Copyright

Bollywood Copycats: Inspiration vs Perspiration


A wise inventor named Edison once remarked that genius was “one percent inspiration and 99 percent perspiration”. Since then, this pearl of wisdom has been handed down from generation to generation and preached several times over by parents, teachers and employers. I’ve always felt that this would have made for a great advertising line for any of the deodorants that we see around us (what better way to rid oneself of all the smell that comes from genius(y) perspiration). But I digress.
The reason I bring up this catchy maxim is to reflect on Prashant’s post outlining a partial restraining order against Urumi, a malayalam movie produced and directed by the legendary Santosh Sivan. Unfortunately, the haunting “Aaro Nee Aaro” melody accompanying a rather intimate visual between the lead stars was copied without attribution from a Canadian Celtic singer. Since then, Deepak Dev, a Malayalam music composer responsible for the unacknowledged borrowing, has been at the receiving end of several diatribes from fans that felt immensely let down. I’m getting the sense that several of them are upset, not so much at the copying, but at the fact that the source was hidden and not attributed. And this brings me to a key policy issue for discussion: should we encourage such copying, provided adequate credit has been provided to the original composer? For, after all, some of these borrowings can involve a fair bit of creative adaptation and may invoke a completely different cultural setting and imagery than the original.

It bears noting that almost all of our major music composers have been subject to this charge of copying, even names as revered as AR Rahman. And the borrowings have been largely non-discriminatory, with no nationality being spared: English, American, Korean, Turkish…you name it. The only place where I am yet to spot a borrowing from is the tiny island of Tuvalu–but perhaps its only a matter of time before an islandy tune finds its way into the consciousness of one of our composers waiting to be inspired….

Favourite Bollywood Copies

I list some of my favourite copies below:

1. The raunchy “Munni Badnam Hui”, copied from a 1992 Pakistani number. Umar Sherif, the original composer says he was more surprised than angry when he came to know of the copy….however, our very own Lalit-ji refuses to acknowledge the copying, making this one painful badnaami that no Zandu balm can cure.

2. “Teri Meri Prem Kahani”, from the latest Salman hit (Bodyguard), is a clear copy of a 15th century Romanian carol, made famous by an angelic rendition by Cleopatra Stratan, when she was all of 6 years old! Here again, Himesh “nasal” Reshamiyya insists that there is no copying and that this is an original “raag” based melody. Given the money this song has been raking in, one might say that this has all the makings of a true “raags to riches” story! The most intriguing part however is that he attributes the melody to Salman Khan, claiming that Khan called him one early morning to hum out the tune …well, you have to give it to him: he can be quite creative when it comes to story telling.

3. Tamally Maak from Egyptian composer Sherif Tag and performed by Amar Diab, a leading Arabic rockstar. This was transformed by the inimitable copy cat, Anu Malik to a murderous “Kaho Na Kaho”. And this is not the first time that dear Diab has been at the receiving end of Indian cinema (his earlier number Habibi was suitably lifted by the Mallus in Chandralekha).

4. Pehli Nazar Mein (from the movie “Race”) copied from a wonderful Korean song.

My all time favourite however is the Lambada tune made famous by the French band, Kaoma. This appears to have its origins in a Bolivian number and underwent several adaptations before it found its way into the creative consciousness of Jennifer Lopez who used it to hit the dance floor with a certain pit bull. And here again, Bollywood was not far behind: Bappi Lahiri cashed in on this famous tune in a 1990’s Bollywood blockbuster, Ghayal starring Sunny Deol and Meenakshi Seshadri.

I could go on and on… as the history of our music industry is replete with lifts from some tune or the other. And perhaps this is what the now deflated Adnan Sami was really driving at when he belted out “Thodi Si To Lift Kara De”?

For those of you interested in uncovering more lifts, try the fabulous itwofs, a resource created with painstaking effort and diligence by Karthik. Something that truly deserves our kudos!

Policy Suggestions

And this brings me back to the policy issue I had raised at the start of the post: should such copying/borrowing be encouraged or ought we to nip it in the bud? I throw open three tentative suggestions in this regard (with the first one being a technological solution and the other two being legal ones):

Technological Solution:

1. Firstly, I propose that music composers be provided an opportunity to check their tunes against previous similar sounding versions. In other words, we need a smart tech savvy person with an interest in music to come up with a product that enables such cross checks. Any such product will certainly not starve for want of a market. For not all copies are conscious copies, and conscientious composers may find themselves at the receiving end, simply because they have no idea that their tune is an unconscious copy or adaptation of something they heard earlier! Perhaps there already exists such a product (and if so, please do share details in the comments section).

Attribution/Acknowledgement:

2. Secondly, I propose that irrespective of whether or not the copyright in a tune has expired, every borrowing be acknowledged and attributed. The challenge is to convert this to a specific legal obligation with definite bounds susceptible to easy enforcement. I am reminded of the patents regime, where every patent application has to necessarily disclose prior art that it draws from. Ought we to have a similar obligation to disclose musical borrowings (and make copyright protection contingent upon such disclosure)? Would this be feasible?

Compulsory Licensing:

3. My third proposal is that every composer be free to borrow or lift any copyrighted tune, provided royalties are paid to the original copyright owner. In short, we institute a compulsory licensing scheme! It bears noting that we already have such a scheme for straightforward copies, which go by the name of “version recordings”. A scheme that made T series what it is today (of course, there was a fair bit of royalty-less copying as well, but we’ll leave that aside for the moment).

Section 52(1) (j) provides that anyone is free to reproduce their own version of a copyrighted song after two years of the song being on the market, provided royalties (currently, it is 5% of sales) are paid to the owner of copyright in the song (music and lyrics). The most recent copyright amendment bill (whose fate is expected to be decided this winter in Parliament) contains an amendment to this provision. Surprisingly, this amendment has received very little attention thus far. In fact, it is not even clear as to how the proposed amendment came about and at whose behest and one may need to file an RTI application to locate its genesis. But we’ll leave that enquiry for a later date (thanks to Nikhil Krishnamurthy for pointing me to this problematic secret history).

I find it a bit paradoxical that when straightforward copying is encouraged under such a “version recording” scheme, adaptations (which involve more work) are not. This can be rectified with a simple stroke of the legislative pen. However would such a compulsory licensing scheme be desirable? Given my partiality towards compulsory licensing, I may count as being a bit biased in this regard.

More problematically, I am also partial to copying, particularly where there is some creative adaptation. I find that many a time, it takes a copy to appreciate how much better the original version was. And more importantly, but for such copycats, I may never have discovered the original artist in question. Thanks to Deepak Dev, I found Loreena McKennitt, and have not stopped listening to her ever since. Lastly, as is the case with Urumi’s “Aaro Nee Aaro”, copies are capable of evoking a very different imagery than the original. There is something to be said for the fact that raw pieces of art or music often have little meaning outside of the cultural context in which they situate themselves.

And all of this brings me back to the maxim that I began with–is genius really one percent inspiration? With Bollywoods’ rampant inspirational escapades, one might need to reverse the proportions and adapt this Edisonian edict to “Genius is 99 inspiration and one percent perspiration”.
Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

16 comments.

  1. AvatarS

    Interesting post as usual…

    Coming to your proposed policy, I think borrowing or influence of music should be allowed rather should be encouraged. The basic agenda of any IPR is to secure the interest of IP owner, recognize his efforts and motivate others to go beyond it. And in any way, music, air, water and birds know no territory. But of course, “copying” or rather “copying as it is” should be highly forbidden.
    And for that, as you suggested, there should be an advanced platform on which copied work should be easily recognizable. The way we have software to identify plagiarism, in similar way it is essential to develop a technology-based tool to identify such thefts.
    Comparing to patent regime, I really wonder how many patent applicants do disclose the prior art honestly. But as it is the responsibility of any patent office to examine the invention and check the novelty and other criteria, similarly the copyright office should try to check the “originality” of given piece of work thoroughly.

    Licensing scheme is fine but what when the original work by which one is inspired does not have any appropriate author? Say for example, the composition is adapted from some famous folk music of certain land. I think before licensing, people should be made aware of how to own their creations, how to protect the work.

    And btw, 🙂 why are you underestimating Bappida? His music is so much similar to lambada or the old Portuguese or bolivian song of 80’s decade that I am very sure that Jlo got inspired by Bappida.

    Reply
  2. AvatarAnkit Sahni

    Professor Basheer: As regards the ‘Technological Solution’, “Shazam” might offer some help.

    (You can read all about it here: http://downloadsquad.switched.com/2008/07/13/iphone-app-review-shazam-helps-you-name-that-tune/)

    I’ve been using it since some time now. It’s quite accurate. Works well even when one’s whistling or singing (presumably with some amount of accuracy).

    Shazam was one of the first ones. Alternatives are also available. So the idea is, in cases when a composer/artist has heard a tune somewhere and they like it, they can easily look up the song which the tune originally belongs to.

    Just to test how accurate the app is, you may want to bring your phone near an ‘aquaguard’ and turn the music switch on. Some of the old ones played Beethoven’s Fur Elise. In all probability, Shazam will display the correct song and composer from its database.

    Reply
  3. AvatarAchille Forler

    @ Shamnad

    Every major music publisher has a Sampling Department which checks randomly “unconscious borrowings”. Also, do not believe all the blogs: they are not always authored by musicologists. Sometimes part of a song may sound-alike but this can be due to many factors that do not make it a derivative work. For example, many electronic genres are based on loops that freely float around. To prove infringement in court you need to show that the derivative work draws significantly on the skill and labour of the original authors(s). Just playing it out in court will not necessarily convince a judge, particularly if he has no ear for music.

    If you imply that La Lambada has hazy origins and went through several adaptations before reaching JLo, then you are wrong.

    La Lambada was written by Gonzalo and Ulises Hermosa. It did “undergo several adaptations before it found its way into the consciousness of Jennifer Lopez” as you put it, but each adaptation sought clearance from the original composers who are credited along with the arrangers/adapters.

    Jennifer Lopez is only the performer of this new adaptation which lists, besides the original authors, six other authors: Bilal Hajji, Vivianne Hamid, Achraf Jannusi, Nadir Khayat, Christian Perez and Jacob Sandell. This particular version has 8 authors and 5 publishers (including Deep Emotions for India) which means that even the smallest contribution is recognized and rewarded. How fairer can it get?

    In short, the present copyright system is flexible enough to generate endless versions and adaptations while respecting – and remunerating! – the original creators. Compulsory licensing is a violation of the authors’ moral right. If you were a composer and a strict vegetarian, how would you feel to see an adaptation of your song in an advertisement for a meat product, credited to you!

    I have 30 years of practice in creative industries and I strongly recommend to all the young lawyers who follow this blog to go and work for a few years in the film and music industries abroad (or come to Deep Emotions Publishing) before embarking on a career in copyright law. Law is social engineering, so you need to understand a business thoroughly before you try to fix it, else you fuck it up.

    Cheers!

    Reply
  4. AvatarShamnad Basheer

    @Achille:

    I’d rather we had a product that was accessible to all composers –rather than one that remained within the close confines of a select group of “major music publishers.”

    Bappi Lahiri and the others behind the “Sochna Hi Tha” number attributed and paid the Hermosa brothers? Really? If you read my post carefully, you’ll note that it focusses on Bollywood borrowings and not so much on whether J Lo paid out.

    And you’re right about the fact that none of us are really qualified to write on any of these issues–we’ll simply leave that to experts of your ilk. In fact, I’ve asked all of our bloggers to stop writing on copyright issues, till such time as they’ve worked under your wing, acquiring not such deep emotions, but all other skills necessary to convert them to true blooded “social engineers”. And I’m shooting off a letter to the HRD ministry and our Parliament as well, stating that no copyright law should be made without your final approval–as, without the wisdom of Deep Emotions and “international” experts such as your good-self, we do tend to “fuck up” our laws….

    And lastly, a CL scheme can exist quite well and independent of a moral rights scheme (that prevents denigration of a work)—it has done so in the past, and my guess is that, it will do so in future as well. Unless French industry “middlemen” tell us otherwise!

    Reply
  5. AvatarS

    Hi Forler,

    None has said that the tune of lambada has hazy origins. Besides, are you sure that each adaptation got clearance from the original author? This piece of music clearly has its rootage in the old Bolivian song of 80’s. Brazillian singer Ferreira’s “Chorando se foi” is a legal rendition of this Bolivian song (“Llorando se fue” by the Bolivian group Los jarkas) which was translated in Portuguese language. Lambada itself was an unauthorized adaptation. Los jarkas successfully sued Kaoma for la lambada.

    And are you sure that Jlo attributed to any of these Portuguese or Bolivian version for her horrible adaptation?

    Regards,
    S

    Reply
  6. AvatarAmrutha

    Well, Lambada was an unauthorised translation of the original ‘Llorando se fue’ by Los Kjarkas.

    I believe the Copyright Act differentiates between adaptation and translation.

    Reply
  7. AvatarBollywood Movie Reviews

    Real the present copyright system is flexible enough to generate endless versions and adaptations while respecting.when straightforward copying is encouraged under such a “version recording” scheme, adaptations are not.

    Reply
  8. AvatarAchille Forler

    @ S

    Hi, S.

    “Hazy origins” means a song for which no original author name is given/known nor attributed to the public domain; which is how the author of the post presented it. Under copyright law, you cannot register a song without naming an author.

    JLo is only the performer; she has no share in the song. I have given the names of all the rights holders as they appear in our system and, as can be seen, the original writers are credited too. And get paid, of course.

    @ Amrutha

    In the music publishing business, we don’t use the term “translator” which is reserved for the book publishing business, nor the term ‘rendition’ (which means performance’); the term “author” comprises four categories of creators: lyricists, composers, arrangers, adapters. So a version is always an adaptation. Not to be confused with a remix of course.

    @Both S. and Amrutha:

    Could you please forward me your source for stating that “La Lambada” was an unauthorised ‘translation’ of the original ‘Llorando Se Fue’? Would love to read it. My email is [email protected]

    Thanks in advance.

    Reply
  9. AvatarS

    Thanks Forler for your comment. As per my understanding, an adaptation of musical work is any arrangement or transcription of that work. In copyright law, transcription is defined as an arrangement of a musical composition for some instrument or voice other than the original one. As u rightly mentioned, version is an adaptation. But isn’t it of an already published song by using another voice/es with different music arrangers? How a remix is different? Could u plz elaborate?

    Tks,
    S

    Reply
  10. AvatarShatarupa

    Sir, the idea of remix has been interestingly captured in the set of three informative videos available here : http://www.everythingisaremix.info/watch-the-series/. Even ‘creations’ like ‘Stairway to Heaven’ were never an exception.
    These appear as a confirmation to the thought that ‘there is nothing intellectual about intellectual property rights’. ( which you had demystified in one of our classes.)

    Reply
  11. AvatarShamnad Basheer

    tks much shatarupa. i hadn’t seen this series earlier. wonderful find! and brilliantly done–to really showcase why a blanket ban is always problematic. creativity is one of the most complex concepts—and drawing the line on what qualifies as absolutely “new” is problematic…

    Reply

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