Barobax v. Chakraborty, et al. [INPLAY]

This dispute involves “Soosan Khanoom” a number by Barobax, a Teheran-based band, and “Pyaar Ki Pungi” a song used in the promotion of Agent Vinod, a Bollywood action movie released in spring of 2012.

The words of “Soosan Khanoom” describe a young man wooing a pretty woman — “Soosan”.  According to Mojdeh Navid — recent UCLA Law graduate — the song became popular to the extent that it is now commonly heard at festive gatherings among members of the Persian community in Beverly Hills.

Barobax provided us the files above– nicely polished presentations juxtaposing musical and visual commonalities between the works.  Perhaps the most interesting of these commonalities is the guttural inflection of the first syllable of “khoshkel” – the first word of the Barobax song – that also occurs, but with no apparent linguistic purpose, in “Pyaar Ki Pungi”.

The information offered in Barobax’s comparisons strongly supports an inference of copying by the author of “Pyaar Ki Pungi” but it is not obvious that this copying constitutes infringement of the music of Barobax’s work.  This is because the original melodic, rhythmic, and harmonic content of both works is slight.  The vocal lines of both songs have such a narrow range of pitch and rhythm that they are more accurately labeled chant than melody.

If, however, Barobax could establish that the drum track of “Pyaar Ki Pungi” was substantially built upon sampled material from “Soosan Khanoom” this taking might be the basis of a claim of substantial similarity between the two songs.

The similarities between the choreography of the recorded visual performances associated with each of the songs strengthen the argument that “Soosan Khanoom” influenced overall the creation of “Pyaar Ki Pungi”.  If there were no musical similarities between the two works would these choreographic commonalities alone support a claim of copyright infringement based upon visual similarities?  Perhaps not given that both involve sequences of fairly commonplace gestures and movements.  But should the choreographic similarities not only strengthen the case for the derivation of “Pyaar Ki Pungi” from “Soosan Khanoom” but also the claim for substantial musical similarities between the works?

Mid-April, 2012, Barobax withdrew their claim of infringement and issued an apology to Pritam Chakraborty.  Reading between the lines of reports from the Indian press, it appears Barobax may have been intimidated into withdrawing and apologizing.  Barobax is reported to have declared:  “We do not want to get into any further legal issue and so we are withdrawing the case as we know that Mr. Pritam’s lawyer is an expert in copyright laws and there will be strong criminal action otherwise made out against us…”  Happily, in the U.S. such a retraction would be unheard of in these circumstances.