Author Name:   Anna Alphonsa

Section 57 of the copyright Act provides author of a copyright, a right to claim authorship of the work and also rights of integrity. But Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. The singer can claim only performer’s right in the song. Under section 2 (gg) of the Copyright Act, “performer” includes a singer. “Performance” in relation to performers’ right means any visual or acoustic presentation made Section 57 of the copyright Act provides author of a copyright, a right to claim authorship of the work and also rights of integrity....

Neha Bhasin v/s.Raj Anand Raj & Performer’s Rights

Section 57 of the copyright Act provides author of a copyright, a right to claim authorship of the work and also rights of integrity. But Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. The singer can claim only performer’s right in the song. Under section 2 (gg) of the Copyright Act, “performer” includes a singer. “Performance” in relation to performers’ right means any visual or acoustic presentation made by one or more performers. However section 38 (4) states that when a performer agrees to incorporate his performance into a cinematographic film, his rights cease to exist. Reading these provisions together, a singer losses the right to complain of infringement of the performance and he assign his entire rights and the performance to the producer of the cinematograph film. Performer’s right is a moral right. Moral rights are the rights of respect, that is, the right to object to the work being distorted or used in contexts that are prejudicial to the honor and literary and artistic reputation of the author. Hence statutorily, the singer can claim no copyright over his rendition.

In the case Neha Bhasin v.Raj Anand Raj[1] The plaintiff Neha Bhasin, a singer, alleged that her voice has been stolen and falsely attributed and held out to be that of defendant No. 2 Poonam Khubani. Neha claimed that her voice had been used by the defendants for the three versions of the song "ek look ek look" in the hindi feature film "Aryan " produced by the defendant No. 2 Poonam Khubani who in connivance with the music director -Anand Raaj Anand, had shown herself to be the lead singer in credits for the three versions in the inlay card of the audio compact disc and plaintiff has been shown as a backup vocalist in all the three versions of "ek look ek look", but it is the voice of the plaintiff that is heard. The plaintiff had agreed to render voice for the film on the term that remuneration would be paid suitably after looking to the popularity of the song once it is released in the market. However, song broadcasted and CDs sold did not contain her name as the singer. In response to the notice by the plaintiff the respondent send a notice claiming that, though she had been auditioned to sing the song, it was the version sung by Poonam that was used by the music director. However due to technical inadvertence the version of Neha was overlapped with the version of Poonam, and hence the credit of backup vocal inserted. However, the court derived at the conclusion that the three versions of the song are sung by the plaintiff and not the defendant no.2.

The court was of the opinion that the plaintiff also has a right in equity for being given proper credit for the song sung by her. The damage and injury caused and being caused to the plaintiff is twice over. First, she is not described as the lead female singer and in her place the name of the defendant No. 2 appears as the lead female vocalist. Second, the plaintiff, who indeed was the lead singer has been demoted to the status of a mere backup singer, which is likely to cause grave harm and injury to the reputation of the plaintiff as a singer. The court referred to the case of Suresh Jindal v. Rizsoli Corriere Della Sera Prodzioni T.V., S.P.A,[2] and held that, in lines with the decision of the case, The plaintiff would be entitled to get an order for giving her due acknowledgement for having sung the song in the Cassettes, CDs and film as injury caused to her cannot be measured in monetary terms alone.The balance of convenience lies in favor of the grant of an injunction for the benefit of the plaintiff, which if not granted, could cause grave harm and irreparable injury which cannot be adequately compensated by damages alone.An interim order restraining dealing of the film containing the song in any of the three versions as contained in the Original CD without displaying the name of the plaintiff as lead female singer was granted and ordered that In case the defendants opt to introduce and sell the New CD not containing the voice of the plaintiff, then wide publicity shall be given media as well as printed on inlay covers of the cassettes and CDs that the three versions of the song "Ek Look Ek Look" in the Original CD were sung by the plaintiff as the lead female vocalist and that the defendant No. 2 was not the lead singer thereof and also that the three versions of the song in the New CD have been sung by the defendant No. 2 and not by the plaintiff.

Though India is not a member of the Rome Convention, 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention, 1961 provisions. Being a party to TRIPS India amended its copyright law in 1994, to incorporate the rights of performers, going beyond the requirements of TRIPS to cover audio visual performances. Berne convention’s Article 6bis on moral rights is specifically excluded in the TRIPS language, as it does not concern trade by virtue of the moral right's inalienable nature. However, there is no substantial law in India be applied in the present circumstance.

So, in the present case, by the strict adherence to the statute, the plaintiff ought not to have any rights to be enforced, as raised by the defendants. But this position accepted, justice would have been denied. The court, in order to overcome the shortcoming of the statute to provide relief, opines that the plaintiff has a right in equity for being given proper credit for the song sung by her. It could be argued that, the court, when no remedy subsisted, created its own, but such is in the interest of justice, and within the inherent power of the court.

Allegation made by the respondent that the performer’s right subsists only in live performances and thus no right exists here as the song is a recorded one was countered by the court as

‘Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed. So, as regards the performers’ rights, the plaintiff definitely has a serious triable case’.

It should be noted that the relief granted to the plaintiff was not on the grounds of moral right violation, but as relief for the breech of quasi contract between the plaintiff and defendant no.2.

Court has applied the decision of Suresh Jindal in the present case to ascertain that she has a right to be given due credit. However, the case dealt with right of a co-producer of a cinematographic film, who has the claim be the owner of copyright, and had statutory rights which could be enforced. But in the present case the singer, could not claim any such copyrights. In spite of which a similar remedy was granted to her.

India is not a party to the WIPO Performances and Phonograms Treaty, 1996.There are provisions in WPPPT for dealing with circumstances of the present case. Article 5 of WPPT stipulates Moral Rights of Performers, by which even after the transfer of economic rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation. It would be ideal if such provision is incorporated in Indian law too, to address circumstances arising due to technological advancement. The court has relied on the essence of this article, though no express mention is made in the judgment. It is under judicial propriety, to read provisions of international treaties into law, even if not specifically incorporated in domestic law.
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[1] 2006 (32) PTC 779 (De l)
[2] AIR 1991 SC 2092

The  author can be reached at: annaalphonsa@legalserviceindia.com

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