-Madhura Gokhale*
Abstract
This piece explores the intricate balance between copyright protection and artistic freedom within the realm of Indian classical music, focusing on the ongoing legal dispute in the case of Ustad Faiyaz Wasifuddin Dagar vs. Mr. A.R. Rahman and Ors. The case raises significant questions about the protectable elements of music under copyright law, specifically regarding the composition "Shiva Stuti" in Raag Adana and its alleged infringement by the song "Veera Raj Veera" from the film PS 2. By analyzing key legal doctrines such as ‘Scenes a Faire’, ‘Substantial Similarity’, and the ‘Idea-Expression dichotomy’, this piece draws parallels with a similar US case involving Ed Sheeran, where the court ruled that commonplace musical elements are not eligible for copyright protection. The discussion extends to the implications of excessive copyright protection on the evolution of musical art forms, advocating for a balanced approach that preserves cultural heritage while safeguarding intellectual property rights. This piece proposes that Indian courts should consider adopting a framework that recognizes raagas as shared knowledge in the public domain, thereby preventing stifling creativity and fostering the continued growth of artistic expression.
Introduction
The rich tapestry of Indian classical music is intricately woven with a blend of raagas, melodies, and improvisations. Amidst this cultural backdrop, the unresolved legal conflict between Ustad Faiyaz Wasifuddin Dagar and the creators of Ponniyin Selvan 2 highlights a persistent clash between copyright protection and artistic expression within the Indian music industry. Central to this dispute is the question of ownership over 'raag' in musical compositions.
This paper aims to delve into the complexities of this interplay by examining jurisprudential approaches used in cases of musical copyright infringement in the United States. These approaches may offer insights that Indian judges can use to determine ownership of a music composition, particularly in cases like Ustad Faiyaz Wasifuddin Dagar vs Mr. A.R Rahman and Ors. (referred to as Ustad’s case). Key legal doctrines such as 'Scenes a Faire', 'Substantial Similarity', and the 'Idea-Expression Dichotomy' will be analyzed for their applicability. By exploring these legal frameworks, this paper seeks to address the potential tension between copyright protection and artistic freedom in the context of Indian classical music. It argues that a nuanced understanding of these principles can guide courts in resolving complex disputes involving cultural and artistic creations.
This analysis transcends a mere comparison of legal doctrines by delving into their implications on the dynamic landscape of creative expression. It challenges conventional notions of copyright protection by probing the boundaries of exclusivity concerning musical elements like 'raagas', deeply rooted in the public domain of artistic heritage. It scrutinizes the potential consequences of stringent copyright protection, emphasizing the constraints that overly strict regulations could impose on the evolution and advancement of musical art forms.
Furthermore, the article explores how US legal doctrines could be aligned with and applied within the Indian legal framework. It assesses their relevance and feasibility in addressing similar disputes, thereby offering insights into potential approaches for harmonizing copyright protection and artistic freedom in the context of Indian classical music.
What is the Case About?
Ustad Faiyaz Wasifuddin (plaintiff), a descendant of the family lineage of Dhrupad vocalists, has filed a suit against the creators of the cinematographic film Ponniyin Selvan 2 for violation of his copyright and moral rights for infringing and pirating the work of his father “Shiva Stuti” composed in Raag Adana.
The issue in the present case is about the debate that revolves around the protectable and unprotectable elements of an artistic work in a copyright regime. The issue is whether the song ‘Veera Raj Veera’, used in the movie PS2, infringes the copyright held by the plaintiff for his piece ‘Shiva Stuti’ in the Raag Adana under section 51 of the Indian Copyrights Act, 1957. Plaintiff admits that although the lyrics of the song ‘Veera Raj Veera’ are different, the ‘taal’ and the ‘beats’ are identical. Further, the composition is identical to the plaintiff’s original composition, which is based on the Raag Adana.
In the reply to the letter sent by plaintiff claiming copyright infringement, the defendant asserted that the claim of copyright infringement is misconceived as the song in question is a traditional song. Defendants' submissions were based on the element of originality, they claimed that there is no originality claimed in the composition and the mere manner of singing cannot be the subject matter of copyright.
What’s Next Now?
The recent order came on 15 May 2024, and no concrete ruling has been passed on the matter of copyright infringement. The court has heard the two compositions and looked at the definition of musical work under 2(p) of Copyrights Act, 1957 as the plaintiff tried to establish the infringement with the chart consisting of the notations and the Taal and the beat. The court has ordered the defendant to produce the raw recording of ‘Veera Raj Veera’ song along with the reply to the notation chart as submitted by the plaintiff.
Need for Indian Courts to Think out Loud
In India, there have been numerous cases of copyright infringement involving remixes and mashups of original songs by artists. Cases dealing with the technical aspects of music, such as determining ragas, themes, and melodies, have not received significant attention as they are not something with which the Indian courts deal every day. The provisions of the Copyright Act, its limitations, and the legal principles are necessary to achieve its goal of balancing intellectual property rights with fostering creativity. This paper has touched upon these aspects, thus providing a framework for understanding how courts approach copyright disputes in both countries, India and the USA.
The case involving Ed Sheeran and Marvin Gaye's 'Let's Get it On' is relevant to the issue of copyright infringement in musical compositions, particularly regarding chord progressions and harmonic rhythms. This case played a significant role in shaping US jurisprudence by highlighting the criteria used to determine copyright infringement in music.
In the context of Indian jurisprudence or any other jurisdiction, this case serves as a reference point for understanding how courts can approach similar disputes involving musical compositions. It suggests a framework where courts must carefully analyze whether the elements allegedly copied are sufficiently original and distinct to merit copyright protection, thereby providing guidance on maintaining a balance between intellectual property rights and artistic freedom. By addressing these foundational elements together, the comparison of US and Indian cases can be more effectively justified.
Ed Sheeran's Case
Ed Sheeran was alleged to have imitated Marvin Gaye’s ‘Let's Get it On’ for his song ‘Thinking Out Loud’. The defendants claimed that the combination of the chord progression and the harmonic rhythm used in Thinking Out Loud is substantially similar to that in Let’s Get it On and thus infringes their work. The court favored Ed Sheeran by holding that the chord progression that he was alleged to have copied for thinking out loud wasn’t unique enough to merit a copyright claim. The court found out that the parts of Let’s Get it On, that Sheeran was accused of infringing, were ‘commonplace elements’ and therefore not eligible for copyright protection. Chord progressions and harmonic rhythms are common building blocks of musical creation. To determine it, the court looked at 13 other songs that predate Let's Get it On and use the same chord progression. Further, the court found that it appeared in two guitar textbooks. The court ruled that even if the parts of the two songs are similar, those parts are the unprotected elements that are freely available for everyone to use.
Both of the cases are centered on copyright infringement concerning musical compositions, albeit in different cultural contexts. One case involved the ‘raagas’ of Indian classical music, while the other in the US focuses on ‘chord progressions’ and ‘harmonic rhythms’. Despite these contextual disparities, the legal principles employed by the US courts in Ed Sheeran’s case bear a striking resemblance to those utilized in India for such disputes. The next section of the piece scrutinizes the relevance of these doctrines in the Ustad’s case and attempts to outline a framework that Indian courts could adopt when adjudicating similar disputes. The aim should be to strike a balance between safeguarding intellectual property rights and nurturing creativity within artistic works.
Scenes a Faire
In Ed Sheeran’s case, the court used the doctrine of ‘commonplace elements’ which covers the elements that are generally not eligible for copyright protection in an artistic piece. In India, courts have used a similar doctrine to decide cases of copyright infringement known as ‘Scenes a Faire’. It refers to the elements in an original work that are trite and common and, hence, are non-copyrightable. The case of RG Anand involved a claim by the writer of the play alleging copyright infringement against a film production company that adapted themes from the plaintiff's play into a film. The court concluded that when ideas or plots are identical, similarities naturally follow. It is the court's duty to determine whether these similarities might constitute copyright infringement. The case underscored that themes, plots, stock characters, and elements typical of genres are not protected and are considered unprotectable ideas.
Classical forms of music that find residence in India primarily rest on prescribing distinct compositional rules/melodic structures by providing certain peculiar notes or musical motifs within which any song is to be composed in particular raaga. Raagas should be considered as non-copyrightable as they are something available in the public domain.
In Ustad’s case, if the court finds out that the only similarity between the two musical work (i.e. Shiva Stuti and Veera raj Veera) is that they both are developed under the same ‘raaga’, the court can grant protection to the defendants under the ‘Scenes a Faire’ doctrine and the claim of the plaintiff would fail. Every two compositions that are under the same raaga or involve a similar mixture of ragas will inevitably involve a certain amount of similarity in the way notes travel through the composition.
Substantial Similarity
The second doctrine which the Indian Courts should look into is the ‘Substantial Similarity test’. Courts in Ed Sheeran’s case applied the substantial similarity test while arriving at the decision. The same test of ‘substantial similarity’ is used by Indian courts while checking the similarity between two artistic works alleged of copyright infringement. US courts use an ‘ordinary observer test’ in determining substantial similarity which is similar to India’s ordinary observer test but the application of both the tests is different.
If the melodies of any of the two songs are similar, a US court would likely find that an ordinary observer would hear the two songs and be able to recognize the same melody in both. In order to bring a legal action in the US against copyright infringement, a plaintiff merely needs to show just access and substantial similarity. Indian courts implement the ‘lay observer test’ in which they do not consider the new work as infringing if the two works either have a different theme or are developed differently. The standard used here is higher than that applied in the US.
Indian courts have held that a work "inspired" by another copyrighted work is not necessarily a copyright infringement. Rather, it hinges on whether a substantial portion of the original work was copied. As long as the theme of the "inspired" work is treated differently from its inspiration, there is no violation.
In this case, ‘Veera raj Veera’ cannot be said to be substantially similar to the plaintiff’s ‘Shiva Stuti’ because first, nothing substantial was copied from original piece, only the raag was same; second, courts need to look at the themes of both the music pieces by comparing the melody, harmony and rhythm of the pieces as well as examining the key in which music if written. If the themes are different, they don't pass the test of substantial similarity, and hence the claim of copyright infringement would fail.
Idea-Expression Dichotomy
Another element which the court should factor in if it finds out that the similarity of both the musical works is limited to the extent of raagas is ‘idea-expression’ theory in the copyright regime. Unlike other intellectual property rights, the copyright does not protect the artistic idea itself but only the expression of the idea in fixed form. For instance rock’n’roll music (a certain beat, instrumental sound etc.) cannot be protected, but its particular expression, like Rolling Stones, can. In RG Anand, the court cleared this dichotomy between idea and expression and held that if essential ideas are taken but expressed in another form, it would not be infringement.
When the same idea is being developed in a different manner, it is evident that source being common, similarities are bound to occur. It would depend on the court to determine whether the similarities transcend common ideas which are unprotectable and fundamental or substantial to the expression adopted or are mere colorable imitations. In Ustad’s case, the usage of raag ‘Adana’ in ‘Veera raj Veera’ can be classified as an artistic idea rather than an expression that would not be copyrightable. The use of this raag to make a different composition would be the expression of an idea which would be eligible for copyright protection.
Raagas are not fixed compositions but rather melodic structures that provide a framework for improvisation. They have specific ascending and descending note patterns but the performance of raaga can vary significantly based on the artist's interpretation and style. Additionally, the Copyright law typically protects fixed expressions of ideas rather than the ideas themselves. In the Kantara case the issue was regarding a copyright on a sound and an orchestral arrangement. The court observed that a song meant to sound like a Carnatic classical composition will invariably use the tanpura, mridangam and violin. A song meant to sound like jazz will use a distinctive piano style and swung beat.
The Impact on Creative Expression
No matter what, the basic structure of a raaga remains the same, the rendition and improvisation within the raaga expands the scope of the creativity of an artist. Copyrighting a raaga could potentially stifle this creative expression and would limit the exploration and evolution of these musical forms. Raagas represent a shared knowledge base and their essence lies in the interpretation and improvisation rather than being fixed compositions. Many of the raagas of Indian classical music are ancient and have been in the public domain for a very long period of time. Granting it copyright protection would disturb the balance between protecting the rights of raag creators and ensuring public access to these elements of classical music.
Overprotection stifles the very creative forces it's supposed to nurture. Protection of intellectual property rights is important to incentivize creation but the present scope and applicability of copyright protection threatens this very incentive system. The fundamental framework of copyright law does not specifically state what qualifies as a copy, scope of exclusion right and what belongs to the public domain. As a result, boundary issues are pervasive and they often result in overextended and overbroad claims by copyright holders. Such overly strict copyright laws can hinder creative practices like sampling, remixing and appropriation which have been vital to the evolution of many art forms especially in fields such as music, visual arts and literature. Thus, while deciding this case, the Indian courts should look into all these factors to maintain an appropriate balance.
Conclusion
Ustad’s case embodies the collision between preserving cultural heritage and safeguarding intellectual property rights. This piece underscores that raagas being foundational elements of Indian classical music represent shared knowledge rather than fixed compositions eligible for copyright protection and tries to put forward a framework that the Indian courts should adopt while deciding the Ustad’s case which would not stifle the creative essence and nature of musical forms, at the same time would not interfere with the intellectual property rights of the artistic works.
To prevent an excessive stifling of artistic creativity under Intellectual Property Rights, Indian courts could incorporate the concept of 'personality theory' alongside the discussed legal doctrines. The Personality theory emphasizes the development of the personality and protection of the creator's dignity and personhood. Individuals have moral claims over their talents, feelings, character traits and experiences which form a part of their personality and should be protected. Although not as extensively developed in Indian jurisprudence as in European nations, judges in India have occasionally invoked this theory to safeguard the creative interests of artistic works. The overarching goal remains ensuring that while copyright law safeguards creators' rights, it also fosters an environment conducive to the diverse evolution and enhancement of artistic expressions.
*Madhura Gokhale is a third-year B.A., LL.B. (Hons.) student at NLSIU, Bengaluru, India.
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