Earlier this month, veteran music director Ilayaraja issued a legal notice to the producers of Rajinikanth’s film Coolie for allegedly using a song he composed without his permission.
The film’s announcement promo used a song ironically from Rajinikanth’s 1983 movie Thanga Magan called ‘Va Va Pakkam Va’. This popular number was composed by Ilayaraja and his claim is that the producers did not take his permission before using it in the promo.
This is not the first time the music director has sent such a notice for alleged unauthorised use of his songs, in fact he had sent a similar notice to the late S.P. Balasubrahmanyam for singing his songs at concerts without getting permission.
Intellectual property of creative work such as film, images and music are covered by the Copyright Act, 1957. These notices by Ilayaraja were issued for violation of the intellectual property he owns.
This unusual situation raises questions on the nature of copyright a music director holds, what the thin line that divides infringement and fair use is and what some important judgments operating in this sphere are. Moneycontrol explains these aspects.
Who owns the copyright of songs?
Under the copyright law, the author of the work is the owner of his art until they sign it off to someone else. However, when it comes to film music, the situation is quite different, given that when a song features in a movie, there is cinematography and other elements added to it.
Swati Sharma, partner and head, intellectual property, Cyril Amarchand Mangaldas, said, “In the case of musical work, the composer is the author of the work and, hence, the owner. The producer is considered as the first owner of the cinematograph film. When the song becomes a part of a cinematograph film as a sound recording, the first ownership of the musical work in such film vests with the producer.” However, she noted that the situation might change if there is a contract between the music director and the producer of the film to the contrary.
That is, the producer of the film is considered the first owner of the song, but if a music director has an agreement that specifically deals with the ownership of the song, then the terms of this agreement define the nature of ownership.
In fact, Ilayaraja is himself involved in litigation against a company called Indian Record Manufacturing Company (INERCO), which has filed a suit in the Madras High Court stating that it owns the rights in the songs in 30 films released in the late 1970s and early 1980s. INERCO had also sought an injunction against others from using these songs. A single-judge order held that Ilayaraja did not have rights in these songs as his contract did not cover it. The veteran music composer is now pursuing an appeal against this judgment before a two-judge bench of the high court.
According to Jasmine Damkewala, senior partner at Circle of Counsels, “The producers in turn are alleged to have written contracts with the music company. Accordingly, Mr Ilaiyaraaja can claim artistic rights only if he retained them in the original understanding and contract between Mr Ilaiyaraaja and the producers.”
Fair use and copyright
Fair use is a concept in copyright law that permits a party to use copyrighted work without the copyright owner's permission for purposes such as criticism, comment, news reporting, teaching, scholarship or research. Section 52 of the act lays down parameters to claim exemption from infringement under fair use.
“Fair use and copyright infringement is still a topic of debate and rightly so. In a nutshell, fair use is when you can use/quote a line from a song to review a musical work, but remaking the same song with the same essence is copyright infringement, without permission. It is a method to maintain the sanctity and originality of such work and its creator,” said Amit Panigrahi, partner-designate at Luthra and Luthra Law Offices India.
When a copyrighted work is used for something beyond fair use, it becomes infringement. That is, when a person uses the copyrighted work of one person and monetises it, it amounts to infringement.
Citing a Delhi High Court judgment, Sanjay H. Sethiya, managing partner, Law Square, said, “The court noted that fair use involves a careful consideration of both legal principles and factual circumstances. Particularly noteworthy was the court's stance that while commercial use is typically viewed with scepticism and presumed to unfairly impact the market for the owner's work, the onus rests on the organisers to demonstrate otherwise. This ruling sheds light on the complex interplay between intellectual property rights and the public interest in the digital age.”
In Ilayaraja’s case, the song was used in a promo to announce the new Rajinikanth starrer, thereby completely eradicating any possibility of this being fair use, said an expert. Damkewala said, “Be that as it may, everything would then turn on whether Mr Ilaiyaraaja had reserved the copyright to his music at the time of the production of the same.”
Some earlier cases
In 2019, Yash Raj Films Pvt Ltd (YRF) sued Sri Sai Ganesh Productions for unauthorised copying and distribution of the Telugu remake of the Hindi film Band Baaja Baaraat, without approval from the studio that owned the copyright to the film.
Panigrahi said, “The court via the test for copyright and fair use, found in favour of YRF, granting an injunction against Sri Sai Ganesh Productions and awarding damages for copyright infringement in this matter.”
Sharma said, “In the past, the courts have mostly opined on fair use of sound recordings / musical work in gatherings. It has considered playing copyrighted music as fair use in the following instances: marriage processions and other social/cultural festivities (Copyright Societies vs. Wedding Planners Association; Artists' Association vs. Municipal Corporation); Durga Puja celebrations, a bona fide religious ceremony (Indian Performing Right Society Ltd. vs. Eastern Indian Motion Pictures Association)."
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