The Eleventh Circuit Court of Appeals has upheld a lower court ruling absolving music producer Timbaland and various record labels of illegally sampling a 1967 Bollywood tune for the song, “Put You on the Game,” by hip-hop artist The Game.
The case turned unusually and rather fascinatingly not on the question of whether Timbaland had a legal right to sample just three notes (looped repeatedly) of the song, but rather whether the plaintiff, Saregama India Ltd., held a copyright in the first place on the original work, “Baghor Mein Bahar Hai,” which appeared in the 1969 Bollywood classic, Aradhana.
To determine that, a panel of judges had to review an Indian copyright statute from 1957, the types of customary agreements between film producers and musicians in the 1960s, and the specific contract between Saregama’s predecessor company and the producer of Aradhana.
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How was a 1960s Bollywood film different than say, the modern-day TV show Glee?
In the latter, songwriters and publishers hold the cards, controlling whether they want their music used, and of course, they retain derivative rights thereafter and continue to profit from sales of Glee sound recordings on iTunes and elsewhere.
But in old Bollywood films, there could be three separate owners of a sound recording copyright: a first owner, who has the exclusive right “to make any other sound recording embodying [the original sound recording],” a second owner who has the exclusive right “to sell or give on hire, or offer for sale or hire, any copy of the sound recording,” and a third owner who has the exclusive right “to communicate the sound recording to the public.”
Yes, pretty confusing, which is why Indian copyright law, in its love of a good old song-and-dance routine, later simplified things somewhat by conferring primacy to the film producer, deeming it to be the initial owner of the copyright and allowing it to transfer the other rights by express agreement with the music producer.
Having reviewed Indian legal customs, and applying this standard, the 11th Circuit thus finds that the presumption of copyright belongs with the producer of Aradhana, not the company which created the music in the first place.
Saregama’s predecessor gained rights to make sound recordings on “Baghor Mein Bahar Hai” as part of a 1967 contract, but the term of that agreement was only two years, meaning the copyright reverted back to the film’s producer thereafter.
So regardless of whether Timbaland had a fair use right to transform the original song into a modern-day hip-hop song, Saregama didn’t have standing to bring the lawsuit.
