A ‘cover song’, or more appropriately, ‘cover version’ of a song is the re-working, updating, or interpretation of a previously recorded and released song by someone other than the original artist. Cover versions or various renditions of popular, successful songs/ tunes are often performed/ recorded by new or up-and-coming artists as tribute to the original artist/composer or to achieve initial success when their unfamiliar original material would be less likely to be successful. A cover of an original song or any adaption of a musical work is governed by the law of copyright, under The Copyright Act, 1957. While blatant reproduction of any musical work would amount to infringement of copyright vested in the work, Section 52 of the Act exempts certain acts from amounting to infringement. This provision allows for cover versions of songs to be made subject to conditions specified therein.
There are two options available to a person seeking to make cover versions of songs. Section 52 (1)(j) provides that in order make sound recordings (cover versions, in this case) with respect to any musical work, a person must either:
1. Obtain license or consent from the original owner of the right in the work; or
2. Giving a notice of intention to make such sound recordings,
3. Provide copies of all covers or labels with which the sound recordings are to be sold,
4. Pay, in the prescribed manner to the owner of rights in the work, royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf.
Therefore Section 52(1)(j) prescribes two routes for a person seeking to make cover versions. Section 31C of the Act (inserted by The Copyright Amendment Act in 2012) prescribes the statutory license requirement for person desirous of making a cover version. Under this section, making a cover version is subject to the following restrictions:
Person making a cover version, having obtained a license or consent from the original owner in the work, cannot change the medium of such recording unless the medium of the last recording is no longer in commercial use. Person making a cover version through the second channel, i.e. by giving notice of intention to make such sound recordings, providing copies of all covers or labels with which the sound recordings are to be sold, and paying royalty therein, shall not sell or issue:
a) In any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity.
b) Shall not 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 the sound recording was incorporated.
c) Shall state on the cover that it is a cover version made under this section.
Such cover version shall not be made before expiry of 5 calendar years after the end of the year in which first recording was made. Person making such cover version shall not make any alterations in the musical work which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the cover. Person making the cover shall pay one royalty for a minimum of 50,000 copies of each work during each calendar year when copies of it are made, or so fixed by Copyright Board. Person making the cover shall maintain registers and books of accounts relating to such cover including full detail of stocks, and allow the original owner (authorised agent/representative) to inspect such registers and books.
Author: Aparna Bhattacharya, Intern at Kaden Boriss, India
Final Year Student, B.A. LL.B. (Hons.), Amity Law School, Delhi (GGSIPU)
New Delhi, India