Copyright

Why the Ilayaraja Judgment Is a Boon for Producers


We are pleased to bring to you a guest post by Arun Mohan on the recent Madras High Court judgment in the Ilayaraja copyright dispute. Arun is a graduate of the London School of Economics and has experience in working on intellectual property and commercial matters, in India and internationally. He has worked on various prominent IP disputes including appearing for Rajinikanth in the recent landmark decision on celebrity rights, in the TVS v. Bajaj patent dispute and against Google in the ongoing litigation on the use of third party trademarks in its Adword program. He also regularly appears before the Intellectual Property Appellate Board and Competition Commission. He is a guest lecturer at NALSAR focusing on intellectual property litigation and a consulting editor of the Manupatra Intellectual Property Reports (MIPR). He also regularly appears regularly in several arbitration forums with an emphasis on energy and infrastructure. He has authored a number of guest posts for us in the past, the most recent of which can be viewed here, herehere and here.

Why the Ilayaraja Judgment Is a Boon for Producers

Arun Mohan

The recent judgement involving Ilayaraja is undoubtedly a modern milestone in intellectual property jurisprudence. It addresses in depth the rights of composers and producers, especially in the light of the much vaunted 2012 amendment of the Copyright Act. The interpretations, which use various resources including international treaties, is terrifically nuanced and injects a much needed boost to modern copyright law.

The many press reporting of this judgement have hailed this judgement as a victory of composers’ rights, fitting quite neatly into the narrative surrounding the 2012 amendment.

However, in substance the judgement confirms absolutely the rights of producers as owners of “sound recordings” in films, prior and post the 2012 amendment. The judgement also subsumes “musical works” into “sound recordings” by stating once “musical works” find expression as “sound recordings” i.e. in a film, further “sound recordings” cannot be made based on the same. The only limitation that is placed on the producer is the exploitation of the musical work in a manner other than as expressed in the sound recording, for example as a standalone instrumental piece. Similarly, the composer stands restricted in expressing the musical work as a sound recording in any other manner, for example as a song with different lyrics in another film. Practically therefore, commercial exploitation of the music in the version we know it (song and dance) remains undoubtedly with the producer. Interestingly, amongst the grounds for such conclusion has been the “stature” of Ilayaraja, leading to a finding that the arrangement between the parties could not have been a “work for hire” but was on a “principal to principal” basis. This is relevant as a “work for hire” would vest even the musical work with the producer as per the order, a portion which producers are likely to pounce upon for future disputes with persons bereft of such “stature”.

Finally, in recognizing the risk the producer assumes, the order concludes that the ownership of sound recordings vests with him/her unitarily (unless there is an agreement specifically retaining ownership by the composer). The order recognizes the “extremely attractive argument” that all rights in musical works and sound recordings ought to vest with the composers but does not agree with the argument.

Rather the conclusion is that the rights of composers are balanced in the 2012 amendment granting irrevocable statutory entitlement to royalties for composers. The impact of this practically in the judgement for Ilayaraja is rather negligible, as the bulk of his work has been prior to the amendment. Given that Ilayaraja did not file any agreements with producers, the conclusion of the judgement is that the sound recordings (and the musical work on which they are based) vests with the producer, which makes it a rather resounding reaffirmation of producers rights. The strategic upside of the ownership vesting with the producer is rather apparent, as the producer can pick and choose the means of exploitation and the composer merely receives the royalties thereof, if any. The saving grace for composers has only been the reiteration of their “moral rights” under Sec 57 of the Copyright Act i.e. their right to prevent any mutilation or distortion. This is needless to state an absolute entitlement, which even the producer (the defendant) in the order don’t appear to have argued against. The conclusion, therefore, not only allows the producer (Echo Music) to exploit the sound recordings but recognizes it as the owner.

The other conclusion of the judgement on interpretation of assignment and related deeds has been on a reading of Sec 19(5), which has been given a rather strict interpretation. In the absence of any specified period, the judgement makes it rather clear that the statutory period of 5 years for an assignment would apply.

The order makes for a truly delightful read, with the adulation for the maestro flavoring arguments, orbiter and ratio. The conclusion speaks for itself:

“To the thousands of his admirers, the author of this judgement included, the music of the Maestro was simply, sheer magic. It dissolved barriers, made the incomplete, complete and the world an infinitesimally better place to be in. Nowhere is this more apparent than from the fact that all counsels who argued the matters, though divided in their interpretation of the law, were united in their adulation of his music.”

7 comments.

  1. AvatarAkshat Agrawal

    Sir,

    I have a confusion with respect to this statement of yours:
    “Practically therefore, commercial exploitation of the music in the version we know it (song and dance) remains undoubtedly with the producer”

    The conclusion coming out of this is that any kind of reproduction and communication right in the musical work embedded in the sound recording (in the same version) is completely with the producer. Don’t you think the judgment does not encapsulate that, rather merely provides a harmonization of the rights of owners of sound recording under 14 (e) and the right of the author of musical works under 14(a)?
    It is merely the coinciding rights of the owners of the musical work and the sound recording owners which are being given to the producers and nothing else. Hence, the author of the musical work retains the right to adaptation, reproduction and communication to the extent it does not divulge the producers rights, in terms of exclusively making and communicating sound recordings. It doesn’t mean the authors of the musical works cannot reproduce the songs in other mediums like performance, adaptations etc.

    Reply
    1. AvatarArun C Mohan

      Dear Akshat

      The order does not restrict the usage of the musical work in other mediums like performance. The order only restricts it qua sound recordings. I agree with you.

      Reply
  2. AvatarAchille Forler

    Can the commentator provide a link to this judgement? Because someone here is totally confused: “also subsumes “musical works” into “sound recordings” by stating once “musical works” find expression as “sound recordings” i.e. in a film, further “sound recordings” cannot be made based on the same”… Same what? If sound recording, then yes: you cannot make a mirror-copy of a sound recording (as used to be done in the country 20 years ago). But one can surely make a new, original sound recording from the same Work. Just read the Berne Convention. Is the level of IP so dismal in some quarters that we are still debating what is a Musical Work and what is a neighbouring right, i.e. Sound Recording?

    Reply
    1. AvatarArun C Mohan

      Dear Archille

      I am quite surprised to see such a sharp comment without even reading the judgement.

      Just to be clear, the relevant portion of the judgement is extracted below:

      “I add this caveat for the reason that the ‘musical works’ in question have already found expression as ‘sound recordings’ and have been integrated in ‘sound recordings’ in various cinematograph films. It cannot hence be that further ‘sound recordings’ be made based on the same ‘musical works’. This would defeat the purpose of vesting the‘sound recording’ right in a producer, in the first place.”

      Also to add I am definitely not confused, and quite well aware of the Berne convention. The purpose of the article is to report on the Judgement,an order is not “dismal” by any stretch of the imagination.

      Reply
      1. AvatarAchille Forler

        Dear Arun,

        I, and another commentator, asked for a link to the judgement. But your commentary was, right from its title, tranchant enough to warrant a reaction.

        There are over 1,000 recordings of « Yesterday «  (Lennon/McCartney); each sound recording is owned by the producer/label that produced it. Some of these versions have been included in various films/TV programs. How do you harmonize this globally perfectly legal industry practice with the judgement as reported by you? Or am I missing something ?

        The Indian Copyright Act too is very clear: the Author (in this case of a Musical Work) is the first owner of all the rights in his Work. Under no circumstance can a derived right owner (producer) defeat the right of the original owner (or its assignee). Showering accolades on the author after robbing him of his rights would be adding insult to injury.

        Reply
        1. AvatarArun C Mohan

          Dear Archille

          The global industry practice you have referred to would not harmonize with this judgement. This is possibly why several producers are silently quite happy with the outcome.

          The judgement in restraining any other expression of the musical work as a ‘sound recording’ has for all purposes stalled any further commercial exploitation of it.

          I do however, find fault with the overwhelming literature which seeks to vest all rights with composers, and just to be politically incorrect I am quite happy with this rare hurrah for producers.

          Reply

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