2008 SCC OnLine Bom 370 (High Court of Bombay, 2008)
Comment by Awani Kelkar
In an industry marred by allegations of “inspirational plagiarism” and sometimes outright copying, this case presents more of the same- an established Bollywood family attempting to take advantage of a young, upcoming composer and refreshingly, some of the new.
The Plaintiff, Ram Sampath, is a composer who was engaged by Sony Ericsson (“Sony”) to create the jingle “The Thump” for their upcoming television advertising campaign. As part of their contract, the Plaintiff retained the copyright to the underlying musical composition and sound recording and Sony was granted only a license to use the song as part of their television campaign. The advertisement starred “Hrithik Roshan” ( a popular Bollywood actor and coincidentally, also the Defendant’s nephew) and went on to become widely successful. The Defendant’s movie “KRAZZY 4” incorporated the main melodic hook from “The Thump” in at least 2 songs after seeking (and surprisingly obtaining) an invalid No-Objection Certificate from Sony, which Sony obviously was in no position to grant.
Possibly the most surprising fact about this case was the swiftness with which the Bombay High Court arrived at a final decision. This was in part because the Plaintiff sought a stay on the release of the movie “KRAZZY 4,” which meant that the court was required to review the matter on an expedited basis and in part because of text messages from Mr. Roshan to the Plaintiff. In these texts, Mr. Roshan admitted that they had attempted to seek a No-Objection Certificate from Sony, which the court interpreted to mean that the Defendants were aware that a license was required and hence, that the defending works contained protected musical expression owned by others.
As for the copied musical element, the melodic hook recurs throughout both the defending works “Krazzy 4 (Remix)” and “Break Free (Remix)” and can be prominently heard even in the verses. Hon. Justice Karnik relies on the traditional “lay person” standard for determining substantial similarity (also the total concept and feel test in other jurisdictions) to find that the Defendants were liable for copyright infringement. Although the court accurately found for the Plaintiff, this case raises a long-standing issue about how to determine substantial similarity. Applying a layperson standard often means that less value is given to dissection of underlying musical components and removing non-copyrightable elements; greater emphasis is placed upon the impressions of an untrained ear.
Another curious fact about this case is that the Defendants at least attempted to obtain permission before incorporating “The Thump” in the the Defending Works. Even though they ultimately approached the incorrect source for a No Objection Certificate, this apparent “good faith” gesture is uncommon and for that reason alone, this case stands out from many other copyright infringement cases in Bollywood.
Following this judgement, the parties reached a settlement and the movie “KRAZZY 4” released as scheduled with both “Krazzy 4 (Remix)” and “Breakfree (Remix)” as part of it.
Judgement (Apr 09, 2008): Summary