Version Recording, Remixing And Medleys-Impact On Copyright Owner

of Musical Works.

SUBMITTED BY:

CHRISBEL RANJITH- 16040142038

RAJALAKSHMI P NAIR-16040142102
BATCH- 2016-2021

COURSE TEACHER: PROF. YAMINI C PRABHA

ALLIANCE SCHOOL OF LAW

ALLIANCE UNIVERSITY, BANGLORE

DATE OF SUBMISSION: 7TH APRIL2019

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 Version Recording, Remixing And Medleys-Impact On Copyright Owner
of Musical Works.

ABSTRACT

As and when a new song comes up, one can find a plethora of cover songs by various artists
on the internet. Cover songs and remixes of popular and hit songs have lately become a means
to get recognition and gain popularity. It’s an apt way of reaching out to millions of listeners
globally and achieve fan-following to revolutionize their career. The cover versions generally
retain the original lyrics and musical arrangements but are sung in the author’s own stylistic
originalities and nuances. While there might be a lot of advantages to this, there might be lots
of copyright issues and breaches that an artist might unknowingly commit. The question is
whether such practices lead to infringement of copyright provisions in India or not, whether by
making covers and remixes, artists are violating the copyright of the original singer(s), lyricist
and composers. Artists need to be mindful of these prevalent copyright laws while making,
posting and selling covers to ascertain that they are not contravening the confines that law has
created. This paper attempts to analysis the issue of remix of old songs. It explores how remix
is done and whether by making a cover version, the rights of the original copyright owner is
infringed. It also explore the relevant provisions of the copyright act which makes it possible
to make the remix of an old song.

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 TABLE OF CONTENTS

1. INTRODUCTION

1.1 INTRODUCTION

1.2 RESEARCH PROBLEM

1.3 LITERATURE REVIEW

1.4 SCOPE AND OBJECTIVE

1.5 METHODOLOGY

2. MUSICAL WORK UNDER INDIAN COPYRIGHT ACT, 1957

3. REMIX

4. COVER VERSIONS

5. PROVISION THAT ALLOW FOR MAKING OF REMIX

6. AUTHOR’S SPECIAL RIGHT

7. CONCLUSION

8. BIBLIOGRAPHY

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INTRODUCTION

The world of intellectual property law is quite relevant to musicians, especially Djs and
producers that sample other people’s material in performance and composition. A
copyright is an exclusive right, granted by the government, to the author of a particular
work. this includes (among other things) the right to copy and distribute the work, the
right to be credited for the work, and the right to determine who may publicly perform,
adapt, or benefit financially from the work. A song can have various aspects of
ownership in it ranging from the lyrics, music, etc. the ownership in a song comes in
several parts and it may or may not be in the hands of a single person. The lyrics of the
song can be protected as a literary work wherein the owner of the copyright will be the
lyricist. The music of the song can be protected as a musical work wherein the owner
of the copyright will be the composer and The song together with music and lyrics

which is recorded can be protected as a sound recording altogether and the owner of
the copyright will be the producer of the sound recording (the record label in
general).The singer of the song can claim performer’s rights and morality rights.

The term of a copyright in case of a musical work or a literary work is the lifetime of the
author plus sixty years while in case of sound recording copyright subsists until sixty years
from the beginning of the calendar year next following the year in it is published. The
performer's right in his performance shall subsist until fifty years from the beginning of the
calendar year next following the year in which the performance is made.

In the recent times, we have seen art evolve in various forms. Artists have been adapting
earlier music and adding a pinch of their own creativity, which in course has brought various
issues circling copyright infringement. Though we have provisions like Section 52 (1) (j) of
the Act, that permit the making of remixes if the conditions of the Section are fulfilled, it is
highly essential to protect owners of the original song and their creativity. Thus, the Copyright
Act should make way to certain amendments that cater the needs of both: the owner of the
original song and the maker of the remix.

When you remix a song, you’ve created what copyright law calls a “derivative work”.
Generally, one is supposed to have permission from the original copyright owner to create
and/or distribute that derivative work. Without this permission, you’ve committed
infringement.

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‘The breach of copyright in a work generally in the following forms:
1) Reproduction of the work in a material form;
2) Publication of the work
3) Communication of the work to the public in one form or the other
4) Performance of the work in public
5) Making adaptations and translation of the work and doing any of the above acts in relation
to a substantive part of the work.’1

In case of medleys, each song part counts as a separate song, and requires separate royalties’
.When adding medleys, add each song part as a separate song and provide the length in minutes
and seconds of that song part. Note that medleys can be considered derivative works, which
require special permission from the copyright holder.

RESEARCH QUESTION

1. Whether the making of cover songs or remixes constitute infringement of copyright?

2. Does the making of cover songs or remixes impacts the rights of the copyright owner
if so, how?

LITERATURE REVIEW

The following juristic writings have been reviewed with regard to the present subject matter:
V.S.R.Avadhani, (2005) Law of Intellectual property Rights, 1st edn.

This article includes an analysis of the issue relating to the remixing of old songs. The article
starts out by explaining as to what is referred to as remixing and how it is done. The author has
used practical real life examples of remixed songs and explained the economic aspects that are
behind the same. It continues with the procedure that is followed by an entrepreneur in the
process of remixing and the legal provisions that he is subjected to in the process of making a
remix. It also lays down the precautions that are to be taken by the entrepreneur and the
conditions that are to be fulfilled. It also covers the special rights of the author. It compares and
contrasts the various legal provisions and the different decisions laid down by the Courts in
matters relating to infringement of the copyright of the owner of the copyright and the requisites

1
V.S.R.Avadhani,Law Of Intellectual property Rights,1st edn.

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relating to the owner’s consent. In the systematic process of analysis, the article highlights the
provisions of the Copyright Act 1957 by which the remix of an old song is possible and also
the provisions whereby objectionable remix of an old song can be prevented.

Mayuka (2013), Remix culture: Impact on Copyright owner of musical works.

This research paper highlights the remix culture in the modern era and it also speaks
about the musical work under the Indian Copyright Act 1957.

Shivi Gupta (2018), How to Copyright A Song in India. This research paper mainly tries to
give an idea of what is copyright and also explains who owns the music.

AIMS AND OBJECTIVES OF THE RESEARCH PAPER

1. To understand the concept of remix of songs and cover songs.

2. To understand the process of how an entrepreneur creates a remix or cover song.

3. To understand and analyse the various provisions under the Copyright Act that permit
the remix of songs.

4. To analyse whether remix is an infringement of the copyright.

5. To analyse the impact of remix on the rights of the author.

6. To compare and contrast the various case laws relating to the concept of remix and
infringement of copyright

METHODOLOGY

The research paper has relied upon various primary and secondary sources. The research has
consulted the primary legislation of the Copyright Act, 1957 which is the current legislation
relating to the law of copyrights in India. Various case laws relating to the topic have also been
included in the process of analysis. These account for the primary sources. It has also consulted
various other sources such as books, articles, journals and websites which account for
secondary sources

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2. MUSICAL WORK UNDER INDIAN COPYRIGHT ACT, 1957

Musical work is defined under Section 2(P) of the Copyright Act, 1957 to include a work
consisting of music and also includes graphical notations of such work.2 But it does not include
any word or an action that is intended to be sung, spoken or performed with the music.

Thus it, makes the composer the owner of the musical work and not the singer who sang the
song. In Gramophone Company of India v Super Cassette Industries Ltd3, the Delhi High Court
observed:
Musical work is not merely a combination of melody and harmony or either of them. Every
musical composition has a structure, or shape that is the arrangement of individual elements so
as-to constitute a whole and that musical notation means a visual instructions for performance
of music. The Copyright Act also protects the adaptation of a musical work, which means that
it protects any arrangement or transcription to a musical work. An owner of a sound recording
is promised certain rights through Section 14(e) of the Copyright Act. These include the right
to make any other sound recording embodying it, the right to sell or give on hire, or offer for
sale or hire, any copy of the sound recording (whether the same had been sold or hired in the
past) and the right to communicate the sound recording to the public at large.

4. REMIX

The internet has majorly supported the remix culture, where users engage with content by
creating derivative works. Remixes take many forms but a popular one is in the idea of
sampling bits from other songs or creating music mashups. In the modern era, people are more
into creating derivative versions of previous works. A remix is made by using an old song that
has the original lyrical work. This old song is decorated, modified and transferred so as to fall
under the category of an original work. By adding and subtracting certain elements of the
original song using audio mixing a new song is made.

Remix is not original, it is basically a mix i.e. a mixture. A new sound recording is made by
using an old song which has the original lyrical work by incorporating some changes to it. The
old song maybe sung with the old musical composition or may incorporate a few changes.

2
S. 2(P), The Copyright Act, 1957.
3
(1999) PTC 2

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The original sound recording consist of literary work, i.e. the poem which was written by the
lyricist. This poem is made into a song by asking an artist to sing the same. The artist sings the
song with the help of the music composer who composes music. This song which is sung along
with the music composed is recorded, and is called an album. Earlier these were recorded on
cassettes or compact discs, but now with technological advancement it is recorded using
electronic equipment.

When these albums are sold the songs become popular. Gradually the singer and composer
becomes old and may stop coming up with new songs. But the melody of the new song may
still remain popular. This becomes an opportunity for entrepreneurs or others to exploit the
song. The original song may have a catchy phrase or hook which may be played throughout
the song. The entrepreneurs may use the original songs hook or catchy phrase and make a new
song. By doing so the entrepreneurs are trying to reap the benefits of the original songs
popularity. Sometimes even though the song is forgotten, the melody still lingers. This
lingering melody, after a few years is capitalized by adding some new beats and words which
are popular in the present context.

In the Indian context, we can take the example of the famous song Tamma Tamma Loge. The
song was a hit back in the 90s for its catchy tune and also the dance moves. The same song was
reprised and was seen in a latest film in the year 2017 and was called Tamma Tamma again.
Few new beats along with a modern oomph were added to the song but the original rhythm
remained the same.

4. Cover versions

A ‘cover song’, or more appropriately, ‘cover version’ of a song is the re-working, updating,
or interpretation of a previously recorded and released song by someone other than the original
artist. Cover versions or various renditions of popular, successful songs/ tunes are often
performed/ recorded by new or up-and-coming artists as tribute to the original artist/composer
or to achieve initial success when their unfamiliar original material would be less likely to be
successful. A cover of an original song or any adaption of a musical work is governed by the
law of copyright, under The Copyright Act, 1957. While blatant reproduction of any musical
work would amount to infringement of copyright vested in the work, Section 52 of the Act
exempts certain acts from amounting to infringement. This provision allows for cover versions

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of songs to be made subject to conditions specified therein. There are two options available to
a person seeking to make cover versions of songs. Section 52 (1) (j) provides that in order make
sound recordings (cover versions, in this case) with respect to any musical work, a person must
either:

1. Obtain license or consent from the original owner of the right in the work; or

2. Giving a notice of intention to make such sound recordings,

3. Provide copies of all covers or labels with which the sound recordings are to be sold,

4. Pay, in the prescribed manner to the owner of rights in the work, royalties in respect of
all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this
behalf.

The amendment of 2012, brought about a number of changes in respect of rights of music
directors, lyricists, and performers. Section 31C deals with statutory licenses that may be
obtained for making cover version of a sound recording in respect of a literary, dramatic or
musical work. A statutory license is one which is governed by the provisions of this Act,
whereas a general license can be on the terms and conditions as agreed upon between the
licensor and licensee.

The highlights of this provision are as follows:

1) A cover version cannot be made until the expiration of 5 years from the end of that calendar
year when the original sound recording was made

2) The cover version has to be in the same medium as the original one, unless that medium is
no longer in commercial use

3) Prior consent of the owner of the original sound recording has to be obtained

4) Copies of the covers/labels have to be disclosed to the owner of the sound recording prior to
release of the cover version

5) The royalties to be paid to the owner are fixed by the Copyright Board. One royalty is fixed
for every calendar year for a minimum of 50000 copies and additional royalties payable are
also fixed

6) The Copyright Board may fixer a lower rate of royalty for works based on the potential
circulation for that language or dialect

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7) The cover version should explicitly mention that it is a cover version of the original sound
recording

8) There should be no alteration of the sound record unless that which is technically necessary

9) The author of the cover version is required to maintain books of accounts, which may be
inspected by the owner of the original sound recording

However, these rules are specifically with reference to statutory licenses under the Act. Authors
are still free to directly approach owners of the original work to obtain licenses and agree on
terms and conditions suitable to both the parties. For instance, if an artist wants to make a cover
version before the expiry of 5 years of the original work or wants to negotiate on the point of
royalty, the only option would be to obtain a general license. If such cover versions are made
without the consent of the owner of the original work, it most certainly will amount to copyright
infringement. Additionally, the owner can also file a suit for infringement of moral rights on
grounds of distortion, mutilation or modification of the original work.

PROVISIONS THAT ALLOW FOR MAKING OF REMIX

Section 52 (1) (j) of the Copyright Act states that it, would not count as an infringement if there
exists a sound recording of the original literary or musical work and the person who wishes to
copy it has given a due notice of his intention to use it and make a sound recording and has
also paid the original owner-the royalty price that has been fixed by the Copyright Board. The
person wanting to make the remix, cannot make alterations without taking the consent of the
owner or cannot make changes which are not reasonably necessary for the adaption of the work.

The new sound recording should not be marketed with labels or packaging that might mislead
the public about the identity of the artist. The remix should not be made until the expiration of
two years after the end of the year in which the original song was made.

The original owner has the right to inspect all records and books related to the remix. The
consent of the owner of the original song is of great importance as the original sound recording
was created by him and he enjoys the exclusive right of ownership. If the owner of the
copyright, brings a complaint to the effect that royalty has not been paid in full and if the
Copyright Board is prima facie, satisfied about this complaint, it may pass an order asking the
sound recording to stop making any further copies and after conducting further inquiries, it
may take necessary actions as it thinks fit. Section 52 (1) (j), states that works like music and
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sound recordings are subject to seeking permission from the owner of the copyright for certain
uses and changes. This acts as legal authorization to use the copyrighted work in certain ways
as long as the user pays the required fee and otherwise meets the conditions in the law.

Case laws on Section 52 (1) (j)

Taking the consent of the original owner of the musical work is of great importance as laid out
in the case of Gramophone Co v Super Cassettes. 4The court laid out that the plaintiffs consent
was important for making a recording in compliance with Section 52(1) (j) in order to not fall
under the category of infringement. In the present case, an audio cassette was made with the
title Ganapati aarti ashthavinayak geete. The defendants wanted to make a sound recording that
consisted of the original sound recording and thereby offered to
pay a license fee for the same.5 The plaintiffs did not agree and returned the cheque which
clearly shows that they did not give permission for the usage of the musical work. Even after
this, the defendants brought out their sound recording.6 It was held that the plaintiffs consent
was required to be obtained by the defendants for making a sound recording and compliance
of section 52 (1) (j) was not enough to avoid the liability for infringement.

Thus, without the consent of the owner of the original work, it shall be an infringement. But in
the case of Gramophone Co v Mars Recording7, the court held the contrary and stated that as
long as the conditions of Section 52(1) (j) of the Act are followed, there would be no
infringement. There is no requirement of obtaining a license/consent. In the case of Super
Cassette Industries Limited v Bathla Cassette Industries Pvt. Limited, it was held that there can
be no change of the singer in a vocal rendering as that is a vital constituent of a song and should
not be done without obtaining previous consent of the owner of the musical work- in
accordance to Section 52 (1) (j) The voice is the soul and essence of a song.

A recent case that also attracted copyright infringement, is the case where a popular Sambalpuri
song Rangabati was remixed and aired on an episode of the MTV Coke Studio and became
quite popular. English-Tamil rap and the Orissa state anthem were added to the original song.

The owners of the original song questioned this move and sued Hindustan Coca-Cola Beverage
Private Limited, Hindustan Cola-cola Holdings Private and the singers of the remixed version

4
Supra 2
5
Supra 2
6
Supra 2
7
In MFA No. 5491/198. Dates 31st August 1999 (unreported)

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by sending a legal notice for copyright infringement stating that there was no license or
authorization that was sought or given, the branding of the song made it seem like an Odia
number, though the fact of the matter is that it was originally written as well as released as a
Sambalpuri number and the remixed version mispronounced several words and there was
unauthorized incorrect usage of the original song. According to Section 52 (1) (j), there are
certain provisions that need to be followed before making a remix version of the song. Though
it is true that remixing music is an effective way of reaching out to the young generation but if
it is viewed as an offence to culture, the rights of the original owner should be kept alive.

Section 52(1) (j) acts as a rulebook that needs to be followed before copying a musical work.
This section has been highly criticized and various complaints have been received especially
from the Indian music Industry as this Section allows a person to utilize original sound
recordings after two years of the commercial release by sending a notice to the owner and
paying a royalty fee which is 5% of the proceeds from the first publication. Thus, this can be
viewed as curtailing the copyright protection from 60 years to straight 2 years. This is unfair
as it leads to a loophole where the maker of the remix can produce it with the reason that he/she
wishes to protect timeless music by giving opportunities to new singers, but the original owner
of the musical work could be unsatisfied with the addition of new beats and the change in
instruments, but there is only so much that he/she can do to protect their original work. Section
52 (1) (j), clearly dilutes the 60 year age old law of protection conferred on the Copyright
owner. The limit of royalty that needs to be paid is not specified anywhere in the act, which
thus leads to payments of incredibly low amounts. There is also a huge loss suffered by owners
of original music as there is a decline in the sale of their original music. The Act also stifles
creativity and there is no clear definition of the extent of change that is permissible.

6. Author’s Special Right

The only option that a copyright owner of a musical work has, is it use Section 57 of the Act.
This states that if conditions of Section 52(1) (j) are complied with, but if there is some
distortion or mutilation of the original literary work and this is prejudicial to the honour and
reputation of the owner of the original sound recording, then the owner can complain. The
existence of moral rights is consistent with the traditional raison deter of copyright: to
recognize and encourage the results of intellectual creativity on a level with other forms of
property.
A case decided not too long ago by the Delhi High Court, Amar Nath Seghal v. Union of

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India’8 discusses the issue of moral rights in substantial detail. In this case, the plaintiff/author
assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan
Bhavan, but was later pulled down and dumped. The author, Amar Nath Seghal, sued for
violation of his moral rights.

The case was filed in the early 90’s and an interim injunction was passed in favour of the
Plaintiff. In response, the defendants made an application under the Arbitration Act, 1940
seeking stay of proceedings in the suit claiming that the dispute ought to be referred to
arbitration in the light of a term in the assignment requiring arbitration of all disputes. The
defendants further argued that “the plaintiff had assigned his copyrights to the defendants and
having purchased the same, the defendants are under no fetters while dealing with the mural in
question.”

The interim application was decided in 2002 and the case itself was finally decided in 2005.
The court dismissed the claim under the Arbitration Act and further observed: “These [moral]
rights are independent of the author’s copyright. They exist even after the assignment of the
copyright, either wholly or partially.” The court quoted from Smt. Mannu Bhandari v. Kala
Vikash Pictures Pvt. Ltd. and Anr.

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 emphasised 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 overrides 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 Contract of Assignment will
have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot
claim any rights or immunities based on the contract which are inconsistent with the provisions
of Section 57.”

From the above wording, it could be argued that “moral rights” are akin to the Fundamental
Rights guaranteed under the Constitution, in that they cannot be waived. Interestingly, Article
27 (2) of the Universal Declaration of Human Rights provides:

8
2002(2)ARBLR130(Delhi); 2005(30)PTC253(Del)

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(2) Everyone has the right to the protection of the moral and material interests resulting from
any scientific, literary or artistic production of which he is the author.

7. CONCLUSION

There is an urgent need to amend certain provisions of the Copyright Act so as to protect the
rights of the owner. Firstly, the time period of using a song for remixing after the expiration of
two years from the time of releasing of the original track, should be extended to seven years.
Secondly, there should be a floor rate for the amount of royalty that has to be paid to the owner,
irrespective of the number of copies sold. Thirdly, the right of authors to receive royalties and
benefits should be protected. Lastly, if there is commercial exploitation of the work of an
author, he should receive credit for the same by the payment of royalties. Though sec 52 allows
for the making of cover songs, the permission of the owner is necessary for it to not amount
copyright infringement.

8. BIBLIOGRAPHY

1. A handbook On Copyright- By government of India.

2. www.indiankanoon.com

3. Intellectual Property laws by A.K Nair- Copyright Act, 1957- P.106

4. Authorship and ownership of Copyright- a critical review, Chioma O. Nwabachil
5. Copyright and Fair Use- Stanford University.
6. Journal of intellectual property rights- copyright issues in E-publishing: James T.C
7. Managing Intellectual Property- Copyrights and the Information Society: Les Christy
and Susannah Kendall

8. V.S.R.Avadhani,Law Of Intellectual property Rights,1st edn.

9. V.S.R.Avadhani,(2005)Law Of Intellectual property Rights,1st edn.
10. Mayuka (2013),Remix culture: Impact on Copyright owner of musical works
11. Shivi Gupta (2018), How To Copyright A Song In India

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