Cover Version” and the labels/artworks etc. must not contain the names of the earlier song’s artists or create any association between the new song and the old song. (Please don’t be misleading!)

(e) Can I change the song to my likingNo, under a cover version you cannot change the lyrics or the melody, unless the changes were previously made or authorized by the owner or unless the changes are technically necessary. (Please take a license if you want to change it)

(B) Fair Use of a Song

 Copyright is not a divine right”, said the Delhi High Court recently. It is not an absolute right that the law cannot regulate. Section 52 of the Copyright Act, provides for certain specific instances, where any copyrighted work (songs, films or others) can be used/enjoyed by anyone without the need of taking the owner’s permission or worrying about being dragged to court. These instances are known as “Fair Dealing” provisions.

Section 52(1), of the Indian Copyright Act, exempts any person who carries out a fair dealing of any work if the same is done for any of the following purposes –

  • private or personal use, including research;
  • criticism or review, whether of that work or of any other work;
  • the reporting of current events and current affairs, including the reporting of a lecture delivered in public;

The term “fair dealing” has not been defined under the Act, but in my opinion, it would include covering, adapting or even re-creating a song for any of these limited purposes as listed out under the said provision. Outside India, there have been a number of judgements allowing the remakes/recreation of songs under the principles of fair use (which is broader concept than fair dealing and which will require a separate post altogether).

Which set of rights would be required for making a cover version, mashup, remix, recreated song?

It depends!

It depends upon how you plan to ruin cover a song. That will decide which category of remake you fall under and consequently, what rights would be needed. Here is a chart that may help –

Activity Short Premise What rights are involved/needed(at a bare minimum)
Cover Version Same song, performed afresh (i)      Right to reproduce the literary and musical work(ii)    Right to make a sound recording of the literary and musical work;

(iii)   Right to communicate the literary and musical work to the public

Mashup Multiple sound recordings -stitched together – creating a single track (i)      Right to make an adaptation of the literary and musical work(ii)    Right to make a sound recording of the literary and musical work

(iii)   Right to communicate the literary and musical work.

(iv)   Right to communicate the original song’s sound recording

**These rights are to be taken for each song that is used in the mashup.

Remix Same song – beats changed and some music added (i)      Right to make an adaptation of the literary and musical work(ii)    Right to make a sound recording of the literary and musical work

(iii)   Right to communicate the literary and musical work.

(iv)   Right to communicate the original song’s sound recording

Recreated Song A remake in all respects – lyrics added – music altered – but essential components of old song retained (i)      Right to make an adaptation of the literary and musical work(ii)    Right to make a sound recording of the literary and musical work

(iii)   Right to communicate the literary and musical work.

(iv)   Right to communicate the original song’s sound recording

 

In case you have any queries or want to share any feedback, criticism or you simply want to light up my day, please feel free to write to me at ankit.relan@mason.co.in or relan.ankit@gmail.com.

Disclaimer: The contents of this article are purely for academic purposes and do not constitute any binding legal advice, opinion or commercial suggestion by and between the parties, being you, the reader and me, the author of this article.

End Notes:

[1] In Star India Pvt. Ltd. vs Piyush Agarwal & Ors, MANU/DE/5535/2012, it was observed as follows “…Once a combination of the aforesaid three works being the lyrics, music and the performer’s works together, is performed and a sound recording created, that sound recording which is the first sound recording…. After the first sound recording is made, then, if and after permissions are taken from the authors of the musical work and the lyrics writer which formed the basis of the first sound recording, another band of orchestra with the singer (i.e. another set of performers) can by their performances on the basis of the existing musical work and the lyrics, cause to come into being a new sound recording. This second/subsequent sound recording is called a version recording/cover version.” This jugement was subsequently set aside in appeal, though on a different point, not affecting these observations.

[2] See Order dated 01.07.2010 in CS(OS)No. 399 of 2005

[3] Super Cassette Industries Ltd vs Bathla Cassette Industries Pvt., 2003 (27) PTC 280 Del