A music composition is made up of many different elements such as lyrics, beats and chord patterns. There are, however, very strict restrictions that must be observed while making music, and copyright issues are never-ending.

While the norms are becoming more fluid with the popularity of fusion and contemporary culture, things were different when it came to Indian classical music. In Indian classical music, there are ten primary ragas, each with its own set of rules governing the notes to be utilized, pace, alaap, and other factors, resulting in some overlap across the ragas. Indian classical music based on these ragas raises various copyright-related concerns pertaining to these overlaps.

One such case was recently highlighted when Kerala-based fusion band Thaikuddam Bridge filed a preliminary injunction motion against the directors of the film Kantara. It is claimed that the song Varaha Roopam which appears in Kantara, violated the copyright of the owners of the song Navarasam.

Navarasam (nine emotions), was Thaikkudam Bridge's first studio album. The album, which features nine tracks on a variety of topics, examines a number of subjects, such as political satire, social injustice and historical stories from the Mughal Empire, as indicated by its title. The movie Kantara, which features the song Varaha Roopam, premiered in theatres all over the world on September 30, 2022. The song was also heard by Mathrubhumi Printing and Publishing Company Limited (MPPCL), which sent a legal notice to the makers of Kantara on October 19, 2022. MPPCL stated that the same was infringing, given that it was the assignee of the copyright in the song Navarasam through a deed dated September 14, 2015, with Thaikuddam Bridge.

In response to the aforementioned warning, Kantara's rightsholder Hombale Films also filed a caveat with the district court in Kozhikode in case an infringement litigation was to be brought. Later, a suit was filed, not by MPPCL, but by Thaikuddam Bridge. As a result, the caveat could not be invoked. The band was successful in getting an ex-parte, ad interim injunction vide order dated October 28, 2022 restraining the filmmakers from continuing to screen the film with the song Varaha Roopam in any medium.

Within a short span of time, the same cause of action that was brought before the district court in Palakkad in the name of MPPCL. Bound to be dismissed under the principles of res judicata and sub-judice, the plea was, inappropriately, accepted, and yet another ex-parte ad interim injunction order was passed restricting music platforms from streaming the song. OTT platforms were also directed to take down the entire movie with the song. The caveat filed by the filmmakers became futile due to the suing party’s circumvention around it.

It is unclear how two different plaintiffs obtained injunctions on the same content while asserting the same cause of action. Although the merits of the case are not to be determined when evaluating a case for an ad-interim injunction, both of these courts appear to have ignored determining the existence of a valid copyright, ownership of copyright, or any other critical question before ordering a content takedown at this stage. Thaikuddam Bridge could not have asserted economic rights before the court in Kozhikode if the assignment agreement, as alleged by MPPCL, is genuine, and if it is not, MPPCL lacks the authority to issue the legal notice or to file the lawsuit before the court in Palakkad. In any case, it's unclear whether there was ever a legitimate assignment agreement to begin with or whether the same thing was a licence arrangement where both the licensor and the licensee retained the right to sue.

Order of the Palakkad district court

Without addressing MPPCL's arguments, the district court in Palakkad noted in its order that it was satisfied with the prima facie evidence of infringement. There is no analysis of copyright ownership, whether the song's contents or the scenes were subject to copyright protection, or even if they meet the criteria for infringement. Further, the court ignored the triple test for granting an injunction as established by the Supreme Court in Shanti Kumar Panda v. Shakuntala Devi, as it proceeded without discussing the balance of convenience analysis or describing how there would be any irreparable harm that could not be compensated through damages if the song were allowed to play until the defence could appear and argue its case on affidavit.

The court disregarded notice because it believed it would defeat the petition's intent. Such a strategy ignores both the legal rules' substantive requirements and the issues with due process that need to be taken into account before mandating content takedown.

Challenge before the Kerala High Court

The order of the district court in Palakkad was challenged before the Kerala High Court in an original petition under Article 227 on the grounds that:

i. The case has no standing pertaining to the lack of clarity of the owner of the copyright in Navarasam.

ii. Multiple suits were filed under the names of different plaintiffs, before different courts to bypass caveat and the same showcases the malafide intent of the said plaintiffs to obstruct the defendant and get publicity from their act.

iii. The court failed to appraise the triple test established to grant injunction as the film was released worldwide on September 30, 2022 itself, and hence there would be no irreparable harm if no injunction was granted.

iv. The suit has been deliberately undervalued for forum shopping purposes to oust the jurisdiction of the commercial court under the Commercial Courts Act, 2015.

On November 23, the Kerala High Court correctly dismissed this original petition under Article 227, simply because there is an appellate remedy to challenge the said order. There appears to be no logical reason why a petition under Article 227 was filed rather than a first appeal from order (FAO) under Order XLIII Rule 1(r) of the Civil Procedure Code (CPC). All of the above grounds, including lack of jurisdiction and malafide, could be raised in an FAO without invoking the High Court's extraordinary jurisdiction.

In RG Anand v. Delux Films, copyright infringement was pleaded before the Supreme Court owing to one movie being similar to the other. Here, the Court was of the opinion that even though the main theme or idea behind the movie is same, their representation and expression are miles away from each other, and hence it could not be considered as an infringing work. Moreover, it was stated that historic events and factual situations can’t be copyrighted. The same has also been elaborated under the scenes a faire doctrine.

The majority of the parallels between Varaha Roopam and Navarasam are mostly attributable to the use of some of the distinctive characteristics of the ragas involved, but at a faster tempo. The overall expression of the two songs is in no way obviously similar when these distinguishing characteristics are removed or filtered from the similarity analysis, particularly given the magnitude of lyrical and expressive variations.

As a result, the prima facie analysis in this case is more complicated than the court suggests. Because the law is ignorant of the actual practises of cultural manifestations, it is profoundly at odds with cultural norms. It frequently has the unintended consequence of imposing a uniform understanding of music creation and performance, erasing cultural distinctions, and rendering the intersection between copyright laws and Indian classical music way more complicated than it seems.

Nikhil Sikka is an Associate at Fidus Law Chambers.

This article is part of a collaboration between Bar & Bench and Fidus Law Chambers to bring you the latest developments and insights into the issues surrounding Intellectual Property Rights and Information Technology laws and policies.