It is a common practice for political parties to utilise songs, either original or non-original, as part of their election campaigns. Like most other things in life though, politicians have frequently thought themselves above the law when it comes to asking for permissions for using copyrighted songs! It has led to protests in countries such as the United States by artists against political usage of their music. A prominent controversy involving Rihanna’s objection to Donald Trump using her songs at his rally was covered on the blog earlier. Amidst the recent wave of elections in India, this issue seems to have propped up again. We recently came across a clip that involved the video of the super catchy (and subversive) song Enjoy Enjaami by Dhee and Arivu with superimposed audio, prompting voters to vote for a political candidate. While the clip has been shared widely on social media, in full disclosure I have not found any clear endorsement of the same by the concerned candidate or the political party. Notably, similar parody songs have recently been used in a widespread manner in political campaigns to project political leaders as the ideal candidates that voters should vote for. By using the specific case of the Enjoy Enjaami parody, in this post I examine the legal validity of use of copyrighted songs by political parties as part of their campaigns.
There does not appear to be any indication that any appropriate license has been sought for the usage of the song. If any readers have further information on the same, do let me know. For the purposes of theorising through this post, I will commit the logical fallacy of assuming absence of evidence is evidence of absence. In absence of a license, as the clip uses the video of the song directly, it is prima facie infringing the copyright in the cinematographic work. It now needs to be assessed whether it falls within the ambit of any of the exceptions provided in Section 52 of the Copyright Act, 1957.
There is no provision in Section 52 that categorically permits use of works for political campaigns. The only possible manner to seek protection for the work is by bringing it within Section 52(1)(a)(ii) that exempts ‘fair dealing’ for the purposes of ‘criticism or review’ of any work. As I noted in an earlier post, where the focus of attention of the author of the work is not the underlying work it could be considered to be for the purpose of criticism or review, and that these terms should be given a liberal understanding. In this light, it is possible to consider such use of songs with superimposed audio as a ‘review’ of the work. It, thus, remains to be seen whether the use amounts to fair dealing.
As highlighted earlier, determination of fair dealing entails analysis of four factors. First, the purpose and character of the use needs to be seen. In this case, it cannot reasonably be stated that the purpose of use here is entirely non-commercial in nature. The use being made for political goals has the accompanying aim of securing power for the interested party which in turn also has monetary benefits involved in case the candidate is successful. The character of use, however, could be considered to be transformative in nature since the superimposition of the audio considerably changes the nature of the work.
Second, the nature of the underlying work has to be determined. Lesser protection is available to factual works but more protection is granted to creative work. Since the underlying work here is a song which is a creative work, this factor is against the use being considered fair dealing. The third factor concerns the amount and substantiality of the work used. In the instant case, the clip not only contains quantitatively significant (approximately 10%) portion of the underlying work, but it also contains qualitatively significant scenes from the diverse landscapes portrayed in the song. This factor, thus, is also possibly against fair dealing.
Finally, the effect on potential market of the song needs to be determined. It is difficult to imagine that this election clip will have any substantial impact on the market of the original song given the differences between the two as well as the distinct popularity of the original. It might even possibly end up increasing popularity of the original. This factor is, thus, in favour of it being fair dealing. As there appear to be conflicting conclusions on the outcomes of the four factors, it is difficult to conclude whether the use will be considered fair dealing. I, however, believe that in light of the specific purpose of the use being to serve political goals as against a bona fide creative work, there is a large possibility of the song being considered to be infringing the original work.
In case the artists of a song that has been misappropriated in a political campaign deem such use to be objectionable, they have three more possible mechanisms to object to this use. First of all, artists have a right to publicity (see here) with respect to the association of their identity in any form such as name, personality trait, or voice, with any work. Admittedly, there remains a debate as to whether this right is to be formulated as a privacy right or a property right, for the purposes of present discussion, either of the two will entitle the concerned artist to object to any inappropriate use of their work. This is because this use allows political parties to gain popularity at the behest of the artists whose work is being misappropriated.
The second mechanism available is that of invocation of moral rights of authors. These rights are enumerated in Section 57 of the Copyright Act and allow authors to seek damages as well as injunction if their work is distorted, mutilated, or modified, in a manner such that it is prejudicial to their honour or reputation. Accordingly, if an artist’s work is used by a political party that stands for principles contrary to the artist’s beliefs, and thereby prejudices their honour or reputation, this provision can be used to restrain such usage. For instance, in the specific case of the above clip, it co-opts the ideas of importance of the agrarian population as depicted in the song. If the artists deem such co-option as possibly untrue, thereby prejudicing their honour, they can invoke their moral rights to challenge it. This is possibly the reason why in the US where performance rights organisations grant license to use works in public performances, a specific political entities license is provided from which artists can remove their songs if they wish so.
Finally, a claim is also possible under the Trademark Act if the artist can indicate a mark such as the label which has produced the work which might be infringed either by way of likelihood of confusion in the minds of consumers or by way of dilution of its reputation. This, however, offers a weak remedy since it is difficult to establish any specific mark which is affected by such a parody of the song, and then to substantiate with evidence as to how it is infringed by such use.
There exists a strong argument that allows for artists to restrain political parties from misappropriating their work. This right, however, has been sparsely utilised in the Indian context. Apart from the possible monetary benefits that the artists of these songs miss out on, there also exists another important factor that goes unnoticed. This can be seen from the example of Enjoy Enjaami which, apart from its fame as a trendy song, is a ‘politically loaded’ song, challenging oppression and caste discrimination and recognising the importance of nature and communities that are ignored by the mainstream media. Similar is the case with parodies of folk songs belonging to various communities. If misappropriation of such works takes place without due credit to its originators and without acknowledging the purpose sought to be served by these songs, it further concretises the role that the marginalised have traditionally been allocated in political spheres, that of meek spectators whose relevance is restricted solely as a vote bank. In such circumstances, their interests and concerns are ignored and their art and culture are used to woo them only to conveniently ignore them after elections. This possibly makes it even more important for artists of such works to recognise the existing rights vested in them under the law and to utilise them as a mark of protest against the exploitative strategies adopted by various political parties. Such exercise of rights could turn copyrights into an imperfect but important means of rebellion against the subjugation of vulnerable communities.