Last week saw the release of the trailer of ‘PM Narendra Modi’, the much-awaited biopic of our current Prime Minister which is set to hit screens on April 12, 2019. While it has garnered differing reviews, it has resulted in yet another controversy associated with the film (the Election Commission of India is already looking into whether the release of the movie would violate the Model Code of Conduct for candidates, see here and here).
This latest controversy involves the mentioning of Javed Akhtar towards the end of the trailer, attributing credit to him for contributing lyrics to the soundtracks in the movie. This, however, came as a surprise to Javed Akhtar himself, who immediately took to Twitter to distance himself from the movie and deny any contributions to its lyrics. One of the producers of the film, Sandip Ssingh, later clarified the confusion, saying that the credit screen mentions Javed Akhtar because one of the tracks for which he had provided lyrics, ‘Ishwar-Allah’ (originally from 1947 – Earth), had been licensed and used in the film.
The copyright in the whole song is reportedly owned by T-Series, who licensed the song to the film. This, therefore, precludes any copyright infringement action. However, Javed Akhtar may have recourse for the infringement of his moral rights, under Section 57 of the Copyright Act.
Javed Akhtar is no stranger to intellectual property rights, being the chief driving force behind the path-breaking amendments made to the Copyright Act in 2012. He also has a history of actively enforcing his own rights: not too long ago, he sent a legal notice to the Malik Brothers for using the ‘mukhda’ of his song in the remake of the soundtrack ‘Ghar Se Nikalte Hi’, arguing breach of moral rights (covered on our blog here). Another example is the advocacy of his moral rights over the script of the film ‘Zanjeer’ which he had written along with Salim Khan, when it was being remade in 2013.
In this post, I take a look at a possible moral rights claim over the use of his song ‘Ishwar-Allah’ in the upcoming biopic.
The Moral Right to Integrity
This is not the first time that an artist has found their work being used in inappropriate contexts or for purposes that were not intended to be associated with their work. For instance, several artists in the United States of America have objected to the use of their songs in campaign rallies during Presidential Elections (see here for a list of artists that objected to the use of their songs at Trump rallies and here for Prarthana’s post on the issue).
In cases where the artist owns the copyright over the music, there is little controversy: use of their music at election rallies without obtaining their permission constitutes a violation of copyright over the music (for the Indian position, see Section 14 of the Copyright Act, which grants the copyright holder the exclusive right to communicate their work to the public).
However, in most cases, copyright over music is held by copyright societies or production houses. In the present case, T-Series holds the copyright over the song ‘Ishwar Allah’. In these cases, artists are not in a position to enforce copyright over their work, but may have a claim to make through the moral rights that they possess in their work.
Moral rights are personal rights granted to creators of a work, and have been embodied under Section 57 of the Copyright Act as ‘Author’s Special Rights’. They include the right to paternity (to be identified as the creators of their work) and the right to integrity (to prevent derogatory treatment of the work):
Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right——
(1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right—
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:
Provided that the author shall not have any right to restrain of claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.
Explanation.—Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.
(2) The right conferred upon an author of a work by sub-section (1), may be exercised by the legal representatives of the author.
The right to integrity is embodied under Section 57(1)(b) above, and requires proof of two factors – first, any distortion, mutilation, modification or other act in relation to the said work (‘derogatory treatment’) and second, prejudice to the honour or reputation of the author that has been caused by the derogatory treatment.
Given the political element in the movie itself, it may be relatively easy to establish prejudice to reputation and honour of a sitting Member of Parliament. The more pressing legal issue would lie in establishing derogatory treatment.
The Requirement of Derogatory Treatment
It is important to note that the derogatory treatment of a work must be made “in relation to the said work”, and not in relation to the author generally. Here, the lyrics of the song ‘Ishwar-Allah’ as used in ‘PM Narendra Modi’ has not seen any change in the lyrics of the song as used in ‘1947 – Earth’. Nor have any additions been made to the lyrical component of the song.
The only alteration that may be claimed is the order in which the lyrics are performed by the vocalists (to compare, listen to the original version here and the reprised version here). Most notably, the reprised version starts at a different point when compared to the original version. However, it would be extremely difficult to argue that this alteration itself is directly responsible for any prejudice caused to Javed Akhtar’s honour or reputation.
The only other avenue of complaint, then, is the use of the song in this particular movie. The question, then, is whether the use of the song in a different context constitutes derogatory treatment of the work. This boils down to an interpretation of the phrase ‘other act in relation to the said work’.
I would argue that it should be interpreted broadly, to include a wide array of acts in relation to the work, including its use in a different context. That is, alteration or change of the work is not necessary to constitute treatment of the work.
In Morrison Leahy Music Ltd. v Light-Bond Ltd,[1] short extracts were taken from several of George Michael’s songs and compiled with other songs into a single remix-record. The court granted a preliminary injunction barring the release of the record in this case, noting that it may constitute derogatory treatment of George Michael’s songs. This case has strong parallels with the current one, since that court’s decision turned, not on the fact that the song was altered because of the extraction, but because their use along with other music in a single record may cause harm to the artist. Therefore, it is possible to argue that the performance of Javed Akhtar’s lyrics, in a different arrangement, and in a politically charged movie, would constitute derogatory treatment of the work.
Such an interpretation would be in line with the intention of moral rights to protect the authors ability to control their work, and also aid in addressing the mischief of use of artists’ works for purposes that were not unintended by them (such as political campaigning) and more drastic uses, such as the use of a literary work in a pornographic film or the placement of an artistic work in a setting which is entirely inappropriate to it.
On the contrary, it is possible to argue that the phrase ‘other act in relation to the said work’ should be read ejusdem generis, in the context of the words that precede it (distortion, mutilation and modification) to mean that a change or alteration of the work is necessary to constitute derogatory treatment of a work.
Such an interpretation is likely to be favoured by the authors of Copinger and Skone James, a respected treatise on Copyright law in the United Kingdom. They refer to cases where the moral rights of the author were not upheld, such as Mosley v Stanley Paul & Co.[2] (in which the plaintiff’s book was published in a vulgar and offensive dust jacket) and Shostakovich v Twentieth Century Fox Film Corp[3] (where the music of Russian artists was used in a Russian espionage film to the dismay of the artist), to argue that mere use does not constitute derogatory treatment. Similarly, moral rights of musician Connie Francis, who sued in 2002 objecting to the licensing of her music for “sexually themed” films she found inappropriate, were also not upheld in an American court.
Conclusion
In the digital world, reusing of works has become rampant, given that only a limited amount of resources and skill is required to do it. It has become increasingly important, therefore, for artists to be able to exercise some degree of control over how their work is treated and used.
Since most artists, especially those in India’s music industry, relinquish the copyright in their work to societies or production houses, moral rights is the only way in which artists can ensure that their work is not misused. Thus, in my view, Section 57 should be interpreted in a manner that recognises these changes in society and allows the author a greater degree of control over how their work is treated and used.
[1] Morrison Leahy Music Ltd. v Light-Bond Ltd [1993] E.M.L.R. 144.
[2] Mosley v Stanley Paul & Co. [1917-23] Mac.C.C. 341.
[3] Shostakovich v Twentieth Century Fox Film Corp (1948) 80 NYS 2(d) 575.
H/T: We thank Sandeep Rathod for bringing this story to our attention.
Image from here.