Is Shaming The New Suing?: The rise of extra-legal measures to address copyright infringement

Pablo Picasso's (misquoted) saying, “good artists copy, great artists steal” that was popularized by Apple genius Steve Jobs has been misinterpreted to justify plagiarism across creative industries around the globe. While the original saying by T.S. Eliot sought to convey that great artists adapt the best features of the art and improvise instead of merely imitating, the Indian music, visual arts, and fashion industry seem to be interpreting this quote quite literally.

The Indian Copyright Act, 1957, give rights to creators of literary, musical, dramatic, cinematographic, and artistic works to protect their creations from unauthorized use. This right transcends onto the expression of the idea rather than vesting in the idea itself and exists as a bundle of rights whereby any person wishing to reproduce, translate, communicate to the public, or adapt the work must seek permission from the owner of the said work.

The commission of any of these acts sans authorization amounts to infringement, for which right holders are granted civil and criminal remedies against the infringer.

In a country with a robust legal framework for the protection of intellectual property, we assume the mode of seeking relief against copycats would be legal.

Au contraire, a certain exception has emerged in the current wave of digitalization where aggrieved creators have taken IPR enforcement into their own hands by naming and shaming infringers and putting them on trial over what can be regarded as the “people’s court of Twitter/Instagram”.

These extralegal measures, inspired by Frank Castle’s pursuit of natural justice in The Punisher are not just carried out to remedy the infringement of bleakly protected works like make-up looks, tattoos, dance routines, and recipes, but also those that are central to the concept of intellectual property in India, such as copyrights, designs, and trademarks.

Shaming as a mode of self-help has been lately popularized by Diet Sabya (“DS”) an anonymous Instagram profile that calls out copycats in the fashion and music industry. It compares the plagiarized creation to the original one and seeks public opinion on the same. DS is the Indian counterpart of American originated Diet Prada, popularly regarded as a “fashion watchdog”.

The influential page not only boasts of big names in its follower’s list, but has caused de-shelving of products, cancellation of fashion shows, and public apologies from brands that faced its wrath.

By the same token, designer Ana Singh was accused of copying a Gianni Versace outfit after 25 years of being donned by actress Madhuri Dixit in Raja. The designer clarified that demands based on international references were the norm in that era, leaving no choice to designers, and problematically took pride in the “excellent copy” she created.

In 1995, there were fewer ways to detect infringement and its condonation by the industry, but in the 21st Century, a global village’s most powerful tool is an internet connection.

This weapon was deftly wielded when British artist TroyBoi heard a song that was eerily similar in concept and tune to his own. Subsequently, he called out T-series for ripping off his song and actor Chiranjeevi for copying Michael Jackson’s Thriller in the same breath.

Branded as a ‘bullying’ by some and ‘a strong communication tool” by others, DS and its crusade to shame copycats has borne fruitful results for aggrieved creators. The shame-culture brought a remedy in the form of credits for product designer Niteesh Yadav, whose artwork was copied by the Indian fashion label Jajaabor.

Other times, shaming has been a means to push for legal recourse as in the case of electronic music creator Ritviz, whose song Udd Gaye was plagiarized by T-series in the film Pati Patni Aur Woh. Initially apprehensive, Ritviz decided to litigate after the support he garnered from netizens.

The rising popularity of extra-legal measures in cases of copyright infringement can be attributed to its ability to provide reliefs akin to those expected from successful litigation (pecuniary damages, credits, etc.).

This popularity, however, calls for an assessment of the pros and cons of the action for the parties involved, as well as the public at large.

Primarily, self-help in cases of infringement is inexpensive and generates speedy results in comparison to legal proceedings. These are essential factors for consideration when a disparity exists between the parties’ wealth and power.

For instance, an aggrieved creator may not possess the means to pursue litigation, or an infringer may be unable to afford the damages payable to the creator.

The literature on ancient Indian penology mentions shame-sanctions as a mode of punishment in the context of criminal law. This culture has been revived in the 21^st Century to address intellectual property infringements and has had a noteworthy success rate owing to people’s sensitivity to their reputation.

Stories of shame grab eyeballs and gain “virality” quicker than dull and protracted court proceedings. As a consequence, infringers take quick cognizance of their actions and attempt to remedy the same. E-shaming hence acts as a sharp tool in the shed of self-help in cases of infringement.

There is a visible ‘cool-quotient’ attached to ‘slacktivism’ which means to “support a cause by performing simple measures” and in the digital context, includes retweets, likes, and re-shares.

Online shaming is often undertaken by slacktivists, which makes them appear voguish and ‘relevant’. This was witnessed when James Turrell responded to a highly ‘influenced’ and unauthorized use of his light and space art in Drake’s music video, Hotline Bling.

Although Turrell released a statement through his lawyers and denied having any contributions in Drake’s work, his usage of non-threatening language with a dash of street-lingo won hearts. On the other hand, actions taken by rights holders within the purview of law and officiality are often lambasted as witnessed in the case of Taylor Swift, who was reported to possess “Trump-ian litigiousness” for enforcing her intellectual property rights against her fans for unauthorized use.

While self-help in copyright enforcement allows the aggrieved creator to have the last laugh, public disapproval of infringing acts can lead to a culture that is fueled not by the sensible public, but riled-up crowds, according to James Whitman.

Since shaming by platforms such as Diet Sabya occurs on an extra-legal level, the odds of such a culture being governed by legal dilettantes harboring volatile opinions are also incredibly high.

Martha Nussbaum defined shame as a painful emotion that emerges as a response to the failure to achieve something considered to be ideal. The feeling of shame relates to a person’s whole self as opposed to one act committed by them.

Hence, when we shame a person, we consider them of having lower worth, thereby harming their dignity. An ideal society must protect its members against the loss of dignity than partake in causing the said loss.

Further, Nussbaum wrote that the urge to inflict shame onto others comes from a place that lies beneath one’s morals and gains pleasure out of the humiliation of others.

To be successful, the shame-culture heavily relies on popularity which is only attainable when a clickbait arouses feelings of pleasure among netizens, every time they call out an infringer.

These feelings have paved the way for a new genre of entertainment, called “humilitainment” the primary feature of which is humiliation for pleasure, as witnessed in the shame-culture and reality shows.

Knowing the reputational harm a shaming story can cause, a frivolous accusation may be detrimental to the business of the accused. Further, a large number of expressions of shaming are based on personal opinions rather than facts, which leaves bleak prospects of relief from a defamation suit when wrongfully shamed.

Shame-culture agreeably provides respite to creators who would have struggled to argue a strong case before the court and has been rewarding to creators who would have had much less to gain if they pursued the legal course. Indian courts, however, apply a plethora of tests and doctrines to determine cases of copyright infringement. Extra-legal measures dilute an otherwise complex subject into a simple ‘right or wrong’ based on a layperson’s understanding of the copyright law.

This simplification may reduce the liberty and scope of creativity otherwise granted under the current copyright regime in furtherance of public interest, by excessively protecting creative works.

The rise of extra-legal means of addressing copyright infringement, such as the shame-culture, is unforeseen considering the recent developments in copyright jurisprudence in India, coupled with the increasing awareness of creators’ IPR.

However, this culture is likely to pullulate in the near future despite its downsides. As discussed above, naming and shaming an infringer is a cost-effective manner of seeking remedies akin to those sought from an infringement suit, only with more perks. While each of these perks come bearing certain costs, they are almost always borne by the public or the infringer.

Further, the ‘Digital India Movement’ facilitates the growth of the shame-culture for two reasons: it makes art more accessible to the public, which increases the probability of the art being plagiarized; and the internet provides expanded access to copied works, which increases the chances of detection of plagiarism. India has come a long way from taking twenty-five years to detect plagiarism in the film Raja to a week in the case of Reliance Jio’s copy of video calling application Zoom’s UI.

With ‘online’ being the only place to go owing to the current global scenario, the shame-culture is unprecedentedly peaking. But, in the words of Robert Frost: If the two roads that diverged into the woods led to litigation and online shaming, which one would you pick?

(The author is a final year student at Symbiosis Law School, Hyderabad. All views expressed by the author are personal and do not imply an endorsement of them by Bar & Bench.)