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With one of the biggest entertainment industries in the world, a viewer is spoilt for choice when it comes to choosing a creative option in India. Not only do movies do well, but also their remakes do too. The same can be said about music. The remix industry in India is huge, and at times remixes are more popular than the original.
But are you allowed to remix or recreate an original work of art? In this article, let’s see how to copyright a remix, reaction, remake, mashups or compilations.
Although remakes and remixes take a lot of original content into play, they are still considered new, as everything including actors and directors is different.
In 2007, the producers of the Bollywood movie Partner landed in a legal soup after it was discovered that the movie was a remake of the Hollywood movie Hitch. Sony Pictures considered a $30 million lawsuit for copyright infringement. However, Partner was released, with Sony acquiring the world exclusive satellite broadcasting rights.
Do 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, or compilations constitute infringement.
Essentially, for a work to be considered as a copyrightable work, it should satisfy two conditions:
- It should be original and
- 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 creator of the work gets an exclusive bundle of rights over the work and they can further recreate, reproduce, publish, or communicate it to the public. Creators have started to acknowledge the derivative works of the previous version 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.
The founder of a famous music company, Aux London said that “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 versions of music and raps and turn it into a whole other song.
From a 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 the 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 the copyright of such works:
In the case of musical, literary, or dramatic work, not being a computer program:
- To reproduce the work materially and storing it in any electronic medium
- To issue copies of work to the public which are not already available in the market
- To communicate and perform the work in public
- To create or recreate any cinematography work or sound recording
- To make any kind of translation or abridgements
- To make any kind of alteration or adaptation in the work.
In the Case of Sound Recording
- To create any other sound recording – remix, mashups, compilations, etc. concerning that
- Moreover, to hire, sell, or produce copies of sound recording
- 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.
Types of Rights in the Musical World
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 using 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, 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 social media, organise, and perform live performances on various occasions or events in different places or parts of the cities.
1. Reproduction right:
It means that the owner of the original copyright work has a right to make copies of their work and store them in any format as per their choices. In case someone unauthorised makes copies of their work or any substantial part of their work then such an act will amount to infringement of the work. For example, making copies of a sound recording or musical work on a CD, computer file, including in a movie etc.
2. Synchronisation 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 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 related to the 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 more 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 drama.
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 38A 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 they perform their work in front of an audience then they have a right over that particular performance.
- Performance in cinematography with credit– when the performer gives their right in a written agreement to use their work for a commercial purpose, performers should be entitled to receive some royalty or some monetary gain.
- Performance in cinematography without credit– there are many performances supporting cast which are known as “extras” in any film, play, etc. Till now the copyright act does not give any kind of protection to this kind of people except moral rights.
Section 39A confers the moral right to the performers to claim the author of the work and the right of integrity to work.
What Is Commercial Utilisation of a Performance?
There are two ways in which a sound recording can have usage: personal and commercial. Personal use implies playing during a small get together or marriage or fun events where there is no element of money. But for a commercial performance like playing music in a 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.
Is Playing Music in a Club Infringement?
An individual has permission to create a new remix version from the copyright holder but they cannot play remix versions in the club without getting permission for performance rights, it will be considered an illegal act. In a club, a 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 it will be covered 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 the right to communicate with the public.
Moral Right Under the Copyright Act
Mannu Bhandari vs. Kala Vikas Picture recognised that the existence of a 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 they have the right to protect and preserve their work irrespective of being copied wholly or partially under the Copyright Act.
To avoid infringement, the following guidelines can be followed
- Purchasing the original version of the song and not pirated one
- Prior permission from the owner of the song intended to be reproduced
- 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 concerning the identity of the artist
- It’s advisable to wait for 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.
In case a person simply wants to put all the songs together and use them 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.
Amendment to the Act in 2012
Amendment done in 2012 brought changes in the rights of musicians, performers, lyricists, etc. Section 31C of the Act provides a statutory licence that can be obtained for creating cover versions. A statutory licence will be governed by the provisions of the Act and a general licence consists of terms and conditions that agree upon the licensee or licensor.
Highlights of the Act
- A new cover version cannot be created until the expiration period of 5 years gets over the original recording
- It has to be in the same manner as the original one
- Prior consent of the owner should be there for making a cover version
- Cover or labels of the songs should be disclosed to the owner in advance before the release of the song
- The Copyright Board should set the fixed amount for paying a royalty
- The creator of the cover version should mention the original sound
- A Book of Account should be maintained by the author of the cover version which can be inspected by the real owner of the original work.
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. 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 the 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.