All you need to know about Song Production vis-a-vis Royalties

“Yeh Gaana (song) kiska hai?” remains the biggest question in the jigsaw puzzle of songs and royalties.

Thinking of posting a story on Instagram/Facebook, but wait did you add music to make it more engaging? Choosing from millions of songs and adding it to your story and reels just at a click - sounds interesting, right?

Ever wondered from where such huge repository of songs come from to such social media platforms? Do they take any permission for the same? What if they don't take any permission or license? Do they pay for such licenses? If so, to whom? To whom the money for the same goes? Does it go to the producer or the singer or the lyricist or the music composer? And what about royalties? So many questions!

Copyright infringement cases involving social media sites such as Musically, Tik Tok, Twitter (now X) have emerged in recent years. These instances frequently involve people sharing copyrighted music without the proper permissions or licenses and sometimes some platforms using the songs without any license. In fact, recently a group of about 17 music publishers sued Twitter for $250 Million, accusing Twitter of copyright infringement of about 1700 songs before the Federal District Court in Nashville. In case of Musically/Tik Tok, a user is given the option to select a song, whereas in case of Twitter, the user themselves are sharing the music without the active participation of Twitter. Thus, in the case of Twitter, it may not be directly liable for the violation and infringement of copyright in such songs, yet it may face legal consequences for aiding and permitting the distribution of copyrighted information.

Pertinently, now well-known social media platforms, such as TikTok, Facebook, Instagram, YouTube, and Snapchat, have entered into agreements with right holders that allow for reimbursement of music creators.

A copyright is essentially a form of protection granted to intellectual property owners which may include literary work, musical and artistic work, film recordings, song recordings etc. The rights granted can be used by the owners or those who have received due permission by way of license given by the owner. The work being registered for copyright should be original, i.e. not be copied from any other source.

In India, the primary legislation covering copyright laws and infringement is the Indian Copyrights Act of 1957. The Act grants exclusive rights to producers of creative musical works to reproduce, distribute, perform, and convey their work to the public. Copyright infringement occurs when someone uses or reproduces copyrighted music without the explicit authorization of the rights holder. The Act automatically protects original works from the moment they are created. Registration with the Copyright Office is not a prerequisite for seeking copyrights protection , but it is recommended because it gives stronger legal proof in the event of a dispute.

A song contains a variety of elements, therefore it is usually the result of the collaborative efforts of several people such as, the lyricist, who writes down the verses of the song; the composer, who puts those verses in the form of music; the singer, who sings the words in accordance with composition of music and musicians, who play the background musical instruments.

The production of sound recording (song) is a complex process involving various stakeholders. Thus, when a song consisting of words, composed in music form and sung by a singer with instrumental background is recorded in any form whatsoever, it becomes a sound recording and becomes a work to which protection under the Copyright Act is granted. For grant of protection under the Copyright Act, a song is separated into various parts under the Act. Each part's owner can get a copyright for his or her contribution to the music.

The problem now arises that since there are so many stakeholders who are engaged in creation of a song, the music composer, the singer, the musicians, the lyricist, the music producer and also the film producer, to whom should the royalties from the song devolve?

As per the provisions of the Copyright Act, 1957 author in relation to literary work, is the author of the work, author in relation to a musical work is the composer, whereas an author in relation to a cinematograph film or sound recording is the producer. Pertinently, the author of the work shall be the first owner of copyright and as such being the producer of the cinematograph film, the producer of the cinematograph film is only entitled to sell or give on commercial rental or offer for sale or for such rental, any copy of the film, including the right to communicate the film including the sound recording  in it to the public. Similarly, in case of a sound recording, not forming part of a cinematograph film, the producer of the sound recording is only entitled to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording, including the right to communicate the sound recording to the public.

In this circumstance it is evident that the producer of the cinematograph/sound recording, as the case may,  has the exclusive right to license and communicate the cinematograph/sound recording to the public, as such is entitled to the license fee for such communication. But what about the underlying works therein the sound recording, such as the literary and musical work, in the sound recording and if authors of such copyright are entitled for any license fee or royalties in the same?

Section 17 of the Copyright Act, deals with the owner or rather the first owner of the copyright. In Section 17(c), it is stated that if a piece of work is made in the course of employment under a contract of service, then, the employer shall be the first owner of the copyright. Therefore, in case of a movie or a film which is produced by a Producer, the Producer enters into a contract with the director, the actors, the lyricist, the composer, the singers, the musicians, etc. All of them, enter into a contract of service with the Producer, who pays them for the efforts put in producing a work/a sound recording/a song in a movie. Thus, under Section 17(c) of the Act, the Employer/Producer becomes the first owner of the copyright of that sound recording, as there is a contract of service.

Furthermore, as per Section 18 of the Copyright Act, the owner of the copyright in any work may assign its copyright to any person.

The position of law was clear on assignment until 2012 but with the amendment in the Copyright Act, in 2012, the provision of assignment underwent a critical revision. The Copyright (Amendment) Act, 2012 added proviso to Section 17, two proviso to Section 18 (1) and sub-sections (9) and (10) in Section 19 of the Copyright Act that would result in recognition of additional rights in favour of authors of original underlying literary and musical works. The amendment of 2012, created severe confusion and contradictions, which led to the initiation of a series of litigation across several jurisdiction in India.

On April 28, 2023, the High Court of Bombay came to the rescue and reasonably settled the position of law in the matter of Indian Performing Right Society Limited V. Music Broadcast Limited. The High Court had the opportunity to adjudicate primarily on the aspect, if Indian Performing Right Society Limited (IPRS), which represents authors, is justified in claiming interim reliefs (vis. royalties), due to change in law, as per the 2012 Amendment in the Copyright Act

The High Court of  Bombay observed that indeed change in the position of law, in line with the stated object of the Copyright (Amendment) Act, 2012, which intends to further protect and guarantee rights of authors of such literary and musical works when their works are utilized in any form. Communicating sound recording to the public can be said to be utilization of such literary and musical works, for the reason that such works form an intrinsic part of the sound recording being communicated.

The High Court upheld the rights of authors of literary and musical works to claim royalties in the sound recordings. The High Court further held that the literary and musical works of such authors which forms part of a song  are also work in which copyright subsists under Section 13(1) (c) of the Act. The High Court further held that since the literary and musical works of such authors do get subsumed in the sound recording, yet their entitlement for such works to collect royalties would not be taken away, despite specific guarantee of such rights by way of amendment in the year 2012, as manifested by the legislature by introduction of proviso to Section 17, third and fourth provisos to Section 18 and sub-sections (9) and (10) in Section 19 of the Copyright Act.

The High Court of  Bombay, on April 28, 2023, held that the moment  sound recording works are utilized in any form other than in a cinema hall, the authors of literary and musical work are entitled to receive royalties. Similarly in so far as sound recordings not forming part of cinematograph film are concerned, the prohibition by way of such a legislative tool is even wider, because it provides that such authors would have the right to receive royalties ‘for any utilization of such works’ qua a sound recording not forming part of a cinematograph film.

The question now arises, are the singers also entitled to any royalties from the sound recordings? It is in this light that a number of litigations were filed by the Indian Singers Right Association (ISRA), a copyright society of the singers, across several jurisdictions in India. In one of such litigation, which was filed by ISRA before the High Court of Delhi, we had successfully represented the Music Label Zee Entertainment Enterprises Ltd, whereby the issue of grant of royalties from the sound recording to the singers was raised. However the above mentioned litigation could not see a final adjudication by the High Court of Delhi as a mutual settlement was arrived between the Singer’s Association (ISRA) and the Music labels.

Music indeed is a uniting force for the nation, from bringing people together by the very famous “aae mere watan k logo”, till today. Music does not discriminate nor does it segregate. The same was also seen in the courtrooms, where all the stakeholders were able to come on the same page, for the benefit of all stakeholders across the music ecosystem in India.

Amidst the confusion or conflicts which the artists and the music labels may have, the access to songs for you must not be affected. Gaana to aapko milte hi rehna chahiye…!

Petal Chandhok is a Partner, Rupali Gupta is an Associate Partner, and Mimansi Sethi is a Senior Associate at Trust Legal, Advocates & Consultants.