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?
Lately 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.
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:
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)
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)
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)
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))
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))
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))
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: 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.
Basic demonstration: https://www.youtube.com/watch?v=rVSr_b9L1Jw&ab_channel=DrCharulathaMani
Raaga Aheer Bhairav:
Basic demonstration: https://www.youtube.com/watch?v=g-fB7ABnBq0&ab_channel=SurTaal
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.
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.