Moral Rights and Fair Use - A mismatched pair?

If a person decides to make a parody of a famous painting, like the drawing of a mustache on the Monalisa for instance, Da Vinci, if alive, would have reacted in one of the two following ways: Accepted it as parody and had a good laugh or viewed the drawing of the mustache as damaging to his honour and reputation and brought suit for the violation of his right to integrity in the painting.

In case Da Vinci feels like the latter, to my mind, two thought provoking questions arise. Firstly, whether parody violates an artist’s right to integrity? Secondly, assuming it does, whether the parodist can invoke the fair use defence in such a case.

Parody, by its very nature, is intended to be comical or ridiculing and thus seems to plainly fall within the ambit of “distortion or mutilation of the work”. However, the determination of whether such distortion, mutilation or modification harms the author’s honour and reputation is (or at least ought to be) an entirely subjective one. If the author views the parody to be harmful to his honour and reputation, I believe that there is no reason to provide for an exception in such cases. That, to my mind, would make the grant of the right to integrity itself, redundant.

To answer the second question, it is perhaps necessary to first examine whether the fair use defence applies only when copyright has been infringed or if it can also be used to carve out exceptions in the enforcement of neighboring rights such as the right to integrity. To begin with, the philosophical foundations of moral rights and fair use are entirely different from each other. While the objective of fair use, much like the purpose of copyright itself, is to promote the creation of new works of authorship, moral rights seek to protect the author’s personality by preserving the work and securing respect for the author. The fair use defence should thus limit itself to cases of copyright infringement and not extend to violation of moral rights as they operate in two very different realms.

The balance the law needs to strike, is thus between the protection of the author’s work (and as a result his honour and reputation) and the interests of the parodist. In my opinion, moral rights far outweigh the utilitarian purposes of the fair use doctrine given its genesis in the very personality of the author to whom the work first belongs.

A look at section 57 of the Indian Copyright Act (which, post the 2012 amendment provides for perpetuity in moral rights) also makes it amply clear that moral rights enjoy a superior position given that they exist “independent of copyright in a work”. The mere fact that they can be enforced even after the expiration of copyright reflects that moral rights are placed at a higher pedestal when compared to economic rights. The fair use defence therefore, ought not to be applicable to moral rights.

Though carving out an exception for parody is wholeheartedly supported, a line should be drawn where the parody, in the view of the author, violates his right to integrity.

Any comments are as always, welcome.

Stacking it up...

Taking cue from the questions that Sai left off at, in one of his earlier posts- “” Does copyright law preclude the possibility of a book with a single-quote being bought and read by people? Also, does “literary work” always mean a “book”?”, ticks off my mind, to think more so in a social networking context.

In a world where many of us live a part of our lives in a virtual world, what is the role that Copyright plays? We all leave status updates, wall posts, tweets etc.- sometimes rattling off statements that are nothing short of brilliant. Would these posts qualify for copyright protection? To be honest, I do not have a clear cut answer.

As I see it, what one may post, may often be an expression of a thought - which perhaps can be construed to be an idea, or at least its equivalent. But would that be construed as a subject matter capable of copyright protection?

Drawing a contrasting analogy (and perhaps even contradicting myself), why is it that we always refer quotes to the people they come from? It definitely is a sort of goodwill gesture, but may be beyond. Additionally the need for accreditation in the academic context, also leaves me confused, since fair dealing clearly covers academic contexts.

Further, what if one wrote a sentence each day to construct a story or poem, say over a couple of months or a year on a social networking platform? A collective reading of these, could at least be treated as a compilation.

Although this reminds me of the Feist case, the differentiator could be that the line by line breakdown of a telephone directory takes us to facts, unlike the hypothetical situation. In this view, with at least a minimum modicum of creativity being met, copyright must vest.

In my mind, the questions are stacking up!!! I eagerly look forward to a court rendering its view, just to clear the air up a bit!

Evaluating Substantiality

Sai indeed has raised an interesting question in his post- what is substantial enough to make a case for copyright infringement?

I will attempt to answer this question, in the context of Chanakya’s Chant. Am sure readers will appreciate that it is often easier to answer questions, when one uses a live example!). For starters, I agree the book is an awesome read. However, I would like to take a look at the situation from a somewhat different perspective..

As I see, the prolific use of quotes in the book, can be compared to a sort of compilation. One has learnt from the US Supreme Court decision in Feist, that the modicum of creativity required in a work of authorship, to be copyright eligible, is minimal. 

In other words, what I am attempting to say is that it is possible to look at what Sanghi did, to be in fact a weave/compilation of perhaps, his favourite quotes, into an altogether different historical setting, an attempt, which (in my humble opinion) is extremely creative in fashion.

I am not sure if what I say above holds good. Let me try to substantiate that by layering it with another line of thought.

We all know that copyright is an exclusive right over the expression of an idea. In other words, the expression describes the idea. If a known expression is picked up (say Oh My God! From FRIENDS) and used in a distinct set up, with a different plot, I think the expression, would be inextricably linked to the new idea. 

In such a scenario, if a couple of lines commonly used, were to be taken and looked at, they perhaps, would be associated with multiple scripts. Just because they have been used again in a different context, may not necessarily mean that they are infringing the copyright subsisting in the previous work. This in my view, is especially true, since copyright subsists in a work, and not in an “extract” from a work.

Coming to the point on fair dealing, the test of fair dealing under S. 52 must be applied before determining Infringement. As Sai rightly pointed out, “criticism” is covered as an exception there under.

But, to answer his question, I believe that praise would also be included under the ambit of “criticism”, especially because,criticism is not merely understood to be a negative opinion, but is in fact an opinion rendered by someone with knowledge or expertise in the field, and whose opinion on a particular work, may give rise to a positive or negative opinion about it. With this in mind, I think an ode or tribute would definitely qualify as fair dealing.

Further, to answer the question of substantiality of the work, I think the Folsom v. Marsh test used to determine fair use proves useful. The four factor test, which has been incorporated in the Indian jurisprudence, takes the following into account:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

Let me attempt applying these to the Chanakya’s Chant case:

1. Yes, Chanakya’s Chant is a work for commercial gains. The purpose and character could perhaps be said to be descriptive of a character’s response.

2. The nature of the copyrighted work is literary

3. The amount and substantiality of the portion in relation to the original work, is miniscule- few dialogues, as compared to the whole book

4. Effect on the commercial value of the copyrighted work –negligible. I don’t think the sales of any of the works whose dialogues/quotes have been referenced would be affected by Sanghi’s use.

If at all any, the only cause of action that the authors have against Sanghi's use, is one of “violation of moral rights”. Under S. 57 dealing in Author's Special Rights, they would have to make out a case showing that either (a) there is a distortion, mutilation or other modification of the said work; or (b) that an action prejudicial to his honour or reputation has been taken.

Having said all of this, mostly on impulse, I think Sanghi played it safe by giving due credit to the authors of the quotes. Whether his use is decided to be fair or not, he at least cannot be accused of blatant plagiarism!

Any room for Inspirational Plagiarism?

I think aloud as I listen to one of my favourite George Harrison/The Beatles numbers “My Sweet Lord” - I am reminded of the plagiarism suit that went along. Someone as great as Harrison was not excused, although he admitted that he never had “He’s so fine” on his mind, while composing My Sweet Lord. More about the row here.. My personal opinion, is that the judgment was a bit harsh.

And then, as much as a Bollywood loyalist that I am, I often wonder, can “inspiration” be really an excuse to copy music??? Although I hate to admit, the fact is that I often find myself listening to new songs, and I know that the riffs, chords, et al. are a pick up from some old song. The first one was as a very young child, listening to the inspirational version of “The Final Countdown” and the most recent one being last night - a Boney M rip off..

As I think of it, since copyright is apparently a pan-jurisdiction right, thanks to the Berne convention and non-requirement of registration, National Rights should be applicable to enforce such rights violated out of such “inspiration”.

Assuming a plausible situation, where an international artist came about to enforce rights against an act of “Inspiration” in India, “fair use” would be an obvious defence taken up in the issue. However, if we carefully look at the Act, S. 52 dealing on Fair use, titled “Certain acts not to be infringement of copyright”, covers Parody and not “inspiration”. That apart, whether rights have been violated to the extent of being “infringement”, is one meant to be decided on facts.

That having been said, it appears that irrespective of a case for infringement having been made out or not, would violation of moral rights stand a chance? I believe it would! Section 57 under the Copyright Act, 1957, reads:

“Author' s special rights. Independently of the author' s copyright, and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim the authorship of the work as well as the right to restrain, or claim damages in respect of,-

(a) any distortion, mutilation or other modification of the said work; or

(b) any other action in relation to the said work which would be prejudicial to his honour or reputation…”

For a jurisdiction that in fact does give prominent weight to the violation of moral rights, I wonder why we haven’t had many cases in Music covering such “inspirational plagiarism” as I would like to call.

Though the idea-expression dichotomy would prevail as a premise, yet these cases should find a favourable verdict for copyright owners. Knowing the caliber and musical inclination that our judges have, in making line by line comparisons, the cases shouldn’t be a difficult slide.

On a funny note, a friend of mine and I discussed how one particular "original song" had been converted to a Devotional number, by replacing the lyrics. We discovered this on our school trip in Grade 4. And he asked "What would the Divine Gods do? Which Court would they approach?" I but of course had no answer, however this is definitely a point to consider!

Can the use of Numerals qualify as Descriptively Fair?

As trademark practitioners, a phrase that becomes an integral part of our daily jargon, and one that we rattle off, at the drop of a pin, is “likelihood of confusion”. Undoubtedly, a vital concept, that forms the central theme of trademark jurisprudence, however, cannot be a sole ground to move civil action in Court. 

In other words, while an action of infringement or passing off against another trademark, must have a finding that leads in the direction of “likelihood of confusion”, the same does not suo moto form the basis for civil action.

Perhaps, what I have just summarized is the crux of what an appeal at the Delhi High Court, in the case of Radico Khaitan Ltd. v. Carlsberg India Pvt. Ltd, held. Interestingly, two alcohol manufacturers were at row with each other, for their marks that used the numeral 8 in common. The action was said to be "one for infringement and in the alternative for passing off". 

Radico are registrants of the mark 8PM used for whisky, while Carlsberg sells beer under the mark “PALONE 8”. Further grievance was that Radico’s slogan “AATH KE THAATH” (the luxury of eight) pertaining to the trademark “8 PM” had been piggy ridden on by Carlsberg by using the slogan “8 KA DUM”, meaning the potency of 8 .

The decision makes for an interesting read, albeit on other fronts- While the decision does not delve on the slogan being under copyright or trade mark protected, the court looked at the viability of numerals,and related non-exclusivity under the scope of trade mark protection.

However, observing here (as also in the impugned judgment), that the numeral 8 was in common usage in the alcohol industry, perhaps to describe the percentage strength of the alcohol, the Judge stated that:

"A holder of a protectable descriptive mark has no legal claim to an exclusive right in the primary, descriptive meaning of the term; consequently, everyone is free to use the term in its primary, descriptive sense; but with a caveat. 

The caveat is that: "so long as such use does not lead to consumer confusion as to the source of the goods". And in an action for infringement the "fair use" defence is available only to situations where the alleged infringer employs a trademark in its descriptive sense, as opposed to as a trademark.”

In analyzing whether Carlsberg’s use of the numeral 8 qualified the “descriptive fair use” standard, the Court addressed three questions:

(i) Does the numeral 8 indicate any quality, functionality, property, content etc. of the product itself?

In addressing the first question, the Court noted that the alcohol content in the beer being 7.5%, the adoption of 8 was in fact arbitrary. I personally disagree, and believe that the adoption was in fact descriptive, atleast in the choice of numerals. Else, why not any other number?

(ii) Does the numeral “8” appear „in a manner of speaking on the label or has been given undue prominence so as to appear as a trademark?

The Court here observed that the numeral being several times larger than the text was clearly not written with an intention to be a mere descriptor, but to be the most prominent component of the label, which cannot be termed as descriptive fair use and is clearly in the nature of trademark use.

(iii) Does the product, aside from the numeral "8", carry any other mark which is intended to be the "brand name" or "trademark" by which consumers are to ask for the product?

The Court opined that the consumer is most likely to tell the bartender or the salesman at a liquor vend: "Give me beer 8" and not "Give me beer Palone 8", since 8 is the single most prominent feature of the label and that consumers are most likely to identify with the same. I disagree with this too- I don't think most beer drinkers would be so oblivious of their brand preferences.

The Court denying injunction concluded as:

A. Radico had a registration for “8 PM” as a composite mark. Thus, it could not claim exclusivity over the single numeral “8” to restrain Carlsberg for trademark infringement.

B. Carlsberg cannot rely on descriptive use as a defence to pre-empt Radico's claim.

C. For passing off, the last two prongs of the classical Jif Lemon trinity have to be applied to test if there is any consumer confusion (or likelihood thereof) and any resultant damage caused to Radico by the impugned use of the numeral "8" by Carlsberg.

While it is admirable that this court attempted be creative and introduce to Indian Trade mark jurisprudence a concept such as descriptive fair use, I feel this wasn’t the best instance to do so. The concept to my mind finds application in the use of a trademark itself, and not a numeral or colour, that has been denied exclusivity in the regular course of trade mark prosecution history.

Having admitted that this was a composite mark, I think the court should have looked at factors akin to the Polaroid factors, rather than dwelling so deep into the doctrine of fair use.

Some reflections- of Harry Potter, Infringement and Fair Use..

Sai’s Harry Potter post and his cursory reference to derivative works, albeit in a different context, brought to my mind instantly Warner Bros. Entertainment Inc v. RDR Books, or the Harry Potter Lexicon case, as we commonly refer to at Law School.

The case, dwelling on derivative works, infringement and the defense of fair use, looks at whether creation of a lexicon for the multifarious terms for the Harry Potter series, amounts to infringement of the right to make derivative works. While the court ruled in favour of J.K. Rowling, it also undertook an extensive fair use analysis.

Talking of derivative works reminds me of a movie called Hari Puttar, that came to the Indian cinemas about two plus years back. Warner Brothers being vigilant watchers of their intellectual property, moved for an injunction. However, they failed before the Indian courts to secure an interim injunction. Warner Bros. Entertainment Inc. v. Harinder Kohli and Ors. (Could someone please throw light on the fate of the proceedings??? I lost track soon after!)

The two right owners, in two different jurisdictions, chose to enforce their rights albeit with different strategies. While the Lexicon case had a pure copyright approach, the Hari Puttar case seemed to take the route of trademark rights being infringed.

As I was thinking about these cases in tandem, to me it seemed like Warner Bros. may have taken up such different arguments on purpose.

Undoubtedly in a copyright infringement case, fair use, a judicially developed doctrine in the US would be argued- and was very vehemently argued in the Lexicon case. The doctrine as many of you would be familiar, involves consideration of:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

India, on the other hand, has a statutorily defined framework for “Certain acts not amounting to infringement”, which we consider to be our fair use related provisions. In this view, is it possible that the fact that statutory exclusions are more susceptible to be strictly enforced, have dettered Warner Bros. from instituting a Copyright action in India? Perhaps… and also may be perhaps they wanted to allege only similarity in the titles and not the content of the subject matter itself. In this scenario, a trademark action seems to have better suited their case.

However, the question that ticks in my mind is, will something like S. 52 in the Copyright Act, 1957 always be more strictly interpreted? The answer probably is kind of obvious, however, when I think of this in greater depth, I am reminded of what J. Bhatt has to say in Chancellor Masters and Scholars of the Univ. of Oxford v. Narendra Publishing House and Ors , at Para 33:

“Fair use provisions, then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity, and the same time must discourage blatant plagiarism. It, therefore, must receive a liberal construction in harmony with the objectives of copyright law. Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts to identify fair use."

This to me seems to tilt the coin against towards giving fair use a broader, rather judicially crafted interpretation, as against a pure application of statutory provisions. And to me, it appears rightly so - pertinently with the advent of technology, social media as well as the varied forms of derivative works coming of age.

I welcome the take from our readers on this line of fuzzy thought!!