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August 28, 2008
“Zara Zara Touch Me”
of Race caught in legal tangle: Sony BMG Taiwan claims damages
for copyright infringement
Accusation of plagiarism is not a new phenomenon in Bollywood.
The most recent controversy has been stirred up against music
director Pritam Chakraborty.
Sony BMG Taiwan (“Sony”)
has issued a legal notice to Tips Industries (“Tips”)
alleging that the music composition of the song
Zara Zara Touch Me
(“ZZTM”) from
the Hindi Film Race,
is a copy of the music composition of Wang Lee Hom’s song “Deep
in the Bamboo Grove” (“DBG”)
from his album
Shangri-La released in 2004.
The rights in DBG vest in Sony, it being the producer.
Alleging infringement, Sony has sought damages to the tune
of NT$ 10 million[1]
(USD 314,890) from Tips. ZZTM is composed by the music
director Pritam Chakraborty (“Pritam”),
who was hired by Tips
Similar recent controversies
Such allegations have been hurled at many music composers in the
recent past. In most cases the controversy has died down at the
stage of legal notice, without being litigated upon. Some which
have reached the court have become landmark judgments in favour
of the authors.
In
September 2002, an Indian music production company Saregama
India Limited (“Saregama”)
sued Interscope Records, its parent company Universal Music
Group, artist Truth Hurts and producer Dr. Dre for their song
“Addictive”. Saregama is the copyright holder of the song “Thoda
Resham Lagta Hai” composed by Bappi Lahiri and sung by Lata
Mangeshkar, used in the 1981 movie
Jyoti. Saregama was
successful in proving before the US District Court for the
Southern District of Texas, Houston Division, that the
defendants had unauthorizedly used a sample of the Hindi song in
their song Addictive. “Sampling” is the use of digitally
extracting recorded passages to incorporate into new recordings,
a practice that has become popular with the advance of
technology.
In
May 2004, Bangladesh based rock band
Miles successfully
obtained an interim injunction against the producers of Hindi
film Murder. The
Calcutta High Court restrained the defendants from using the
song “Jana Jane Jana”
composed by Anu Malik. The plaintiffs had accused the producers
of infringement of their rights in their Bengali song “Phiraiya
Dao Aamar Prem”.
More recently in April 2008, musician Ram Sampat sued
filmmaker Rakesh Roshan for infringing the copyright in his
music piece “The Thump” used by the defendant in his movie
Krazzy 4 in two
songs. The defendant claimed to be innocent, having obtained
an NOC (No Objection Certificate) from Sony Ericsson, who in
reality had no rights over the piece. They had been
licensees, in a contract that had
expired. The right holder Sampat had not even been informed
of this arrangement. The parties finally reached an out of
court settlement with Sampat receiving Rs. 2 crore from the
defendants.
Interestingly, in the present case, Lee Hom
was reportedly not
unhappy about it since in his words, “to a composer, to
be copied means acknowledgement, because only the good
things will get copied.” Apparently many of his songs have
been remade before and he does not mind giving consent to
use his songs. However, here it is Sony BMG Taiwan that is
the copyright owner.
Law and enforcement
Section 13 of the Copyright Act, 1957 (“Act”)
acknowledges the subsistence of copyright in
original
musical works.
The level of
originality in an alleged infringing musical work is in most
cases subjective. It has been accepted in the jurisprudence of
copyright, that only a minimal degree of creativity is
sufficient to classify a work as original, in order to be
eligible for copyright protection.
While expert witnesses usually testify in courts to prove
infringement, in the abovementioned Krazzy 4 case, the sitting
Judge, Justice D.G. Karnik had found the copying so obvious that
he declared: “to my
untrained ear, the music (in the two works) appeared to be
similar”.
In India, a film producer usually enters into a contract with
the composer to create musical composition for a song of which
the rights vest in the producer. The contract contains a
representation by the composer that the music created by him
shall be original and shall not infringe the rights in any
existing music. It further may have an indemnity clause in
favour of the producer in case of breach of such representation.
However, individual composers may not have the capacity to pay
the huge amount of money that infringement damages may run into.
Also, in the Indian context, recovery of damages could be a time
consuming process.
Thus the producer, if sued for infringement, would have to
ultimately bear the damages. Hence, producers have now started
obtaining insurance to cover such liabilities.
It is advisable that the owners of the rights in the musical
works act speedily to obtain any interim reliefs such as
injunction to restrain infringement pending the suit. In case of
delay, the court would examine the balance of convenience and
may refuse injunction and only grant order to maintain accounts
against the defendants.
It is evident that in the past few years, music composers and
owners have begun to pro-actively take legal recourse against
the alleged infringements. They no longer ignore instances of
their tunes being lifted. As can be seen from the above
discussion, the approach of the Courts also has been encouraging
for them.
Creating originality in the public domain
As more and more music is created, the originality in
music proportionally decreases. The total numbers of musical
notes generally being limited in number, there is a high probability of resemblance,
assuming a similar style and rhythm is used.
In the process of composing, probably every music
composer tends to churn out a few music pieces that resemble
existing ones before he comes out with an original song. But
blatant copying can be no excuse. Even if one feels tempted
to ‘lift’ a piece, the correct way of doing it is to take
consent from its creator. The creator deserves the credit to
it, as well as his share of royalty.
[1]
1 NT$ (Taiwan dollar) = 0.031489 U.S. dollars as of
August 26,2008
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You
can direct your queries or comments to the authors
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News Source:
The Electric New Paper,
Singapore dated August 23, 2008
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