Introduction
In a country that thrives on Bollywood movies and music, the entertainment industry requires a legal structure that would protect the interests of copyright owners, artists and the public at large so as to help owners benefit from the production of their work while simultaneously promoting new talent and creativity while shielding the rights of the owners. [1] Version recording is one such aspect wherein the rights of copyright owners and new artists often get distorted especially with the advancement of technology and the Internet. The case of Gramophone vs. Super Cassette 2010 has defined Version Recording as ‘neither copying nor the reproduction of the original recording’[2]. The case of Super Cassette Industries defined Version Recording as ‘the singing of a well known singer by a lesser known singer’. Justice Mukul Mugdal highlighted the ingredients required to constitute a version recording by stating that while being inspired by the original melody the recording must contain a different and distinct rhythm/orchestral arrangement in order to not infringe upon the copyright of the original producer of the song. [3]
Origin & Standard
In the case of Gramophone vs. Super Cassette Industries 1995 PTR 64, the defendants had launched an audio cassette with the title “Hum Aapke Hain Kaun” with the exact same design and layout as that of the originally produced audio record, the copyright of which belonged to the Gramophone Company assigned by Rajshree Productions. The defendants argued that their recording was that of a version recording permissible under Section 52(1)(j) and that the same had been done after sending due notice and paying the fixed royalties. The court however directed the defendants to refrain from using the deceptively similar design and covers so as not to mislead the general public and directed them to create an alternate cover with a declaration under the title stating, “the record is not from the original sound track but is only a version of different artists” [4] Similarly, in the case of Gramophone vs. Super Cassette 2010 the court laid emphasis on the fact that at the time the law relating to version recording came into being, the idea of the selling of sound recordings over the internet had not and could not have been contemplated as the same was non-existent. Thus, the court suggests that with the gradual evolution of technology and the emergence of the Internet, the expression “all covers or labels” used in Section 52(1)(j)(2) must be construed broadly so as not to restrict its limit and scope as that would go against the very purpose of the section. The court stated that covers and labels should not be restricted to only print forms. In furtherance, the court held that while uploading cover versions on the Internet, it must be clearly and explicitly stated on the website that the same is a version recording so as not to mislead the public. The court focuses on the significance of not misleading the public by stating that even just a mere disclosure of the names of the different singers used for the version recording would not be adequate as a lay person need not be expected to know which artist sung which song as part of a cinematographic film – thus a layman looking for a particular recording of a movie may unknowingly buy a version recording of the same. [5] In the case of Super Cassette vs. Bathla the judge emphasized that the owner of the original sound recording cannot bring forth any grievances against the version-recording owner by stating that the two are very similar/identical. The judge clarified that the only remedy that may be available to the original copyright holder of the recording would be in cases wherein the packaging/label of the two would be likely to mislead or confuse the public. The same is stated in Proviso (ii) of Section 52(1)(j).[6]
The issue of Consent
Section 31C of the Copyright Amendment Act, 2012 lays down the procedure and restrictions involved in the making of a version recording. The most crucial aspect of this amendment law is that of consent. The law stipulates that any person desirous of making a version recording must do so by successfully obtaining the consent of the owner of the original – the case of Gramophone vs. Super Cassette 1999 discuses the issue regarding issuance of notice and obtaining consent from the original owner. The case analyzed whether the mere issuance of a notice and payment of the fee was sufficient enough to authorize the making of the version recording – to which it held that providing a notice was not sufficient and instead consent had to be obtained. The defendant argued that the section did not prescribe or explicitly require the obtainment of express consent and that on the expiration of 2 years according to the law of limitation at the time, any person who gives notice of his intention to make the version recording, upon paying the royalty would be entitled to do so in the nature of a statutory license.
Further with regard to the issue of consent, in the 2003 case of Super Cassette Industries vs. Bathtla the plaintiff contended that their adaptation consisted of the addition of a new beat/arrangement and musicians/singers, which when combined with the original melody gave a substantially new, distinct and creative end product – the same required a certain standard of independent skill and labour thus attracting the benefit encompassed in Section 52(1)(j) of the Copyright Act, 1957. The court however observed that section 52(j) lays down that no ‘substantial changes’ must be made to the new recording and only those that are reasonably necessary for making the new adaptation would be permissible and that in cases where substantial changes have been made, the same has to be done with the prior consent of the owner as ‘substantial’ would not fall within the purview of ‘alteration/omissions’ necessary for the adaptation. The plaintiff in the present case had failed to specify this change or notify the identity of the singer and thus could not avail the benefit under Section 52(1)(j) – the court held that changing of the singer amounted to a substantial change thus altering the original recording and consequently amounting to infringement. From a differing perspective however, this kind of interpretation may allow for covers to be made easily without any major changes or variations done to the original thus making it extremely relaxed for individuals by setting a low threshold. [7] The judge in the present case was of the view that to allow version recording involving the change of the singer/orchestra without the consent of the original owner would be to encourage plagiarism and would go against the purpose of 52(1)(j). However, it is interesting to note that despite the inclusion of Section 31C, the issue with regard to consent still remains unclear. The section fails to explicitly mention whether or not express consent has to be obtained from the owner. It only mentions that prior notice has to be given, which fails to clarify the ambiguity under the previous law. [8]
Licensing
Under the Indian Copyright Laws, there is a distinction between compulsory and statutory licensing – under the former the rate of the royalty that is to be paid is upon the discretion of the parties upon negotiation however in the latter it is the copyright board that decides the rate of the royalty. Thus, under statutory licensing permission need not be required to be taken from the copyright owner as the license is created under the statute and thus paying the fee would be sufficient. [9] In the U.S. licenses can be obtained either directly from the publisher or through the Harry Fox Agency, which deals with giving out licenses to those desirous for only songs of publishers that have granted Harry Fox the right to do so. Thus, it must be noted that the agency cannot represent anyone who has not authorized the agency to give out licenses pertaining to the particular songs specifically. In order to understand whether version recording is justified it is crucial to examine the standard that is laid out or required for making changes to the song being covered. The U.S. copyright laws permit the creation and use of the musical arrangement of a song. However, the degree to which the same is acceptable and legal is that which is reasonably necessary for the style of the cover version performance – which means that the basic fundamental tune or melodic arrangement of the original song cannot be altered. The lyrics of the original cannot be changed as that would constitute a parody and not a cover recording and in that case no such licenses would be required in the first place since a parody is considered as “fair use” [10]
2012 Amendment Act – Inclusion of Section 31C
The inclusion of Section 31C was created so as to include cover versions under the ambit of a statutory license in comparison to it being treated as a defense to infringement under ‘fair use’ under the Copyright Act.[11] However the same does not prevent both parties from instead arriving upon terms and conditions on their own if they chose to – this is a general license. [12] Section 31C of the Copyright Amendment Act, 2012 brought forth some changes pertaining to version recordings like that of the extensions of the limitation period from 2 to 5 years, the restriction of the recording of the cover version in the same medium as that of the original and the payment of a minimum royalty of 50,000 copies regardless of the actual number of copies produced/sold. The section has also done away with the words ‘reasonably necessary for adaptation’ with reference to the allowance of alterations and instead has replaced it with ‘technically necessary for the purpose of making the sound recording’. The section has clearly imposed harsher restrictions on the making of cover versions. The restriction with regard to the extension to 5 years would prevent entities from exploiting and capitalizing on the success of the original recordings. [13] Further, this extension also posses a problem for such entities or individuals desirous of making a version recording owing to the extremely small life span of Intellectual Property in general. Similarly, the restriction of recording in the same medium as that of the original except in cases wherein original medium is no longer available, poses a threat to the creativity factor. The logic behind the same may be to give full credit to the original owner and to disable a person from infringing upon the owners moral rights by allowing him to completely improvise on the original number through newer technology and means, however in doing so, the purpose of allowing version recording in the first place may be lost. With the evolution of technology, means and talent, the evolution and progression of creativity must be allowed and preserved and not undersized.
Cover songs in the new age (U.S.)
Recording Cover Songs on YouTube/ Harry Fox Agency
Social media platforms like YouTube have proven to act as extremely constructive instruments in helping build a music career for new comers by exposing them to various music labels and providing an online fan base. Each view and each like/comment on a cover song can help artists to showcase their talent and creativity and help bring them onto music charts. In the past, artists like Justin Bieber, who is now a musical sensation, started off by posting cover videos on YouTube. By obtaining the necessary mechanical and synchronization licenses, social media platforms provide a great opportunity to artists and it is crucial that the copyright laws do not repress the flow of creativity while simultaneously striking a balance between the rights of the artist and the intellectual property of the copyright holder himself. There have been instances wherein the cover version has received a substantial amount of views and likes thus consequently igniting a growing bigger interest in the original song as well. An example of this is the cover version of “somebody that I used to know” by Walk off the Earth, originally by Gotye. What is even more intriguing is that 5 individuals performed the song using one guitar together at the same time – with each individual singing a verse of the song simultaneously. The cover version was not only well sung but showcased the immense coordination and creativity of the five individuals which is what made the cover receive nearly 50 millions views in comparison to the 65 millions views received by the original song. [14] Artists desirous of recording cover songs do so by obtaining a mechanical license, which allows them to create a new version of the original copyrighted song. Agencies like that of Harry Fox in the U.S. are primarily involved in giving out such licenses in the music business. They also help coordinate the royalty amounts between the various parties i.e. the artist, music publishers etc. [15] Most artists are aware of the Harry Fox agency and are relatively prompt in obtaining the mechanical license. However, by posting their cover songs on platforms like that of YouTube, most individuals forget that the right to post a music video requires a separate license called a synchronization license. This license allows and authorizes the use of the cover song in audiovisuals – this does not include the right to perform live. [16]
Live Performances
The same can be obtained from one of the Performing Rights Organizations – some of them are the ASCAP, BMI, and SESAC. As per the SESAC, any individual artist desirous of performing a cover song in a public space must do so after obtaining permission from the original owner. It is interesting to note that in order to bands/individual artists to perform cover songs live, it is the venue that they are performing at which is responsible for obtaining the license. The amount to be paid to the organizations depends on the type of venue, whether it is a nightclub etc., the frequency of the number of performances performed at the venue etc. There are some venues that are exempted from this such as – churches. [17]
Shows like that of Glee & American Idol solely perform cover songs on television. In 2013, Jonathan Coulton a singer and songwriter known to have risen to fame and attracted a fan base through the Internet reported that the creators of Glee planned to use his infamous song “Baby got back”. However there was ambiguity as to whether the show simply used the audio by Jonathan or whether they made a similar version of it. What is interesting to note about this case is that Fox channel most likely created their own version of Jonathan’s song, which does not infringe upon any copyright laws – but there exists an infringement upon the moral rights of the creator. Jonathan’s song under the U.S. copyright laws was an original-sounding cover song under a compulsory mechanical license, thus his cover was not protected in that sense and anyone was free the cover the exact same song. Thus, Fox channel did not have any duty or legal responsibility to ask Jonathan’s permission for the same. However, the reason that this may be an issue of moral rights is because Jonathan was not given any credit for the same. They failed to give Jonathan a notice/acknowledge the moral integrity to the work that lies with Jonathan as the creator of the original cover that was a hit. [18] In another interesting case study, the ASCAP (American Society of Composers, Authors and Publishers) informed Girl Scout camps a license must be duly obtained by them with the payment of fees for using any one of the four million copyrighted songs that have been written/published by any of the members of ASCAP and that without the same they would be in grave violation of the law. The claim was for not limited to cover songs being recorded but also songs being played around a simple campfire. ASCAP’s contention was that just like restaurants, hotels and other public spaces, the camps must buy these licenses and pay the royalty. At the first instance, most of the camp directors discarded this at a sad attempt at a joke. However, camps started receiving warning letters asking them to strictly comply and that if they defaulted they were to face a penalty of 5000 dollars and jail. ASCAP justified their demands by stating that it would be unfair to songwriters because they need to earn a living as well and due royalties need to be paid to them in order for them to truly reap the benefits from their work. According to U.S. copyright lawyers, despite the Girl Scouts camp being a non-profit entity, the idea behind making them comply was to set out a strong precedent. Under the U.S laws, a public performance has been defined as “where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered”. [19] While the idealistic approach behind the same in favor of artists is appreciable, the law makes it a cumbersome process with restriction on the free flow of creativity and inspiration by disrupting day-to-day activities such as those of Girl Scout camps by introducing a rigid “permission culture” which is unnecessary.
Remedies in cases of Infringement
The most common remedies available for copyright holders in cases of infringement are civil remedies. Under Section 58 of the Copyright Act, all the infringing copies of the work for all purposes would be deemed to be the property of the copyright owner. Similarly, under Section 55 of the copyright act, the copyright owner is entitled to various remedies like that of injunctions & damages awarded. However, in cases wherein it is proved that the defendant was not aware of the infringing nature of the copyrighted work, in that case the only remedy available to the plaintiff will be by way of an injunction in addition to the profits made by the defendant by the selling of the infringing work. Section 31C under the amended act makes it mandatory for the person making the version recording to maintain a proper register and books of accounts. This is done so as to allow for the copyright owner to inspect and regularly keep a track on the books of accounts. [20] Criminal remedies include punishment by imprisonment of not less than six months, which may extend to three years and fine not less than Rs. 50,000, which may extent to Rs. 200,000 as per Section 63 of the Copyright Act, 1957.
Conclusion
There have been a number of cover songs in the last decade that have surpassed the original and have managed to attain such fame that most people are not aware of the fact that they are in fact cover songs and not originals. Examples of some of these numbers are; “I’ve got you under my skin” by Frank Sinatra (original by Virginea Bruce), “I will always love you” by Whitney Houston (original by Dolly Parton), “Every breath you take” by Sting originally has a number of cover versions by Denmark & Winter (played on the hit TV show Vampire Diaries) and by Police.
Through the case laws cited in this paper, it can be stated that version recording has gradually evolved over the years especially through the Bollywood industry in India; by giving a boost to the music industry; since music is an integral part of Bollywood movies and most consumers relate songs they have heard in passing through the movies that projected them on the big screen. The Indian courts have set a standard for the making and selling of such recordings keeping in mind the technological advances and their impact on the same. The inclusion of Section 31C under the amendment act has introduced tighter regulations however it has failed to ascertain the underlying issue regarding consent and has imposed regulations that may be too harsh and unnecessary.
Cover songs posted on online media platforms like that of YouTube or public performances of the same through TV shows in the recent years have increased the number of legal battles being fought due to unawareness of the rights/duties/obligations and laws involved on the part of artists. However, the same is also because of the increase in the number of licenses that are to be obtained owing to the increase in the number of mediums that may be used to make such musical arrangements; and the role of the copyrights laws and agencies like that of Harry Fox in the U.S. in giving out these licenses while aiming to strike a balance between the interests of all the parties including the public.
[1] Recording that Different Version – An Indian Raga by Nawneet Vibhaw and Abhishek Venkataraman, Journal of Intellectual Property Rights Vol. 12 pp 480-487
[2] Cover Versions and the new copyright regime in India; by Eira Mishra, Journal of Intellectual Property Law & Practice 2014 Vol. 9 no. 6
[3] Super Cassette Industries vs. Bathla Cassette Industries, decided on September 9, 2003
[4] Copyright enforcement in India: Issues and Challenges by V.P Srivastav Pp. 226
[5] Gramophone vs. Super Cassette 2010 I.A No. 7050/1999
[6] Super Cassette Industries vs. Bathla Cassette Industries, decided on September 9, 2003
[7] Recording that different version – An Indian Raga by Nawneet Vibhaw and Abhishek Venkataraman, Journal of Intellectual Property Rights Vol. 12 pp 480-487
[8] Journal of Intellectual Property Law & Practice, 2014, Vol. 9 No. 6, Cover versions and the new copyright regime in India, Eira Mishra
[9] Intellectual Property Rights Statutory Licensing in India – Critical Analysis by Deepika Zaweria [Link: http://www.legalservicesindia.com/article/print.php?art_id=1675 ]
[10] Music is your business: The Musician’s FourFront strategy for success by Christopher Knab, Bartley F. Day pp 115-117
[11] Copyright Law: Statutory license for cover versions under the copyright amendment Act by BananaIP [Link: http://www.bananaip.com/media-entertainment-law-statutory-license-for-cover-versions-under-the-copyright-amendment-act/ ]
[12] Cover Versions & Remixes – Copyright in India by Nikita Hemmige, Selvam & Selvam [Link: http://www.selvamandselvam.in/blog/copyright-in-india-cover-versions-remixes/ ]
[13] Journal of Intellectual Property Law & Practice, 2014, Vol. 9 No. 6, Cover versions and the new copyright regime in India, Eira Mishra
[14] The right to copy: cover songs and copyright on YouTube [Link: http://kurttrowbridge.com/web-development/the-right-to-copy-cover-songs-and-copyright-on-youtube/ ]
[15] Royalties for Cover Songs by Bilal Kaiser [Link: https://www.legalzoom.com/articles/royalties-for-cover-songs ]
[16] Harry Fox Agency Website
[17] Royalties for cover songs by Bilal Kaiser [Link: https://www.legalzoom.com/articles/royalties-for-cover-songs ]
[18] There’s more to life than Copyright: On Glee copying Jonathan Coulton by John Bergmayer [Link: https://www.publicknowledge.org/news-blog/blogs/theres-more-life-copyright-glee-copying-jonat ]
[19] ASCAP cautions the girl scouts: Don’t Sing ‘God Bless America’ by Lisa Bannon [ Link: http://www.wsj.com/articles/SB840575892377365000 ]
[20] Journal of Intellectual Property Law & Practice, 2014, Vol. 9 No. 6, Cover versions and the new copyright regime in India, Eira Mishra
Bambi Bhalla is a final year law student at Jindal Global Law School, Sonepat, India. After graduation, she wishes to specialize in Intellectual Property Law. She is an active member of the IP Society at Jindal and has interned at various law firms across Shanghai, Dubai and India with the recent one being a top IP firm in Delhi. Bambi aspires to pursue an LLM in Intellectual Property Law in the future and work as a practicing Trademark & Copyright lawyer.