Copyright

Copyright and Classical Music: Not the Best Fusion?


We’re pleased to bring to our readers a guest post by Akshat Agrawal on the recent Kantara – copyright issue that’s been on the news. Akshat Agrawal is an LLM student at Berkeley Law specialising in IP policy. He is a graduate of Jindal Global Law School and has previously clerked at the Delhi High Court. He is also a trained Indian Classical Musician from the Prayag Sangit Samiti, Allahabad and the KM Music Conservatory, Chennai. He’s written several posts for us in the past and they can be found here.

Copyright and Classical music: Not the Best Fusion?

Akshat Agrawal

combined pic of varaha roopam, and thaikuddam bridgeLately we have all heard of the preliminary injunction sought by Thaikuddam Bridge, a fusion group from Kerala., against the makers of the film- Kantara. It is alleged that the song “Navrasam” has been infringed by “Varaha Roopam” featured in “Kantara”. I, first, try to dissect the trajectory of this litigation until now, and second, assess the case on its merits, before throwing open some food for (policy) thought!

Kantara was released in theatres worldwide on 30th September 2022. Upon hearing the song Varaha Roopam in the said film, on 19th October 2022, Mathrubhumi Printing and Publishing Co. Ltd (MPPCL), claiming to be the assignee of copyright in the song Navarasam (through a deed dated 14th September 2015 from the composer- classical fusion band Thaikuddam Bridge), sent a legal notice to makers of Kantara claiming the same to be infringing. A reply to the said notice was sent by Hombale Films, owner of rights in Kantara, who also filed a caveat before the District Court, Kozhikode, apprehending a suit for infringement. Thereafter, a suit was filed, however by Thaikuddam Bridge (the purported assignor of rights) and not by MPPCL, thus bypassing the caveat filed by Hombale films. As can be gathered from news reports, it obtained an ex-parte, ad interim injunction order dated 28th October 2022. This order has not been uploaded yet. Thereafter, another suit for injunction was filed, this time in the name of MPPCL before the District Court in Pallakad District, asserting the same cause of action that was presented before the District Court in Kozhikode. No caveats were filed here, and another ex-parte ad interim order of injunction has been granted, without a reasoned order on whether the requirements of an injunction are being met. The Court has ordered the OTT platform showcasing Kantara to take down the entire film, and also ordered Spotify and other audio streaming platforms to take down the song. (Order here).

It is very unclear as to how two different plaintiffs have secured an injunction on the same content, asserting the same cause of action. Both these courts appear to have ignored determining, at the prima facie stage, who even owns the copyright, before ordering a content take down. If the assignment agreement as claimed by MPPCL is valid, there is no way Thaikuddam Bridge could have asserted economic rights before the Court in Kozhikode, and if the same is invalid, MPPCL had no standing to either send the legal notice or to file the suit before the Court in Palakkad. In any case it is unclear whether there even was a valid assignment agreement in the first place, or whether the same was a license agreement where the right to sue is retained by both the licensor and the licensee.

The Order of the Palakkad District Court

The order of the District Court- Palakkad, without laying down contentions of the Plaintiff, notes that the judge was satisfied on the prima facie case of infringement. There is no analysis on ownership of copyright, whether the elements of the song were copyrightable or scenes a faire, or whether they even satisfy the requirements of the test of infringement. The Court further dispensed with notice stating that the same would negate the purpose of the petition, without even getting into the balance of convenience analysis or explaining how there would be any irreparable harm which could not be compensated through damages if the song were allowed to play until the defense could appear and argue its stand on affidavit. Such an approach is ignorant of both the substantive requirements of the law as well as due process concerns which ought to be considered prior to ordering content take-down.

Challenge before the Kerala High Court

This order was challenged before the Kerala High Court in an original petition under Article 227 on the following grounds:

  • Not clear as to who is the owner of the Copyright in Navarasam and hence no standing.
  • Act of filing multiple suits by different Plaintiffs, before different courts, shows intent to bypass caveat in a malafide manner
  • The film was released worldwide on 30th September 2022 itself and hence there is no irreparable harm to grant an ad-interim ex parte injunction as the suit before the Court in Palakkad was filed after 25 days.
  • The suit has been deliberately undervalued for forum shipping purposes to oust the jurisdiction of the Commercial Court under the Commercial Courts Act., 2015.

This original petition under Article 227 has been rightly dismissed by the Kerala High Court vide an order dated 23rd November 2022, simply because of their being an Appellate remedy to challenge the said order. There seems no congruent reason to me as to why a petition under Article 227 and not a First Appeal from Order (FAO) under Order XLIII Rule 1(r) of the CPC was filed. All the above grounds- on lack of jurisdiction and malafide – could be raised in an FAO, without invoking the extraordinary jurisdiction of the High Court.

On Merits

Before any sort of analysis, here are the two songs for our readers:

Plaintiffs’ song – Navarasam

Defendant’s song- Varaha Roopam

Both these songs are pieces composed in two Raagas (concluded from my personal experience, consultations with a few Classical vocalists and also from online reviewers such as here)- one from Carnatic Classical musical genre (Raag Pantuvarali (also known as Kamavardhani)) and the other from a Hindustani Classical Genre (Raag Ahir Bhairav). More on the significance of this later, but for now let’s conduct an infringement analysis:

In R.G. Anand v. Deluxe Films, the Supreme Court laid down contours of copyright infringement and held the following:

  1. It is only infringement when the Defendant has made an unlawful use of the form in which the thought or information is expressed. If essential ideas are taken but expressed in another form, the same is not infringement (Para 14)
  2. Infringement exists when the Defendant’s work is a transparent rephrasing to produce the story/ expression of the other writing, but mere sameness in the tricks of spinning out the yarn and similarity of general nature in a long-complicated narrative, does not indicate infringement. (Para 20 and 51)
  3. Imitation will be infringement when it comes so near to the original to suggest the original to the mind of every person seeing it. It is based on the creation of a dominant opinion on the whole of the work (Para 22)
  4. When the same idea is being developed in a different manner, it is manifest that source being common, similarities are bound to occur, however what the court is to determine is whether similarities transcend common ideas which are unprotectable and fundamental or substantial to the expression adopted, or are mere colorable imitations. (Para 52(2))
  5. One of the tests is whether a spectator or a viewer would have the unmistakable impression of the subsequent work to be a copy of the original. (Para 52(3))
  6. If apart from similarities, there are also material and broad dissimilarities which negate the intention to copy and in fact change the overall narrative, there is no infringement. (Para 52(5))
  7. Themes, plots, stock characters and elements common to genres are not protected and are deemed to be ideas which aren’t excludable. (Scenes a faire doctrine) (Para 51)

An analysis of these rules clearly shows that – what is protectable is the overall expression in a tangible “form” that is perceived by a spectator or viewer, as against fragments or atoms within the said expression. Fragmentary similarity is not infringement. If the allegedly infringing expression, overall, has substantial differences in lyrics, musicality, perception/aesthetic appeal and form, no case of infringement can be concluded. Even at the prima facie stage, this legal standard cannot be ignored, however the evidentiary requirement is relaxed.

In the songs above, although the Defendant had access to the Plaintiff’s works (as it is self-proclaimed that it was inspired by the Plaintiff’s song), it does not seem that any listener would unmistakably presume the works to be similar and substitutable in terms of aesthetic or auditory appeal, for the latter to be injuncted from existence. The instruments used are clearly different, the lyrics and the meaning is completely different, the tonality and embellishments are substantially different, and as I shall show in the next part, the somewhat similar tune is something that is inherent to the rules of the game- that is the limited compositional scope in Classical musical traditions- that render them non-excludable and in simpler words scenes a faire.

Classical Music and the Scenes a Faire doctrine

Indian Classical musical traditions, be it Hindustani or Carnatic, involve an inherently social nature of production (very interesting piece around this here), often at odds with copyright’s focus on the right to exclude. Ethnomusicological studies show that Classical forms of music that find residence in India primarily rest on prescribing distinct compositional rules/ melodic structures by providing certain peculiar notes or musical motifs within which any song is to be composed in a particular Raaga. The way the notes are to be performed are also peculiarly situated in these Raagas, known as Aaroh and Avroh. Every Raaga also includes a pakad which is its signature feature, found in almost all compositions that emanate in that Raaga. Sometimes multiple Raagas are mixed to produce a particular combination. However, the same is done in a way where it is easy to identify whether, in the final expression, compositional rules of each of these Raagas are being complied with or not. Another important feature of this form of music is volumous use of arpeggios (pdf pages 8 and 9) (known as Alankara (pdf page 5), that are essential performative embellishments in composition within the rules of the Raagas involved.

For those interested, here are two basic videos demonstrating the rules of the Raagas that have been used in the Navarasam and Varaha Roopam, and their compositional imperatives, which obviously cannot be monopolized lest we shall only have a single composition in every Raaga: 

Raaga Pantuvarali:

Raaga Aheer Bhairav:

Every two compositions in the same Raaga, or involving a similar mixture of Raagas, will inevitably involve a certain amount of similarity in the way notes travel through the composition. They are similar to a common source. While the notes are coming down, they will inevitably have to follow the avroh rules, and while travelling upwards, they will inevitably have to respect the trajectory of the aaroh involved. A ruling that holds such similarity to be infringement significantly dilutes expressive potential within a Raaga. This would be a fundamentally irreconcilable aspect of classical musical composition (both Hindustani and Carnatic) with Copyright law.

Most of the similarities in Navrasam and Varaha Roopam are significantly due to application of some of the signature elements of the Raagas involved, albeit in a higher tempo. When these signature elements are stripped away or filtered from the similarity analysis, the overall expressive form of the two songs is in no way unmistakably similar, especially due to the volume of lyrical and expressive differences. Even the similarity in the arpeggio portion: Navrasam: 2:29- 2:49 and Varaha Roopam: 2:09-2:39 is not representative of a ruling for infringement as arpeggios cannot be copyrighted and monopolized. Even in a copyright maximalist jurisdiction like the United States, arpeggios have been deemed to be scenes a faire (pdf page 4) specifically because they are firmly rooted in the tradition of certain  genres. Even while considering their selection and arrangement to be original, courts have restricted the test of infringement to verbatim copy/ virtually identical copy as against substantial similarity.

Thus, the prima facie analysis in this case is not as simple as the court has portrayed it to be. Being blind to the way cultural expressions are actually practiced leaves the law to be significantly dissonant with cultural norms. It often results in unconsciously imposing a homogenous perception of how music is composed and practiced, eroding cultural differences.

Policy Concerns

One concern with my above analysis, and perhaps even a fundamental problem that would stem from this logic is that rendering classical musical expressions less commodifiable (given expressions are inherently similar and involve volumes of scenes a faire or pre-existing inputs) could potentially distort investment decisions away from them – potentially making it harder for these artists to receive label or industry support. What I mean to say is that for a private firm, a conventional economic actor or an assignee of copyright (distributor/publisher/producer) who considers copyright to be an industrial instrument to earn profits or leverage investment risks, investing in classical musical expressions would be a bad idea, given the amount of social and economic value that can be extracted out of licensing/selling/pursuing legal actions on them, is relatively less compared to other forms of expression.

What do we do to resolve this distortive effect? Does differentiating standards of protection across different genres of cultural expressions help? Or do we need to structurally contract excludability across all genres of expression for an equitable avenue for investment, and for equitable incentives for authors in all kinds of genres of cultural practice?  These are important questions that I am currently studying and hope to see more discussion on for a more equitable cultural sphere in a more diverse and culturally participative society.

Author’s note: I would like to thank Swaraj Barooah for his invaluable inputs to this piece.

4 comments.

  1. Achille Forler

    I do not believe that a misguided complaint or a flawed legal decision should become a policy concern; it is a problem of lawyer and judge education or lack thereof, as well as the lack of forensic musicologists. The problem you mention is not limited to Indian classical music; it affects many musical traditions, particularly the blues. Listen to Bob Dylan’s ‘Beyond Here Lies Nothing’ or ‘Shake Shake Mama’ (album ‘Together Through Life,’) for example, two songs that most blues artists have recorded with their lyrics.

    In such a case, I agree that the R.G. Anand v. Deluxe Films decision may be inadequate. I’m curious how the US courts would react if Bob Dylan’s versions were challenged?

    Reply
    1. Akshat

      Thank you for your comment sir.
      Few thoughts:
      1) There is no need for musicologists in music disputes firstly – the question has to be about overall aesthetic appeal and overall market substitutability as against elemental similarity.
      2) Also, it is most definitely a policy concern. When elements of certain expressions are less excludable/commodifiable under the scheme of copyright law (due to the very well-intended scenes a faire doctrine for example)- investment decisions can be distorted away from them. This is a policy concern that comes with laws that focus on commodification when the cultural norms by themselves resist commodification. The same problem affects hip hip for example in the US, where due to sampling being termed as infringement, not only has investment significantly distorted away from sampled forms of art (inherent to hip-hop musicality) (see empirical study on the impact of the Grand Upright and Bridgeport judgments in the US asking samplers to take a license- https://read.dukeupress.edu/books/book/1516/chapter-abstract/172248/Sampling-LawsuitsHip-Hop-Goes-to-Court?redirectedFrom=PDF), but in fact, many hip hop artists have significantly stopped using samples (See – https://racism.org/articles/basic-needs/propertyland/218-intellectual-property/9818-from-j-c-102021).
      On the impact on blues in the US- see- https://cardozoaelj.com/wp-content/uploads/Journal%20Issues/Volume%2027/Issue%203/Arewa.pdf.
      3)It is also not a coincidence that the forms of music on which this problem, as you rightly identify, applies, are all (almost) non-white, showing that there is more of a policy concern than a concern that courts can resolve in a fulfilled manner. Its about the central focus of what kind of expressions are to be enabled. If the central focus is changed to non-white musical expressions/forms/genres, we will automatically have a significantly restricted copyright regime- something which burns the blood of copyright maximalist industries.

      Reply
  2. Akshat

    This comment is reproduced from an interesting discussion on this post elsewhere (with the consent of the discussant):

    Sandhya Surendran: Nicely analysed, Akshat. However, I’d like to perhaps disagree on it being a dangerous precedent because of two things:

    (1) The plagiarism claim was not because the two songs were based off the same raga, but more to do with how similar the arrangements were. Which is interesting since copyright protection is technically granted to the melody & lyrics alone.

    (2) Plagiarism in the film industry is a very common practice – there are way too many examples of of the same. More often than not, an existing piece of work is given as reference material – and on their own admission, we are aware that the filmmakers did look to Navarasam for inspiration. Regardless of the intent, unfortunately, the final product was too similar to the original song for it to be classified as an inspired piece. In fact, the filmmakers had also been in touch with Mathrubhumi to discuss license fees – it was after that conversation went cold that legal action was taken.

    Akshat: Thank you for your comment Sandhya. Where I disagree with you is on the threshold of protection that is given to arrangements that involve melodies or elements that are primarily scenes a faire or common to the practice of expressions in a particular genre. At least in the US, a jurisdiction which has a test close to RG Anand (in form of the learned hand Peter Pan test of infringement), courts have clearly held that for arrangements to be infringement (when involving common elements or essential signatures as the thing that is arranged together)- it has to be virtually identical/ verbatim – and not substantially similar. (See Skidmore, Gray v. Perry, Gaste, Erickson) The threshold of protection is higher (in other words the protection is much thinner), simply because of the ability to monopolize / exclude common elements/ non excludable bits of expression firmly rooted in a genres practice and tradition, that dangerously comes with a lower threshold. If you hear the overall songs side by side, you’ll find too many distinctions in the arrangements (try and focus on differences) for there to be “virtual identicality”.

    Sandhya Surendran: interesting. Honestly, I’d want to see how this would turn out if both parties choose to fight it out in court. We’ve relied a lot on US jurisprudence, time to create our own, I guess. I am also looking at this from an indie vs. film industry angle.

    Akshat: I get that but the film industry could use the same precedent to monopolize expressions in a genre that ultimately is social and resists such commodification. Getting copyright over arrangements, inspite of differences, limits the way expressions of common elements can be arranged, especially given there are anyway too many limiting rules (albeit purposefully) in the genre involved.

    As far as jurisdiction is concerned, irrespective of the country where the logic flows from, I feel it makes sense, lest arrangements can often be used as a facade to protect/commodify inherently social and non-excludable elements of cultural practice- something which is largely dissonant with the cultural norms.

    I am not saying this is a good thing. The main takeaway of my analysis is that the law, as it is currently framed, is basically trying to impose dissonant principles of non-indigenous cultural practices on indigenous forms of cultural expression. It’s a policy concern as against a concern of legal interpretation. The law (as you rightly say- our own jurisprudence) ought to be made with the central focus on indigenous ways of cultural expressions- mindful of their realities- as against in a way that distorts investment decisions (and consequently creative choices) away from them, due to its fundamental dissonance and incompatibility.

    Sandhya Surendran: Yes this I completely agree with, but I feel that should perhaps be an independent discussion. Because, like I mentioned, the claim was not based on the songs being composed off the same raga.

    Akshat: Understood- but what I’m trying to say is that in classical music specifically allowing arrangements of common elements to the raag (unless exactly the same) to be excludable – will limit the potential of number of expressions that can be produced in the raag- because the kind of way compositions in raags are to be arranged are also limited by the rules of the game. The trajectories of how the notes flow up and down and are used are well defined which cannot really be departed from. There has to be similarity- it is inherent in the nature of the game. Thus, the standard of “similarity” as against “identity”/Colorable imitation doesn’t make sense. This is where differences – lyrics, meaning, certain melodic portions, choice of instruments- become significant.

    It has nothing to do with the artist being an indie artist or a commercial artist- it is just the nature of classical music and it’s fundamental dissonance – both in terms of elements used as well as arrangements of compositions within- with the idea of commodification and excludability. It is lose-lose- as either the cultural norm loses, or the culture’s visibility loses out (due to less excludability and so investment decisions being distorted away).

    Reply
  3. Akshat Agrawal

    Another extract from an interesting discussion on the post elsewhere (with consent of the discussant):

    Shreyak Patnaik: The article was very nice! I have personally also have had an issue with how music infringement cases are dealt with in India. There have been instances where courts have given a prima facie injunction merely based on screenshots of web-pages where members of the public have been discussing how two songs sound similar (Loreena Mckennit v. Deepak Dev). This also seems to be valid according to the RG Anand case which says if something is so similar to “suggest similarity in the minds of everyone watching it”, effectively therefore putting the ball in the audience’s court, who may not have sufficient technical knowledge to make a decision on genuinely similarity. I wonder what you think about whether the RG Anand tests can be relevant to music infringement cases? In US, they at least employ music experts to give a report on the similarities which is a much better way to go about it than how it’s done in India

    Akshat: Thank you Shreyak for reading and for your opinion. I essentially agree with courts not using technical experts. Technical experts fragment pieces into elements and decide whether there is similarity or not. Copyright is not on atoms – it is on the overall aesthetic appeal, and unless the alternate is not substituting the market of the primary in the minds of the consumer, however somilar they may feel elements of the 2 compositions are- that’s not supposed to be infringement. The thing which you are saying is just a bad reading of RG Anand- RG Anand says “unmistakable impression” of similarity. That threshold is much much higher than similarity in minds of elements of the two compositions. 2 takeaways from RG anand- compare whole and not fragments, and people must have opine to be so similar that anyone would unmistakably come to an opinion of them being similar.

    Shreyak: I may then ask, according to you what can be a relevant evidence if one wishes to approach the court for an injunction in music infringement cases? As you said you believe music experts should not be an answer, should it be evidence of public opinion? Court discretion?

    Akshat: In my opinion, it is the Court’s judgment as to whether people would unmistakably take the defendants work to be the plaintiffs. Or if the defendants work substitutes the plaintiff (and it’s market) in the mind of people, according to the court . It’s that level of similarity that if required. The standard laid in rg anand, but, carefully and mindfully applied.

    Shreyak: in that case, wouldn’t the inherent meaning of “careful and mindful” application require technical understanding of music? For example, in the Led Zeppelin (Michael Skidmore v. Led Zeppelin et al) where music experts (“forensic” musicologists, they were called) were brought to break down the musical structure for the jury to give a well informed judgment.

    Akshat: in my opinion that would not serve the purpose of the law. The purpose of copyright, as a statutorily conferred market power, is to ensure a creator to be optimally enabled to produce creative works without a fear of their work (the idea of the work here is imp- it’s not a part of the work/ element of the work, but the overall aesthetic impression/ subjective message) being copied. The audience who would be perceiving these works are not all musical experts. It’s about whether a reasonable person would substitute an allegedly infringing work with the original. It’s not about technical similarity. It’s about perceptive similarity and potential of being substituted thus adversely affecting the intended enablement. If you think about this purpose, technically determining whether there is copying or not does not really help. It’s about the judge figuring whether a reasonable person would unmistakably think the allegedly infringing work to be substituting the original in terms of overall aesthetic appeal. That’s why differences matter. The focus has to be on identifying significant differences to dispel unmistakable perception of similarity. That’s my opinion and reading of RG anand.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *