Neha Bhasin v. Anand Raj Anand & Anr.
2006 (32) PTC 779 Del
Plaintiff, a singer claimed to have sung the track “EK LOOK EK LOOK”, from the hindi movie “Aryan: Ubreakable”. However, she was not attributed as lead singer by the Defendants.
Where Plaintiff claimed to have been the lead vocalist in the song, the inlay of the audio CD of the relevant film containing three different versions of the song including a Remix and a Dhol version credited her only as a backup vocalist.
Plaintiff learnt of the misrepresentation made only when she saw the song on television. She confirmed the same on purchase of a cassette and an audio CD. In this regard, a notice was sent to Defendants. Defendant No. 1 responded to the notice and stated as follows:
- That though Plaintiff had auditioned with Defendant No. 1 for the concerned song, the Defendant No. 1 decided to use the voice of Defendant No. 2 for the said song;
- Plaintiff’s voice got mixed up with Defendant No. 2’s voice by the sound engineer inadvertently;
- This inadvertence was carried to the printer and that’s why the name of Plaintiff was on inlay card;
- As soon as this was brought to notice of Defendant No. 1, the sound engineer was asked to rectify the mistake;
- All next lot of CDs and cassettes have been stopped and all material is being recalled; and
- However, no credit is due to Plaintiff as the song was sung by Defendant No. 2 and Plaintiff’s song was only for audition.
As the Plaintiff found the stand of Defendant No. 1 of recalling the stock to be false, it send a rejoinder. The Plaintiff also stated in the rejoinder as to when once the recording done by the Plaintiff has been commercially used, whether or not there was any agreement, the Plaintiff was entitled to be remunerated, compensated and accredited. Plaintiff sought for an apology.
As Defendants did not apologise nor offered compensation, Plaintiff filed the present suit seeking, inter alia, a decree of permanent injunction in favour of the Plaintiff and against the Defendants from selling or exhibiting the motion picture as well as audio cassettes, compact discs, promos of the film “Aryan – Unbreakable” containing the song “EK LOOK EK LOOK” without displaying the name of the Plaintiff as the lead singer. The Plaintiff had also prayed that the Defendants be further restrained from advertising and giving the name of the Defendant No. 2 as the lead singer of the said song “EK LOOK EK LOOK” in all the three versions.
Image from: https://en.wikipedia.org/wiki/Aryan:_Unbreakable#/media/File:Aryan_promopic.jpg (Picture from the movie “Aryan – Unbreakable”. Copyright holders are “K Factor Entertainment Pvt. Ltd.” and “Telebrands India” and it’s displayed here for informational purposes only. )
To adjudicate the present matter, the Hon’ble Court asked the sound engineer to provide it with 2 CDs, one with the song sung by Plaintiff and the other with the song sung by Defendant. The Hon’ble Court heard the song couplet by couplet to match each and every word with the relevant singer.
- Defendant No. 1 approached the Plaintiff, through her manager. While she accepted to sing for him, no remuneration was settled, prior to the first recording. Later, a series of recordings took place, the final version containing backup vocals and a Rap piece;
- Each of the three versions are in Plaintiff’s voice and not in that of Defendant No. 2’s. Plaintiff’s voice has been stolen, having been falsely attributed and held out as that of the Defendant No. 2;
- It was further stated that such an erroneous depiction was in violation of the performer’s rights in terms of the Copyright Act, 1957; and
- There is no new CD in the market and the CD purported to be new is produced in limited numbers only for Court.
- Defendant No.2’s voice was consciously “layered” with the voice of the Plaintiff in such a way that a greater number of layers of the Defendant No.2 were mixed with a fewer number of layers of the Plaintiff’s voice;
- This resulted in projecting the Defendant No.2 as the lead singer, though, retaining some elements of the Plaintiff’s voice;
- Therefore, Defendant No.2 was rightly described as the main lead and Plaintiff was correctly described as a back-up vocalist; and
- Thus, credits printed on the inlay card of the Original CD are correct.
Removed Plaintiff’s voice and recalled the CD. Thus, No injunction is warranted
Even if Plaintiff is lead singer, the songs with her voice has been removed and replaced with songs from Defendant’s voice. All CDs are being recalled. Plaintiff at best can now have compensation but no injunction.
Plaintiff has no right – Contract, Copyright or Performer’s
There is no contract between Plaintiff and Defendant and there is Copyright with the Plaintiff. Plaintiff does not eve have performer’s right as such rights are only in respect of live performances.
A perusal of the defence of the Defendants demonstrate that the inadvertence story raised by the Defendant No. 1 at the time of legal notice has now been debunked as they have that consciously voice of Plaintiff was used. The issue is whether the defence of Defendant of layering is a valid defence in the present case.
On Defendants’ defence of layering
- After comparing the Impugned CDs as well as CDs containing sole voice of Plaintiff and Defendant No. 2, it is clear that dominant or projected voice, if not the sole voice, is that of the Plaintiff;
- In some cases, certain words in the songs have not been sung by Defendant No. 2 but only by Plaintiff; and
- Plaintiff is the lead vocalist in all the three version and found the defence of layering to be without any tangible basis;
On Defence of mitigating the wrong and recalling the Original CD so as to avoid injunction
- There are no tangible efforts taken by Defendants to stop the release or towards recalling and Defendants have made vague submissions with no numbers or proof;
- On the contrary the absence of any ID tags in the New CD and the blank inner of the inlay card lend credence to the submission that the New CD has been produced in limited members, perhaps only for the purposes of this case and certainly not as a whole and sole substitute of the Original CD; and
- The songs has been heard everywhere crediting the Defendant No. 2. It wont be fair now to permit Defendants to quietly slip in the New CD which contains the same song in the voice of the Defendant No.2 and discard the name of the Plaintiff altogether
On violation of Plaintiff’s rights
- Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed;
- De hors the Copyright Act, 1957, Plaintiff’s relationship with the Defendants is in the realm of quasi contracts. Section 70 of the Indian Contract Act, 1872; and
- Plaintiff has lawfully done something for the defendants. Her singing has been recorded. She did not intend to act gratuitously. The Defendants enjoyed the benefits of the Plaintiff’s recordings. Since there was no formal contract between them as alleged by the Defendants, they had the option not to use her recordings at all. But, because they opted to use the Plaintiff’s recordings, a quasi contract comes into existence. All the ingredients of Section 70 are satisfied.
On the relief of Injunction
- Plaintiff has been wronged by not being recognised as lead singer; and
- The Plaintiff has also been wronged as she has been demoted to a backup singer. This is likely to cause grave harm to Plaintiff’s reputation. Her aspirations to rise as a female vocalist would receive a big jolt if in the market she is perceived merely as a backup singer and not as a lead singer.
Thus, the Plaintiff is entitled to an order for give her due acknowledgement.
Consequently, the Hon’ble Court passed the following injunction:
“ an interim order restraining the defendants, their dealers, distributors, stockists and all other persons acting on their behalf from in any manner using, selling, distributing, exhibiting, advertising the motion picture as well as cassettes, CDs, promos of the film “Aryan – Unbreakable” containing the song “Ek Look Ek Look” in any of the three versions as contained in the Original CD without displaying the name of the plaintiff as lead female singer.”
In case the defendants opt to introduce and sell the New CD which does not contain the voice of the plaintiff then the defendants shall give wide publicity in the print media, the electronic media, the internet as well in the printed inlay cards/ covers of the cassettes and CDs that
(a) the three versions of the song “Ek Look Ek Look” in the Original CD were sung by the plaintiff as the lead/main female vocalist and that the defendant No. 2 was not the lead/singer thereof;
(b) the three versions of the song “Ek Look Ek Look” in the New CD have been sung by the defendant No. 2 and not by the plaintiff who had originally sung these three versions. ”
 Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
Contribution by: Ms. Pragati Pachisia, JCCLC