Understanding Copyrights & Cover Versions: A Detailed Exploration

Introduction

The world of music is vast and filled with creativity, with musicians often drawing inspiration from others. This can lead to the creation of cover versions of original songs, a widespread and popular practice in the music industry. But how do copyrights interact with cover versions? What all safeguards an artist needs to take for developing a cover version? To understand this, one must delve into the intricacies of copyright law and its implications for cover versions.

Definition of Cover Versions

As per Section 31C of the Copyrights Act, 1957, a cover version, subject to the provisions of the said Section, is a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work. In one of the first matters pertaining to label records, the Hon’ble Delhi High Court in Gramophone Co. Of India Ltd. vs Super Cassette Industries Ltd., 1995 (33) DRJ 333, opined that

“(5) What is a version recording? A version recording, we are told, is a sound recording made of an already published song by using another voice or voices and with different musicians and arrangers. Version recording is thus neither copying nor reproduction of the original recording. Version recording is thus neither copying nor reproduction of the original recording”. 

Thereafter, the Delhi High Court in the matter of Star India Pvt. Ltd. v. Piyush Agarwal & Ors., (2014) 58 PTC 169, defined cover version as follows:

“…After the first sound recording is made, then, if and after permissions are taken from the authors of the musical work and the lyrics writer which formed the basis of the first sound recording, another band of orchestra with the singer (i.e. another set of performers) can by their performances on the basis of the existing musical work and the lyrics, cause to come into being a new sound recording. This second/subsequent sound recording is called a version recording/cover version.” 

Therefore, a cover version is a re-recording or performance of a song that was previously recorded by another artist. They can range from near-exact renditions to versions that incorporate significant artistic changes with no changes to the lyrics and the melody. Moreover, as per the said Section, the medium of the cover version needs to be in the same medium unless the medium of the last recording is no longer in commercial use.

Cover Versions and Copyrights: Provisions and Precedents

A copyright, at its essence, is a legal right granted to the creator of an original work, which provides exclusive rights for its use, alteration and distribution. In the realm of music, copyright law typically protects two primary rights: the right to the musical composition (the lyrics and melody) and the right to the sound recording (the specific recording of the song). Owning a copyright essentially provides control over who can reproduce, distribute, perform, or create derivative works based on the original.

 Cover versions walk a fine line within copyright law. As mentioned above, express consent or permissions are required for creating a cover version. A musician may want to create a cover version of a song, but without the necessary consent or permissions, this could lead to copyright infringement.

In many jurisdictions, one can obtain a compulsory license to create a cover song, which allows an individual to create a new version of a previously recorded song, even without the original copyright holder’s explicit permission. However, the cover cannot change the basic melody or fundamental character of the song. Importantly, the individual creating the cover is still required to pay royalties to the copyright owner of the original composition. These payments are generally set by statutory rates, making sure the original creator is compensated for the use of their work.

Initially in the Indian jurisdiction, the law of copyrights pertaining to cover versions was governed by Section 52(1)(j) of the Copyrights Act, 1957. Various litigations also ensued primarily in Delhi High Court, Karnataka High Court and few of them even reached the Supreme Court of India.

Crucially, the ruling made by the Karnataka High Court in the case of Gramophone Co. of India Ltd. v. Mars Recording Pvt. Ltd. and others, 2000 (PTC) 117 emphasized that the provision only necessitates the issuance of a notice, not the acquisition of consent. However, this judgment was subsequently overturned by the Supreme Court of India in the same case involving Gramophone Co. of India Ltd. v. Mars Recording Pvt. Ltd. & Anr., 2001 (PTC) 681 (SC). It should be noted that this was on account of the lack of factual grounding rather than any inherent contradiction with the judgment delivered by the High Court.

The ruling in the case of Super Cassette Industries Ltd. v. Bathla Cassette Industries Pvt. Ltd., 2003 (27) PTC 280 Del was somewhat uncertain. The Ld. judge ruled that substantial alterations were made to the work intended for sound recording, despite the plaintiff’s notice not indicating such changes. Because these modifications, including changing the singer and orchestra, were not specified to the copyright owner and their consent was not obtained, there was non-compliance with legal requirements (Section 52(1)(j) and Rule 21(2)(b)). Moreover, the Ld. Judge opined that changing the singer is a significant alteration and requires the original owner’s permission. The judge also opined that version recordings, involving changes to the singer or orchestra without the original owner’s consent, should not be allowed as it could encourage plagiarism. Furthermore, he held that version recordings can’t be considered as independent sound recordings entitled to separate copyright. However, the Hon’ble Court in Gramophone Company of India Ltd. v. Super Cassette Industries Ltd., (2010) 44 PTC 541 deemed the previous ruling as per incuriam, stating that obtaining a statutory licence does not necessitate the proprietor’s consent. In this judgment, the Hon’ble Delhi High Court observed as follows:

• A perusal of Section 14 (a) read with Section 52(1)(j) shows that the copyright pertaining to literary, dramatic, or musical works does not extend to determining who performs the work during the creation of subsequent sound recordings or version recordings. The original creator’s copyright is associated with the literary, dramatic, or musical work itself, rather than the voice of the singer or the artist hired to produce the initial sound recording.
• A careful reading of Section 52(1)(j) reveals that an individual intending to create a version recording is not obligated to notify the owner of the copyright in the previously made sound recording. Moreover, there’s no requirement to pay royalties to the owner of the copyright of the prior sound recording. Instead, the notification and the royalty payments should be made to the copyright owner(s) of the original literary, dramatic, and musical works that are to be employed in producing a version recording.
• A version recording is essentially a new recording made using either the same or different singers, musicians, and artists. However, when producing this recording, the integrity of the original literary, dramatic, and musical works must be preserved, except when reasonable changes are necessary for the adaptation of the work for the sound recording. This provision acknowledges the author’s moral rights under Section 57 of the Act, protecting the author against any prejudicial distortion, mutilation, or modification of their work that could harm their honour or reputation.
• The copyright owner of the initial sound recording can’t object to a later recording being similar or identical. They can only raise concerns if the new recording’s marketing could confuse the public into thinking it’s the original, or if their original recording is used in the subsequent version.
• Section 14(e) does not differentiate between the first and subsequent sound recordings utilizing original literary, dramatic, and musical works. All recordings, whether first or version recordings, receive the same protection. Therefore, the owner of a version recording can make other sound recordings embodying the version recording, commercially exploit it, and communicate it to the public. If anyone uses the version recording without the owner’s consent, the owner has the right to enforce their copyright.
• On a conjoint reading of Section 13(3)(d) and Section 52(1)(j), it’s evident that a sound recording comprises of literary, dramatic, and musical works. The copyright owners of these works must be notified and paid royalties when a version recording is being made. However, before making the version recording, there’s no requirement to notify or pay royalties to the copyright owner of a previously made sound recording.
• Once a version recording is made in compliance with Section 52(1)(j), it holds the same status as any other sound recording of original literary, dramatic, or musical work, regardless of whether it was made under a specific license from the author. The fact that it is a version recording under Section 52(1)(j) does not diminish its characteristics as a sound recording.
• When selling, hiring, or offering version recordings as mobile ringtones or online, it’s crucial to clearly state that these are version recordings, not just indicating the song or composition title. If presented with a title/icon on a website, it should also be clearly labelled as a version recording, complying with Section 52(1)(j) requirements.
• Simply stating that recordings are made as per Section 52 of the Copyright Act isn’t enough. It’s crucial for the consumer to understand that they are purchasing or hiring a version recording, not the original soundtrack. Since the original recording typically drives the popularity and consumer demand, it’s important to make the distinction clear. A consumer may prefer the original soundtrack over a version recording. Merely disclosing the singers’ names in the version recordings is also insufficient.

Meanwhile, pursuant to the amendments made in the year 2012, now the law relating cover versions or version recordings is governed by statutory licenses under Section 31C. Section 31C capturing the essence of erstwhile Section 52(1)(j) primarily provides the following:

1. Time Limit: Cover versions can’t be made until five calendar years have passed since the end of the year in which the original sound recording of the work was made.
2. Prior Notice: The person intending to make the cover version must provide prior notice, share copies of all covers or labels that the sound recordings will be sold with, and pay in advance royalties to the owner of the original work at a rate determined by the Commercial Court.
3. Medium of Recording: The cover version must be made in the same medium as the last recording, unless that medium is no longer in current commercial use.
4. Misrepresentation: The cover version should not be sold or issued in any packaging, cover, or label that might mislead or confuse the public about their identity. It should explicitly state that it is a cover version made under this section.
5. Alterations: The cover version should not make any alterations to the original literary or musical work that haven’t been previously approved by the rights owner or that aren’t technically necessary for the making of the sound recording.
6. Royalties: Royalties must be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies of it are made, though the Commercial Court may fix a lower minimum for works in certain languages or dialects.
7. Record-Keeping: The person making the cover version must maintain prescribed registers and books of account, including full details of existing stock, and allow the owner of rights or their authorized representative to inspect all records and books of account relating to the cover version.
8. Penalty: In case of non-payment or underpayment of royalties, the Commercial Court can take action, including ordering a halt to further copying, upon receiving a complaint from the owner of rights.

Conclusion

While the creation of cover songs can be an incredible outlet for artistic expression, it is crucial to navigate the copyright landscape carefully. Musicians wishing to cover a song should obtain the necessary licensing and make sure to adhere to any conditions that licensing imposes.

Finally, it’s worth remembering that while copyright laws can sometimes feel restrictive, they’re in place to protect creators and their work. Respecting these laws not only ensures that original artists are fairly compensated for their creativity and effort but also fosters an environment where new and inspiring music can continue to be made.

Whether you are an artist, a listener, or an industry professional, understanding copyrights and cover versions is crucial in today’s music industry. It encourages legal and ethical practices, which contribute to a fair and vibrant musical landscape.