Delhi High Court Issues Summons To Karan Johar's Dharma Productions In Royalty Plea For Song Performances In 'Gunjan Saxena'

The court, however, deferred passing any order against Dharma on deposit of the royalty amount with the court until the next date of hearing, as it noted that the singers' performance right "is a serious triable issue."

Referring to the bare provisions of the Copyright Act, the court said that this is because the definition of 'performer' in Section 2(qq) of the Copyright Act, under which the singers claim rights, includes a Singer within its sweep but the "performers' right implies any visual or acoustic presentation made live by one or more performers. Every performance has to be live in the first instance whether it is before an audience or in a studio."

Representing the singers, ISRA issued a legal notice to Dharma claiming infringement of copyright in respect of their performer rights in the songs 'Ae Ji O Ji' from the film 'Ram Lakhan', 'Choli Ke Peeche Kya Hai' from 'Khalnayak' and 'Saajan ji Ghar Aaye' from 'Kuch Kuch Hota Hai'.

Performers' rights were first introduced in the Copyright (Amendment) Act, 2012 by amending Section 38 and introducing Section 38A and 38B to the Copyright Act. The association has claimed that 'Gunjan Saxena' commercially utilizes three performances of its singer members which were originally part of earlier cinematograph films.

The association prayed that as per the scheme arrived at, the tariff for the performers' rights was fixed, therefore, Dharma was bound to deposit the said amount before the Court pending final decision.

Single Judge bench of Justice Mukta Gupta, hearing the matter relied on the decision of the court in the case of Neha Bhasin Vs. Anand Raj Anand & Another 2006 (32) PTC 779 (Del.), while deferring its order on deposit. It had been held therein that "while the definition of "performer" in Section 2 (qq) of the Copyright Act, 1957 includes within its sweep a singer, section 2(q) defines "performance", in relation to performer's right, to mean any visual or acoustic presentation made live by one or more performers. 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. So, as regards performers' right's the plaintiff definitely has a serious triable case....."

The court has posted the matter for further hearing on Mar 12, 2021.