This piece has been authored by Garima Agrawal, Student, Hidayatullah National Law University, Raipur
Introduction: Background of “Taylor’s Version”
In the American music industry, the move for ownership and control of own music by singer-songwriter Taylor Swift is being largely supported across the world amongst artists as well as fans. Herein, Swift is re-recording her previously released music under the record label “Big Machine Records” (hereinafter referred to as “BMR”), and releasing the same with the prefix “Taylor’s Version” in brackets added to the title of the music to reflect that the newer track is owned by her. The backdrop of this event is such that Swift’s first six albums are owned by BMR owing to her contract with the record label, however, post the acquisition of BMR by Scooter Braun, Swift’s music was sold off to private-equity group “Ithaca Holdings” for 300 million dollars in 2019. Therefore, to reclaim ownership of her music, Swift is re-recording the music composed and sung by her, and releasing her old albums with noticeable or minute changes.
In the American Copyright regime, where previously copyrighted music is not physically used in the new track, it is not infringing, howsoever similar the original and the new work may be. Hence, despite releasing essentially the same music, Taylor Swift is not said to be infringing on the rights of the record label BMR.
The scenario envisaged above brings forth certain pertinent questions in the context of the Indian Copyright Regime as produced hereunder:
- Whether such re-recording of music for commercial ownership while the rights of the sound recordings persist with the original Producer would be legal?
- Whether the released re-recorded music would be required to meet the “modicum of creativity” i.e., minimal degree of creativity required for a work independently created?
- Is it in compliance with the balancing act of IPR of public and private interest, to extend the period of protection of the music by re-releasing the same?
- Does re-recording of music fall under the ambit of “Transformational Copying” i.e., whether the purpose and character of the work so differs from the original work to create a distinctive work? If yes, is it copyrightable?
Therefore, through this paper, the author endeavours to understand the American copyright laws vis-à-vis rights of producers and sound record artists with respect to re-recording of music and extrapolate it to analyse its applicability in the Indian copyright regime.
Distinctive Protection of Sound Recordings under the American Copyright Law
Section 114 of the Copyright Act, 1976 provides the “scope of exclusive rights in sound recordings”, laying down the distinctive nature of protection of such subject matter from other copyrightable works. The most notable delineation is that there exists no “idea-expression dichotomy” in sound recordings which means that the general notion of copyright subsisting in expression of ideas rather than the ideas themselves does not apply here. Hence, the fixation itself is the subject matter of copyright in sound recordings unlike the work of authorship when fixated being copyrightable as in other subject-matters. It states, “The exclusive rights of the owner of copyright in a sound recording…do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording”, which means when another sound recording, even though entirely similar to a previously copyrighted work, is made, it would be copyrightable if made through independent fixation. This is more in tune with the test of “sweat of the brow” i.e., independent creation by own labour, skill, judgment, capital, etc. than that of “modicum of creativity” as previously discussed. Further, exclusive rights of sound recordings are limited to their reproduction, creation of derivative works, and digital performance.
The landmark case of Bridgeport Music, Inc. v. Dimension Films further clarified the limited protection of sound recordings, stating that duplication of work using the original work in the recreated work would be infringing unless licensed, with Judge Guy referring to the same as “physical copying rather than intellectual one”. In fact, the American music industry has seen many instances of transformational copying wherein popular classic songs have been substantially emulated in newer tracks, including the evolution of “behop” and “bluegrass” music.
Analysis of the Legality of “Taylor’s Version” in context of the Indian Copyright Regime
As per the Copyright Act, 1957, for the purposes of Section 2(d), the producer of a sound recording is deemed to be its author. It was held in the case of IPRS v. Eastern India Motion Pictures Association that “once the author of a lyric or music work parts with a portion of his copyright…to have his work incorporated or recorded in a sound track or cinematograph film, the latter acquires by virtue of Section 14(1)(c)…its exclusive rights.” Therefore, given that Taylor Swift being the musical composer and singer in the present case has transferred the “financial and legal liabilities” of her master records by an agreement to BMR, the latter would be considered to be the owner of the same vested with its exclusive rights. The scenario until here is analogous to the American and the Indian regimes, however, the point of distinction arises in the requirement of minimal creativity.
While the Bridgeport Music case, despite being said to be rigidifying the law by requiring strict licensing, does not deem intellectual copying i.e., copying without mechanically utilizing the original work, as infringement. In India as well, a similar view was proposed in the case of Star India Pvt. Ltd. v. Leo Burnett (India) Pvt. Ltd. wherein the Bombay High Court highlighted the differential requirement of originality in literary, dramatic, musical, or artistic work as compared to cinematograph film or sound recording. It explained the case for the latter, explaining with the example of a cinematograph film that “even though it resembles completely the copyrighted film, it does not fall within the expression ‘to make a copy of the film’…if the film has been filmed or shot separately.” However, this position was reversed in Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah whereina Bengali film “Poran Jaye Joliya Rae” was said to have copied the Hindi film “Namastey London”, and the Calcutta High Court broadened the meaning of “to make a copy” from a “carbon copy or replica” to any resemblance of “substantial, fundamental, essential and material nature”. This position has further been consolidated by the Delhi High Court in the recent case of MRF v. Metro Tyres Ltd.In this case, the court extended the test of copyright infringement as laid down in the landmark decision of R.G. Anand v. Deluxe Films to cinematograph films. It laid down that the term “original” is to be interpreted as applicable even for sound recordings and cinematograph films, being “intellectual creations”, in consonance with Section 13(3) of the Copyright Act, 1957. Further, it also drew inference from Article 14bis(1) of the Berne Convention which protects derivative works as original works.
Conclusion: Would Taylor’s Version meet the Test of Copyrightability in India?
Drawing from the preceding discussion, as opposed to the American copyright regime, the Indian courts have through case laws solidified the need for originality in order for a work to be granted copyright protection. Therefore, the need for minimal creativity and independent creation are primal for even sound recordings in India, which the “Taylor’s Version” generally does not meet, despite subtle changes in the sound, pitch, length, timbre, etc. of the music. It is to be noted, however, that certain tracks with additions exclusive of the original tracks would be protectable in India to the extent of such additions.
Further, through such re-recording, the term of protection would not be extended in India i.e., it would still be calculated from the calendar year succeeding the year of publication of the sound recording according to Section 27 of the Copyright Act, 1957. Moreover, without due license from the Producer (owner) for reproduction, Taylor’s Version would not be deemed to have been published as per the Indian Copyright law, as per the law reiterated in Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.