First published on April 25, 2020
tl;dr
The notions of ownership, rights and attribution are largely determined through copyright law and contracts, but still leave a lot of grey areas that end up leading to a culture of exploitation and misappropriation. Instances like Shekhar Kapur's curiosity for directors having rights in a film, as well as the creators of Masakali being disappointed with T-Series and Masakali 2.0 raise important questions regarding whether writers, directors, composers and other contributors can have copyrights in a creative project. If they can be considered the legal authors of their work, then do they have moral rights and what kind of protection can that offer them? It's also great to reflect on Prasoon Joshi's ask of who will protect the sanctity of original music and poetry, in the context of industries that have had a long standing history of appropriating traditional, folk and classical art forms and music. This is also where an understanding of Badshah's recent release, 'Genda Phool' revives the conversation emphasising that rights societies and the current system might be failing writers and creators who do not have access to an understanding of how current legal frameworks and creative businesses work. Besides, what good are having rights when enforcing them is difficult in an economic culture that exploits grey areas, as much as it turns a blind eye to instances of plagiarising original art and music – instances like those of Shilo Shiv Suleman with Saaho, and Ritviz with T-Series. And in conclusion, it's important that this kind of culture is going to hurt us both creatively and economically, especially in this digital first era brought on by the current COVID 19 cancellations and lockdowns.
When it comes to understanding what makes for good art or music, there’s enough divergence of opinion on the subject among both creators and patrons. Judging creativity has always been an inherently confusing and conflicting thing, which is also one of the reasons why neither artistic expertise nor proficiency have ever been considered essential for copyright protection. Meaning, legal protection is not intended for only those creative works that are considered especially deserving, but instead extends to any kind of work showcasing a minimum degree of its creator’s skill and intelligence.
It’s reasoning like this that helps build a creative economy that is encouraging of creativity, innovation, diversity and inclusiveness – the kind of creative economy that many of us want, where due credit is given and communities feel empowered. Unfortunately though, we know that most creators and artists in the creative and cultural industries, do not feel particularly respected, protected or empowered. Instead, we see an increasing number of claims of plagiarism, misappropriation and exploitation. While some of these claims find themselves being addressed, there are many others that fall within grey areas perpetuated by a legal and socio-economic framework that somehow lends itself to a culture that protects the offender, the appropriator and the exploiter.
So who’s to blame?
The answer can be a lot more complicated than the question itself, because it involves examining notions of ownership, originality and accountability – things that are actually determined by our understanding of rights, contracts and the history of working with creatives. If you follow the Indian music and film industry, then you might have come across the recent scuffle between the creators of the famous 2009 Bollywood song, ‘Masakali’ and the more recently released, ‘Masakali 2.0’. You might have also come across the misattribution claims concerning singer Badshah’s ‘Genda Phool’ and the work of Bengali folk artist, Ratan Kahar. And taking it back to February of this year, you might remember that there was talk of disappointment from Shekhar Kapur, who felt wronged for not having been consulted in the decision making process behind rebooting 80s classic, “Mr. India”.
Disappointment aside, all three instances do a pretty good job of bringing the conversation to the topic of ownership and creative rights, and help set the stage to understand how contracts determine these rights and accountability.
What are creators really signing up for
A lack of awareness of their legal rights and the nuances of the contracts they’re signing, can find creators losing or waiving incredibly important rights, along with negotiating away any semblance of control over the creative integrity of the projects they’re involved in. This seems to be true across the board, whether you’re an experienced professional working in the independent art and music scene, or the entertainment industries of Bollywood, Tollywood and other regional films.
Now a lot of confusion around the assertion of one’s rights in their work, revolves around the way in which copyright law and contracts determine authorship, ownership and attribution. While it’s difficult to be concise about things like these, here’s a few points to help understand the distinction between authorship, ownership and the infamous working for hire;
A copyright belongs to the original creator or author of a specific work. This means that by default, most creators tend to be the copyright owner of their creations.
A copyright owner can sell or license (which is like renting) their rights in their work. This is usually in exchange for some kind of monetary compensation, along with a few other conditions that get captured in a contract.
A creator can also be engaged or hired to work for someone. This means that the creator acknowledges that they were commissioned or hired to create the work by someone else, and in turn it’s that ‘someone else’ who is considered the legal author of the work.
If you are the legal author, you also have in your arsenal of rights, an additional right called a moral right which helps creators assert a claim in the creative integrity of their work. A moral right stays with the author, even if they’re no longer the copyright owner, so a transfer or sale of your copyright in your work, doesn’t affect your ability to invoke your moral rights i.e your rights to claim due credit or complain about the distortion of your work.
So put simply, figuring out whether you’re working-for-hire or not, is pretty crucial to determining whether you have any rights as a legal author over your work or your contribution to a specific creative project.
Rights, camera, sound...Action!
In February, Shekhar Kapur made a public ask via a tweet, where he wondered aloud whether a director had any creative rights over a remake based on their previously successful work? This was in the context of the reboot of the incredibly successful and iconic Bollywood film ‘Mr. India’, and specific to his contributions to the film as its director. In response to his tweet, lyricist and writer, Javed Akhtar was also quick to point out that he had provided the lyrics, dialogues and even the idea for the title of the film, thereby stirring the discussion around whether Shekhar Kapur’s contribution or his ability to ‘execute it very well’ amounted to a larger claim than the writer’s.
A few weeks ago, the song, Masakali 2.0 was released and subsequently, received a great deal of negative feedback and criticism from audiences. Additionally, it was interesting to note the reactions from the creators and contributors to the 2009 original song. While composer A.R.Rahman referenced his appreciation for the original and made no express mention of his disapproval of the remix, lyricist Prasoon Joshi tweeted his disappointment for T-Series, the label that released the remix.
Now both situations raise an interesting concern on the rights of lyricists, writers, composers and directors of a creative project. Does the law acknowledge them as copyright owners over their contributions? Do they have the ability to invoke their moral rights? The answer isn’t as clear as we would hope despite growing discussion and measures, including a set of Amendments in 2012 to the Indian Copyright Act, the efforts of creative professionals such as Javed Akhtar (and his efforts through the Indian Performing Rights Society or IPRS) and Ilaiyaraja (who has been at the centre of several legal disputes regarding his rights over his incredibly famous compositions).
In the absence of this kind of clarity, it’s also necessary to understand that the contractual relationships between creators and stakeholders in situations like these, play a huge role in determining the extent of protection and rights that can be afforded to the creators. Not to mention, the possibility of being compensated for any additional adaptations of their original work, either through a fee, royalties, or some combination of the two. And so it’s best to assume that asserting ownership and copyright is the result of a clever combination involving statutory protection and contractual clarity – meaning, you need to rely on both what copyright law and your contract says, in order to be able to understand your ownership and rights as a creator.
Tricky.
But whose line is it really?
A couple of weeks back, hugely popular singer and performer Badshah released his song, ‘Genda Phool’. The song includes lines taken from a Bengali folk song titled “Boroloker biti lo”, and the credits for the song included lyrics and composition being attributed to Badshah, and the original lyrics to Bengali folk. Interestingly enough the lyrics of “Boroloker biti lo” have been attributed to Bengali folk artist Ratan Kahar, who apparently wrote the song in the 1970s. When pushed for accountability, Badshah stated that he would have remedied the situation had he known earlier. After reviewing countless videos of arrangements and adaptations of the song on youtube, and checking with multiple rights societies, he and his team had been unable to find the connection between the song and Ratan Kahar.
Absolutely no video, singer or society had expressly credited Ratan Kahar as the lyricist in any recorded adaptation of ‘Boroloker biti lo’.
Releasing a statement, Badshah sought to clarify that he intended no disrespect to Ratan Kahar, would attempt to meet him and compensate him once the current lockdown situation improved, while also pointing out that there’s no legal restriction on using, recreating, sampling and adapting traditional songs.
And he’s right.
The way the current copyright regime works, traditional, classical, folk music and art fall outside the rights and protections contemplated under the system because they are understood to be community based creative resources.
And so, it’s fair game to include or sample folk or classical music and art, without having to worry about copyright violations and crediting.
Or is it?
Nothing is sacred anymore
While expressing his dismay over Masakali 2.0, it was reported by a few publications that Prasoon Joshi remarked “who will protect the sanctity of original music and poetry?” and urged for greater accountability in the music industry.
But how does one argue for accountability in the absence of clear legal rights, and in a creative culture that’s never really been called out for misappropriation or plagiarism?
The irony of Prasoon Joshi’s question isn’t lost on anyone who’s familiar with industries like Bollywood that have turned a blind eye to appropriation and misattribution, for decades now. For instance, 1999’s Hum Dil De Chuke Sanam, featured the song ‘Nimbooda’ which was essentially adapted from the traditional composition of the Rajasthani Manganiyars, and nowhere credited the community for the original musical composition. In 2016, the label Saregama made claims to several of M.S Subbalakshmi’s renditions of carnatic songs, prompting Youtube to block and send take-down notices to users who had uploaded their own renditions of the same carnatic songs, inspite of the fact that carnatic music, like most traditional forms of music, falls outside the current scope of copyright law.
Grey areas have always been ripe for exploitation – we see this in the context of traditional community based arts and music, almost all the time. The industry and the accompanying legal framework only consider crediting one (or two) creators as the legal authors of the creative work and rarely (almost never) reference the community from which the works actually originate from. In such a scenario, the adapted or sampled traditional work of art or music, is then considered the intellectual property of the legal author(s), leaving no room for the community or its members to participate in any economic, socio-political and moral rights related discussions around the creative work in question.
To simplify this – no credits, rights or monetary compensation are awarded to the communities for whom the art, music and performances, have been a long standing part of their oral histories.
Disenfranchisement much?
And while one might argue that the legal grey areas inadvertently allow the appropriation of folk music, it’s tougher to find a good excuse when considering instances where completely original music or art (falling within the existing parameters dictated by the copyright regime) is simply adapted or incorporated without the express permission of the original creators.
Earlier this March, indie musician Ritviz went on record to point out the blatant disregard with which the 2019 released movie, ‘Pati Patni Aur Woh’ featured a song that sounded a lot like his iconic song, ‘Udd Gaye’. He made it completely clear that no permissions were granted and no conversations around the usage or adaptation of the song had taken place between him, members of his team and the label responsible for the music, T-Series.
T- Series did not respond to the reports with any comments.
Again in 2019, independent artist and activist, Shilo Shiv Suleman found herself being tagged in the instagram images of poster artwork for ‘Saaho’, a big-budget film released by Hyderabad based studio and production company, UV Creations. The artwork featured the movie’s leads against a backdrop almost immediately reminiscent of one of Shilos’ well known art installations, Pulse and Bloom, which has been featured in multiple locations and festivals, including the incredibly popular Burning Man. Once again, Shilo went on record to state that no permissions were sought regarding the adaptation of her work in both the artwork as well as the movie itself.
The Producers of Saaho did not respond with any comments.
So what now?
To sum up, we have a real problem of misappropriation and plagiarism.
We’ve known this for a while now, but as the internet pulls us closer, and boundaries begin to lose their grip on keeping information hidden, we’re gradually reaching a point where the creative industries are beginning to implode on themselves, with creators becoming increasingly curious and vocal about their rights, and the ethics of how the business of creativity is being conducted.
The cause for better accountability, stronger rights regimes and fair economic terms for creative and artistic work, is something that’s of importance to all creators, regardless of whether they identify as indie, alternate, folk, mainstream, digital, live...and whatever else we discover in the years to come. It shouldn’t matter where you or your work comes from because no original work can be considered more deserving of protection than another.
Obviously, the global pandemic and the resulting lockdowns have had an enormous impact on the ways in which art and music can be experienced and consumed, leading to a reimagining of the way in which the creative economy is going to have to work. This means that we’re going to be seeing a lot of new business models that seek to monetize creativity differently. We’re also going to be developing a range of content formats and styles, that might seem a bit more well suited to current audiences, consumers and fans. All in all, this is a phase of serious transformation, and creators are not going to support platforms and partners, if they don’t feel secure and comfortable in parting with their works and content.
Licensing has and will continue to offer itself up as a lucrative revenue stream for many creators and rights holders, and so it’s in every creator’s best interest to stay informed about how content licensing can work for them and their creations. Other creators, producers and labels interested in sampling, remixing or remaking previously existing content, ought to be encouraged to procure the rights holder’s permissions in the interest of avoiding possible copyright infringement, as well as in the larger interest of creating more legally recognised opportunities for the industry to make money, ultimately leading to the revival of the creative economy. This will create a wonderfully layered range of commercial opportunities for creators, publishers, managers, agents, and other stakeholders in the creative ecosystem, all of whom are essential to revive a creative economy that is both sustainable and capable of generating revenue for its participants.
And finally, by gradually undoing decades of exploitation, our creative economy might finally become the inclusive and diverse thing it was always intended to be, empowering creators and communities by providing them access to socio-economic rights and opportunities, as well as authentic representation in popular media, instead of finding their identities erased or misrepresented. Traditional and classical artists have been encountering roadblocks with the representation, distribution and consumption of their art and music, especially since the first days of the internet and the digital era – it falls on those who are proficient or better familiar with digital business models, social media, online distribution and broadcasting to help artists transition their work and themselves into the current scenario, with the intention of atleast offering them the skills and the opportunity to make informed decisions and a livelihood in these times. A few organisations and foundations have already been committed to the idea of easing the transition, but the cause is so wide that it can always do with more of us offering up our know-how. And if we’re lucky, we might even learn a thing or two from the creators and custodians of decades old heritage, and make genuine progress in the world before us.
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