copyright

Cover songs on YouTube: Where legality meets lyrical creativity (and copyright claims meet ear-bleeding renditions)

A cover version is the performance of a song that already exists, has been previously recorded, or has been commercially published by someone other than the original performer. This new recording is referred to as a cover version. The cover version has also been defined as a sound recording in relation to any abstract, sensational, or melodic work, when the sound recordings of that work have been recorded by or with the consent or agreement of the owner of the right in the work under Section 31 C of the Indian Copyright Act. With the advancement of new technology, it has become more easier for individuals to create and post cover versions online.

Before Section 31C, song covers were made under Section 52(1)(j) of the Copyright Act, which was a “fair dealing” provision that supplied the defendants with a defense that the cover version they made was fair and non-encroaching because it agreed to the pre-conditions set out in Section 52(1)(j). These recordings were known as “version recordings” throughout the business, and the term was used by the Delhi High Court in a few rulings in lawsuits. Aside from its casual use, the term “version recording” does not appear in the new Act. Section 31C has omitted and brought back as a Statutory License provision with certain amendments; thus preserving to a large extent.

Since the time of Bards this field has been profitable market, various producers for version recordings have emerged, as the statutorily recommended order under previous Section 52(1)(j) required them to send only notice and pay the agreed upon royalty to the writers of original works when a sound recording of the same original work was simply allowed to exist in open space. Which is why today you can enjoy ‘Sanam’ make a medley of your favorite 90’s songs.

The mechanical license on YouTube only covers the audio element of your YouTube cover. Synchronization license, sometimes known as a “sync” license, is required to publish video alongside the song. A sync license must be negotiated with the copyright holder. While copyright holders are required to grant mechanical licenses, they are not required to grant you a sync license, and there is no set fee for the license. The good news is that many music publishers have already entered into deals with YouTube that enable their songs to be utilized in exchange for a percentage of the ad money produced on YouTube. By contacting the music publisher directly, you may find out if there is already an agreement in place for the song you wish to utilize.

In general, novice producers make recordings of cover versions in order to obtain recognition; nevertheless, the majority of these recordings are broadcast without the permission of the original author of the work, which may land these new talents in copyright infringement proceedings. The repercussions of uploading a cover song without a music license are determined by the owner of the copyright. Some copyright holders don’t mind YouTube covers since they improve a song’s visibility and may introduce composers or original performers’ music to a new audience. One of the best ways to ensure that your video does not get flagged for copyright infringement is to put a disclaimer in the description making your intentions with the video extremely clear and crediting the original creator. This may look like “I hereby declare that I do not own the rights to this music/song. All rights belong to the owner _____________. No Copyright Infringement Intended. ”

WRITTEN BY–
SHARANYA CHOWDHURY

2ND YEAR, BALLB

RML NLU, LUCKNOW

MICKEY MOUSE TO SOON JOIN WINNIE-THE-POOH IN PUBLIC DOMAIN!

Introduction

After a 95-year-long run of copyright protection, on 1 January 2022, the storybook character Winnie-The-Pooh finally made its entry into the public domain. Following suit, Disney’s most popular animated film character, Mickey Mouse who was first seen in the 1928 animated short film Steamboat Willie is also set to enter the public domain in 2024.

Why?

The United States offers copyright protection of 28 years for those works created before the year 1978 with an additional renewal period of 67 years which effectively protects the work for a period of 95 years. And for these iconic characters, that time is up.

What does this mean for Disney?

The rights as well as profits which until recently Disney exclusively enjoyed are now open to the public, paving the way for several variations, spin-offs, and revivals of these works without any legal obstacles or limitations. However, there is a catch. Over the years, both these characters have seen many changes in their visual appearances.

The original Winnie-The-Pooh character created by author A.A. Milne and illustrator E. H. Shepard in 1924 surprisingly did not don his present-day counterpart’s iconic red cropped t-shirt. It was in 1930 when American Producer Stephen Slesinger purchased the merchandising rights to Pooh, that he introduced the red t-shirt. Disney also adopted the red t-shirt when it purchased the merchandising rights from him later in the 60s.

OLDER AND NEWER VERSIONS OF BOTH THE CHARACTERS

Similarly, the Mickey Mouse character depicted in Steamboat Willie has seen numerous visual alterations.

The catch here is that only the original version of the characters, i.e., their original appearances, have entered the public domain and any newer, and possibly more familiar versions are still protected under copyright. Meaning, the use of Pooh wearing a red t-shirt would still constitute copyright infringement. This, however, hasn’t entirely deterred the public. Actor, film producer, and businessman Ryan Reynolds have managed to depict Pooh in his work in a way that causes no infringement. The adored character is also slated to be part of an upcoming horror film.

Since the public domain is considered to be free of the barriers of intellectual property rights, work being released here allows an opportunity for creativity and innovation. However, artists should be meticulous while using these characters in their work as Disney continues to own the copyright to the newer versions of these characters.

Does that mean Disney is backing down completely?

That’s far from it. Along with the copyright to the newer versions of these characters, Disney also holds trademark protection for the commercial use of these characters. This would mean that a work has to be clearly distinct from Disney’s interpretation of these characters so as to avoid a trademark infringement. Disney also has trademark protection for merchandising purposes, ensuring that profits made through these characters still come Disney’s way.

With these iconic characters entering the public domain, new-age storytellers now have the freedom to revive age-old tales with alternate storylines, thereby preserving these beloved children’s characters for generations to come.

BY-

OLIVIA MATHEWS

3^rd LLB, ILS Law College, Pune

Is copyright law dancing tuneless around choreographers?

One of Bollywood’s most well-known choreographers, Remo D’souza, intended to copyright his choreography for the ABCD film he was directing in 2013. Is Remo D’souza, or any other choreographer, able to assert copyright in relation to choreographic works in India?

STEP UP to examine is dancing cinematography or dramatic work and whether dance moves are copyrightable.

Dancers perform with their mind and body in full swing and energy while still upholding the discipline required by the dance form, making dance the most expressive of all the arts. Many different dance styles have emerged and developed in cultures all throughout the world, and each dance has a distinctive structure and routine.

While some dance forms such as Kuchipudi or kathak have a predefined set of rules and routines for the entire dance performance, while “Michael Jackson” signature dance moves like his “moonwalk” or his famous “45-degree dance” are singular steps complete in themselves.

Even while we are aware that these recognizable dances are in the public domain, we nonetheless have the right to defend the authors’ work against attempts at infringement. Because everything unique, a product of the artist’s talent and intellectual labor, must be protected. Here, copyright protection and other forms of intellectual property are relevant.

In India, such signature moves or unique systematic patterns of dance moves are recognized as choreographic works and, therefore, are protected as dramatic work as defined in section 2(h) of the copyrights Act 1957. The limitation of dramatic work being copyrightable lies in that fixation and dramatic work exclude any form of cinematographic work.

These requirements must be met for a choreographic work to be copyrightable:

The creation of choreography must be original.
It must be systematic dance moves or steps that follow a pattern.
For choreography to be protected by the Copyright Act of 1957, it must be produced in a tangible form or transformed into writing.

In Bikram’s Yoga Coll. of India, L.P. v. Evolution Yoga, LLC[1], the issue of whether or not the sequential and systemic method of yoga is protected by the Copyright Act was brought up. It was decided that because the yoga poses are a type of organized physical activity, they are not protected by the Copyright Act.

Lacuna exists in the law.

From a simple reading of this section, it is clear that one must establish a fixation to get copyright protection for choreography. According to the World Intellectual Property Organization (WIPO), “fixation” includes:

Writing on paper.
Storing data on a disc.
Painting on canvas.
Recording audio on tape.

Therefore, if one wants to secure a copyright for choreography, they must convert it into a fixed form, such as a written or recorded version, “or otherwise,” and choreography shouldn’t be a part of cinematography. The phrase “or otherwise” and the exclusion of “cinematograph film” limit the section’s application to choreography.

The Supreme Court ruled in Academy of General Education, Manipal, and Others vs. B. Malini Mallya[2] that the ballet dance qualifies as a dramatic work under the Copyright Act, 1957, when reproduced in a literary form. Therefore, the artist or choreographer must transform the choreography or dance piece into a writing form so it may be registered with the registrar to obtain copyright.

The choreographic work is unquestionably copyrightable, but there is ambiguity because cinematography films are not included as a type of fixation, which is quite the challenge in India. Unlike in India, Choreography can be fixed using any method, including videotaping, in the United States and the United Kingdom. It does seem irrational because dramatic works on video recordings cannot be protected by copyright.

Thus, it is evident that the legislation surrounding copyright in choreography is ambiguous and unresolved. For dancers, it is covered under the ambit of performer’s rights. Increased dance awareness and visibility of creativity are sorely needed in India to motivate more choreographers to protect their rights and underline a rise in copyright applications for choreographic works.

By-

SANDHYA BALAJI

4TH YEAR, BALLB (HONS.)

CHRIST UNIVERSITY, LAVASA

[1] Bikram’s Yoga Coll. of India, Ltd. P’ship v. Evolation Yoga, Ltd. Liab. Co.,803 F.3d 1032 (9th Cir. 2015)

[2] academy of general education, manipal v. malini mallya, (2009) 4 scc 256

TATTOOS AND COPYRIGHT INFRINGEMENT

The art of tattooing traces back to the upper Paleolithic period in Europe and it can be said that tattoos nowadays have become more common since it is widely loved by people these days. But it is certain that pages of history would have never imagined that the tattoos would attract copyright infringement. Yes, you read it right. Certainly, tattoos do draw copyright infringement if the tattoo involves a copyrighted element. This article discusses on tattoos and their copyright effects by analyzing the case of Sedlik v. Von Drachenberg.

Now, let us quickly get into the facts of the case, a lighting technician tattooed a photo of legendary jazz musician Miles Davis onto his arms. That particular photo of Miles Davis was photographed by a Californian photographer Jeff Sedlik and further he copyrighted the image owing to its iconic representation of Miles Davis. The tattoo artist, in this case, is Katherine Von Drachenberg, who is a world-renowned celebrity tattoo artist and she is apparently the principal defendant in this case. It was alleged by Jeff Sedlik that Kat von D has committed a copyright infringement by reproducing the photograph of Miles Davis onto her client’s skin since it is an unauthorized derivative work and then displaying it on her social media handle with a motive to promote her business.

**The iconic photograph of Miles Davis captured by Sedlik**

Kat von D sought the plea that her tattoo work is a fair use of the copyrighted photograph. The court is tasked with determining two issues whether or not, Kat Von D employed copyrightable elements from Sedlik’s photograph in the creation of her tattoo, and if it is in affirmation, then whether or not her work is protected by the copyright law’s fair use doctrine.

On the question of substantial similarity, Kat von D argued that the protectable elements of the copyrighted photograph were not copied. The Central District of California Judge Dale Fischer left the question for the Jury to deliberate upon since the tattoo contained certain differences such as light, shading on Miles Davis face, the hairline on his head, and the background. On the question of fair use as well the issue is left to the Jury to decide upon.

It is certainly a complex issue to decide upon since it touches the boundaries of an individual’s fundamental rights to bodily integrity and personal expression. On the basis of lack of evidence, the summary judgment was granted in favor of Kat von D’s company. Thus, the intricacies involved in a tattoo of a copyrighted photograph can be well understood in this case.

AISHWARYA. N

3^rd year BA LLB (Hons)

UPES School of Law

PAPARAZZI AND THEIR COPYRIGHTED PHOTOGRAPHS OF CELEBRITIES

It is well evident that there is a tug of war between the celebrity’s privacy and the paparazzies with their cameras. All of us must have come across the videos of paparazzies running behind celebrities chanting their name to take their pictures outside of gyms, restaurants, weddings, functions and where not. But have you ever wondered what would be legal effects of those photographs if the celebrity who is the subject of the photograph shares those pictures that were clicked by paparazzies? Well, this article analysis the same.

A photograph is an artistic work going by the definition of section 2(c)(i) of the of the Copyright Act, 1957 and going along with section 2(d)(iv) of the Copyright Act, 1957, author in relation to a photograph is the person taking the photograph. So, it is apparently clear that a photographer is the author of the artistic work but herein something that is noteworthy is that many of the commentators are advocating for co-ownership of the photographs between the photographer who is the author and the celebs who are the subjects of the photographs.

The co-ownership of a photograph was claimed in the case of Gigi Hadid who is a famous model, she was sued by an agency namely Xclusive lee for copy right infringement for posting a picture clicked by paparazzi on her social media without consent. Surprisingly, the court in this case accepted the claim of co-ownership but that is only on the basis that the status of the copyright application was pending. So, this brings us to understand the effect of photograph which not copyrighted.

On the other hand, there is an argument of invasion of privacy of the subjects, its is quite known that French president Emmanuel Macron sued paparazzi for the same. One such event is when a French magazine which published Duchess of Cambridge, Kate Middleton’s photographs without her consent was ordered to handover all of the digital copies of photograph and was even ordered to pay € 2000 as fine.

On the question of whether celebrity can use the defence of fair use, the case of Garware Plastics and Polyester v. Telelink and Ors[1] is to be analysed wherein the court brought in the element of commercial aspect behind sharing of a copyrighted photograph into the picture in consideration of fair use or fair dealing under section 52 of the Copyright Act, 1957. Hence, the court struck down fair use as a valid defence.

Hence, it can be concluded by saying that there is a need to consider the co-ownership of the subjects of the photographs since they play an inevitable part of the photograph but the Indian Copyright Act and the judicial precedents strict in this aspect.

AISHWARYA. N

3^rd year BA LLB (Hons)

UPES School of Law

[1] Garware Plastics and Polyester v. Telelink and Ors AIR 1989 Bom 331

Can characters be protected under COPYRIGHT?

Introduction

Characters such as Mickey Mouse, Mr. Bean, James Bond, Harry Potter, and others have become a part of our everyday life. These characters have sufficiently entered our lives, from watching them on television every day to bringing merchandised products of our favorite characters into our homes. These characters develop from episode to episode and series to series, and this development is brought about by the writers of such characters. Unfortunately, copyright laws all around the world do not recognize characters as the subject matter of copyright, but judicial decisions all over the globe have established a few tests to reward copyright protection to characters.

Character Delineation Test

The character delineation test was established in the case of Nichols v. Universal Pictures Corp[1], the court held that the characters can only be protected under the scheme of copyright if they are sufficiently delineated. The test prescribes that the character has to be developed sufficiently and the more developed the character, the more it embodies expression, and less a general idea. And hence, the more likely it is to be copyrightable.

The ‘Story Being Told’ Test

The story being told test was established in the case of in Warner Brothers Pictures Inc. v. Columbia Broadcasting System., the court held that ‘No character is protectable under the copyright law unless such character is extremely well-delineated as to form the ‘story being told’ rather than being a mere chess man in the game of telling the story’.[2] Simply said, this test requires that the character be an integral component of the story. The character must be so ingrained in the plot that eliminating the character renders the story irrelevant.

Towle Test

The Towle test has been developed in the case of D.C. Comics v. Towle, under this test, a character is entitled to copyright protection if (1) the character has “physical as well as conceptual qualities,” (2) the character is “sufficiently delineated to be recognizable as the same character whenever it appears” and “display[s] consistent, identifiable character traits and attributes,” and (3) the character is “especially distinctive” and “contain[s] some unique elements of expression.”[3] This test has been successfully applied in the recent case of Daniels v. Walt Disney Co.[4]

Conclusion

Other than these requirements, there is no other means for a character to receive copyright protection, and meeting each of the aforementioned conditions appears difficult to achieve. The characters are the outcome of artistic works, and as such, they must be listed separately as the subject of the copyright.

Ekta Dixit

LLM (IPR & Tech Laws)

JINDAL GLOBAL Law School

[1] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)

[2] Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.3d 945 (9th Cir. 1954)

[3] DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015)

[4] Daniels v. Walt Disney Co. – 958 F.3d 767 (9th Cir. 2020)