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Pankaj Tyagi
| Updated: 25 Oct, 2021 | Category: Copyright

Is it possible to Copyright a Remix song or Mashup in India?

copyright a Remix song or Mashup in India

Copyright registration is hard to come by for a work of art which is seemingly identical to someone else’s work. Copyright a remix song in India is somewhat a complicated affair considering the limitations available in the Copyright law. But the good news is that is not an impractical chore, provided one adheres to certain conditions. This article casts some light on legal implications cited in Copyright Act that one must consider before copyright a Remix soundtrack in India.

Remixing of Song in India

There are countless songs that are the remixes of the old 70’s soundtrack, which were become the instant hit among the masses. Be it in any verse or language, these remixes somewhat remind the audiences about the original motion picture but with a tint of popular versions. But, although these remakes of the old movie, they are still treated to be a new movie as they constitute a different set of genres as the casting individual- i.e. producer, filmmaker, actors are entirely different. 

As we are aware that the moment anything is created, it comes under the Copyright regime whether you opt for the registration or not. In such a scenario, will creating remixes, mashups, compilations constitute infringement.

Primarily, for a work to be treated as a copyrightable work, it ought to comply with the two fundamental conditions. These are also important for those intending to copyright a Remix song.

  • It should adhere to the originality, &, 
  • It should be manifested in any tangible form because ideas stand ineligible for copyright protection. 

When any new kind of soundtrack or video composition is recreated, the owner gets exclusive rights over his/her work. This allows the owner to further recreate, reproduce, or communicate his/her work to the masses. In the recent past, a new wavelength of mash up, and copyright a Remix has taken its place in the music fraternity. 

Turning infringing material to official remixes is a risky affair but often rewarding if you can collect a strong enough pitch to secure the owing level. 

Recording of a soundtrack entails creativity & intellectuals of the musical team & once ready, it is converted into a desirable number of copies to sell in the market. When a soundtrack is recreated, the owners will consider those soundtracks which are already popular in the market and remix them accordingly without compromising the essence or feel of the original song. 

From the legal viewpoint, we need to examine whether such works are considered as copyrightable works or not, whether they breaches the original work, whether the owner possesses the legal right to use such soundtracks and how does law tackles such practices. 

Read our article:Copyright Judgement in India: Here are some famous cases

An Overview on the Remake culture of the soundtrack

Section 2(c) of the Copyright Act defines that “musical work” implies a work comprised of music and entails any graphical notation of such work but does not encompass any terms or any action aimed to be sung or performed with music. The given rights are linked with the copyright of such works. 

In the case of literary, musical, or dramatic work, not being a computer program: 

  • To reproduce the work in a materialistic way & store it in any digital medium.
  • To share copies of work publicly which are present in the market
  • Moreover, to share & perform the work publicly 
  • To create or recreate any filmmaking work or sound recording 
  • Furthermore, to make any kind of abridgments or translation. 
  • To make any modification in the work. 

What about the sound recording? 

  • To create any other sound recording- mashups, remix, compilation, etc, concerning that,
  • To hire, produce, or sell copies of the soundtrack 
  • To distribute the work publicly, 

The infringement would come to effect if such a remake is done without the owner’s consent. Copyright a Remix song under these circumstances would become impractical. In general, the entrepreneurs will contact the original owner through copyright collective management or societies, and then will forward a notification to them stating their intention to remake/reproduce the soundtrack in return for royalty as consideration.

Types of Rights available for Musical Work

As cited above, once the owner successfully copyright a Remix song or other work of arts, he/she got vested with exclusive rights which enables him/her to reproduce or distribute the work, to perform publicly via digital audio transmission, to make derivative work & publish them. 

As a copyright holder of the work, the Act grants the right to record, sell, distribute its copies of music in various ways like a digital download, compact Disc, etc, and/or re-create something unique, creative from your pre-existing work & publish it in a different part of the cities. 

At one place, it permits you to create unique works from pre-existing ideas but on the contrary, it also limits you from leveraging any work, which is not yours legally. 

1. Reproduction right:

It implies that the creator has a right to make copies of his work and store them in any desirable format. In case someone is not legally permitted to make copies of work then such an act will be punishable as per the Act. For example: Making copies of the musical work or a sound recording in CD, electronic format, included in a motion picture, etc. 

2. Synchronization Right

Under this right, the performance is aligned with any pictorial representation and then publically shared. To sync one’s work with a visual motion picture is a daunting affair that seeks immense hard work as well as creativity. Thus, the approval of the creator is required in such scenarios. 

3. Mechanical Right

The term mechanical is basically related to the recording part of the soundtrack. Recording companies leverage the right while creating the soundtrack & then pay a relevant amount to the producer to publish the soundtrack. 

4. Derivative Right

Under the right, the original work is to recreate a new work by making some modifications in it by adding various beats, lyrics, and other elements to make a better version of it. 

5. Adaptation Right

When someone leverages their creativity to alter some key elements in your work or rolled out a new version of your work, it is regarded as adaption rights. The Copyright Act expresses the following: 

  • Transformation of dramatic play into non-dramatic play
  • Re-arrangement of literacy work.
  • Transformation of literary work into drama.
  • Showcasing any comic form or via dramatic or pictures

6. Performer Right

Any performing artist has the Performer Right. The term artist here usually refers to dancer, juggler, and actors, so on. Section 38 talks about the right of performers and Section 38A underpins norms concerning it which facilitate exclusive rights for doing any act w.r.t performance.  

It can be classified into following parts: 

Live performance

When the artist performs his work publically them he has the right over the specific performance. 

Performance in cinematography with credit

When the performing artist accords his right in a writ form to use this work for a commercial purpose, the artist ought to be entitled to receive some royalty or some fiscal gain. 

Section 39A accords the moral rights to the artist to claim the creator’s work and the right of integrity to work.

Commercial Aspects of a Performance

There are two ways in which a soundtrack can exist- commercial or personal. Personal use implies playing the soundtrack in places where there is no element of money. But for commercial performances like playing the soundtrack in hotels, radio, TV, cinema lure considerable royalty or license fee that goes straight to the creator. 

What about music streaming in clubs and restaurants: Does it attract infringement?

A person has the legal consent to create a new remix from the copyright version but they cannot stream the same in the club with proper consent for performance rights, it will be treated as a punishable offense. In the club, DJ will not be obligated to pay a royalty amount. If the remix music is with the real performance will encompass under fair use. 

The creator of the musical work is a composer, not the singer. 

Gramophone Company Vs Super Cassette Industries, In this case, the Delhi High Court came across the fact the musical work is not a combination of melody or turning work but every soundtrack has its structure, shape to prepare the entire notation for music. And section 14 (e) renders certain rights to the creator for safeguarding their work which entails the right to hire or sell, any copy of the sound recording & the right to share in the public domain. 

Moral right cited under the Copyright Act

Even when Section 52(1) is in effect & there is some kind of alteration or mutilation in the original creation that can disrupt or spoil the goodwill of the creator, then he can lodge a complaint u/s 57 of the Act.

Mannu Bhandari vs. Kala Vikas Picture recognized that the presence of moral rights is essential for the author. Amar Nath Sehgal vs. UOI, it was stated that the moral right is a core element of the author work and the creator has the right to safeguard and preserve his/her work regardless of being infringed wholly or partially under the Copyright Act.

An Outlook on Interpretation of Section 52(1) (J) Of the Act

Section 52(1) (j): creations like soundtrack or music seek legal consent from the real owner for certain uses. After further interpretation of the section, we come across the fact that if the aforementioned points are treated aptly then the act will not amount to infringement of the original work under copyright protection. 

There is a great degree of confusion about whether such remixes can possess copyright protection or not. People have nil clarity between what can have an allowance & what is not. In the digital era, it is very hard to comply with copyright laws, and therefore, we frequently come across such issues. 

To keep infringement out of the equation, the individual can leverage the following norms cited under Section 52(1) (j).

Copyright a Remix song attracts the following conditions for the applicants. These conditions would also serve as the legal checklist.

  • Purchasing the original soundtrack & not copying one, since piracy is an offense. 
  • Prior legal consent from the song creator for the soundtrack (for reproduction) 
  • Pay royalty fee to the song creator 
  • Seek legal permission before making any modification to any part of the soundtrack
  • Be watchful while marketing the soundtrack- do not leverage labels that might trigger confusion among the masses w.r,t identity of the artist. 
  • It is recommended to wait for at least two years before remaking the soundtrack 
  • Make sure that the royalty amount is paid to the creator within the agreed duration. Any delay in this context could lead to a stoppage in song production.

Overlooking such conditions would not allow anyone to copyright a Remix original soundtrack in India.

Key insights: But, in case an individual simply wishes to put all the soundtracks together & use it in family events and has no fiscal benefits, then they can easily skip this lengthy process.

The creator has the right to check all the books of account pertaining to remix work. If any loopholes come to light concerning the royalty then the creator can lodge a grievance against the producer or publisher and the copyright authority will take relevant legal actions against them. 

Legal permission of the creator is a condition precedent. In the case of Ganpati Aarti AshtvinayakGeete, the accused intended to create an audio cassette concerning the Ganpati Aarti. For that, he made the formal request to the owner (plaintiff) and offered him a license fee. Plaintiff, on the other hand, claimed that no such permission was accorded to the accused, which leads to the infringement of the copyright law. 

In the case of Gramophone Company vs. Mars Recording, the court came out with a judgment that if the condition cited under Section 52(1) is followed will not be recognized as infringement & no requirement for rendering any kind of license or consent

In Super Cassette Industries Ltd vs. Bathla Cassette Industries Pvt Ltd, the court declared that no alternation should be done in the voice of the playback singer because the voice is the soul of every soundtrack and it is a key element of the song without securing legal permission from the creator. 

Copyright Cover Versions as Per 2012 Amendment:

Amendment done is 2012 brings an array of modifications in the Musician’s rights; Lyricist or performer etc. Section 31C of the Copyright Act provides a statutory license that can be secured for creating a cover version. A statutory license will be regulated by underlying norms of the Act and license entails terms and conditions that agree upon the licensor or licensee,

Salient Features of the Provision (mandatory for the one intending to copyright a remix song)

  • A new cover version can only come to life if the original recording has served 5 years + duration 
  • It should not hamper the originality of the original soundtrack.
  • Prior legal permission of the creator should be there for creating the cover version.
  • Cover or labels of the soundtracks should be shared with the creator before releasing the song. 
  • Copyright authority should decide on the royalty amount. 
  • The creator of the cover version must tag the original sound.
  • A book of account should have maintenance by the creator of the cover version
  • The real owner of the original work possesses the right to inspect the book account maintained by the author of the cover version.

If such a cover version is created in the absence of required legal permission; or license from the owner then it will lead to infringement. The owner can file a case against the cover version’s creator. It is for violating his moral right as the individual for a modification of this original work without any approval,

Video remaking is also gaining momentum

The dilemma of copyright law does not revolve only around music recording; the next vital question here is what is person create videography based on the original creation. Section 52 revolves around musical work and does not cover any aspect of video making. The paradigm of video making falls under the regime of cinematography work. There is a typical practice where producers along with the remix choose to convert it into video and air it on a desirable platform. Now, this is a case of infringement of both musical and literary work. 

YouTube copyright rights & fair use policies

YouTube has underpinned standard policy guidelines pertaining to copyright claims, fair use exceptions, & monetizing policies. The basic rule while uploading video content on YouTube is that creators should only upload such videos that do not violate the interest of the other creators on the platform. 

YouTube’s stance on the copyright infringement

In case the owner believes that his/her work has been infringed then he/she can register the grievance via YouTube’s standard web application. After application submission, the same will be cross-checked against the Digital Millennium Copyright Act. 

Further, they will go for the copyright strike. If a user gets three consecutive strikes within the duration of 90 days, their account will be terminated. 

Viable ways to file Copyright Infringement in YouTube

YouTube’s Copyright Management Tool is pretty intuitive and user-friendly. It ensures end-to-end protection to users’ copyright material available on YouTube. 

This popular video streaming platform renders various benefits to the content creators. Presently, YouTube facilitates many ways for the content creator to make claims pertaining to copyright. Some of them include; 

  1. Webform
  2. Content ID
  3. Copyright Match Tool
  4. Track the video’s viewership statistics.

Fair use claims under YouTube

Fair use claims empower any individual to utilize any portion of copyrighted material without seeking legal consent from the creator. But if it is for some other purposes, it can disrupt the owner’s rights. In this case, their video can discard or their account can be closed permanently. 

Different nations have different provisions on fair use & when it is permissible to utilize another work’s owner without permission. Irrespective of your location, owing to fair use flexibility, courts will always confront these situations. It is based on the circumstances of each case. 

Four Fundamental Factors of Fair Use

Before you attempt to use someone else’s copyright content, it is advisable to ask the following questions to claim fair use defense: 

1.What is your intent for using copyright material?

If you are using the copyrighted material for some educational purpose, then it may be treated under fair use. On the other hand, if you opt to use it for commercial purposes, the court may treat it as fair use of the work. 

Likewise, the court will look out for the following parameters

  • Whether the use is transformative 
  • Whether it changes the entire meaning of the original work
  • Is it a copy of the creator’s work
  • Will such work ensures the fiscal benefit

2. Nature of the Copyright work

The court will dig down to check;

  • Whether your work is fiction or fact 
  • Whether you will share the work in the public domain or not

Court typically favours the fictional work instead of the factual work

3. Degree of Originality in your Video:

The amount of content with copyright you put in your work will also serve as strong evidence in case of a copyright dispute. Thus, avoid using someone else’s content and try to stay with originality in this context.

4. Does your video serve as a substitute for the original one?

The most vital factor courts take into account when determining fair use is the effect of your use. It is upon the key market for the copyrighted work. If your video hampers the revenue stream of the original work in any way, it is less likely to cover under fair use. However, the comic version of the original motion picture falls outside this regime. 

OTHER SOCIAL MEDIA ACTIONS AGAINST SUCH REMAKE VIDEOS

When it comes to other social media giants such as Instagram[1] or FaceBook, copyright norms are clearly laid down. If you strive to rework any copyrighted material, then these platforms will discard them. 

Best Approaches to Avert Violating Fair Use

Here are some strategies you can leverage to keep your content outside the violation zone. Steaking to these points would also help the one to copyright a remix soundtrack or mash up.

  • Be Original. 
  • Be creative
  • Avoid using others’ content
  • Make sure you make your own content.
  • Seek legal consent before using someone else’s content

Conclusion

Copying the work of art including song is a legal offense in the eye of the law. Hence, it is important to avail the owner’s consent before serving such a purpose. It is needless to mention that copyright Act has vested the owner with the rights that allow him to slap heavy penalties on the defaulters. So be mindful before you endeavour to copy someone else’s work without their permission.  It is clear from the above that anybody can copyright a remix song after meeting the conditions mentioned above.

Read our article:Legal Action Against Copyright Infringement Under the Copyright Act

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Pankaj Tyagi

Pankaj has a diverse experience of writing research papers, blog, and articles during his college time. Earlier, he was working as a tax consultant in a financial firm, but his interest in writing drives him to pursue a career in the writing field.

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