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Besharam Copy or Smart Copy?



The strife surrounding Deepika Padukone's saffron' vastra' in the SRK starring 'Pathaan' may be triggered by a parti pris agenda, but there is larger controversy in the originality of 'Besharam Rang'1. It cannot be denied, that it is a cunning copy of across-the-board lyrics, tried-n-tested imagery and yesteryear lyrics, to make an absolute viral sound and video recording. Albeit, the makers can provide justifications aided by various Judgements under the Indian Copyright Act,19572

Haven't we heard the lyrics before?


Partly true! 10-11 seconds into the video, it relatively feels like ‘Humentoh loot liyamilkehusnawallonne…kallekallebaalonne,goregoreegaalonne..’3 from the movie AlHilal (1958).The first defense for such usage would be that inclusion of generic words would not attract legal in jury as there is no damage to the original author of the lyrics because the choruses have different meanings, there by claiming Damnum sine injuria 4 meaning damage without legal injury. Subsequently, an argument can be put forth that the usage is so minimal and minuscule to be insignificant if compared to the original, thus reciting De Minimus Non-Curat Lex5 meaning the law does not take trifles into account. So even if one takes some words from the earlier work, its correlation to the subject must be different to give a new meaning altogether to not harm the earlier work and if done should be done to an insignificant extent so that it is fair to use the same under section 52 of the Act. While ‘Besharam Rang’ uses a few similar words to those in ‘Humen toh.. ’its context is different.


As we look further in the video one can recall that the treatment of the video is like the video of Ghungroo6 from War (2019). The obvious question however is why isn't this objectionable?


The simple answer is that one can remake if one owns the underlying works. The underlying works of a Sound Recording are its lyrics and musical compositions7 for a Video Recording, they are its script, screenplay, storyboard, etc. The authors of such lyrics, compositions, story boards, scriptetc.


Through commissioning or work-for-hire arrangements and under assignment agreements have assigned their works to producers for which they have a right to receive a share of royalties8. So, the producer gets the right to reuse the lyrics in a different sound recording, remake the scriptor screen play of a writer and recreate a scene from the storyboard of a screenwriter/storyboard artist. Therefore,YRF being the producer of both works, could frame by frame incorporate or be inspired by the treatment of Ghungroo in Besharam Rang.

  1. https://www.youtube.com/watch?v=huxhqphtDrMPublishedonYouTube.

  2. Hereinafterreferredto'astheAct'.

  3. https://www.saregama.com/song/humen-to-loot-liya-milke_13301PublishedbySaregamaIndiaLimited.

  4. http://student.manupatra.com/Academic/Maxims-and-Phrases/Judgment/MANU-MH-0507-2011.pdfPuneChapterofCostAccountantsvs. The Union of India and Ors. (01.04.2011 – BOMHC) in MANU/MH/0507/2011 authored by His Lordship Mr. Justice P.B.Majmudar& HisLordshipMrJusticeA.A.Sayedpublished byManupatra.

  5. https://indiankanoon.org/doc/115992789/IndiaTvIndependentNewsServicevsYashrajFilmsPvt.Ltd.(21.08.2012DELHC)authoredby HisLordshipMrJusticePradeepNandrajogpublished byIndianKanoon.

  6. https://www.youtube.com/watch?v=qFkNATtc3mcPublishedonYouTube.

  7. https://www.enil.co.in/pdf/stock_exchange_fillings/FY21/2021_01_05_IPRS_order.pdfDelhiHighCourtinTheIndianPerformingRight Societyvs.EntertainmentNetwork(India)Limitedon(04.01.2021–DELHC)inCS(OS)666/2006,IAsNo.4558/2006(u/S10CPC),authored byHisLordshipMrJusticeRajivSahaiEndlaw, reproducedbyENIL.

  8. https://law.asia/new-royalty-right-will-alter-the-music-industry-in-india/authoredbyAmeetDuttaandpublishedonLawAsia.

Sajjid Ali, a Pakistan is inger, and composer has claimed that the composition of Besharam Rang is also plagia rises9his rendition of 'Ab Ke Hum Shaayad'. Assuming, there is a composition match, it can be found that Sajjid's version was a rendition of a Ghazal by Ustad Mehdi Hassan Khan10! Even if this claim is true, rendering a traditional musical composition of a Ghazal can be a possible defense, which is allowed! The WIPO hand book on intellectual property states11 that, if the works contested are collectively "owned" by one or more groups or are pre-existing in traditional culture therefore are generally not protected by current copyright laws and are treated, as part of the "publicdomain”. The Delhi High Court recently held if the original claimant of the alleged infringement was not the proprietor of the said expression, then they are not entitled to claim the monopoly12.Therefore, the original work can be termed as the pre-existing traditional culture which asper Sajjid's purported claim is the composition of a Ghazal. Its composition can not be owned by an individual as it has anonymous origins, such a composition cannot be protected by copyright law and are in the realm of Public Domain and/or copyright-free use, therefore the contention fails.


The beats from popular track Makeba 13 have been copied?


A flood of Tweets14 have further alleged that Besharam Rang is a copy of Jain’s Makeba however, again as stated above the alleged “plagiarism” does not seem that obvious as some of Besharam Rang’s elements might come off as generic electronic tropes. Tropes are like the scène-à-faire or stock sequences and moments common to the art, and customary to a particular artform or a genre 15,no monopoly can be claimed over as cèneà faire.


His Lordship Mr. Justice G.S. Patel exquisitely elucidates, “When two ideas are developed, there are bound to be similarities. A sure test is to see whether a viewer or reader having seen both works unmistakably concludes that the later work is a copy of the original. Even if the two works are the matically the same, but treated and presented differently, there may be no question of copyright infringement. Incidental co-incidences are not copyright infringement. Infringement is established only by clear and cogent evidence16.” Nevertheless, in the case of ‘Besharam Rang’, multiple expressions that have been lucrative have been meticulously amalgamated. The works in each of the instance- be it the minimal lyrical match with ‘Humen Toh…’, the alleged composition resemblance to the retro ‘Ab ke hum…’ or the trendy but trope beats of ‘Makeba’, all together constitute amajor backbone of ‘Besharam…’. Additionally, YRF does not go wrong in adding the tried and tested treatment of ‘Ghongroo’, thus making a mimic of cut-and-dry ideas thus spitting out as martcopy and not a Besharamone. The only question is- Can there be three or moreco-incidences in a sequence of 3-4 minutes?

  • https://www.youtube.com/watch?v=y9iRoTU7PgUPublishedonSajjidAli’sYouTubeChannel.

  • https://www.youtube.com/watch?v=Uyv0hMg_i5cPublishedonYouTube.

  • https://www.wipo.int/edocs/pubdocs/en/intproperty/489/wipo_pub_489.pdf2.273(WIPOPublicationNo.489(E),2004)

  • https://indiankanoon.org/doc/6236790/InstituteforInnerStudies&Ors.vsCharlotteAnderson&Ors.on(10.01.2014-DELHC) authoredbyHisLordshipMrJusticeManmohanSingh,publishedonIndianKanoon.

  • https://www.youtube.com/watch?v=59Q_lhgGANcPublishedonYouTube.

  • https://www.thequint.com/neon/social-buzz/netizens-call-out-pathaan-song-besharam-rang-for-copying-jains-makeba,publishedbythe Quintasof December,2022.

  • https://images.assettype.com/barandbench/2021-11/c0d19a27-6562-46bc-b47b

  • e23a72038a47/Tarun_Wadhwa_vSaregama_India_Ltd.pdfTarunWadhwavs.Saregama&others(IA(L)NO.4371OF2021INCIPSuit

  • (L)NO.(4366OF2021)(20.10.2021–BOMHC)AuthoredbyHisLordshipMr.JusticeG.S.Patel,republishedandprovidedbyBarandBench.

  • Ibidparagraph45

 

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