India: Take A Look: Music On The Infringement Hook!

Last Updated: 6 July 2006

Music seems to be one of the most susceptible areas to copyright infringement. While the music of a movie is often its Unique Selling Point (USP), upcoming release, the music to the Bollywood "Aryan - the Unbreakable" seems to have landed itself into controversy. While singer Neha Bhasin (Plaintiff) claims to have sung the track "Ek look ek look", the music director Anand Raj Anand (Defendant No. 1) along with the producer Poonam Khubani (Defendant No.2) seem to portray a different picture.

The plaintiff claims to have been the lead vocalist, while the jacket /inlay of the Audio CD (containing three different versions of the song including a Remix and a Dhol version) credits her as a Backup Vocalist. She goes on to allege that each of the three versions has been recorded and is heard in her very own voice and not in that of defendant No. 2’s. As regards the credits, she alleged her voice to be "stolen", having been falsely attributed and held out as that of the producer.

In this regard, the plaintiff has moved to court to acquire a decree of permanent injunction, to prevent the use, sale, distribution and exhibition of the motion picture as well as its audiocassettes, compact discs, or promos without putting on view the plaintiff as the lead singer. The prayer further includes an order to prevent advertising and representing defendant no. 2 to be the lead singer. An order had been issued to prevent advertising the motion picture as well as its cassettes, CDs and promos containing the song "Ek look Ek look", without the name of the plaintiff being portrayed as the ‘lead singer’.

Defendant no. 1 approached the Plaintiff, through her manager. While she gladly accepted to sing for him, no remuneration was settled, prior to the first recording. Later, a series of recordings took place, the final version containing backup vocals and a RAP piece. The plaintiff claims to have learnt of the misrepresentation made, only when she saw the song on television. She confirmed the same on purchase of a cassette and an audio CD. In this regard, a notice was sent to Defendant no. 1. It was further stated that such an erroneous depiction was in violation of the performer’s rights in terms of the Copyright Act, 1957.

In pursuance of this notice, defendant No.1 and defendant No. 2 were called upon to give the plaintiff due credit on all entities bearing the erroneous representation apart from paying an amount of Rs. 10,00,000/- as damages towards loss of reputation and imputation of a bad name to plaintiff. A written apology was also to be submitted.

Defendant no. 2 left the notice unanswered. Defendant no. 1 in his reply stated that the plaintiff was invited for an audition, after which subsequent auditions were carried out. He stated that it was decided that Defendant no. 2’s voice be used.

Replying to the matter of the use of the plaintiff’s voice in the final version, defendant No. 1 attributed it to being a result of "inadvertence". The statements contained in the plaint were said to be of material importance and were carefully scrutinized by the Court. He did not offer any written apology either.

The plaintiff responded through a rejoinder, giving details of the earlier notices. Therein, she also stated that defendant No. 1’s claim of the lot of cassettes and CDs had been stopped from entering the market and that an attempt to call back those floating there were stated to be false. This was stated on the basis of the promos being continuingly aired on various channels and the CDs and cassettes freely available in the market. With regard to remuneration, it was stated that where the plaintiff’s voice was borne, irrespective of the fact that due credit was given or not, the plaintiff was entitled to remuneration, compensation and accreditation. Further in the absence of defendant No. 1 tendering an apology in public, they stated that they were forced to seek civil and criminal remedies. In this pursuit stood the present suit.

Lacking an apology or compensation, the suit at hand prayed for an ex-parte ad interim injunction. In response to this prayer, defendant No. 1 and defendant No. 2 filed a joint written statement, which was in consonance with their earlier statement. A brief background of a recording process was also rendered in the statement. In this regard, the vocalist spoke of the two voices being layered, to enable the lead singer’s as prominent as compared to those of the back up vocalists. Stating these details, defendant No. 1 contended that the sound engineer had overlapped the two voices. In certain layers, they claimed that the voice of the plaintiff still appeared on the background. The recording of the song though prior to the suit had been altered only to contain defendant No. 2’s voice. Defendant No. 1 and defendant No. 2, in this regard, relied and referred to the affidavit filed by the Sound Engineer deposing to the use of the technology with special reference to the song. The use of a plaintiff’s voice as a back up vocal was stated to be the cause for her name to appear as a back up singer.

The affidavit further stated that two recordings were sent with instructions to make a master setting out Defendant no. 2 as the lead singer, while Plaintiff as the back-up artist. Further, a reference was made to the two annexure, including a CD labeled ‘Original CD’ containing the plaintiff’s and Defendant no.2’s voice.

Another affidavit filed by the defendant stated that the voices of three female back up vocalists, instruments and male voices had been mixed along with that of Defendant No.2. This version was stated to incorporate the voice of defendant No. 2 alone and not that of the plaintiff. An agreement between Defendant No. 1 and the female back-up vocalists was also submitted to substantiate this contention.

The Court further calling for clarification, called for the sound engineer to be present in the court. The presiding Judge, clarifying his doubts regarding recording methodology, asked the sound engineer to submit two CDs containing only the voices of the plaintiff and defendant No.2. The same were handed over promptly the very next day.

The Court held that the defendants had stepped – up a two-pronged defence: one being based on facts and the other founded on law. While Defendant No. 1 had spoken of an "inadvertent overlapping", the affidavits filed, either by him or the sound engineer did not throw any light on such a blunder having been committed. On the contrary, a proposition of having been forwarded two recordings with instructions to use defendant No. 2’s voice as the lead while that of the plaintiff’s as a back-up artist was made. As stated in the written statement and the affidavit, the voice of the plaintiff in the song was a conscious design, with elements of the plaintiff’s voice being projected and that of defendant No.2’s being prominent. The representation on the inlay card of the CD was held to be correct and the assertion regarding an "inadvertence" having taken place was negated.

The Court shifted focus to the question of the lead voice being defendant No.2’s or not. Paying keen attention to the sequencing of the song and then comparing the vocals, it was observed that the word "sajNa" used in the song was sung in a radically different style. Defendant No.2’s rendition was not the projected voice in the CD. The Court comparing the two voices and lyrics under the microscopic eye, was convinced that prima facie the plaintiff had sung all the three versions of the song, and that defendant No. 2 was wrongly projected to be the lead singer.

A new CD was produced to circumvent the orders of the court. Herein, no ID tags or titles were given to the songs. On further perusal, the inlay card was found blank while the T.V. promos were still being aired. The song being in the plaintiff’s voice was yet contended to be that in the defendant’s. An ambiguous idea regarding the forthcoming lots of cassettes and CDs was given. Questions regarding this were left unanswered. There seemed to be no evidence regarding the CDs being called back. The song having gained popularity all over the country, the Court stated that the act of introducing a New CD without acknowledging the mischief and injury to the plaintiff would be like piling insult over the injury.

The Counsel for the defendants contended that there existed no contract between the plaintiff and the defendant and that the regulations under the Copyright Act, 1957 would also be inapplicable, in the absence of a registered copyright. Performers rights were also said to be applicable only with respect to live performances and not recorded songs.

The court referring to performers’ rights as stated in the Copyright Act, 1957 referred to the definition of "performer" and "performance" as under Sections 2 (q) and Section 2 (qq) respectively. Further, a reference was made to Section 70 of the Indian Contract Act, 1872. Taking aid of the judgment delivered in State of W.B. v. B.K. Mondal and Sons (1962 Supp (1) SCR 876), and then Suresh Jindal v. Rizsoli Corriere Della Sera Prodzioni T.V. (1991 Supp (2) SCC 3), and considering the averments made, the Court held the plaintiff entitled to an interim order restraining the defendants from using, selling, marketing the motion picture as well as the cassettes, CDs, promos etc of the movie containing the song in issue in any of the three versions, as in the original CD. The Court further provided that in case the new CD was to be marketed, then wide publicity would be given via all media giving due credit to the plaintiff. They were also ordered to prepare a statement indicating the number of copies of the original CDs produced, released and the number recalled, within four weeks of the order.

When it comes to infringement in the music industry these discordant notes somehow need to be tuned in sync with the law. As technology sophisticates, competition rises and IPR awareness grows, it seems the music industry shall be increasingly under the spotlight.

© Lex Orbis 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions