Baadshaho controversy throws spotlight on trend of increasing court battles over copyrights
Shortly before its release, the movie Baadshaho ran into legal trouble over use of the song, ‘Keh Doon Tumhe’ from the 1975 hit movie, ‘Deewar’. The producers of Baadshaho had remixed and incorporated the Deewar song without the permission of the copyright holder of the original song. This led the Bombay High Court to restrain the makers of Baadshaho from using the song in their movie on grounds of copyright infringement. In another instance, the producer of a Bengali film, ‘Ranjana Ami ar Ashbo na’, recently sought to restrain another producer from making a film with the same title, claiming copyright over the movie title. These two incidents highlight that filing of copyright infringement suits involving movie titles and songs has become a common trend in India. However, in cases where old Bollywood songs are remixed without the original music composer’s permission, or where movie titles are reproduced by other filmmakers, it is possible that there is in fact no copyright infringement.
Copyright protection for movie titles:
Under the Indian Copyright Act, 1957, movie titles are not expressly provided copyright protection. Some argue that movie titles fall under the category of literary works which are specifically protected under the Copyright Act. Examples of literary works are poems, lyrics, scripts and computer programmes. Generally, an original work composed primarily of words can be protected as a literary work under the Copyright Act. However, it is difficult to conceive of copyright protection for movie titles because a movie title is too short a phrase to warrant copyright protection. In the US, copyright protection over titles of works is specifically prohibited. This is also clarified by Circular 34, ‘Copyright Protection not Available for Names, Titles, or Short Phrases’, issued by the US Copyright Office.
One can also argue that movie titles often comprise common phrases and are not ‘original’, therefore, not capable of copyright protection. For instance, Kai Po Che, a popular 2013 movie, is a common Gujarati phrase used to indicate victory in kite-flying. Since the title itself is a common phrase, it would be difficult for a film producer to claim copyright protection because copyright law protects original works. Similarly, movie titles like ‘Deewar’ and ‘Kal Ho Na Ho’ also fail to qualify for copyright protection because there is no originality in the movie titles as these are common words/phrases in Hindi.
Indian courts on copyrightability of movie titles
While the Indian Copyright Act is silent on the copyrightability of movie titles, the guidance offered by the Indian Copyright Office states, “copyright does not ordinarily protect titles by themselves...”
Indian courts too have been disinclined to allow copyright protection for movie titles. In Krishika Lulla v. Shyam Vithalrao Devkutta (Criminal Appeal No. 258 and 259 of 2013), the Supreme Court of India ruled that there is no copyright in the title of a literary work. In this case, the complainant had alleged that the defendant had used the title of his movie script, ‘Desi Boys’, without his permission. The court held, “A title does not qualify for being described as ‘work’. The combination of the two words ‘Desi’ and ‘Boys’ cannot be said to have anything original in it. They are extremely commonplace words in India...”
Similarly, in Kanungo Media (P) Ltd. v. Rgv Film Factory (138 (2007) DLT 312), the Delhi High Court ruled that film titles are not entitled to copyright protection, and that titles of literary works may instead be protected under trademark law especially where the titles form part of a series. Take for instance, the film ‘Gangs of Wasseypur’- the title of the film would not be protected under copyright law in India. However, the producer, Anurag Kashyap, would be able to restrain others from using the title under trademark law. He can do this on grounds that a series of films under the title ‘Gangs of Wasseypur’ (namely ‘Gangs of Wasseypur’ and ‘Gangs of Wasseypur- Part 2’) have been released, and that if any other producer is allowed to use the same title, the consumers may associate the other films with Anurag Kashyap’s production house. This constitutes ‘passing off’ under trademark law, where a person (trademark infringer) attempts to ride on the reputation of the proprietor (trademark owner) by wrongly associating his goods with those of the proprietor. To protect his reputation, Kashyap can restrain others from using the same title as that of his film, Gangs of Wasseypur, under trademark law.
The Delhi High Court also clarified that trademark protection over single films (those not released as part of series) may be claimed where the producer can show that the movie title has ‘acquired secondary meaning’. In trademark law, a mark acquires secondary meaning when the public (consumers of a good/service) starts associating the mark with a particular brand.
The title of the Bengali film, ‘Ranjana Ami ar Ashbo Na’, literally translates to ‘Ranjana, I will not come back again’. In this particular case, the producer of the original movie can argue that the title has acquired secondary meaning and the consumers associate the title with that particular production house. This is likely a strong argument because the phrase, ‘Ranjana Ami ar Ashbo Na’, is not a common phrase in Bengali like ‘Shubho Bijoy’ etc. and the public probably associates the phrase with the film.
In order to protect their movie titles, producers can opt to register the movie titles as trademarks, especially where the movie title is a coined phrase and not a common phrase. A popular example is the title of the famous song, ‘Why this Kolaveri Di?’ which is a unique phrase combining English and Tamil words; a trademark was filed for the title in December, 2011.
Remixed songs and the law of copyright
The ‘right to remix’ a song is not explicitly stated as a copyright-holder’s right under the Copyright Act. While a copyright owner might argue that a remixed song violates his ‘right to reproduce’ the original song, Indian courts have ruled that ‘version recordings’ (fresh recordings of a song using a different set of musicians, artists, performers and facilities) do not amount to copyright infringement of the original song. In Gramophone Company of India Ltd. v. Super Cassette Industries Ltd., the Delhi High Court held that remixing songs does not amount to copying. Similarly, in Mars Recording Pvt. Ltd. v. Saregama India Ltd. the Karnataka High Court allowed ‘cover versions’ (version recordings) without the consent of the copyright-owner. The High Court observed, “It is to be emphasized that it, however, does not entitle the person to make a copy or a duplicate of the sound recording, but is entitled to produce a 'version recording,' which is a fresh recording using a different set of performers, musicians and artistes and facilities. It would be a 'sound alike' recording or a close imitation of the original sound recording and would not be an infringement of the copyright.”
In Baadshaho, the contentious song, ‘Socha Hai’, which recreates Deewar’s song, ‘Keh Doon Tumhe’, appears to be a version recording of the Deewar song, and not a duplicate of the original song. While Baadshaho’s producers have dropped the song from the film (following the Bombay High Court’s injunction order), the cover version is in fact legal and does not violate any copyright.
Intellectual property rights (IPR) awareness has rapidly increased in the last decade in India and the Bollywood fraternity has been quick to respond to any perceived infringement of their IPR. It is however important to understand that not every use of a copyrighted work necessarily amounts to infringement. This is especially true in case of movie titles and cover versions.
Devika Agarwal is an intellectual property rights lawyer.