HC verdict likely today on use of old film song in new release

MUMBAI: A legal battle over an old film song in a new Bollywood movie has the attention of the film industry. And a Bombay high court order expected on Monday may raise walls or raze some for the rising trend of reviving old hits in new Bollywood releases.
A few days ago, a single judge bench restrained the film Baadshaho from being released with the song “Keh Doon Tumhe” after producers of a four-decade-old Amitabh Bachchan, Shashi Kapoor and Parveen Babi starrer Deewar alleged breach of copyrights over its music and lyrics which, they claim, they continue to hold.Immediately an appeal was filed to lift the stay on the song in Baadshaho, set for a September 1 release.
The old hit sung by Kishore Kumar and Asha Bhosale, had lyrics by Sadhir Ludhianvi and music by RD Burman. Trimurti Films which made Deewarhad moved the HC against the producers of Baadshaho, Super Cassettes Industries, to prevent the Ajay Devgn, Emraan Hashmi and Ileana D’Cruz starrer from using its song. Trimurti said it had in 1974 sold sound recording rights for the film’s soundtrack to Polydor, now called Universal Music. It claims ownership of rights over music and lyrics due to a ‘contract of service’ with Ludhianvi and Burman. Producers of Baadshaho said on acquiring a licence from Universal they were entitled to the underlying rights over lyrics and music too.
Justice K R Shriram had, on August 22, held in Trimurti’s favour. He heard both songs and found the music and lyrics similar. The new song has added new lyrics in the last verse apart from two new singers.
The real bone of contention is whether Baadshaho can use the original soundtrack picturised now on two actors. “What had been sold are the rights in the song Keh Doon Tumhe... only for making and selling gramophone records…to exploit sound track of Deewar... It can at the most be termed as sound recording rights which is distinct from literary or musical rights. This by no stretch of imagination would permit Universal to allow the defendants (Super Cassettes) to use the lyrics and musical or score or song in the film Baadshaho,” said Justice Shriram’s order.
He cited how the Copyrights Act lists original literary and musical work in one category and sound recording in a separate category and thus two distinct set of copyrights can exist. Two days after being ordered to release the film without the song, an appeal bench heard the case. The HC will now decide if underlying musical and literary work was subsumed in the transfer of sound recording rights made in 1974.
Trimurti’s counsel Virag Tulzapurkar said the original song can be used as it is, in the background, for instance, but cannot be modified and remixed or re-visualized without its permission. Ravi Kadam and Abhinav Chandrachud, counsel for Baadshaho, point to facts and law. Their case is that the 1974 agreement had assigned even the underlying musical and literary works. On law, they also argued that once the sound recording rights are assigned it would include both literary and musical rights. They disputed the ‘contract of service’ argument of Trimurti, saying that neither lyricist nor composer were employees.