On the recent controversy regarding similarity between Anirudh’s latest song “Chuttamalle” and Chamath Sangeeth’s “Manike Maga Hithe”, we are pleased to bring to you this tidbit by SpicyIP Intern Tejas Misra. Tejas is a third-year law student at National Law University, Delhi, and is interested in the evolution of IPR law and its growth in India. His previous posts can be accessed here.
Copyright Violations in Derivative Works and Music Sampling – The Case of “Chuttamalle”
By Tejas Misra
Recently, a notable copyright dispute (discussed here) has stirred the Indian film-song industry. As reported on 7th August, the song “Chuttamalle” made by well-known composer Anirudh from the movie “Devara”, faced allegations from the Internet of copying from the Sri Lankan song “Manike Mage Hithe”. The song utilised “sampling”, i.e. taking a section of audio from an existing song and then reworking it to use in a new song. When a producer uses samples, he can cut down on the price of traditional recording by eliminating the need to pay real musicians (for more detail see here).
The Copyright Act, 1957 (accessible here) does not have a separate provision on sampling of music, however S. 13 of the Act provides for protection of musical works and sound recordings, which can cover the use of musical samples in other songs. The violation of these exclusive rights is considered copyright infringement.
The use of samples in other songs fall under the purview of “derivative works”, and not all derivative works are prohibited under copyright law. In India, for any work to be a copyright violation, what must be followed is the test of originality that was laid down in Eastern Book Company v. DB Modak (explored here), which implies that any derivative work must indicate a certain application of substantial degree of skill, industry or experience and not merely a re-arranged copyright of the original. There needs to be some element of substantial skill to produce a material difference. The only test the Court needs to go into is whether the amount of skill or labour applied is trivial or negligible. The goal of enacting this concept is to prevent creative stagnation and to distinguish between legitimate and unauthorised use of copyrighted works.
Further, the Delhi High Court in India TV Independent News Service (P) Ltd. v. Yashraj Films (P) Ltd. has identified the issue of de minimis to be applied in derivative works. De minimis which means a trifling or very negligible amount (de minimis also discussed here). In case the amount of derivation or copy is considered de minimis or a very small amount, then it does not amount to a copyright violation. The Court in the case identified two strands of substantial similarities: (i) Comprehensive non-literal similarity; where courts have strived to identify the “fundamental essence of the structure‟, and it being copied, even where specific expression is not copied, and (ii) fragmented-literal similarity, in which bits of specified expressions are copied, but the overall structure is not.
Courts have recognized the principle of de minimis as applying to the second category, under which music sampling falls. The defence of de minimis entails that small samples of the lyrics or soundtracks can be copied and utilised in derivative music legally, but they would violate the copyright if they would be substantially similar to the original work. Thus, in the present case, it seems that the small samples taken by Anirudh for his song would be possibly non-violative of the original copyright.
Thus, the best course of action would be to ideally obtain a licence from the original creators for the use of sampling music. However, copyright law in India has evolved and created several exceptions under which derivative works can be produced and commercialised, in order to ensure the creative development of the industry. According to the test laid down in Eastern Book Company, in the case of sound sampling, this is when parts of the original song are taken and utilised with enough skill and labour to produce a substantially different song at the end. This would be an “original musical work” under S. 13(1) of the Copyright Act. Further, when the sample itself is small and its impact on the final product is minimal or trivial, then it can claim the defence of a de minimis utilisation.
If the case had proceeded to court, the filmmakers might have attempted to use the de minimis defence to justify their use of the copyrighted song, which would then be a factual enquiry for the Court to examine whether or not the original song made up a substantial part of the derivative song, and whether the derivative could be considered a considerably different work from the original. However, the original composer of “Manike Mage Hithe”, Chamath Sangeeth, was “happy to see” that his song inspired Anirudh, pointing out that he had always been a fan of Anirudh’s work. Thus, it is unlikely that this circumstance would proceed into a copyright dispute.