In a copyright battle between two musical maestros, the Delhi High Court held that the song ‘Veera Raja Veera’ from Ponniyin Selvan 2 prima facie infringed the copyright of Ustad Faiyaz Wasifuddin Dagar’s musical composition ‘Shiva Stuti’. The film song was composed by ace musical composer A. R. Rahman. Overlooking the non-original components of the compositions, the order has far-reaching consequences on the interplay between copyright law and Indian Classical music. The Court also directed the producer of the film and Rahman to deposit INR 2 crores with the Court pending trial and to modify the credits on OTT and other online platforms to include the names of the original authors of “Shiva Stuti”- Late Ustad Nasir Faiyazuddin Dagar and Late Ustad Nasir Zahiruddin Dagar, upholding their moral rights posthumously. In this post, Varsha Jhavar breaks down the Court’s prima facie finding on similarity between the two competing works and infringement, noting several critiques in the Court’s order. Varsha is an LLM candidate at the University of California, Berkeley, specializing in Intellectual Property and Technology Laws. You can view her previous posts on the blog here. [Long post ahead!]
Dagar v. A R Rahman Controversy: Is the Law Out of Tune with Indian Classical Music?
By Varsha Jhavar
The Delhi High Court recently passed an interim order with potentially far-reaching consequences on the crossroads of copyright and Indian classical music. The Court prima facie found that the song ‘Veera Raja Veera’ from Ponniyin Selvan 2, composed by A. R. Rahman, infringed the copyright of Ustad Faiyaz Wasifuddin Dagar in the Dhrupad musical composition titled ‘Shiva Stuti’. The composition was created in the 1970s by the Junior Dagar Brothers – the Plaintiff’s father and uncle, the Late Ustad Nasir Faiyazuddin Dagar and Late Ustad Nasir Zahiruddin Dagar. Crucially, the Court posthumously upheld their moral rights, directing to change the existing credits for the song on OTT and other online platforms to state that the composition is based on “Shiva Stuti” composed by the late duo. The Court also directed A R Rahman and the film’s producers to deposit INR 2 crores with the Court pending trial. In this post, I will analyse the order and explore key issues it raises in the context of Indian classical music, noting several critiques of the current order.
Background
Ustad Faiyaz Wasifuddin Dagar (the Plaintiff) sued A. R. Rahman, Madras Talkies, and others (collectively, Defendants) for copyright infringement, seeking to restrain the use of his predecessors’ musical work ‘Shiva Stuti’ in the song ‘Veera Raja Veera’. It was alleged that the beat, taal and composition of the Defendants’ song are identical to ‘Shiva Stuti’, and that the original authors were not attributed, thereby violating their moral rights.
To fully comprehend the findings of the Court, it’s important to appreciate the structure of Hindustani Classical Music. Within the Hindustani tradition, strands/genres like Khayal, Thumri and Dhrupad exist, each with distinct gharanas or styles. Any composition in these genres must be rendered as per the rules of a Raga which prescribes Thaat (heptatonic scales), and swaras such as Sa (S), Komal Re (r), etc. Although the Raga imposes rules, composers have flexibility in terms of the possible permutations and combinations with the various swaras and thus, mathematically millions of compositions/variations are possible within a Raga. The Plaintiff, a Hindustani Classical musician belongs to the Dagarvani gharana, which is a tradition of the Dhrupad genre and the composition is based on Raga Adana, a Raga frequently used in Dagarvani tradition.
After comparing the Plaintiff and Defendants’ works, the Court concluded that the Defendants’ song is identical to the Plaintiff’s composition, apart from mere change in lyrics. The Court described the similarity vividly in these words – ‘core of the impugned song Veera Raja Veera is not just inspired but is in fact identical in Swaras (notes), Bhava (Emotion) and Aural impact (impact on the ear) of the suit composition Shiva Stuti, from the point of view of a lay listener.’ The Defendants had also submitted that the Plaintiff’s composition was similar to a 13th century composition by Amir Khusro and thus, a part of the public domain.
On this, the Court after comparing Plaintiff’s composition and Amir Khusro’s 13th century composition, found the same to be ‘not identical’.
Here’s a quick overview of the principles laid down in the interim order:
- An Indian classical music composition that follows the rules of a genre or a Raga cannot be considered uncopyrightable merely for following such rules.
- Genres and Ragas might be in the public domain, however a composition consisting of an original selection and arrangement of common elements can be copyrightable. In litigations, the taal (beat), structure of a Raga, and manner of arrangement of music in a traditional music composition has to be examined on a case-by-case basis to determine the copyright eligibility.
- A two-factor test for infringement analysis: a) access and b) substantial similarity.
- If the vital part of the Plaintiff’s work has been lifted by the Defendant, no matter how small, then the court may arrive at a finding of infringement.
- Any creative contribution to a work deserves recognition, irrespective of whether the contributor qualifies as an author under the Copyright Act, 1957 (Act).
Originality Analysis of the Plaintiff’s Composition
After a rather limited musicological analysis, the Court arrived at the finding that the Plaintiff holds copyright over the Shiva Stuti composition. In regards to the musicological analysis, the order notes that ‘although the use of the swaras “G M R S” is common for all Raga Adana and Kanada Ragas, the same differs from the standards due to the fact of dragging of the Swara “g”’ in the Plaintiff’s composition. While the individual elements in the composition might not be protectable, the Court emphasized that the selection and arrangement of the common building blocks of Raga Adana enjoys copyright protection. The Court traced authorship of ‘Shiva Stuti’ to the Junior Dagar brothers based on the earliest known recording of a performance of the composition in 1978, published CDs and agreements entered into by the original authors with music labels. Critically, the Court observed that Defendants had not produced any evidence of an earlier Shiva Stuti composition predating the Plaintiff’s work.
Substantial Similarity and Scenes a Faire
Relying on the substantial similarity test put forth by the Bombay High Court’s in Ram Sampat v. Rajesh Roshan, i.e., see whether the ‘soul’ of the composition was copied, the Court overlooked the limitation emphasized in the excerpt from Copinger and Skone James commentary in the same case. The commentary states that: ‘[t]he correct comparison is between the part taken by the defendant and the claimant’s work, not between the defendant’s work and the claimant’s work. Where the claimant’s work contains material that was not original to him, then in the usual way these parts should be left out of the comparison exercise and attention centred on those parts which were original.’ Although this sounds similar to the Abstraction-Filtration-Comparison (AFC) test which envisages breaking down a software programme and comparing the non-literal parts with the alleged work to assess whether there is any infringement, here, the excerpt only includes the middle element – filtration.
Indian classical compositions are built on common building blocks and a framework of rigid rules, and hence, it is crucial to filter out unoriginal elements before the infringement analysis. Significantly, after analysing the American jurisprudence on originality in musical works, the Court observed that ‘while requiring removal of common domain elements, [US jurisprudence] also recognises rights in a particular pattern or expression’. This suggests that the Court accepted that the common elements need to be separated before infringement analysis. However, the Court does not appear to have excluded the common non-original elements of Raga Adana during comparison of the Plaintiff’s composition with Amir Khusro and the Defendants’ song [para 138, 186], risking granting a copyright protection over standard classical music elements already a part of the public domain. Going forward, such a excessive copyright protection could severely restrict how much composers can freely draw from the commons, while also serving as a chilling effect on artistic freedom that musicians have enjoyed for centuries.
In contexts like Hindustani classical music where every composition follows rigid rules of a Raga in terms of sequencing and arranging compositions, conveying of specific emotion(s), some elements across compositions are bound to be similar. As the substantial similarity test does not have a statutory basis in India, i.e. it is judge-made law, it is very much possible to adapt it to better accommodate musical works, especially Indian classical music.
In such situations, the scenes a faire doctrine should apply, which excludes protection over elements which are essential for expressing an idea. It would subject these works to narrower copyright protection, i.e. thin copyright. The appropriate test in this context is virtual identity, which is a stricter standard than the layperson test (discussed in the next section). The virtual identity test requires that the defendant’s work be virtually identical to the plaintiff’s work, not just largely/substantially similar as under the layperson standard. This higher threshold would ensure that an individual’s copyright does not impinge on elements already in the public domain.
The Problem with the Lay Listener Test
The Court endorsed the ‘lay listener’ test for infringement analysis, i.e. assessment of infringement depends on whether the ordinary listener finds the works similar. The Court observed that‘(t)he musical composition may or may not have identical notes, but the aural effect of the notes could be the same for a lay listener’, raising questions about its overall stance in favour of the ‘lay listener’ standard. Reliance on a layperson’s impression/judgment for Hindustani Classical Music is an oversimplification of the level of knowledge and musicological understanding required to grasp its technical nuances, especially considering that the compositions within a particular Raga are meant to evoke similar emotions.
The substantial similarity test in India is currently an intrinsic test relying on an ordinary layperson’s impression of both works. As already discussed, in the case of Hindustani classical musical works, the technical aspects of music could be difficult for a layperson to grasp, but a trained ear is more likely to detect subtle similarities or differences. An expert, therefore, would be better equipped to provide a correct and thorough analysis.
The layperson standard is judge-made law and can be tweaked to accommodate the unique challenges thrown up by Indian classical music. Moving forward, Indian courts should consider adopting an extrinsic test for musical works, i.e. an objective test with formal expert-based analysis that can isolate similarities and differences. This would be a fairer evaluation, as the trained ear is bound to perceive the same piece of music very differently from a layperson.
Selection & Arrangement OR Individual Constituents?
The Court recognises copyright in the Plaintiff’s composition on the basis that it is an original selection and arrangement of elements. However later, in the infringement analysis, relying on Ram Sampath, the order notes that ‘(t)he two works need not to be compared as a whole. If the part taken by the Defendant, regardless of it being small, is a substantial part of the Plaintiff’s work, then there is infringement.’ This change in perspective is surprising, as the order shifts focus from a structured whole to individual elements. Earlier, the Court defined the Plaintiff’s composition to be an arrangement during originality analysis, but during infringement analysis, the Court is assessing similarity of the individual elements/constituents that make up the arrangement.
Additional legal Issues: Fixation, Conduct, Copyright over Style and Role of Notation in Pre-1995 Compositions
The Court notes that fixation is not mandatory for Indian Classical music, and although a pragmatic approach taking into account the unique nature and manner of performing Indian classical music compositions, it raises a simple issue – how do you demonstrate/prove your authorship and/or ownership of a work if it is not captured in a tangible medium? This can create evidentiary problems and enforcement of copyright in such a work can be an uphill task for a claimant.
In this case, the conduct of the parties also seems to have had a bearing on the outcome. Two of the defendants, the singers of the song, had access to the Plaintiff’s composition as they were trained by him and they had also played the composition for defendant 1. In addition, although Dagarvani tradition’s influence was acknowledged by the Defendants in the YouTube release of the song, no license had ever been sought. Also, defendant 1 appears to have taken contradictory stands during the oral hearings, in the written statement and expert affidavit – initially submitted that the song was based on Raga Adana, and later backtracked to say that the song is not in Raga Adana, but in Raga Darbari Kanada.
In the order, the Court appears to conflate inspiration from ‘Dagarvani’ tradition, i.e. a style, with inspiration for a specific work, to support a finding for copying. However, mere acknowledgment of inspiration from a stylistic tradition within Hindustani classical music, which has been around for about 20 generations, cannot be equated to inspiration from a particular copyrighted work. Copyright protects specific expressions, not general styles or traditions existing in the public domain.
As an additional thought – under the initial 1957 version of the Act, ‘musical works’ had to be in notation format, i.e. a series of symbols and marks that represent a musical composition, and in 1995, this requirement became optional. It can be argued that in any suit concerning a musical composition created before 1995, like in the 1970s in this case, infringement analysis should be limited to its notational form, and any recording of such composition should not be heard or considered by the Court.
Parting Thoughts
Indian classical music preserves lineage by passing on knowledge from guru to shishya. Naturally, as students emulate their teachers and their styles, cultural norms relating to use and appropriation of other works are different in the world of classical music. Copyright law with its focus on the individual and individual ownership, might not be the right fit for a tradition that embodies imitation and borrowing. In this area, moral rights are more important than commercial gain. Additionally, the downstream effects on proponents of those traditions or genres should be taken into consideration. Thus, it is imperative to carefully balance the protection of the creators’ rights with the preservation of the public domain.
The author would like to thank Praharsh, Swaraj and an anonymous reader for their valuable inputs on the post.