Can I Copyright a Remix, Reaction, Remake, Mashups and Compilations?

Last Updated at: December 22, 2020
382
Copyright a remix
The Copyright Office of the Department for Promotion of Industry and Internal Trade (DPIIT) has invited suggestions to amend the Copyright Act before November 30, 2020. Last year, the DPIIT proposed a set of amendments to the Indian Copyright Rules. This was to ensure smooth compliance with the Copyright Act because of the technological advancement in the present digital era. 

India being the most popular country when it comes to the entertainment sector, it is quite evident that a lot of creative options are coming up to attract the viewers. Not only are there a lot of movies coming up in the industry, but their remakes and remixes are also very popular. One such recent movie “Dil Bechara”, released in 2020 is a classic remake of “Fault in Our stars”- clearly saying it to be a tribute to 5 years of the English movie. In this article, let’s see how to copyright a Remix, Reaction, Remake, Mashups and Compilations

Similarly, there are numerous songs like- humma- humma, Bachna ae Haseeno which are remixes of old 70’s songs, which were chartbusters during that time. Be it in any language or verses, these remixes and remakes somewhere remind the viewers about the original movie but with a tint of newer and popular versions. However, even though these are  remakes of the old movie, they are still considered to be a new movie  as they all together constitute a different set of genres as the casting people – i.e producer, director, actors are totally different 

Not only music, but there are also various videos which are recreated and included from the past in recent times. But, now the question arises whether these remakes amount to a violation of copyright? We all know that the moment anything is created, it is automatically a copyrighted work- whether you register it or not. In such circumstances, will making mashups, remixes, compilations constitute infringement.

In this blog, we will deal with these questions and try to figure out whether these constitute an infringement of copyright or not.

Essentially, for a work to be considered as a copyrightable work, it should satisfy two conditions:

  • It should be original, and,

  1. It should be expressed in any fixed tangible form because ideas cannot be copyrighted.

When any new form of music or video composition is recreated the owner of the creator of the work, gets an exclusive bundle of rights over the work and it can further recreate, reproduce, publish or communicate it to the public. Creators have started to acknowledge the derivative works of the previous version of the world i.e. change of music with original lyrical work. With an increase of creativity in people, they have started to compile, recreate, modify and redecorate the original song in such a way that the derived song falls under the category of the original song. In this way, a new wavelength of remix, mashup and compilations has taken its place in the music community.

Turning unofficial (bootlegs) to official remixes is a risky process but often rewarding if you can collate a strong enough pitch to the master owning label. This process of turning infringing material into gold mainly revolves around generating serious hype on the track you are promoting. Once moving, pitching this bootleg to the major using the generated virality as leverage. Your pitch needs to emphasise how this viral bootleg could be used as an asset to assist their goals e.g. as a promotional gateway for a Spotify release of the original or as an exposure generating mechanism for an artist involved.”

Recording of a song involves intellectuals and creativity of the entire musical team and once ready, it is converted into an album and sold in the market. When a song is recreated, the creators will consider those songs which are popular in the market to which they will add their different version of music and raps and make it a different and original song.

To illustrate, one remix which can be stated here is the song “HAWA HAWAI”. When we hear this, we can picture out Sridevi mam in our mind, but the creation of this song in the movie “tumari sullu” portraying vidya Balan, was commendable. Adding a few EDM tunes and dabs in middle was a good recreation of the original song.

Another example of copyright infringement concerning remixes was the case of Led Zeppelins music cover – “Stairway to Heaven,” In this case, the band was alleged to be using some parts of the instrumental song copyrighted by Taraus and Randy wolf. The (the Circuit Court held that the remix was not considered to be the Copyright infringement of the instrumental song.

From the legal standpoint, we need to analyse whether these derivative works are treated as copyrightable works or not, whether they infringe the original work, whether the entrepreneurs have legal right to exploit such songs and how does the law deal with these practices.

REMAKE CULTURE OF MUSIC

Section 2(p) of the Act defines the term Musical Work. It defines that musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music.  The following rights are associated with copyright of such works:

In the case of Musical, literary or dramatic work, not being computer program:

  1. To reproduce the work in a material manner and storing it in any electronic medium.
  2. To issue copies of work to the public which are not already available in the market 
  3. Further, to communicate and perform the work in public.
  4. To create or recreate any cinematography work or sound recording.
  5. Moreover, to make any kind of translation or abridgements.
  6. To make any kind of alteration or adaptation in the work.

In the case of Sound Recording:

  1. To create any other sound recording – remix, mashups, compilations etc.  in relation to that.
  2. Moreover, to hire, sell or produce copies of sound recording.
  3. To distribute it to the public.

If such a remake of the song is done without the prior consent of the original owner of the song, then it will be termed as an infringement. So, in general practice, the entrepreneurs will contact the original owners of the song through copyright collective management or societies, then will send a notice to them stating their intention to reproduce the song in return for royalty as consideration.

copyright Your work

KINDS OF RIGHTS IN MUSICAL WORK

As mentioned above, the owner of a copyright has the exclusive rights which include authorisation to reproduce or distribute the copies of the work, to work or perform in the presence of the public by means of the digital audio transmission, to make derivative work and publish them. 

As a copyright owner of a musical work, the Act gives you the right to record music, sell, to distribute its copies in various ways like CD, digital download etc., and/or re-create something creative, novel or innovative from your pre-existing work and publish it on the social media, organise and perform live performances on various occasions or events in different places or parts of the cities. At one place, it allows you to generate innovative works from your pre-existing ideas but on the other hand, it also restricts you from using any work for which you don’t have the authority. 

1. Reproduction right:

It means that the owner of the original copyright work has a right to make copies of his work and store them in any format as per his choices. In case someone who is unauthorised makes copies of his work or any substantial part of his work then such an act will amount to infringement of the work. For example– Making copies of a sound recording or musical work in CD, computer file, included in a movie etc.

2. Synchronization Right

Under this right, the performance is merged with any visual representation and then broadcasted. To synchronise one’s musical work with a visual movie it requires a lot of hard work and creativity. Therefore, the permission of the original owner of the song is required in such circumstances.

3. Mechanical Right

The term mechanical has its close relevance with technical. It is basically related to recording part of the song. Record companies exercise this right while creating the song and then pay a required amount to the producer to publish the song or work

4. Derivative Right

Under this right,  the original work is to recreate a new work by making some alterations in it by adding different kinds of beats, rap music, lyrics, and other different kinds of elements to make a better and interesting version of it.

5. Adaptation Right

When someone uses their creativity to change some elements in your work or introduces a new part to your work, it is called adaptation and rights associated with that are called adaptation rights. The Copyright Act defines the following:

  • Conversion of dramatic play into no dramatic work.
  • Re-arrangement of literacy work.
  • Conversion of literary work into drama.
  • Depicting any comic form or through pictures or dramatic.

6. Performer Right

Any artist who performs their work has Performer Right and “Performer” includes juggler, singer, dancer, musician, actor etc. Section 38 tells about the Right of performers and Section 38 A lays down legal provisions related to it which give exclusive rights for doing any act in respect to performance. It can be categorized into 3 parts.

  • Live performance– when he performs his or her work in the audience then he has right over that particular performance.
  • Performance in cinematography with credit– when the performer gives his right in a written agreement to use his work for a commercial purpose, performers should entitle to receive some royalty or some monetary gain.
  • Performance in cinematography without credit– there is many performances supporting cast which is basically known as extras” in any film or play etc. Till now copyright act does not give any kind of protection to this kind of people except Moral Right.

Section 39A confer the moral right to the performers to claim the author of the work and the right of integrity to work.

 “COMMERCIAL UTILISATION” OF A PERFORMANCE?

There are two ways in which a sound recording can have: personal and commercial. Personal use implies playing during small get together or marriage or fun events where there is no element of money. But for a commercial performance like playing music in restaurant, hospital, radio, television, cinema etc. even the organiser of sports events like IPL where music is played for entertainment purposes must pay royalty or licence fee amount to the owner.

CAN PLAYING MUSIC IN THE CLUBS AMOUNT TO INFRINGEMENT?

An individual has permission to create a new remix version from the copyright holder but they cannot play remix version in the club without granting permission for performance right, it will be considered an illegal act. In a club, DJ will not be liable to pay the amount of royalty. It will be by the bar or club owner. If the remix music is with the actual performance will cover under fair use, but the more you profit without granting prior permission the more you break the laws.

The owner of the musical work is the composer, not the singer who sang the song. Gramophone Company of India vs. Super. In this case, the Delhi High Court observed that musical work is not a combination of melody or tuning work but every composition has its structure, shape to prepare the whole notation for music. And under the Copyright Act, Section 14 (e) provides certain rights to the owner for protecting their work which includes the right to sell or hire, any copy of the sound recording and right to communicate with the public.

Moral right under the Copyright Act

Even when Section 52(1) is in force and there is some kind of mutilation or alteration in the original work that can hamper or spoil the reputation of the owner, then he can file a complaint under Section 57 of the Act.

Mannu Bhandari vs. Kala Vikas Picture recognised that existence or moral right is important for the author. Amar Nath Sehgal vs. UOI, it was said that moral right is the soul of author work and he has the right to protect and preserve his work irrespective of being copied wholly or partially under Copyright Act.

INTERPRETATION OF SECTION 52(1) (J) OF THE ACT:

Section 52(1) (j):  Works like music and sound recordings are subject to seeking permission from the owner of the copyright for certain uses and changes. When we interpret the section, it is crystal clear that if the above points are with care of then the act will not amount to infringement of the musical work with copyright. 

There is always a dilemma whether such remixes can have protection under copyright law or not. People have confusion between what can have an allowance and what is not. In modern times, it is very difficult to keep up with the copyright laws and hence, every now and then, we face these infringement issues. 

To avoid infringement, the following guidelines can be followed given under Section 52(1) (j).

 Before remaking of the song, it always better to have a legal checklist:

  • Purchasing the original version of the song and not pirated one- piracy is illegal.
  • Prior permission from the owner of the song intended to reproduce.
  • Pay royalty to the original owner of the song
  • Seek consent before making any alterations to any part of the song
  • Be cautious while marketing the song – do not use labels or packaging which might create confusion with respect to the identity of the artist.
  • It’s advisable to wait for a period of two years before remaking the song
  • Make sure that the dues and royalty amount is paid within the appropriate time. Delay in payment might lead to a stoppage in song production.
Pro note: But, in case a person simply wants to put all the songs together and use it for personal use like for weddings or other such functions and has no monetary benefits, then they can easily get away from this lengthy process.

The owner has every right to inspect all the Books of Account related to remix work. If any issues arise related to payment of royalty then the owner of the work has the full liberty to file a complaint against the publisher or producer and the copyright board will take necessary actions against them.

Consent of the original owner of the work is a condition precedent. In the case of Ganpati Aarti Ashtvinayak Geete, the defendant wanted to make an audio cassette in regard to Ganpati Aarti for that he asked for the original sound recording from the plaintiff and offered a licence fee but plaintiff rejected the offer with impliedly mean that permission was not granted on behalf of the plaintiff but still defendant brought the sound recording for making the cassettes which were totally the act of infringement.

So, working without the permission of the original owner will lead to infringement. But in the Gramophone Company vs. Mars Recording, case the court held that if the condition given under Section 52(1) is followed will not be called as infringement and no requirement for granting any kind of consent or licence.

In Super Cassette Industries  Ltd vs. Bathla Cassette Industries Pvt Ltd, it was said that no change should be done in the voice of the singer because the voice is the soul of every song and it is a vital part of the song without taking consent from the original owner.

COPYRIGHT COVER VERSIONS AS PER AMENDMENT IN 2012:

Amendment done in 2012 brings up and down changes in the rights of  Musician, Performer or Lyricist etc. Section 31C of the Act provides Statutory licence that can be obtained for creating Cover Version. A statutory licence will govern by the provisions of the Act and general licence consists of terms and conditions that agrees upon the licensee or licensor.

Major highlights of the provision

  1. A new cover version cannot be created until the expiration period of 5 years gets over of the original recording.
  2. It has to be in the same manner as the original one.
  3. Prior consent of the owner should be there for making a cover version.
  4. Cover or labels of the songs should disclose to the owner in advance before the release of the song.
  5. Copyright board should set the fixed amount for paying a royalty.
  6. The creator of the cover version should mention the original sound.
  7. A Book of Account should have maintenance by the author of the cover version owner which can inspect by the real owner of the original work.

If such a cover version is without taking prior permission; or license from the owner of the original sound recording then it will amount to infringement. The owner can file a suit against the creator of the cover version. It is for infringing his moral rights as the person for an alteration of his original work without any permission.

REMAKE CULTURE OF VIDEOS

 The dilemma of copyright law does not stop with music recording only; the next critical question here is what if the producers create a videography of the original creation. Section 52 confines itself to musical work and will not extend to video making. The concept of video making falls under the category of cinematography work. There is a common practice going on where producers along with the remix opt for transforming it into video and publishing it. Now, this leads to infringement of both literary and musical work. One such complaint was made by the original producer of the song “ Kanta laga” song, wherein he complained that in the remix video version of the song, the woman is found dancing with inappropriate clothes and the producer was restrictive in giving consent for such work.

YouTube copyright rights and fair use policies

YouTube has laid down standard policy guidelines with respect to copyright claims, fair use exceptions and monetizing policies. The foremost rule while uploading any content on YouTube is that Creators should only upload videos; that they have made or that they’re authorised to use. That means that they should not upload videos that they didn’t make, or use content in their videos. Videos that someone else owns the copyright to, such as music tracks, snippets of copyright programmes; Or videos made by other users, without necessary authorisations.

The action was taken by YouTube against copyright infringement

In case the owner feels that his/her work has infringement, then YouTube has a standard web form. Wherein the owner has to fill the details of the work on the infringement and file a complaint. This is through a valid Digital Millennium Copyright Act after which the video will be taken down. Further, they will apply a copyright strike. If a user gets three copyright strikes in 90 days, their account, along with any channels, will have a termination. 

Methods to file for Copyright Infringement in YouTube

It is very convenient to use YouTube’s Copyright Management Tools. This gives the rights holder’s control of their copyright material on YouTube. YouTube works for the benefit of the content creators. It is by providing them appropriate features on the scale of their copyright content. The Copyright Management Suite at YouTube provides a number of ways for rights holders to make copyright claims.

  1. Webform
  2. Copyright Match Tool
  3. Content ID
  4. Track the video’s viewership statistics.

Fair use claims under YouTube

Fair use claims allow any person to use any portion of copyrighted material without seeking permission from the original owner of the copyrighted material. Although, it provides much flexibility to the creators. However, if it is for some other purpose, it can hamper the rights of the owner.  Under such circumstances, their video can remove or their account can ban from further usage. Different countries have different guidelines of fair use and when it is okay to use another creator’s work without permission. Regardless of where you are from, due to fair use flexibility, courts will always deal with these situations. It is based on the facts and circumstances of each case.

Four Factors of Fair Use

Before using someone else’s copyright content, it is better to ask these 4 questions in order to claim fair use defence:

  1. Purpose of using Copyright content

If you are using the content for some educational purpose, then it can be under fair use. But, if you are using it for commercial purpose, the Court may consider it as fair use of the work. 

Similarly, the court will determine the following:

  • Whether the use is transformative
  • Whether it alters the meaning of the original work
  • Is it duplicate of original work
  • Will such work gives the user monetary benefit

2. Nature of the Copyright work

The court will determine 

  • whether you work is a fact or fiction
  • Whether you are going to publish or not

The Court’s general circumstances bend towards fictional work rather than factual work.

3. Amount of Originality in your Video:

The amount of content with copyright you use in your work will also be in consideration. It is always better to add more of your original content and useless and necessary excerpts from the copyrighted work…

4. Does your video serve a substitute for the original one?

The most important factor courts take into consideration when determining fair use is the effect of your use. It is upon the potential market for the work with copyright. If your content will take away revenue from the original work, it will likely not cover by fair use. However, an exception to this rule is if you are creating a parody.

OTHER SOCIAL MEDIA RESPONSES AGAINST SUCH REMAKE VIDEOS

 When it comes to other social media like Facebook or Instagram, copyright guidelines are clearly laid down. If you use any work which is copyright material, then these applications will take it down. And will not upload them in your feed profile. 

BEST PRACTICES TO AVOID VIOLATING FAIR USE

Here are some strategies you can incorporate to ensure your content is not in violation:

  • Be Original. 
  • Be creative
  • Minimise using content you don’t own
  • Don’t think of earning through someone else’s work
  • Make sure you make your own content.
  • Seek permission before using someone else’s content

 

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Can I Copyright a Remix, Reaction, Remake, Mashups and Compilations?

382
The Copyright Office of the Department for Promotion of Industry and Internal Trade (DPIIT) has invited suggestions to amend the Copyright Act before November 30, 2020. Last year, the DPIIT proposed a set of amendments to the Indian Copyright Rules. This was to ensure smooth compliance with the Copyright Act because of the technological advancement in the present digital era. 

India being the most popular country when it comes to the entertainment sector, it is quite evident that a lot of creative options are coming up to attract the viewers. Not only are there a lot of movies coming up in the industry, but their remakes and remixes are also very popular. One such recent movie “Dil Bechara”, released in 2020 is a classic remake of “Fault in Our stars”- clearly saying it to be a tribute to 5 years of the English movie. In this article, let’s see how to copyright a Remix, Reaction, Remake, Mashups and Compilations

Similarly, there are numerous songs like- humma- humma, Bachna ae Haseeno which are remixes of old 70’s songs, which were chartbusters during that time. Be it in any language or verses, these remixes and remakes somewhere remind the viewers about the original movie but with a tint of newer and popular versions. However, even though these are  remakes of the old movie, they are still considered to be a new movie  as they all together constitute a different set of genres as the casting people – i.e producer, director, actors are totally different 

Not only music, but there are also various videos which are recreated and included from the past in recent times. But, now the question arises whether these remakes amount to a violation of copyright? We all know that the moment anything is created, it is automatically a copyrighted work- whether you register it or not. In such circumstances, will making mashups, remixes, compilations constitute infringement.

In this blog, we will deal with these questions and try to figure out whether these constitute an infringement of copyright or not.

Essentially, for a work to be considered as a copyrightable work, it should satisfy two conditions:

  • It should be original, and,

  1. It should be expressed in any fixed tangible form because ideas cannot be copyrighted.

When any new form of music or video composition is recreated the owner of the creator of the work, gets an exclusive bundle of rights over the work and it can further recreate, reproduce, publish or communicate it to the public. Creators have started to acknowledge the derivative works of the previous version of the world i.e. change of music with original lyrical work. With an increase of creativity in people, they have started to compile, recreate, modify and redecorate the original song in such a way that the derived song falls under the category of the original song. In this way, a new wavelength of remix, mashup and compilations has taken its place in the music community.

Turning unofficial (bootlegs) to official remixes is a risky process but often rewarding if you can collate a strong enough pitch to the master owning label. This process of turning infringing material into gold mainly revolves around generating serious hype on the track you are promoting. Once moving, pitching this bootleg to the major using the generated virality as leverage. Your pitch needs to emphasise how this viral bootleg could be used as an asset to assist their goals e.g. as a promotional gateway for a Spotify release of the original or as an exposure generating mechanism for an artist involved.”

Recording of a song involves intellectuals and creativity of the entire musical team and once ready, it is converted into an album and sold in the market. When a song is recreated, the creators will consider those songs which are popular in the market to which they will add their different version of music and raps and make it a different and original song.

To illustrate, one remix which can be stated here is the song “HAWA HAWAI”. When we hear this, we can picture out Sridevi mam in our mind, but the creation of this song in the movie “tumari sullu” portraying vidya Balan, was commendable. Adding a few EDM tunes and dabs in middle was a good recreation of the original song.

Another example of copyright infringement concerning remixes was the case of Led Zeppelins music cover – “Stairway to Heaven,” In this case, the band was alleged to be using some parts of the instrumental song copyrighted by Taraus and Randy wolf. The (the Circuit Court held that the remix was not considered to be the Copyright infringement of the instrumental song.

From the legal standpoint, we need to analyse whether these derivative works are treated as copyrightable works or not, whether they infringe the original work, whether the entrepreneurs have legal right to exploit such songs and how does the law deal with these practices.

REMAKE CULTURE OF MUSIC

Section 2(p) of the Act defines the term Musical Work. It defines that musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music.  The following rights are associated with copyright of such works:

In the case of Musical, literary or dramatic work, not being computer program:

  1. To reproduce the work in a material manner and storing it in any electronic medium.
  2. To issue copies of work to the public which are not already available in the market 
  3. Further, to communicate and perform the work in public.
  4. To create or recreate any cinematography work or sound recording.
  5. Moreover, to make any kind of translation or abridgements.
  6. To make any kind of alteration or adaptation in the work.

In the case of Sound Recording:

  1. To create any other sound recording – remix, mashups, compilations etc.  in relation to that.
  2. Moreover, to hire, sell or produce copies of sound recording.
  3. To distribute it to the public.

If such a remake of the song is done without the prior consent of the original owner of the song, then it will be termed as an infringement. So, in general practice, the entrepreneurs will contact the original owners of the song through copyright collective management or societies, then will send a notice to them stating their intention to reproduce the song in return for royalty as consideration.

copyright Your work

KINDS OF RIGHTS IN MUSICAL WORK

As mentioned above, the owner of a copyright has the exclusive rights which include authorisation to reproduce or distribute the copies of the work, to work or perform in the presence of the public by means of the digital audio transmission, to make derivative work and publish them. 

As a copyright owner of a musical work, the Act gives you the right to record music, sell, to distribute its copies in various ways like CD, digital download etc., and/or re-create something creative, novel or innovative from your pre-existing work and publish it on the social media, organise and perform live performances on various occasions or events in different places or parts of the cities. At one place, it allows you to generate innovative works from your pre-existing ideas but on the other hand, it also restricts you from using any work for which you don’t have the authority. 

1. Reproduction right:

It means that the owner of the original copyright work has a right to make copies of his work and store them in any format as per his choices. In case someone who is unauthorised makes copies of his work or any substantial part of his work then such an act will amount to infringement of the work. For example– Making copies of a sound recording or musical work in CD, computer file, included in a movie etc.

2. Synchronization Right

Under this right, the performance is merged with any visual representation and then broadcasted. To synchronise one’s musical work with a visual movie it requires a lot of hard work and creativity. Therefore, the permission of the original owner of the song is required in such circumstances.

3. Mechanical Right

The term mechanical has its close relevance with technical. It is basically related to recording part of the song. Record companies exercise this right while creating the song and then pay a required amount to the producer to publish the song or work

4. Derivative Right

Under this right,  the original work is to recreate a new work by making some alterations in it by adding different kinds of beats, rap music, lyrics, and other different kinds of elements to make a better and interesting version of it.

5. Adaptation Right

When someone uses their creativity to change some elements in your work or introduces a new part to your work, it is called adaptation and rights associated with that are called adaptation rights. The Copyright Act defines the following:

  • Conversion of dramatic play into no dramatic work.
  • Re-arrangement of literacy work.
  • Conversion of literary work into drama.
  • Depicting any comic form or through pictures or dramatic.

6. Performer Right

Any artist who performs their work has Performer Right and “Performer” includes juggler, singer, dancer, musician, actor etc. Section 38 tells about the Right of performers and Section 38 A lays down legal provisions related to it which give exclusive rights for doing any act in respect to performance. It can be categorized into 3 parts.

  • Live performance– when he performs his or her work in the audience then he has right over that particular performance.
  • Performance in cinematography with credit– when the performer gives his right in a written agreement to use his work for a commercial purpose, performers should entitle to receive some royalty or some monetary gain.
  • Performance in cinematography without credit– there is many performances supporting cast which is basically known as extras” in any film or play etc. Till now copyright act does not give any kind of protection to this kind of people except Moral Right.

Section 39A confer the moral right to the performers to claim the author of the work and the right of integrity to work.

 “COMMERCIAL UTILISATION” OF A PERFORMANCE?

There are two ways in which a sound recording can have: personal and commercial. Personal use implies playing during small get together or marriage or fun events where there is no element of money. But for a commercial performance like playing music in restaurant, hospital, radio, television, cinema etc. even the organiser of sports events like IPL where music is played for entertainment purposes must pay royalty or licence fee amount to the owner.

CAN PLAYING MUSIC IN THE CLUBS AMOUNT TO INFRINGEMENT?

An individual has permission to create a new remix version from the copyright holder but they cannot play remix version in the club without granting permission for performance right, it will be considered an illegal act. In a club, DJ will not be liable to pay the amount of royalty. It will be by the bar or club owner. If the remix music is with the actual performance will cover under fair use, but the more you profit without granting prior permission the more you break the laws.

The owner of the musical work is the composer, not the singer who sang the song. Gramophone Company of India vs. Super. In this case, the Delhi High Court observed that musical work is not a combination of melody or tuning work but every composition has its structure, shape to prepare the whole notation for music. And under the Copyright Act, Section 14 (e) provides certain rights to the owner for protecting their work which includes the right to sell or hire, any copy of the sound recording and right to communicate with the public.

Moral right under the Copyright Act

Even when Section 52(1) is in force and there is some kind of mutilation or alteration in the original work that can hamper or spoil the reputation of the owner, then he can file a complaint under Section 57 of the Act.

Mannu Bhandari vs. Kala Vikas Picture recognised that existence or moral right is important for the author. Amar Nath Sehgal vs. UOI, it was said that moral right is the soul of author work and he has the right to protect and preserve his work irrespective of being copied wholly or partially under Copyright Act.

INTERPRETATION OF SECTION 52(1) (J) OF THE ACT:

Section 52(1) (j):  Works like music and sound recordings are subject to seeking permission from the owner of the copyright for certain uses and changes. When we interpret the section, it is crystal clear that if the above points are with care of then the act will not amount to infringement of the musical work with copyright. 

There is always a dilemma whether such remixes can have protection under copyright law or not. People have confusion between what can have an allowance and what is not. In modern times, it is very difficult to keep up with the copyright laws and hence, every now and then, we face these infringement issues. 

To avoid infringement, the following guidelines can be followed given under Section 52(1) (j).

 Before remaking of the song, it always better to have a legal checklist:

  • Purchasing the original version of the song and not pirated one- piracy is illegal.
  • Prior permission from the owner of the song intended to reproduce.
  • Pay royalty to the original owner of the song
  • Seek consent before making any alterations to any part of the song
  • Be cautious while marketing the song – do not use labels or packaging which might create confusion with respect to the identity of the artist.
  • It’s advisable to wait for a period of two years before remaking the song
  • Make sure that the dues and royalty amount is paid within the appropriate time. Delay in payment might lead to a stoppage in song production.
Pro note: But, in case a person simply wants to put all the songs together and use it for personal use like for weddings or other such functions and has no monetary benefits, then they can easily get away from this lengthy process.

The owner has every right to inspect all the Books of Account related to remix work. If any issues arise related to payment of royalty then the owner of the work has the full liberty to file a complaint against the publisher or producer and the copyright board will take necessary actions against them.

Consent of the original owner of the work is a condition precedent. In the case of Ganpati Aarti Ashtvinayak Geete, the defendant wanted to make an audio cassette in regard to Ganpati Aarti for that he asked for the original sound recording from the plaintiff and offered a licence fee but plaintiff rejected the offer with impliedly mean that permission was not granted on behalf of the plaintiff but still defendant brought the sound recording for making the cassettes which were totally the act of infringement.

So, working without the permission of the original owner will lead to infringement. But in the Gramophone Company vs. Mars Recording, case the court held that if the condition given under Section 52(1) is followed will not be called as infringement and no requirement for granting any kind of consent or licence.

In Super Cassette Industries  Ltd vs. Bathla Cassette Industries Pvt Ltd, it was said that no change should be done in the voice of the singer because the voice is the soul of every song and it is a vital part of the song without taking consent from the original owner.

COPYRIGHT COVER VERSIONS AS PER AMENDMENT IN 2012:

Amendment done in 2012 brings up and down changes in the rights of  Musician, Performer or Lyricist etc. Section 31C of the Act provides Statutory licence that can be obtained for creating Cover Version. A statutory licence will govern by the provisions of the Act and general licence consists of terms and conditions that agrees upon the licensee or licensor.

Major highlights of the provision

  1. A new cover version cannot be created until the expiration period of 5 years gets over of the original recording.
  2. It has to be in the same manner as the original one.
  3. Prior consent of the owner should be there for making a cover version.
  4. Cover or labels of the songs should disclose to the owner in advance before the release of the song.
  5. Copyright board should set the fixed amount for paying a royalty.
  6. The creator of the cover version should mention the original sound.
  7. A Book of Account should have maintenance by the author of the cover version owner which can inspect by the real owner of the original work.

If such a cover version is without taking prior permission; or license from the owner of the original sound recording then it will amount to infringement. The owner can file a suit against the creator of the cover version. It is for infringing his moral rights as the person for an alteration of his original work without any permission.

REMAKE CULTURE OF VIDEOS

 The dilemma of copyright law does not stop with music recording only; the next critical question here is what if the producers create a videography of the original creation. Section 52 confines itself to musical work and will not extend to video making. The concept of video making falls under the category of cinematography work. There is a common practice going on where producers along with the remix opt for transforming it into video and publishing it. Now, this leads to infringement of both literary and musical work. One such complaint was made by the original producer of the song “ Kanta laga” song, wherein he complained that in the remix video version of the song, the woman is found dancing with inappropriate clothes and the producer was restrictive in giving consent for such work.

YouTube copyright rights and fair use policies

YouTube has laid down standard policy guidelines with respect to copyright claims, fair use exceptions and monetizing policies. The foremost rule while uploading any content on YouTube is that Creators should only upload videos; that they have made or that they’re authorised to use. That means that they should not upload videos that they didn’t make, or use content in their videos. Videos that someone else owns the copyright to, such as music tracks, snippets of copyright programmes; Or videos made by other users, without necessary authorisations.

The action was taken by YouTube against copyright infringement

In case the owner feels that his/her work has infringement, then YouTube has a standard web form. Wherein the owner has to fill the details of the work on the infringement and file a complaint. This is through a valid Digital Millennium Copyright Act after which the video will be taken down. Further, they will apply a copyright strike. If a user gets three copyright strikes in 90 days, their account, along with any channels, will have a termination. 

Methods to file for Copyright Infringement in YouTube

It is very convenient to use YouTube’s Copyright Management Tools. This gives the rights holder’s control of their copyright material on YouTube. YouTube works for the benefit of the content creators. It is by providing them appropriate features on the scale of their copyright content. The Copyright Management Suite at YouTube provides a number of ways for rights holders to make copyright claims.

  1. Webform
  2. Copyright Match Tool
  3. Content ID
  4. Track the video’s viewership statistics.

Fair use claims under YouTube

Fair use claims allow any person to use any portion of copyrighted material without seeking permission from the original owner of the copyrighted material. Although, it provides much flexibility to the creators. However, if it is for some other purpose, it can hamper the rights of the owner.  Under such circumstances, their video can remove or their account can ban from further usage. Different countries have different guidelines of fair use and when it is okay to use another creator’s work without permission. Regardless of where you are from, due to fair use flexibility, courts will always deal with these situations. It is based on the facts and circumstances of each case.

Four Factors of Fair Use

Before using someone else’s copyright content, it is better to ask these 4 questions in order to claim fair use defence:

  1. Purpose of using Copyright content

If you are using the content for some educational purpose, then it can be under fair use. But, if you are using it for commercial purpose, the Court may consider it as fair use of the work. 

Similarly, the court will determine the following:

  • Whether the use is transformative
  • Whether it alters the meaning of the original work
  • Is it duplicate of original work
  • Will such work gives the user monetary benefit

2. Nature of the Copyright work

The court will determine 

  • whether you work is a fact or fiction
  • Whether you are going to publish or not

The Court’s general circumstances bend towards fictional work rather than factual work.

3. Amount of Originality in your Video:

The amount of content with copyright you use in your work will also be in consideration. It is always better to add more of your original content and useless and necessary excerpts from the copyrighted work…

4. Does your video serve a substitute for the original one?

The most important factor courts take into consideration when determining fair use is the effect of your use. It is upon the potential market for the work with copyright. If your content will take away revenue from the original work, it will likely not cover by fair use. However, an exception to this rule is if you are creating a parody.

OTHER SOCIAL MEDIA RESPONSES AGAINST SUCH REMAKE VIDEOS

 When it comes to other social media like Facebook or Instagram, copyright guidelines are clearly laid down. If you use any work which is copyright material, then these applications will take it down. And will not upload them in your feed profile. 

BEST PRACTICES TO AVOID VIOLATING FAIR USE

Here are some strategies you can incorporate to ensure your content is not in violation:

  • Be Original. 
  • Be creative
  • Minimise using content you don’t own
  • Don’t think of earning through someone else’s work
  • Make sure you make your own content.
  • Seek permission before using someone else’s content

 

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