Satire on YouTube seems to be stirri
ng up quite the controversy. Some time ago, it was regarding the spoof of Dhoom 3 which YRF had objected to, on which we carried a post which observed how parodies could constitute fair use. More recently, Rohit Iyengar, an 18 year old film student, uploaded an auto tuned version of one of Rahul Gandhi’s speeches delivered at an AICC meeting, in a video titled “Rahul Gandhi sings”. Within no time the video was removed due to a copyright claim by Desi Records (read here and here). The video (available elsewhere on YouTube) portrays Rahul Gandhi to be singing and urging the nation to get the Congress party out of the country. While the news articles don’t state the exact nature of the claim Desi Records is making, I shall use this as an opportunity to examine the copyright aspects that could arise in this present scenario and generally in the case of auto tuned videos.
Auto Tune Technology: Auto Tune is an electronic method to correct the pitch of singers on sound recordings. In a sense it automatically tunes the voices of singers to the correct pitch. While this was what the technology was originally developed for, artists these days have started using the Auto Tune as an effect on recordings to produce distinct sounds or beats or to synchronise one sound with another. The uploader uses the technology similarly to morph the speech to fit the beat, and therefore makes it appear as though Rahul Gandhi is singing. Most auto tuned parodies similarly take an existing musical work or a collection of sound clips and modify the pitch or synchronise it with a particular beat or pitch to create a comic effect. In this post I shall attempt to flesh out the major concerns with such videos.
The pre-existing work: Evidently, in many cases, these videos use a significant amount of the actual footage that it is attempting to auto tune. For example, in the present instance, the entire video was made of clips from the video recording of Rahul Gandhi’s speech. It would be a very common approach to use the test laid down in Star India v. Leo Burnett wherein a claim of infringement could be made out only if an actual copy of a cinematographic film was used in the subsequent work. The R.G. Anand v. Delux Films test for substantial imitation would not be applicable here as we are comparing two cinematographic films. If however, there is a video that spoofs a cinematographic film which contains other elements entitled to protection like a story or music, this standard would be applicable with respect to those elements. In my opinion, auto tuned videos, despite the clear difference in theme, which contain actual copied extracts of the cinematographic film would prima facie amount to infringement, and are redeemed only by their transformative nature and the defence of fair use.
In the present instance, it is unclear what claim the record company is making because the beats to which the speech has been synchronised are generic and commonly used, and don’t appear to be protected. It is merely the video recording of the speech itself that has been copied from elsewhere.
Transformative works and fair dealing: The transformative nature of these auto tuned videos cannot be disputed. A transformative work as defined in Chancellor Masters v. Narendra Publishing (citing Campbell v. Acuff- Rose Music) “adds something new … altering the first with new expression, meaning, or message.” It goes on to clarify that transformative works would have a “value addition, which alters the original work in a not insignificant measure.” In auto tuned videos, the reason that people watch these videos is the addition of elements of the beat, the music, the synchronisation of speech to music, comic elements etc. Therefore, these would no doubt add additional value, and amount to a new expression of the original work on which it has been modelled. The addition of these elements, more often than not change the very nature of the work itself. For instance, in this case, the video no longer depicts Rahul Gandhi’s speech as he originally delivered it, but instead has him carrying a very different political message. Chancellor Masters goes on to hold that such transformative works are more likely to be granted fair use protection provided it meets the other three tests for fair use (modified form of expression is the first test which transformative works clearly satisfy). First, whether the nature of the work is such that it merits a defence of fair use. In this case, the political nature of the work certainly fulfils that criterion, attracting a protection under Art. 19 as well, however this may not always be the case with the other videos. Second, the substantiality of the portion copied must not be large or central to the original work. This may be the one factor where such videos may draw negative attention from the court. Lastly, the effect of use on the potential market. The original work and the auto tuned versions which are usually released free on online services like YouTube clearly compete in different markets.
It appears therefore, that subject to certain exceptional circumstances when these factors are not met, the defence of fair dealing would extend to auto tuned videos.
Thank you very much for writing on this.
I have a question coming from Moral rights perspective. Although in the said video, the author makes a clear disclaimer that it is a parody, does it overrule the Moral right of the original author?
Quoting from Wikipedia ‘right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation’.
Where does one draw the line between infringing Moral rights / sacrificing Parody right?
Good Question.
Thank you Sundakka for your question.
I realise where you are coming from, and it is a very valid observation. The portion that you cite is from the Visual Artists Rights Act of the USA (17 U.S.C. 106A). In the United States, the position is somewhat more liberal when it comes to parodies. In fact, their fair use provision (17 U.S.C. 107) states that the defense of fair use is notwithstanding the provisions of the Visual Artists Rights Act.
The situation in India is however not as simple. Our equivalent moral rights provision is S.57 of the Copyright Act. Unfortunately, this does not tell us whether the defense of fair dealing is applicable to claims of violations of moral rights. However, it is my opinion that considering the very nature of a parody itself, in that parodies use portions of the original work to mock or critique, if artists were allowed to claim a moral protection over their works under S.57(1)(b), then it would defeat the very purpose of allowing fair dealing in such works in the first place. The nature of the relief granted is in the form of injunctions or damages which would effectively be the case even in a claim of infringement. S.52 would then be restricted to merely those cases in which the original work was not used at all, or was used in a limited sense. Such an interpretation in my opinion would not be right in the light of observations I have made in my post.
As with regards to the exact demarcation of the line between moral rights and parody rights, I don’t think that one set of rules is possible in every case. However, I do believe that like US law we can make use of the four fair use factors to examine the nature of the parody and see whether it can be immune from a claim under S.57.
There is another very pertinent issue, in this particular case, that of free speech. In the conflict between property rights and free speech rights, it is only natural that free speech rights prevail over any moral rights, similar to property rights, that an author may claim. (For a detailed treatment of this see Lawrence Liang’s article in the NUJS Law Review, found here: http://www.nujslawreview.org/pdf/articles/2012_3/08_lawrence.pdf).
I hope I have answered your question. Thank you for reading!
Thank you for your detailed reply.
The lack of clear demarcation (as in the case of many fair use cases) will only lead to more people / institutions doing heavy self-censorship to avoid trouble. Lost in it is some good humor which will be unmade / unpublished.