[This piece has been authored by Sanjana S, a student at the Symbiosis Law School Hyderabad.]

The author is thankful to Avilash Kumbhar, Gayathri Balasubramanian, Vishal Menon and Turanyu VB for their valuable inputs and suggestions.

 

In October 2022, the makers of the song ‘Varaha Roopam’ from the Indian language action-drama film ‘Kantara’ faced allegations of copyright infringement. The Kerala-based multi-genre music band ‘Thaikkudam Bridge’ alleged the makers of Varaha roopam for plagiarizing the song ‘Navarasam’, which was originally a part of their debut studio album that was produced by the band. These allegations were met with scrutiny from the court of public opinion, followed by litigation that was plagued with procedural convolutions. In this article, I will first outline the ongoing litigation. Thereon, I will provide various explanations and analyses put forth by musicians and forensic musicologists that root from Carnatic music theories. Lastly, I will analyze the potential arguments or defenses pertaining to the case.

I. Background pertaining to the litigation

Initial suits and injunctions granted by the District Courts

Kantara was released across the world on the 30^th of September 2022. On the 19^th of October 2022, Mathrubhumi Printing and Publishing Co. (MPPCL) served a legal notice to Hombale Films (owner of the copyrights in Kantara), alleging Varaha Roopam to be infringing upon Navarasam. Shortly after, as can be gathered from news reports, Kantara makers approached the band on the issue. However, the band was rather obdurate and a suit was filed expeditiously.  Additionally, on the 24^th of October, the band sought public support through an Instagram post wherein the band denied any affiliations with the film while also elucidating upon the demarcation between inspiration and plagiarism.

Perplexingly enough, two suits for injunctions were filed by two different plaintiffs in the Palakkad District Court and the Kozhikode District Court on behalf of the band. Firstly, a suit was filed by Thaikkudam Bridge, wherein it was mentioned that the band was the purported assignor of rights. The second suit for injunction was filed before the District Court in Palakkad wherein MPPCL (the assignee of copyright in the song Navarasam) was the plaintiff. What is inexplicable is that two different plaintiffs, who have asserted the same cause of action, have secured injunction orders from the respective Courts. The Palakkad District Court’s order for injunction has elucidated that the injunction was granted on the basis of prima facie case for infringement which was construed by the judge. The Interlocutory Application that was heard on the 2^nd of November 2022 passed the following:

1. That a prima facie case for infringement has been established by the petitioner. Moreover, it was noted that a delay in sending the notice is likely to defeat the purpose of the petition. Hence, the notice is dispensed with.
2. Additionally, the respondents (Hombale Films) were restrained from exhibiting, releasing on OTT platforms, streaming, distributing or communicating to the public the film “Kantara” with the synchronized song ‘Varaha Roopam’ until the Court issued further orders.

The Kozhikode District Sessions Court also granted a similar decision wherein the respondents were restrained from streaming, telecasting or distributing the song. Subsequently, the original Varaha Roopam track was removed and was replaced with a new musical composition (accompanying the same lyrics as Varaha Roopam).

Kerala HC dismisses petitions challenging restraint orders against Varaha Roopam song

On the 23^rd of November 2022, in a decision delivered by Justice C.S. Dias, the Kerala High Court dismissed the petitions filed by Hombale Films against the ad-interim injunction orders passed by the Palakkad and Kozhikode district Courts. Upon dismissing the petitions filed by Hombale films, the Court also added that the creators could avail alternative remedies that are available to them. The petition was dismissed citing the fact that the petitioner approached the  Court under Article 227 of the Constitution of India by by-passing the procedure laid down under the CPC with respect to applications under Order 39.

Thaikuddam Bridge’s plaint is returned by the Kozhikode District Court citing lack of jurisdiction

On the 25^th of November 2022, due to lack of jurisdiction, the Kozhikode District Court returned the plaint that was filed by Thaikkudam Bridge. It was alleged that the suit was purposefully undervalued for forum shipping purposes. In other words, the suit fell under the jurisdiction of the Commercial Court at Ernakulam (the competent court). Consequentially, the ad-interim order passed earlier ceased to have effect. However, it was argued by the Counsel for Thaikkudam Bridge that the instant dispute would not be a commercial one since the plaintiffs only aimed to seek the proper crediting of the song without seeking any damages per se. On the other hand, the Palakkad District Court’s order has stayed in force, thus restraining the defendants from using or licensing the song across all platforms.

Kerala High Court returns Palakkad District Court’s order, thus lifting any prohibitions on using the song across streaming platforms

On the 3^rd of December 2022, the Palakkad District Court returned the plaint filed by MPPCL citing lack of jurisdiction. The Palakkad District Court elucidated that the suit should have been filed before the Kozhikode District Court considering the fact that the registered office of MPPCL was in Kozhikode. Upon both the orders being returned, the injunctions that were passed (which restrained the defendants from using the song on various streaming platforms) have lost effect. As of today, the original track has been restored across all OTT and music streaming platforms.

II. Analysis provided by experts in the music industry

The Kantara copyright row opened new doors for discussions pertaining to the interrelationship between contemporary Carnatic music and copyright laws. Several leading musicians have provided a granular analysis of both the songs with an attempt to identify the identical elements that both the songs have incorporated.

Composer Ajneesh Loknath on seeking inspiration from Thaikkudam Bridge

Composer Ajneesh Loknath in an interview with the Deccan Herald, elucidated on the inspiration and thought process behind composing Varaha Roopam. Loknath has explained that the usage of traditional musical instruments such as Damaru, Gaggara and Dola (that are typically used for demigod dances in the regions of Dakshin Kannada), were used to attribute authenticity to the song. Upon being questioned of the ongoing copyright row, the composer commented that he did seek inspiration from the Kerala based music band’s music style, however, the songs and scores of Kantara are original.

Composition of the works and evaluations by other musicians

Evaluations provided by most musicians have highlighted the common fact that both the songs have used the same set of ragas. The ragas used in both the works are Thodi, Mukhari and Kankaangi. The same has been confirmed by the singer of Varaha Roopam, Mr. Sai Vignesh. However, the composition and the variations incorporated into Varaha Roopam’s raagas were different from that of Navarasam. The singer has explained that in Carnatic compositions, a singer traditionally sings at least two to four lines in the same raga before they move to the next one, but here, in Varaha Roopam, almost each line is sung in a different raga. Thus, although the same raagas were used in both the songs, there exists a substantial variation between both the songs since the melodic structure was significantly changed by altering the way in which the raagas were composed (in Varaha Roopam) to create the final song.

A video analysis provided by musician Vishesh Bhat highlights the fact that the Avroh (set of notes descending from a higher position to a lower position), Aaroh (set of ntoes ascending from a lower position to a higher position) are elements that are predominantly present or are constant in the raagas used by both the songs. In other words, the melodic tune of both the songs will remain similar due to the identical Raagas used in both songs. However, there are melodic variations due to the method of composition and the way in which the raagas were used in Varaha Roopam. He has also highlighted that Raagas, being scenes a faire, are non-copyrightable material. Hence, the defendant cannot be held liable for copyright infringement since they have used something that is in the public domain and is non-copyrightable material. In addition to this, he has highlighted that the Pakad, embellishments and the overall composition of both the songs are dissimilar in nature. Hence, to an untrained ear, both the compositions may sound similar due to the dominant notes, avroh and aaroh in both the raagas. However, they simply are not. In conclusion, the creators of Varaha Roopam have used the same set of raagas as Navarasam while ensuring sufficient transformativeness.   

III. Potential arguments making the case for Varaha Roopam

Substantial similarity argument

The infringement test for substantial similarity can be bifurcated into two parts. For one, it would be pertinent to determine if the defendant has created a copy of the plaintiff’s work and secondly, if the copied elements would protect the expression and is sufficiently important to be actionable. In other words, a work is considered to be substantially similar to an underlying work if the “heart of the work” or a part that carries great significance to the original work is extracted. In India, the landmark case R.G. Anand v. Delux Films analyses substantial similarity. In this case, the author of the play Hum Hindustani sued a production company for creating a movie that depicted a similar plotline as Hum Hindustani. However, the Court held that in order to establish substantial similarity, certain important parts of the work such as the characters, story and climaxes has to be exactly the same in both the works, which was not the case in R.G. Anand. Furthermore, it was elucidated by the Court that copyright cannot be sought for an idea and that it would only be applicable for the protection of an expression.

Here, it can be contended that with respect to Carnatic music, the raagas per se would be the idea and the compositions created using such raagas would be the expression. Concluding that Varaha Roopam is an infringed work on the basis of the fact that both the songs have used the same raaga would be incorrect. This is primarily because the composition of Varaha Roopam, as explained earlier, has been composed using variations in the raagas, making the melody significantly different from Navarasam. No part of Navarasam that is “substantial” or carries “immense significance” has been used in Varaha Roopam. Varaha Roopam, despite the usage of the same raagas as Navarasam, is a composition of its own. Lastly, ruling that Varaha Roopam has infringed Navarasam due to the usage of the same raagas would lead to the overprotection of musical elements. This would in turn, significantly restrict creativity in the realm of musical composition.

Scenes a faire defense

Scenes a faire refers to the elements in an original work that are trite and common and hence, they are not protected under copyright legislations. In Carnatic music, original raagas are non-copyrightable material. However, the renditions created using these raagas are copyrightable. The mere fact that Varaha Roopam has used the same raagas as Navarasam and hence, one work has infringed upon the other, is an argument that would not hold water. This is primarily due to the fact that the raagas are scenes a faire in the context of Carnatic music. It is the “element” of Carnatic musical compositions that are frequently used by musicians to compose musical pieces. Imposing copyright protection on the same would result in overprotection that would restrict musicians from experimenting or creating renditions using such raagas. In the instant case, the mere use of the same raagas as Navarasam in Varaha Roopam can be construed to be an ‘inspired work’ at best and not infringement (since raagas are scenes a faire). The composers have sufficiently transformed the work by using traditional instruments, a change in the musical composition of the raagas and the lyrics as well, making it an original composition.

IV. Conclusion

The Kantara copyright row has sparked discussions surrounding the role that copyright law would play in the context of classical music compositions. While several believe that the songs are nearly identical, I argue that this is largely due to the visual and lyrical similarity that exists between both the works (the visual depiction of demigod dances and Sanskrit lyrics). On a granular level, the compositions are substantially different from each other. This includes the compositional methods used for both the songs despite the usage of similar raagas. The difference in the compositional method, as stated by the singer of the song combined with the usage of traditional instruments that are often used in the regions of Dakshina Kannada, makes Varaha Roopam an original work. Earlier, the litigation of this case was met with procedural impediments. However, it is now set for hearing this month. One can hope that during the course of the case’s litigation, the Court upkeeps the true essence of copyright enforcement- the protection of works that is a product of an artist’s creative effort and the rightful attribution of such works.