“Gunjan Saxena- The Kargil Girl” Controversy 2.0: Whether it is before an audience or in a studio?

Dharma Productions biopic “Gunjan Saxena – The Kargil Girl” that had been in controversy after its release in August 2020 for misrepresenting the Indian Air Force,  is now facing another challenge and the makers of the movie have been accused of copyright infringement.

Recently, the Delhi High Court has issued notice and summons, in a royalty plea for song performances in “Gunjan Saxena”, to Dharma Productions. The suit has been filed by the Indian Singers Rights Association (ISRA) under the Copyright (Amendment) Act, 2012 for royalty against “performance”. The rights of performers in the songs “Ae Ji O Ji” from “Ram Lakhan”, “Choli ke peeche kya hai” from “Khalnayak” and “Saajanji Ghar Aaye” from “Kuch Kuch Hota Hai” have been allegedly commercially exploited, as all these performances in “Gunjan Saxena” were originally performed in the named cinematographic films respectively.

The section 2(qq) of the Indian Copyright Act provides an inclusive definition of “Performer” which includes ‘singer’ and section 2(q) states that performance in relation to performer’s right, “means any visual or acoustic presentation made live by one or more performers”. Furthermore, sections 38, 38A and 38B of the Act explains the “exclusive rights of performers”. The suit filed by ISRA against Dharma Productions was charged under the sections mentioned hereinabove. In response to which Dharma Productions rejected ISRA’s claim and mentioned that “the studio performances are not live performances and therefore does not qualify for payment of royalties, as the license for the songs in issue had been taken already!”

Apparently, the Delhi High Court observed that “every performance has to be live whether before an audience or in a studio” and the issue with respect to ‘performers right’ is maintainable before the Court and relied on the decision of Neha Bhasin v. Anand Raj Anand & Another[1]. It has been held therein para 35 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….”

However, the Court deferred passing any order or directions against the Dharma Productions on the deposit of royalty with the Court until the next hearing in March 2021 as it observed that “the singer’s performance right is a serious triable case”. Thus, it will be interesting to see how the Court will decide on the matter.

[1] 2006 (32) PTC 779 (Del.).

About Sushmita Ray 18 Articles
Sushmita Ray is a Legal Counsel and works in the Fintech Industry. She is a graduate from KIIT School of Law, KIIT (Deemed to be) University, Bhubaneswar, Odisha and have successfully completed a 5-year Dual Degree Integrated Course, B.Sc.LL.B (Intellectual Property Laws Hons.). She has interned with various reputed IP firms in their Patents and TM Prosecution departments. She is also a participant and winner of various National, Regional and Cluster level competitions.

Be the first to comment

Leave a Reply

Your email address will not be published.