RECREATED VERSIONS & THE ISSUE OF MORAL RIGHTS [PART 2 -JAVED AKHTAR’S NOTICE TO T-SERIES, AMAAL & ARMAAN MALIK FOR RECREATED VERSION OF GHAR SE NIKALTE HI]

In my previous post here, I had covered details of the legal notice issued by Mr. Javed Akhtar to Armaan Malik, Amaal Malik and T Series in relation to the recreated version of the song ‘Ghar Se Nikalte Hi’.

In this post, I shall be analysing the legal position on recreated versions with respect to moral rights.

Before dealing with the legal position, I would like to point out few technical issues pertaining to the notice:

• The notice (strangely) was not addressed to the lyricist of the Recreated Version i.e. Kunaal Verma. If the main grievance of Mr. Akhtar was distortion and mutilation of his works, then the notice ought to have necessarily been addressed to the lyricist of the Recreated Version who had authored the lyrics.
• The only platform mentioned in the notice which had failed to acknowledge the authors of the Original Version seems to be Apple Inc/ Itunes store. Surprisingly, the notice had not been addressed to Apple Inc or even copied to them. Under Section 52-A of the Copyright Act, the responsibility to include the particulars of the author and owners is on the person publishing the sound recording/ cinematograph film.
• The allegation on recreated versions being a ploy to avoid non-payment of royalties should be made by IPRS and not Mr. Akhtar since he has assigned his rights to IPRS. Moreover, the allegation ought to have been made to the platforms exploiting the song rather than the owner of the sound recording rights.
• As mentioned in my earlier post, the notice had been addressed to Armaan Malik for merely making a public comment on the Youtube page in which he has not acknowledged the credits of the authors of the Original Version. Armaan Malik’s only role in the song is that of a singer / performer. He has neither written the lyrics of the song nor composed it. Further the reliefs claimed are against all addressees including Armaan Malik.

[While technical issues don’t really matter at a notice stage, it creates suspicion on the real intent. The only reason this has been highlighted is because the actions of the people involved in this notice are likely to be to be followed as a precedent by others].

The issue of moral rights with respect to recreated versions:

A recreation is when something is recreated, remade, reinterpreted. The Copyright Act, 1957 does not define what a ‘recreation’ is. However, the definition of adaptation under Section 2 (a) of the Copyright Act includes within its scope in relation to any work, any use of such work involving its rearrangement and alteration. Section 14 of the Act confers such right to an owner of underlying work i.e. literary, dramatic, musical and artistic work. In the instant case, if T-Series is the owner of the literary and musical works in the Original Version, then by virtue of Section 14(a) of the Copyright Act, it has the sole right to make an adaptation of the Original Version which includes the right to make the Recreated Version. However, ownership of T-Series over the Original Version does not seem to be the issue in dispute here.

Whether an adaptation of the Original Version can amount to violation of moral rights / special rights of the authors of its underlying works?

The moral/ special rights of the author under Section 57 essentially recognize, the right of identification / paternity rights of an author i.e. right to claim authorship of the work; and the integrity rights i.e. the right to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work, if such distortion, mutilation, modification or other act would be prejudicial to his honor or reputation.

Authors’ moral rights gained international acceptance in 1928, when the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) added to its provisions the rights of attribution and integrity. The most influential international copyright treaty, Article 6bis of the current Berne Convention provides:

“Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

It would be important to reproduce Section 57 as it originally read in the Copyright Act, 1957 and the amended provision as it reads now:

The first amendment to Section 57 was introduced by the 1994 Amendment to the Copyright Act. The notes on clauses in the Copyright Amendment Bill, 1992 mentions the following:

“Clause 20- This clause seeks to amend sub-section (1) of section 57 (concerning author’s special rights) in order to limit the remedies available to the author in respect of distortion, mutilation, modification or other acts in respect of his work to cases where such acts would be prejudicial to his honour or reputation. The present provision in the principal Act, whereby even distortion, mutilation and modification of the work which are not prejudicial to the author’s honour or reputation would violate the author’s special rights, are likely to have anomalous unintended consequences and are incidentally in excess of the requirements of the Berne Convention….”

The Legislature thus thought that the existing provision under the 1957 Act, whereby even distortion, mutilation and modification of the work which are not prejudicial to the author’s honour or reputation would violate the author’s special rights may have anomalous unintended consequences and were, incidentally, in excess of the requirement of Berne Convention. Copyright law in India was thus brought at par with the Berne Convention. In conformity with the Berne Convention, Section 57 of The Copyright Act 1957 protects the author’s right of paternity as also the right of integrity. Distortion, mutilation or modification if established to be prejudicial to the author’s reputation or honour are actionable.

To understand what constitutes to be prejudicial to honor and reputation, a reference could be made to the US District Court for the Southern District of New York’s decision in the case of Carter v. Helmsley-Spear, Inc., (though reversed on other grounds), where the court referred to Webster’s and declared that “prejudicial,” “honor” and “reputation” have readily understood meanings.” Thus, the court stated that in determining whether the prejudice to honor or reputation standard has been met, it would “consider whether such alteration would cause injury or damage to plaintiffs’ good name, public esteem, or reputation in the artistic community.”  “Prejudice” is commonly understood to mean “injury or damage due to some judgment of another.” “Honor” is commonly understood to mean “good name or public esteem.”. “Reputation” is commonly understood to mean the condition of “being regarded as worthy or meritorious.”

As far as integrity rights are concerned, to be actionable, the distortion, mutilation, modification of the original work thus should cause real injury/ damage to the honor and reputation of the author of the original work.

As far as paternity rights are concerned, a recreation has to necessarily associate itself to the original version in some manner else it would not count as an adaptation and would be a wholly new or unconnected song altogether. Necessarily, a recreated version would need to acknowledge the new authors of the recreated version as well as mention the names of the authors of the original version.

Waiver of moral rights: One of the most widely negotiated clause in any author agreement pertains to waiver of moral rights of an author. Those representing the author would argue that moral rights cannot be waived and such waiver would not be legally enforceable.

In my view, none of the judicial precedents in India (detailed below) delve clearly upon the issue of waiver of moral rights. What has been held in these cases is that even if the author assigns the copyright, his moral right continues to vest with him. Section 57 does not contain any restriction on the author from voluntarily waiving his moral rights.

In the case of Sartaj Singh Pannu vs Gurbani Media Pvt. Ltd, while dealing with an arbitration petition in relation to the film ‘Nanak Shah Fakir’, one of the issues before the Delhi High Court was with respect to whether the moral rights of an author can be waived voluntarily (director being construed as an author of artistic works if his works amount to artistic craftsmanship). The Court declined the plea of the petitioner that independent of the Copyright Act he has moral rights to the film, the waiver of which would be opposed to public policy. The Court held as under: In response to a query whether a Director can decide to not want his name to be associated with a film which he considers harmful to his reputation, Mr. Rao submitted that such a waiver would be contrary to public policy since the public would have a right to know who the Director of a film was. However, the Court is not prepared to go as far as to deny the right of a Director to waive his right to be credited as such if for any reason he does not want his name to be associated with the film. As long as the waiver is voluntary, it cannot be said to be opposed to public policy. The mandatory declaration of the name of the Director in the application for a censor certificate is sufficient to satisfy the requirement of the right of the public to know who the Director is.

 One can thus argue that moral rights/ special rights of an author can be voluntarily waived by the author. There are jurisdictions such as Canada which permit waiver of moral rights of an author.  The Copyright, Designs and Patents Act 1988 in UK recognizes the waiver of such rights as well. The waiver may be by instrument in writing signed by the person giving up the right, and it may relate not only to a specific work in existence, but to a class of works or even works in general, and to further works. It may be the subject of a condition and it may be revocable. Such waiver may also be operative under general principles of contract or estoppel [Section 87 CDPA]. In United States of America, under Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, any transfer or waiver of moral rights should be voluntary and memorialized; the author is presumed to otherwise retain the dignity-based right.

Right to receive royalties

I am not entirely sure why Mr. Akhtar would interpret that in a recreated version the authors of original version are not entitled to receive royalties. To my knowledge, even internationally, authors of original versions receive royalties along with authors of the recreated version. As mentioned earlier, considering that Mr. Akhtar would have assigned all his rights to IPRS, any claim on royalties cannot be made by him in his personal capacity. Further, such claim ought to have been made to the platform providers and not assignee of the underlying works.

Some of the Indian case laws which set out the jurisprudence on moral rights are as under:

1. Mannu Bhandari v Kala Vikas Pictures Pvt. Ltd. and another [AIR 1987 Delhi 13] – While dealing with the issue of moral rights where the Appellant had filed a suit seeking permanent injunction against screening and exhibition of the respondent’s film on the basis that the film was a mutilation and distortion of her novel ‘Aap Ka Bunty’ the Delhi High Court had observed that Section 57 lifts authors’ status beyond the material gains of copyright and gives it a special status and held that Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasized by the fact that the remedies of a restraint order or damages can be claimed even after the assignment either wholly or partially of the said copyright. Section 57 thus clearly over-rides the terms of the contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57.” The parties moved a joint application for settlement on August 7, 1986. In view of the settlement between the parties the findings of facts and the directions given in this judgment have become ‘Otiose’.
2. Amar Nath Sehgal vs Union of India [2005 (30) PTC 253 Del]

The Plaintiff had produced a piece of art- a bronze mural sculpture which was put on the walls of Vigyan Bhawan. The mural continued to occupy its place of pride at the lobby of Vigyan Bhawan till it was pulled down and consigned to the store room of the Union of India in the year 1979. The Plaintiff had contended that improper handling caused immense damage and that bit and pieces of the mural altogether disappeared including the name of its creator and thus violated his moral rights. The Court observed that there was an urgent need to interpret Section 57 of the Copyright Act, 1957 in its wider amplitude to include destruction of a work of art, being the extreme form of mutilation, since by reducing the volume of the authors creative corpus it affects his reputation prejudicially as being actionable under section 57. The Court directed the remnants of the mural to be returned to the plaintiff and declared that all rights in the mural would vest with the plaintiff. Damages to the tune of 5 lacs were also awarded in favour of the Plaintiff. The Court recognized an author’s moral rights to be the soul of his works – essentially granting the author the right to preserve, protect and nurture his creations irrespective of the assignment of such copyright, whether wholly or partially.

3. Arun Chaddha vs Oca Productions Private Limited & Ors [CS (OS) 1096/2009]

The Plaintiff filed a suit seeking to restrain the Defendants from broadcasting the TV Serial, Ek Kadam Aur, which was based on an autobiographical work ‘Kasturi Kundal Basey’, the rights of which the Plaintiff had acquired through a valid assignment and thereafter assigned to one DAE prior to the commencement of production of the said show. The Plaintiff’s grievance was that few of his episodes were already telecast by the Defendants without any consent, on Doordarshan channel and credits were not accorded to him. The Plaintiff moved the court claiming authorship over the TV serial and sought damages for breach of special rights under Section 57 of the Copyright Act, 1957. The court held that the principle underlying Section 57 of the Copyright Act is that damage to the reputation of the author is something apart from infringement of work itself. Section 57 provides an exception to the rule that after an author has parted with his rights in favour of another person, the latter alone is entitled to sue. The court therefore granted permanent injunction against the Defendants, without making any order for damages.

4. Sholay Media and Entertainment Pvt. Ltd and Anr. V. Parag Sanghavi and Ors [223 (2015) DLT 152]- The Plaintiffs had filed a suit against director Ram Gopal Verma and others in respect of the film ‘Ram Gopal Verma ki Sholay’ alleging violation of moral rights amongst other grounds of infringement of trademark, copyright, passing off, etc. The Delhi High Court held that the Defendants had intentionally and deliberately made the movie in violation of plaintiffs’ exclusive moral rights of copyright and passing off. On the relevant date they were aware about the rights of the plaintiffs, their ownership and authorship as well as use of unauthorized copyright. The Court observed that the defendants had distorted and mutilated the original copyright work of the plaintiffs and had thereby infringed the moral rights of the plaintiffs as under Section 57 of the Copyright Act, 1957. While determining the loss of goodwill and reputation, the Court held that the impugned film was a flop and failure. Thus, being portrayed as a remake of SHOLAY, immense loss to reputation and goodwill had been caused. Loss through infringement of moral rights of the plaintiffs was held to be incalculable.

All the above-mentioned cases are clearly in support of moral rights of authors. However, it is important to consider that each case was specific to its facts and circumstances.

In this background, lets analyse the issue of violation of moral rights with respect to adaptations in the following scenarios:

Scenario 1: So, if one were to conclude that there is no restriction on an author from voluntarily waiving his moral rights and the first scenario being that such moral rights have been waived and all other rights in the works have been assigned by the author including the adaptation rights, then can an author object to an adaptation of his work which he feels distorts, mutilates, modifies his work in such a manner as may be prejudicial to his honor and reputation? 

In my view, once the author has waived his moral rights he cannot seek recourse under Section 57 of the Act.

 Scenario 2: The next scenario being where the author has not waived his moral rights but has assigned all rights in his work including the right to make an adaptation of the work, can the author object to such an adaptation being in violation of his moral rights?

In my view, in such a scenario, if adaptation right of an owner and moral right of the author were to co-exist, it would be important to strike the balance and restrict the integrity right to derogatory treatment of such work only i.e. where real injury/ damage has been caused to the honor and reputation of the author. If every alteration or re-arrangement of a work is construed to be a distortion or mutilation of such work, then it would be impossible for any owner of rights to make an adaptation of such a work without violating the moral rights of the author, which does not seem to be the intent of Section 57. The right therefore needs to be confined to real injury.

 Scenario 3: Where the author has expressly stipulated in the agreement that his consent would be required for any adaptation of the work. In my view, in such a scenario, irrespective of whether the author has waived his moral rights or not, one can argue that the consent of the author is contractually required to be taken by the owner of the work.

 I am not aware about the agreement signed by Mr. Akhtar with the producers of the film ‘Papa Kehte Hai’. It would therefore not be possible to ascertain which of the aforesaid scenarios would apply. However, as far his allegation on paternity rights is concerned, the same seems to be misplaced as the credits to the authors of original works clearly seem to have been mentioned. If any platform has failed to adhere to the same, that specific platform is to be blamed for being in violation of Section 52-A of the Copyright Act. As far as integrity rights are concerned, if one compares the lyrics of the Recreated Version of the song ‘Ghar Se Nikalte Hi’ with the Original Song, a bare reading of the lyrics of the Recreated Version would show that there is nothing even remotely prejudicial or dishonorable that could injure the reputation of the authors of the Original Version. If this recreated version is treated as a violation of moral rights of the authors of the original version, it would be alarming for the music industry to make recreated versions without taking consent from the authors of the original version.

With the growing number or remixes, recreated versions, the issue on violation of moral rights is bound to attain significance in India. Recreated versions are one of the major opportunities for young and upcoming artists to showcase their talent. It would have to be seen whether Indian courts protect the economic interests of the owners as has been seen in US or take an expansive interpretation of moral rights according highest protection to authors as has been the case in France.

 Image source: Here