The History
Artists create amazing songs, but record labels often want to own the rights to the music. This means they control how the music is distributed, sold, and used in other ways. Artists have clashed with labels over this control various times in the past, because it can limit their creative freedom and financial benefits. Artists want more say in their creations and the labels want control for business reasons.
A controversy of this nature arose recently about Bohemia’s latest album, “I AM ICON” over which Saga Music claimed ownership based on a contract entered into between them a while back. However, a few posts on social media suggested that these claims were a deliberate attempt to create additional challenges and obstacles for Bohemia.
Here, we analyse the recent judgement of Saga Music Private Limited v. Roger David & Ors.,[i] delivered on 16th January, 2024, that seems to be in connection to this controversy.
The Facts
In this case between Saga Music (“Saga Music / Plaintiff”) and Roger David (“Bohemia”),[ii] the Plaintiff has alleged that the rapper and artist Bohemia was engaged for a period of 45 (forty-five) months with the Petitioner, Saga Music, via a contract titled “Exclusive Talent Management Agreement” dated 15th December, 2019.
The terms of this contract, according to the Petitioner, amongst other terms, were as follows:
- During the term of 45 (forty-five) months, Bohemia could only perform, sing, and act exclusively for Saga Music.
- Bohemia could not perform for any other third parties.
- In case Bohemia is approached by third parties, he could only perform, sing or act for them after getting prior approval and routing such deal through Saga Music.
- Any live performance or other performance by Bohemia were to be solely managed by Saga Music throughout the world and all the revenues would be distributed between Bohemia and Saga Music, on terms as agreed between them.
- All songs and/or performances made by Bohemia during the said term of 45 (forty-five) months would be solely owned by Saga Music, including all the copyright vested in them.
- It was also agreed that Saga Music would be allowed to make and own the sound recordings and visual recordings based on the performances of Bohemia.
It was further mentioned by the Plaintiff, Saga Music, that an addendum to the contract was entered into between the Parties, which had altered certain deliverables, including the payment terms, but all the other clauses (including those as listed above) remained the same.
The Pleadings
The Plaintiff, Saga Music, alleged that Bohemia has breached the contract between them multiple times. According to them, Bohemia has failed to deliver his deliverables under the contract, even after an advance payment was made to Bohemia for the deliverables. There are also allegedly other incidents where Bohemia did not update Saga Music regarding his tours, and regarding the songs released on video sharing platforms.
After a few discussions, the Parties entered into an Addendum wherein the deliverables were made more specific. However, it is alleged that Bohemia continued to breach the contract through his songs and performances, not taking prior approval and/or routing such deals through Saga Music. They have listed down various songs released by Bohemia with third parties in Para 11 which includes the song titled “These Days” along with the deceased artist Sidhu Moose Wala and the album titled “I AM ICON”.
It was also contended by Saga that the Defendant No. 2 had been posting various disparaging comments and posting defamatory content on social media, even though he was previously duly injuncted by the Court in the case of Saga Music v. Dinesh Prasad Sharma.[iii] Therefore, the Plaintiff prayed to restrict the defendants from posting any defamatory or disparaging posts or content relating to the Plaintiff.
The defendant, Bohemia, had earlier shared a legal notice dated 27th August, 2021 claiming that Saga Music had not performed its part of obligations in the contract and had not made payments to Bohemia as per the contract. These claims, however, were denied by Saga Music.
The Judgement
The Plaintiff prayed for specific performance of the negative covenants included in the contract.
Note: Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. Here, Saga Music, via a court order, wants to restrain Bohemia from independently engaging with third parties for making songs / content, because this is not allowed under the contract between them.
In analysing the remedy prayed by the Plaintiffs, the Court took note of the judgement in Global Music Junction v. Shatrugan Kumar[iv], as cited by Plaintiff, wherein it was held that “in the presence of a negative covenant, nothing precluded the Court from granting an injunction to enforce the negative covenant in a contract of personal service”.
Note: It is generally not a practice of the Courts to specifically enforce any personal obligations, such as singing, as this is restricted under Section 14(c) of the Specific Relief Act, which sub-clause states that a contract cannot be specifically enforced if it is “..a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms”.
As observed by the Karnataka High Court, in Robert D’Silva v. Rohini Enterprises,[v] acts such as singing, dancing, teaching, etc., depend upon the volition (willingness) of the parties, which, if specifically enforced, may lead to results not contemplated in the original contract. Additionally, in the case of Percept v. Zaheer Khan,[vi] it was held that in view of the personal nature of the service and relationship between the parties therein, a contract of agency/management, such as the one entered into between Percept and Zaheer Khan, was incapable of specific performance and to enforce the performance thereof would be inequitable.
However, under Section 42 of the Specific Relief Act, 1963, granting an injunction for performing a negative agreement is allowed in cases where there is an existence of both affirmative agreements and negative agreements.
In Percept v. Yuvraj Singh,[vii] it was held that because the contract between the parties therein was a contract for personal services, specific performance could not be granted. However, it was observed that the Court is not precluded from granting an injunction to perform the negative agreement even if it is unable to compel specific performance.
In the case of Global Music Junction (supra),[viii] cited by the Plaintiffs, the Court had restricted an artist from monetising any new songs with any third party other than the company who had filed the suit, until and unless the company had refused to accept delivery of the song by the artist.
The Court therefore found that a prima facie case (meaning, at first sight) for an ex parte (without presence of the other party) ad interim relief (meaning a temporary remedy) was made by the Plaintiffs.
Therefore, the Delhi High Court restrained Bohemia from making or creating any sound recording / cinematographic film / musical work or any performances by engaging with any third party / entities, without the prior written approval of Saga Music.
The Court also restrained Bohemia, including Defendant No. 2 and 3 (persons claiming to be agents of Bohemia), from, inter alia, posting or uploading any defamatory or misleading posts against Saga Music on any social media platform.
The Conclusion
The outcome of Bohemia v. Saga, may call into question all the performances done by Bohemia during the term of 45 (forty-five) months of the contract.
This is a wake-up call for all artists and musicians to cautiously enter into agreements and seek proper legal advice to understand the consequences of the terms being signed by them.
Comments on Enforceability of the Court Order
A pertinent point to note is that the enforceability of this order of the Delhi High Court may be a point of contention. It seems that Bohemia currently resides and/or works out of various countries including California. Enforcing of foreign court decisions in India is governed by Section 44-A of the Code of Civil Procedure which states that a decree passed by a ‘Superior Court’ in any ‘reciprocating territory’ can be executed in India. But when it comes to enforcing Indian High Court decisions in foreign countries, it depends on various factors including if the intended country has recognized Indian Court judgements to be binding and enforceable, and under which law.
However, here, as the question is limited to enforcement of rights under copyright law, the international treaties entered into by India may come to aid of the Plaintiffs. For instance, the WIPO Performances and Phonograms Treaty (WPPT), which grants rights to producers of phonograms and performers, to which both India and USA is a signatory, contain a few articles that may favour enforcement of this court order.
Examples:
Article 4, that states: “Each Contracting Party shall accord to nationals of other Contracting Parties, as defined in Article 3(2), the treatment it accords to its own nationals with regard to the exclusive rights specifically granted in this Treaty”; and
Article 28 that states: “Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.”.
It is important to note that actual enforcement may vary based on the facts of the case and the legalities involved, including any specific arrangements or treaties between the countries concerned.
About the Author: Savan Dhameliya is an entertainment lawyer based in Mumbai. He has a hobby of reading, writing, and discussing topics which are related to copyright law and the music industry.
End notes:
[i] CS(COMM) 44/2024, I.A. 1128/2024, I.A. 1129/2024, I.A. 1130/2024 & I.A. 1131/2024)
[ii] https://iprmentlaw.com/wp-content/uploads/2024/01/Saga-Music-vs-Bohemia.pdf
[iii] Saga Music v. Dinesh Prasad Sharma, C.S. (COMM.) 784/2022
[iv] Global Music Junction v. Shatrugan Kumar, 2023 SCC OnLine Del 5479
[v] Robert D’Silva v. Rohini Enterprises, AIR 1987 KANT 57.
[vi] Percept D’Markr (India) Pvt. Ltd v. Zaheer Khan, AIR 2006 SC 3426
[vii] Percept Talent Management Pvt. Ltd. v. Yuvraj Singh, 2008 (4) AIR BOM R 85
[viii] Supra 4
[…] Various orders have been passed where negative covenants were enforced, one example being Saga Music v. Roger David[vii]. There, both parties had full knowledge of the terms and circumstances surrounding the contract. The artist, popularly known as Bohemia, was restrained from engaging with any third party / entities, without the prior written approval of the record label, Saga Music. You can read a summary of this case on our blog, here. […]