This article has been written by Ms. Harshitha Reddy Vanga, a 3rd year student of M.S. Ramaiah College of Law, Bangalore.
ABSTRACT
The article explores the critical and intricate aspects surrounding the incorporation of music in advertising campaigns within the Indian legal framework. It delves into the complexities of music licensing, emphasising the necessity for advertisers to navigate copyright laws and adhere to intellectual property regulations. The abstract highlights the challenges advertisers encounter in selecting, licensing, and integrating music, stressing the significance of understanding copyright ownership, licensing agreements, and potential legal implications. With a focus on unravelling the nuances of music licensing in the Indian advertising landscape, this article aims to equip advertisers and content creators with valuable insights, offering guidance to ensure the ethical and legal use of music in enhancing the effectiveness of their campaigns.
INTRODUCTION
The synergy between music and advertising is a powerful tool that marketers employ to evoke emotions, enhance brand recall, and create a compelling connection with their audience. However, the harmonious integration of music into advertisements necessitates a nuanced understanding of music licensing and copyright laws. Music licensing serves as the legal gateway for advertisers to use copyrighted musical works in their campaigns. This involves obtaining permission from the rightful owners, often music publishers or recording labels, to use a particular song or composition for commercial purposes. In this intricate landscape, navigating the intricacies of music licensing is paramount for advertisers seeking to strike the right chord with their audience while respecting intellectual property rights.
Music licensing involves a multifaceted process where advertisers secure the legal rights to use copyrighted music in their advertising campaigns. There are typically two primary licences in play: the synchronisation licence, which grants permission to use the music in conjunction with visual media like videos, and the master use licence, which permits the use of a specific recording of a musical work. The process often involves negotiations with multiple stakeholders, including composers, songwriters, performers, and music rights organisations. Understanding the different licensing models, such as exclusive or non-exclusive licences, is crucial for advertisers to determine the scope of their rights and obligations regarding the use of the music in their advertisements.
Copyright plays a pivotal role in the advertising industry, acting as the bedrock for protecting the intellectual property of musical works. Advertisers harness the emotional resonance of music to create memorable and impactful campaigns. However, the unauthorised use of copyrighted music can lead to legal ramifications, potentially resulting in litigation, financial penalties, and damage to a brand’s reputation. Copyright ensures that creators and rights
holders are appropriately compensated for their artistic contributions. In the dynamic landscape of advertising, where originality and creativity are paramount, a robust understanding of music licensing and copyright is not only a legal necessity but also a strategic imperative for advertisers looking to craft resonant and legally compliant campaigns.
LEGAL FRAMEWORK IN INDIA
The legal framework governing music licensing and copyright for advertisements in India is primarily defined by the Copyright Act of 1957. This legislation provides the foundational structure for safeguarding the rights of creators and copyright owners in the realm of artistic and literary works, including musical compositions. Under the Copyright Act, music is considered intellectual property, and its usage without proper authorization constitutes infringement. Advertisers must adhere to the provisions of this act when seeking to use music in their campaigns, ensuring compliance with legal requirements and respecting the rights of composers, lyricists, and other stakeholders.
Intellectual Property Rights play an important role in the Indian context, particularly concerning music licensing for advertisements. IPR encompasses a range of rights, including copyright, which shields the creative works of individuals. In the context of music used in advertising, IPR safeguards the interests of composers, lyricists, and music publishers. Advertisers must navigate this landscape by obtaining the necessary licences and permissions, respecting the exclusive rights granted to copyright owners. Additionally, understanding the broader IPR framework helps advertisers appreciate the importance of ethical and legal use of music to prevent legal repercussions and foster a culture of intellectual property respect.
The legal landscape regarding music licensing and copyright in India has witnessed certain amendments and updates to align with the evolving nature of the advertising industry. While the Copyright Act of 1957 remains the cornerstone, subsequent amendments and updates have aimed to address contemporary challenges. The Copyright (Amendment) Act of 2012 introduced several notable changes, including provisions related to the digital environment, performer’s rights, and licensing in the digital era. Staying abreast of these legal amendments is crucial for advertisers, as they impact the negotiation and execution of music licensing agreements and ensure that the legal framework is responsive to the dynamic nature of the advertising landscape.
Despite the legal framework in place, challenges persist in the realm of music licensing for advertisements in India. Enforcement of copyright laws, especially in the digital space, remains a challenge. Emerging trends, such as the rise of digital platforms and the increasing importance of user-generated content, add layers of complexity to the legal landscape. Advertisers need to navigate these challenges proactively, considering the implications of evolving legal interpretations, technological advancements, and consumer trends. A forward-looking approach that integrates legal compliance with innovative strategies is essential for advertisers seeking to leverage music effectively in their advertising campaigns while adhering to the ever-evolving legal landscape.
TYPES OF MUSIC LICENCES IN INDIA
In India, the legal framework recognizes various types of music licences under the Copyright Act of 1957. These licences govern the usage of music in different contexts, including advertisements. Here are some key types of music licences recognized by law in India:
Obtaining a music licence in India encompasses several domains, and the categories specified by IPRS delineate the diverse applications for such licences.
Music License for Public Performances:
This category encompasses licences required for a broad range of public venues, including multiplexes, shopping centres, IT establishments, parks, hotels, guest houses, lodges, resorts, vacation homes, clubs, and boarding facilities. It extends to events held in amusement parks, pubs, nightclubs, and shopping centres. Licences are also necessary for music in restaurants, dining areas, bars, lounges, coffee houses, and related venues. Additionally, publications, banquet halls, auditoriums, sports facilities, service-oriented premises, waiting areas, and transport services fall under the purview of this category.
Music Licence for Streaming/OTT/Physical Medium:
This category addresses licences required for a diverse range of digital and physical mediums. It includes services for broadcasting non-interactive music, internet interactive music broadcasting, karaoke services on the internet, and the use of motion pictures on electronic digital media for downloading, rental, distribution, and sale. Licences are also applicable for the utilisation of sound recordings on electronic digital mediums through download and physical formats.
Music Licence for CRBT (Caller Ring Back Tone) Use:
This category is specific to licences needed for the use of music as Caller Ring Back Tones during phone calls. It covers the rights associated with incorporating musical elements into the call experience.
Music Licence for Commercial Purpose:
The commercial purpose category focuses on licences required for utilising sound or music in advertising, videos, audio, and promotional materials. This encompasses the incorporation of music into various forms of commercial content for promotional and marketing purposes.
Music Licence Forms for Live Performances and General Licensing:
The final category involves the different forms and documentation needed for obtaining music licence for live performances and general purposes. This includes licences for live events, performances, and other general use cases, providing a comprehensive framework for diverse music-related activities.
Understanding and securing the appropriate licences for the specific use of music in advertisements is crucial for advertisers to ensure legal compliance and respect the rights of the copyright owners. The negotiation and acquisition of these licences involve interaction with copyright societies, music publishers, record labels, and other relevant stakeholders in the music industry.
KEY STAKEHOLDERS IN MUSIC LICENSING
Artists and Performers:
Artists and performers are fundamental stakeholders in the music licensing process, as they are the creators and contributors of the musical content. They hold the rights to the performance and often have a say in how their work is used in advertisements. Their consent is typically required for synchronisation licences, which involve the use of music in conjunction with visual content. Negotiating fair compensation and ensuring that their creative intent is maintained are crucial considerations for artists and performers in the music licensing landscape.
Music Composers and Publishers:
Music composers and publishers play a central role in music licensing, holding the rights to the composition itself. Composers create the musical work, and publishers handle the administration, promotion, and licensing of the composition. They are key stakeholders in negotiations for synchronisation licences, mechanical licences, and public performance licences. Composers and publishers work closely with advertisers, ensuring that the usage of their compositions aligns with their artistic vision and that they receive fair compensation for the commercial exploitation of their work.
Advertising Agencies:
Advertising agencies act as intermediaries between the creators of advertisements and the music industry stakeholders. They are responsible for selecting and integrating music into ad campaigns, necessitating collaboration with artists, composers, and publishers. Ad agencies play a vital role in negotiating and securing the necessary licences for the use of music in advertisements. Their expertise in understanding the creative requirements of the brand, coupled with their knowledge of the legal and financial aspects of music licensing, positions them as key facilitators in the process.
Brands and Advertisers:
Brands and advertisers are the end users and beneficiaries of the music licensing process. They leverage music to enhance the emotional impact of their advertisements and connect with their target audience. Brands need to work closely. There are many domains under which one can obtain a music licence in India.
PROCESS OF OBTAINING MUSIC LICENCE IN INDIA
In contemporary times, obtaining a music licence in India has become a streamlined process, facilitated by two prominent organisations dedicated to this purpose—IPRS (The Indian Performing Right Societies) LTD and PPL (Phonographic Performance Limited). Securing a music licence is imperative for those seeking to utilise copyrighted music for commercial purposes and receive royalties in return.
IPRS Limited functions as a key entity in the collection of royalties for copyrighted music used by various individuals and entities. Members of IPRS provide explicit consent for the utilisation of their music, and the fees received from users are subsequently distributed among the members, deducting the administrative costs incurred by the organisation. The board of directors, elected by the members in general meetings, governs the administrative and policy-related functions of the organisation. Notably, there is equitable representation of authors and music composers in each region within the board. Currently, Mr. Javed Akthar, an author member, serves as the Chairman of the Board.
Acquiring a music licence in India entails numerous benefits. Firstly, it serves as a platform for artists and performers to showcase their talents globally. The licence contributes to boosting the popularity of songs, artists, and their events. Furthermore, it safeguards the creative work of artists, reducing the risk of theft or unauthorised use. The licence also serves as a revenue source, allowing third parties to easily download or subscribe to the artist’s work under their name. Additionally, a music licence grants artists the right to perform or broadcast their music at public events, enhancing their reach and impact.
Step 1: Choose the Music Licence Category:
The initial step involves selecting the appropriate category for the music licence. With various available categories, applicants need to decide which specific category aligns with their intended use for background music in India.
Step 2: Account Creation:
Following the category selection, applicants are required to register on the IPR site, specifying the chosen music category. During the account creation process, individuals provide essential details such as name, address, phone number, email ID, GST details, TIN, TAN, PAN, etc.
Step 3: Verification of Contact Details:
Subsequent to filling in the necessary information, candidates must undergo a verification process for their contact details, including phone numbers and email addresses. This verification step ensures the accuracy and legitimacy of the provided contact information.
Step 4: Payment of Music License Fees:
Upon successful verification, applicants are required to agree to the provided terms and conditions and make the necessary payment for the selected music licence category. The payment can be securely transacted online through the dedicated portal, with the system generating an online receipt after the completion of the transaction. Applicants receive an instant notification via SMS or email confirming the payment.
Step 5: Receipt of Introduction Letter from IPRS:
After the payment of the licence fees, IPRS initiates the registration process by sending an Introduction Letter to the applicant. This letter serves as confirmation that the applicant is now officially registered in the IPRS database, marking the completion of the background music licence acquisition process.
FAMOUS SONGS THAT REFERRED TO COPYRIGHT ACT
- The release of Masakali 2.0 by Tanishq Bagchi raised concerns as it occurred without seeking consent from the original owners of the song. Despite the existence of copyright laws in India, the enforcement mechanisms are notably weak, allowing producers to openly release altered versions of old songs. The Masakali song is safeguarded under the Copyright Act, making any release related to this song without the owner’s permission a violation of copyright.
- In the case of Pandey Ji from Dabbang, the accusation is that the film drew inspiration from the song CHALAT MUSAFIR from the movie TEESRI KASAM. Musical compositions now constitute a form of art involving graphical notations that visually represent music through symbols. The creator of a musical work is known as the composer. When delving into the realm of copyright law related to sound recordings, a separate facet emerges. Sound recordings encompass a broad spectrum, including songs with or without music, podcasts, audio content, and talks. All these elements are protected by copyright, and the creator or owner of a sound recording is referred to as the producer.
- The lyrics of the Tamma Tamma song bear a striking resemblance to the original version, with notable additions like a change in beats, the inclusion of Badshah’s rap, and various modifications in the lyrics. Consequently, the original song underwent a transformation into a remix.
NOTABLE CASE LAWS
Sajeev Pillai v. Venu Kunnapalli & Anr
Issue:
The central question in this case revolves around whether the original author of a work, even after assigning it to another party, retains the special rights granted under Section 57(1) of the Copyright Act to claim authorship of the work.
Facts: Sajeev Pillai, the appellant and a film director/scriptwriter, asserted that he meticulously researched the history of the Mamankam festival, crafting a script for a movie based on this epic. An MoU was signed between Pillai and Kavya Film Company, associated with VenuKunnapalli. Initially appointed as the director, Pillai was later replaced, and the movie was subsequently shot. Pillai contended that his original script underwent unauthorised alterations, distortions, and mutilations during the filming process. In response, he filed a suit seeking various reliefs, including an interim injunction to prevent the release, publication, distribution, and exploitation of the film without due authorship credits.
Judgement: The court, in its decision, emphasised the provisions of Section 57(1) of the Copyright Act. The first subsection grants the author the right to restrain third parties, while the second subsection entitles the author to claim damages for any distortion, mutilation, or modifications to the work that may harm their honour or reputation. The court recognized that these provisions afford the appellant distinctive advantages. Importantly, it was established that even after the assignment of copyright, the original author does not forfeit the legal right to claim authorship. This ruling reinforces the author’s enduring entitlement to safeguard the integrity of their work, beyond the mere assignment of copyright.
YRF v Sri Sai Ganesh Productions
Issues: Does copyright in a cinematographic film exist independently of its underlying works?
Does the phrase “to make a copy of the film” in Section 14 refer only to physical duplication, and is there substantial similarity between the two films?
Facts:`
Yash Raj Films Pvt Ltd filed a copyright infringement suit against Sri Sai Ganesh Productions & Ors, alleging blatant copying of the movie Band Baaja Baaraat by producing Jabardasth. The claim asserted substantial and material similarities in theme, concept, plot, characters, sketches, story, script, form, and expression.
Judgement:
Addressing the first issue, the Court referred to the MRF Limited v. Metro Tyres Ltd judgement, establishing that copyright in a cinematographic film exists independently of its underlying works. Originality, inferred from Section 13(1)(b), is a requirement for cinematographic films, as implied by Sections 13(3)(a) and 2(d) of the Copyright Act, 1957.
Regarding the second issue, the Court clarified that “to make a copy of the film” in Section 14(d)(i) doesn’t merely pertain to physical duplication. Applying the originality test from R.G Anand v. Deluxe Films, the Court assessed the films based on “substance, foundation, and kernel” and the perspective of an average moviegoer. The judgement concluded that the defendants had unmistakably copied the fundamental, essential, and distinctive features of the plaintiff’s film.
UTV Software Communication Ltd. v. 1337X.TO and Ors
Issue:
How should the Court address the challenge posed by ‘Rogue Websites’ that, when blocked, reappear as redirect, mirror, or alphanumeric websites?
Facts:
UTV Software Communications Ltd. (Plaintiff) is involved in creating, producing, and distributing cinematographic content globally. The plaintiff filed a suit against thirty identified websites, numerous John Doe defendants, the Ministry of Electronics and Information Technology, the Department of Telecom, and various ISPs. The plaintiff alleged that the defendant’s websites hosted and provided access to copyrighted content, infringing on their rights under the Copyright Act of 1957. As many websites did not respond to summons due to being hosted outside India, an amicus curiae was appointed to address the legal question.
Judgement:
This case introduced a significant procedural innovation, allowing the extension of website blocking injunctions not only to those specified in the court order but also to ‘mirror/alphanumeric/redirect’ websites created after the initial injunction. Termed a ‘dynamic injunction,’ the High Court of Delhi referred to the Singapore High Court’s decision in Disney v M1. Under this concept, copyright owners could file additional affidavits explaining why a new website fell within the scope of an existing blocking order. This information would then be forwarded to ISPs, enabling them to dispute the merits of the blocking order. The ‘dynamic injunction’ aimed to combat piracy by ‘Rogue Websites’ and alleviate the burden on copyright owners, streamlining the litigation process.
ADVERTISEMENTS RELATION WITH MUSIC LICENCES
In the realm of music selection for advertising, advertisers should prioritise thorough research and due diligence. This involves a comprehensive investigation into the chosen music’s background, ownership, and copyright status. Understanding the intricacies of copyright laws in India is crucial, guiding advertisers in making informed decisions about incorporating music into their campaigns. Collaborating with reputable music libraries or licensing agencies ensures access to a diverse range of legally sound music options.
For advertisers, adherence to licensing agreements is paramount. Careful review of licensing terms is necessary, encompassing aspects such as usage scope, duration, territories covered, and any imposed restrictions. Regularly updating licences to accommodate changes in advertising campaigns and strict adherence to specific restrictions are essential practices. By proactively managing licences, advertisers can prevent legal complications and uphold both legal and ethical standards in their use of music.
Clearance certificates play a pivotal role in ensuring legal compliance and mitigating risks for advertisers in India. Serving as legal documents, these certificates confirm that advertisers have acquired the necessary rights and permissions for the chosen music. This verification is essential in demonstrating legal adherence and resolving disputes. Obtaining clearance certificates is a proactive measure, significantly reducing the likelihood of copyright infringement claims and legal challenges related to music choices. Beyond legal protection, clearance certificates foster trust with stakeholders, showcasing a commitment to ethical and lawful practices in advertising and contributing to a positive industry reputation.
CASE STUDIES OF SUCCESSFUL MUSIC LICENCING IN ADVERTISEMENTS
Amul – “Doodh Doodh Doodh”:
In the iconic Amul advertisement featuring the jingle “Doodh Doodh Doodh,” successful music licensing played a crucial role. The company diligently obtained the necessary licences to use the catchy tune, showcasing the importance of responsible licensing practices in creating memorable and effective ad campaigns.
Coca-Cola – “Thanda Matlab Coca-Cola”:
The “Thanda Matlab Coca-Cola” campaign by Coca-Cola is another example of successful music licensing in Indian advertisements. The company secured the rights to the popular jingle, ensuring legal compliance and contributing to the widespread success of the campaign.
Pepsi – “Yeh Dil Maange More”:
In the early 2000s, Pepsi faced a copyright dispute over the use of the phrase “Yeh Dil Maange More” in its advertisements. The company learned the importance of thorough due diligence in licensing to avoid potential disputes. This case underscores the need for advertisers to carefully vet the intellectual property they intend to use.
Nestle – “Break Banta Hai”:
Nestle’s “Break Banta Hai” campaign faced a copyright challenge related to the use of a popular jingle. The case highlighted the significance of understanding the scope of licensing agreements and ensuring that the obtained licences cover all aspects of the intended use. Clear communication and agreement terms are crucial to preventing disputes.
CONCLUSION
As the landscape of music licensing and copyright for advertisements evolves in India, several anticipated changes are expected to shape the future. With the increasing digitization of content and the emergence of new platforms, there is a likelihood of amendments to existing laws to address the unique challenges posed by online advertising. Anticipated changes may include more comprehensive regulations regarding the use of music in digital advertisements, addressing issues such as user-generated content and the evolving role of social media influencers.
In this changing landscape, advertisers must adapt their strategies to navigate the complexities of music licensing and copyright laws. Embracing technological advancements and leveraging tools for efficient rights management will become essential. Advertisers should establish strong partnerships with reputable music licensing agencies, staying informed about legal updates and industry trends. Additionally, incorporating artificial intelligence and data analytics to monitor and manage licensing compliance can streamline the process, ensuring that campaigns are not only creative but also legally sound.
In conclusion, the future of music licensing and copyright for advertisements in India calls for a proactive and technologically savvy approach from advertisers. By staying ahead of legal developments, embracing technological innovations, and fostering strong collaborations, advertisers can navigate the evolving landscape with confidence, ensuring that their campaigns resonate creatively while adhering to the ever-changing legal landscape.
REFERENCES:
1.Article Name – How to obtain a music licence in India
Author Name – Himanshu Sinha
Published on – April 26, 2021
Link – https://blog.ipleaders.in/obtain-music-license-india/
2.Article Name – Copyright Violation In The Indian Music Industry
Author Name – Kiran2628
3.Article Name – Top 5 Copyright Cases
Published on – January 17, 2020
Link – https://www.intepat.com/blog/5-copyright-cases-2019-india/
- Copyright Act, 1957 (INDIA)