If your band plays ‘covers’, make sure you’re covered under the law

One of our interns (on our instructions, naturally) came up with a rather well researched write-up on bands performing covers and their rights (or the lack of them) vis-à-vis those of the actual Copyrights owners of the songs. For the uninitiated, ‘covers’ are songs, mostly hits of famous musicians/bands, which are performed by other bands. So if a band were to play a certain Bon Jovi chartbuster at a rock show, we’d be ‘covering’ it. Local pubs or such other venues hold tribute nights regularly, or other events, where bands reproduce songs of famous artists, whose ownership is not due to them and for which they may be liable for punishment for Copyright infringement. Below, we discuss how.

Getting ready to rock? Careful whose music you play

But, a little law first

The Copyright Act, 1957 provides that the exclusive rights granted to Authors and Composers in respect of their works are: –

(i)       the right to perform the work in public;
(ii)      the right to communicate the work by broadcast;
(iii)     the right to communicate the broadcast of the work to the public by a loud speaker;
(iv)     the right to communicate the broadcast of the work to the public by any instrument;
(v)      the right to make any record in respect of the work.

The first four rights are generally referred to by the single expression ‘Performing Rights’ and the last right is referred to as ‘Mechanical Rights’.

According to the Act, the expression ‘Performing Right’, means and includes
“the right of performing in public, broadcasting and causing to be transmitted to subscribers to a diffusion service in all parts of the world, by any means and in any manner whatsoever, all musical works or parts thereof and such words and parts thereof (if any) as are associated therewith including (without prejudice to the generality of the expression ‘musical works’) the vocal and instrumental music in cinematograph films, the words and/or music of monologues having musical introduction, and/or accompaniment, and the musical accompaniment of non-musical plays, dramatico-musical works including operas, operettas, Musical plays, revues or pantomines and ballets, video, plays, serials, documentaries, dramas, commentaries etc. accompanied by music and the right of authorising any of the said Acts.”

Further, under the Act, any person, who has a copyright over a song, has the right to obtain “royalty” for the use of his “work”.

Now, what really happens is…

Whenever someone makes use of, performs or reproduces a certain composer’s work without his consent, the owner has the right to claim damages for the same. The gravity of the situation is still not evident, as one may wonder, how can an artist possibly keep track of when, where and who is performing his songs, and what are the remedies available to him. Well, Copyright Societies exist to quell this headache. It is they who manage an artist’s Copyrights and also initiate litigation on behalf of them. These societies provide intermediary functions, particularly royalty collection, between copyright holders and parties who wish to use copyrighted works publicly in locations such as shopping and dining venues and others. In India, the Indian Performing Rights Society Limited (IPRS), which is registered as a non-profit organisation under the Companies Act, is the most popular Copyright Society among artists.

Now, in a situation where a band is performing at an event and it performs songs which are the works of another band, it is the duty of the event host or the organiser and not that of the band, to obtain permission for such performance. Therefore, in case of Copyright infringement, it is the liability of the event host or the organisers to pay damages to the owners of the Copyright, and not that of the band. And most of such litigations for damages are initiated by Copyright Societies on behalf of the Copyright owners.

Section 31C of The Copyright Bill (Amendment 2012), which was successfully passed by the Rajya Sabha on 7th of May, 2012, regulates the production of cover versions –

It says that cover versions of any literary, dramatic or musical work can be made only after a period of five years from the date of first recording of the original work. Among other provisions are;

  • The cover version should be in the same medium as the original unless the medium of recording of the original is no longer in commercial use. So let’s say, if the original is on a cassette, the cover cannot be made on a CD.
  • Payment of royalty has to be made for a minimum of fifty thousand copies. This can be lowered by Copyright Board having regard to unpopular dialects.
  • Cover Versions now are not allowed to “contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated”.
  • All cover versions must state that they are cover versions.
  • No alterations are allowed from the original song. So no imaginative covers in which the lyrics, musical instruments, patterns are changed or in which the music is reworked in any which way are allowed without taking the copyright owners’ permission. Only exact covers are allowed.
  • Alterations were earlier allowed if they are “reasonably necessary for the adaptation of the work”. Now they are only allowed if they are “technically necessary for the purpose of making of the sound recording”.

However, ‘cover version’ seemingly only covers ‘sound recording’ and not live performances. With regard to live performances it appears that artists will have to rely upon Copyright Societies and the vigil they keep on Copyright infringements.

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