Lizzo’s Copyright Victory in Truth Hurts: Joint Authorship and Follow-on Works in the Music Industry in India

 

Lizzo, like many other pop stars, has been embroiled in multiple copyright disputes. Recently, she won a case she filed against songwriters Justin Raisen, Jeremiah Raisen, and Justin “Yves” Rothman. They had claimed that the superhit song ‘Truth Hurts’ was derived from ‘Healthy’, which they wrote with Lizzo, making them co-owners of ‘Truth Hurts’ too.

Judge Dolly M. Gee of United States District Court in Los Angeles ruled in favour of Lizzo, noting that, “as a matter of law, a joint author of one copyrightable work does not automatically gain ownership of a derivative work in which the joint author had no hand in creating.” Interestingly, the songwriters had made contradictory claims in their filings. In one filing, they had contended that ‘Healthy’ and ‘Truth Hurts’ were distinct entities, with one being derivative of the other. In another filing, they had alleged that the two songs were “part of an ongoing creative process that culminated in a single final product.”

I use this case to analyse the complexity of joint authorship claims in the music industry as well as the barriers to creation of follow-on works in the Indian context.

Legal Landscape

In India, all joint authors are also co-owners of the work created and have no exclusive rights to use such work without the permission of the other co-authors.

The Supreme Court in Malabar Fisheries Co. v. CIT, Kerala and the Allahabad High Court in Rajendra Kumar Sharma v. Brijendra Kumar Sharma, ruled that post dissolution of or resignation from a partnership, the partners are not entitled to use the co-created works without the permission of other partners. Similarly, the Allahabad High Court in the case of Nav Sahitya Prakash and Ors. v. Anand Kumar and Ors., went on to cite Halsbury’s Laws of England (3rd Edition, Vol, III, para 738) as follows:

“One joint author cannot reproduce the work himself, or grant licence to others to reproduce it, without the consent of other author or authors, but may by himself take proceedings for infringement against third party.”

This case was also quoted with approval by the Bombay High Court in Angnath Arts Pvt. Ltd. vs Century Communications Ltd., which held that a joint author “cannot exploit the copyright singly or individually. The exploitation of the copyright must be jointly made by the petitioner and respondents as they are the joint owner.”

As per Section 2(z) of the Indian Copyright Act, “work of joint authorship” refers to work “produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.” Indian courts have not defined the scope of this collaboration but the statute as per the explanation to Section 13(2) requires that in the case of joint authorship of a work, the conditions conferring copyright should be satisfied by all the authors of the work. However, in India, there is no requirement of a formal agreement for joint authorship and a legal relationship may arise solely on the basis of contributions of various actors. For the purpose of joint authorship, the contributions must be indistinguishable and a result of close and active intellectual collaboration with respect to the final product and not the nature of the work done as per the landmark case of Najma Heptullah v. Orient Longman Ltd.

Joint ownership under the statute has been interpreted to mean that one owner cannot exercise any right in the property owned without the consent of the other owners. Therefore, though Indian law does not extend ownership in the derivative to a joint author of an initial work who had no contribution in creating the derivative, the creation of derivatives would still require the permission of all joint authors of the initial work.

Having an agreement in place at the time of composition clarifies issues of ownership and rights allocation. In the film industry, there are clear stakeholders and rights are owned usually by the producer and eventually the label, pursuant to assignment agreements. Claims are likely to be interpreted in favour of the person who owns all the rights, i.e. typically, the producer or label which becomes the first owner of the sound recording as well as its underlying music and lyrics. A producer usually provides minimal creative inputs and merely finances the production of the song or film, soliciting advertisements, marketing and promoting the final product. All economic rights are commonly licensed to the producer to allow him to realise the profits of his investment. This centrifugal role of the producer has been upheld in the case of Indian Performing Rights Society v. Eastern India Motion Picture Association and more recently in M/s. Indian Record Manufacturing Company Limited v. AGI Music Sdn Bhd and Ors. (covered on the blog here). The composers and lyricists retain moral rights and the right to receive performance royalties, if registered with a copyright society (as per 2012 amendments to Section 18 of the Indian Copyright Act).

In contrast to this, in the independent music category, which pertains to music largely produced independently from commercial record labels or their subsidiaries, creators are becoming increasingly inclined to demarcate rights on paper, for instance splitting credit and royalties with a producer based on his contribution to the work.  Sandhya Surendran, a leading Indian advocate in the music, technology and internet sectors, notes that this has not been the trend so far because such agreements have been perceived to be cumbersome. However, with growing awareness of creator rights and royalties, indie artists are realising the importance of agreeing to certain things on paper, to ensure that there is no trouble at a later stage. Therefore, the concept of joint ownership is only going to increase in relevance in the context of independent music to ensure that artists and creators receive entitlements commensurate with their contributions.

Conclusion

If an agreement is in place at the time of the initial composition, then determining ownership in the derivative works would also be easier. However, given the improvisational and collaborative nature of songwriting, the creative and often indivisible effort of multiple persons such as lyricists, composers, songwriters etc., and the money and power wielded by the producer, negotiating these agreements may not always be easy or possible.

On the other hand, requiring the permission of all creators of an initial work to create derivative works, as required by Indian law (unlike U.S. law as enunciated in the ‘Truth Hurts’ dispute) can also harm downstream creators. The current copyright system and its notions of authorship assign a premium to ‘originality’ to the extent that ‘original’ authors, as designated by the system, become the owners of not just their works but also gatekeepers of works that borrow from their works for various reasons, including to re-contextualise initial works and challenge cultural hierarchies. Requiring permission from all joint authors before an existing work can be borrowed from and built upon, expands the copyright monopolies of the creators of the initial works and chills the creative endeavours of those (including, any but not all of the joint authors of the initial work) who want to engage dialogically with the work in question. Expansive economic rights that impede the creation of follow-on works, justified as incentives for creation of ‘original’ works need to be reconsidered since many artists consider their works to be a ‘conversation’ and achieve a sense of fulfillment and belonging by community engagement with their works. They consider dissemination of their work without hope of financial remuneration, as “simply the way that art gets made.” The Copyright (Amendment) Act, 2012 extended fair dealing for the purposes of ‘criticism’ and ‘review’ to ‘all works’ as per S.52(1)(a) of the Copyright Act, 1957, resultantly, covering even cinematographic films and sound recordings. Prior to the Amendment, this right was restricted to only literary, dramatic, musical or artistic works. As technologies for content creation have proliferated, consumers have become users of content for not just passive consumption but also follow on creation. Lawrence Liang had argued at the time of the 2012 Amendments that the statutory provision exempting ‘criticism and review’ drafted in the context of print media can be inadequate in exempting fair use of audio-visual works. This is because creative communities routinely re-contextualise existing videos and sounds, appropriating large amounts of these works with a view to disrupting existing meanings and creating new ones. Thus, fair dealing for the purpose of ‘criticism’ must import ideas from musical practices that conceptually favour a wider understanding of permissible appropriation than the narrower terrains signified by ‘criticism and review’. Otherwise, our ability to critically and creatively engage with our contemporary world (made known to us often through audio-visual media) is impeded, ultimately restricting our freedom of speech and expression.

This also underscores the need for more probing interdisciplinary scholarship that emphasizes the gap between the creative and economic realities involved in the creation of works in the music industry and the technicalities of copyright doctrine, with an aim to bridge this gap.