Copyright

How Trivial is ‘Kajra Re’ and can Vasundhra Das’ Life Help Indian Copyright Law Progress?


In my previous post I examined the possibility of using the maxim of de minimis non curat lex (which translates to the law will not resolve petty or unimportant disputes) in the context of Indian copyright law. I concluded that yes, in fact, one might rely on this doctrine to fight a claim for copyright infringement under the Indian Copyright Act. To do this, I relied on the decision in the case of India TV v. Yashraj Films (Delhi High Court, August 2012). In this post, I will briefly set out the case facts and the reasoning of the court.
I. FIRST CASE: SAB GOLMAAL HAI ADVERTISEMENT 

The first case involves the use of a copyright protected sound recording in an advertisement.
a) Issue:
The issue at hand was whether the physical lifting and the use of half a line from the popular song ‘Kajra Re Kajra Re Tere Kare Kare Naina‘ from the film Bunty and Babli constitutes copyright infringement.
b) Analysis:
It must be mentioned that only the lyrics “Mera Chain – Vain Sab Ujhda‟ and the accompanying musical score were used in the advertisement. This amounts to a total of 3 seconds only. The advertisement is set in a small shop where the shopkeeper and the attendant are listening to the radio. It is here that the single line is reproduced along with the musical score. The ad goes on to show the shopkeeper struggling to maintain his business and depicts the plight of those of resort to adulteration. It ends with the line – “Milaawat karne waalon ka yehi hoga haal. Aap dekhte rahiye “Sab Golmaal Hai‟, har Shanivaar sham 7 baje”.
Having already examined the idea of the de minimis in the previous post, I will restrict myself to the application of the de minimis factors to the present case facts.
c) Application of the de minimis factors 
(i) the size and type of the harm: 
It was found that only 5 words had been physically lifted and the judges considered this to be too trivial and insignificant to warrant an actionable claim. It is also useful to refer to the judges’ criticism of the Bridgeport decision wherein the physical lifting of a mere two seconds of a rap song was held to be infringement on the reasoning that the lifting lacked intellectual input. Thus it is clear that the judges did not consider the lifting of a single line to cause sufficient harm to the copyright owners.
(ii) the cost of adjudication
To answer this point, the judges actually asked the counsel for the plaintiffs, Mr. Pravin Anand, what the copyright owners would charge the defendants if they had actually approached them for a license to use the line in the ad. Mr. Anand responded that they would probably not charge them if it was a socially relevant ad, but if it was for a commercial purpose, then it would cost about Rs. 10,000. The judges thus found that it was too trivial a sum compared to cost of adjudication.
(iii) the purpose of the violated legal obligation
This is perhaps the most important factor in the determination of whether the de minimis maxim applies or not. The court reasoned on the following grounds:
First, it was a consumer awareness ad and hence lacking any profit making objective. As such, the intention was merely to educate the masses about the scourge of adulterated products and not to appropriate the goodwill or efforts of the copyright owner. Neither was there any actual personal monetary gain flowing to the advertisers. Lastly, it was possible that the ad was a part of the CSR plans of the company and hence the purpose is undeniably socially relevant.
(iv) the effect on the legal rights of third parties
To answer this point, one may refer to the second factor. However, this factor was not discussed by the court.
(v) the intent of the wrongdoer
An analysis of this factor will draw from the ‘purpose’ test and whether there was an intention to commercially exploit the owner’s work. It was found that there was no intention to violate/steal (the emphasis was on the kirana shop and how a radio is common in such a shop) and merely to educate the public. Thus, it would appear that the judges wished to look at the ad in totality, without focusing on the mere act of infringement to determine the intention of the defendants. In their analysis, there was no dishonest motive and being a consumer awareness ad, this particular case also passes the fourth de minimis test.
Thus, in the first case, applying the maxim of de minimis , the court found that there was no case of copyright infringement under the Indian Copyright Act.
II. SECOND CASE: VASUNDHRA DAS ON ‘INDIA BEATS’ TALK SHOW
In this case, the celebrated Bollywood singer Vasundhra Das was invited to a talk show ‘India Beats’,  broadcast on India TV. During the course of the show, she sang small bits of nine songs (previously performed by her for different Bollywood films), based on request. A live orchestra was also present to provide the backing musical score as she song. Additionally, video clips from the respective movies were also played for some of the songs.
a) Issue:
The counsel for the defendants conceded that authorisation from the copyright owners should have been sought for the reproduction of the video clips. However, it was argued that there is no copyright infringement in the public performance of the sound recordings as performed by Vasundhra Das on the talk show.
b) Analysis:
For starters, I am a little unsure why a concession was made with respect to the video clips. If fair use principles can be applied for the reproduction of the sound recordings, I see no reason why the same could not have been argued for the video clips (of obviously short duration) that were also displayed as part of the program. Given that the issue of substantiality/amount is not a factor, I don’t see a distinction being made between copyright protection for sound recording and audio-visual works under Indian copyright law in this context at least. I have made several videos using short 10 second clips of different videos/movies and considered the mash-up to be perfectly fair use under copyright law. But perhaps I am missing something here.
A brief round up of the songs performed on the show is provided below. Keep in mind only parts of the song were performed and not the entire song:
1) “Shakalaka Baby‟ from the movie Nayak. She sings a stanza for 1 minute and 33 seconds.
2) The English bits of the song “O Ri Chori‟, from the movie Lagaan. No video clips of the movie were shown.
3) “Rabba Rabba‟ from the movie Aks. The live orchestra provided the musical score, and a 17 second clip from the movie was also shown in the background.
4) “Soni Soni‟ from her album ‘Meri Jaan’
5) “Chaleyan Jaise Hawaein‟ from the movie Main Hoon Na, with the orchestra giving the musical score and four short durations clippings from the movie being broadcasted.
6) “Salam Namaste‟ from the movie with short video clips from the movie displayed as well.
7) “Salaamey‟ from the movie Dhoom, without any movie clips.
8) “It‟s the time to disco‟ from the movie Kal Ho Na Ho with the movie clipping shown in the backdrop.
The plaintiffs claimed copyright in 7 of these songs.
c) Fair Use argument
The defence counsel tried to argue that the fair use provision under S.52(b) relating to ‘reporting of current events’ was applicable here. But the court very curtly rejected this argument and rightly so, holding that the program clearly did not report current events, although it may have done so in an ancillary manner.
d) De minimis factors analysed
In this case, the court did not analyse each of the factors separately. It however focussed on the fifth factor – the intent of the wrongdoer. Here, the judges observed that the underlying intention was only to inform viewers of the life of the famous singer Vasundhra Das and since the her past performances were the only way to show the milestones in her career, it cannot be accurately stated that there was a dishonest intention to appropriate the plaintiff’s works.
The judges also focussed on the fact that the guest being a famous Bollywood singer, the show would obviously focus concern itself with singing only and it is impossible to separate her life from her past performances. It also made the relevant observation that the outcome might have been different if there was less chatting and only performance of songs during the entire show. However, the total airtime was 45 minutes and the singing lasted a sum total of less than 10 minutes, and hence the de minimis claim is greatly strengthened. This would, in my opinion, also relate to the first de minimis factor of the size/harm caused to the plaintiff and given that the amount of infringing content is exceedingly song, it is a fit case for the de minimis maxim to be applied.
There is always the likelihood that the first factor in de minimis analysis and the third factor in the fair use analysis (amount and substantiality) will be conflated, but that is an inherent defect in the copyright law system as such, as I had observed in my previous post, and is not open to remedy.
Thus, overall it is amply clear that this decision of the Delhi High Court has paved the way for the de minimis maxim to not only apply in copyright law cases in India, but also to successfully dispute a copyright infringement claim; and successfully at that.

5 comments.

  1. Anonymous

    Please give it a thought. Would this Di minimis maxim apply only to the copyright infringement matters? Can it be extended to other laws as well.

    Reply
  2. Jacob

    some time back there was a discussion on SpicyIP as to whether Copyright infringement was “theft”….. the blogger vehemently held his ground that infringement is not theft…as per the judgements quoted here apparently intent to steal or appropriate is a factor being considered to determine infringement…comments?

    Reply
  3. Anonymous

    I too wonder as to why did the counsel for defendant make a concession with respect to the video clips. The law with respect to fair use of video clip and sound recording according to me is same.

    Reply
  4. Amlan Mohanty

    @Anonymous (8:34 pm)

    I have been giving it some thought and have spoken to some copyright lawyers. I will be writing a follow up piece on when it can be used in copyright law matters. Thanks for your comment.

    ———

    @Jacob

    Glad to know you have been following our blog for a while now. It was in fact me who wrote the post you refer to. (Post is here: http://spicyipindia.blogspot.in/2010/10/copyright-infringement-is-not-theft.html)

    I would like to clarify that what I meant was merely that industry associations and record labels sometimes conflate the concepts of theft and infringement. This is not correct.

    And intention to infringe might very well exist. But it would be wrong to call it intention to ‘steal’, because that carries with it a harsher moral penalty.

    Hope I have clarified my point.

    ———

    @Anonymous (7:43)

    It is even more pertinent when you notice that the valuation of the suit was probably dependant on the infringement of these audio-visual works (which would perhaps have raised a larger licensing fee claim). This would have increased the suit value and given the Delhi HC jurisdiction to hear the plea.

    ——-

    @ Rathna

    Thank you!

    Best,
    Amlan Mohanty

    Reply

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