BADAM BADAM A DADA KACHA BADAM – A TRAGIC MUSIC RIGHT INFRINGEMENT OF A PEANUT HAWKER

The Bengali folk Jingle “Kacha Badam” has currently taken social media by storm, and everyone is grooving to the tunes of it. The catchy tunes and rural Bengali slang have earned millions of fans on multiple social media platforms and the #Kachabadam dance challenge is currently trending on social media so much that even the famous French dancer ‘Jika’ also joined the #Kachabadam trend by putting up a reel on his Instagram page nailing the steps as usual. This Jingle was uploaded by a YouTube channel named ‘Ektara’ on 29th November 2021. However, the original creator of this catchy Bengali folk Jingle is a peanut hawker of Kuraljuri village in West Bengal named Bhuban Badyakar.

#Trending infringement of Bhuban Badyakar’s Copyright:

While the catchy tune and the eager rendition made this song an insane hit over social media and the peppy remix version by singer and musician ‘Nazmu Reachat’ set the internet on fire but the lyrics, song, verse, chorus, synths interface, vocals and everything around making this Jingle belongs to Bhuban Badyakar. Hence, Bhuban Badyakar is the original and rightful owner of Bengali folk Jingle “Kacha Badam”. It is noteworthy that music copyright designates legal ownership of a musical composition or sound recording. This ownership includes exclusive rights to redistribute and reproduce the work, as well as licensing rights that enable the copyright holder to earn royalties. In this case, Bhuban Badyakar has legal ownership of the song “Kacha Badam” so any redistribution and reproduction without due permission or licence from Bhuban Badyakar amounts to Copyright Infringement.  The remix version by singer and musician ‘Nazmu Reachat’ or Drum and Bass remix made by musical artist ‘The Kiffness’ is a clear violation of the exclusive rights of Bhuban Badyakar.

Understanding Copyright in Music:

Copyright in Musical works includes work consisting of music and any graphical notation. As per the Indian Copyright Act, the author/creator of the copyrightable work is the first owner of the copyright arising out of the said work in the case of original literary, dramatic, music, and artwork. So accordingly, there are a bundle of rights involved in the creation of any Song/Music/Jingle. Let us understand these rights through the “Kacha Badam” case:

As we all are aware that Bhuban Badyakar voiced the song “Kacha Badam” written by him and its music including melody, harmony, the rhythm was originally has also been composed by him and therefore

  • As a performer, Bhuban Badyakar is authorised to get protection under section 38 of the Indian Copyright Act in the capacity of a “Performer”,
  • As a “Lyricist” he would fall under original literary works protected under section 13 (1)(a) of the Indian Copyright Act, and
  • As the composer, he would be protected as “the author of the musical work” under section 13(1)(a) of the Indian Copyright Act

So, the ownership rights available in the case of music are:

  1. Literary rights, that are accrued to the lyricist as the author
  2. Music is protected as musical works and the owner stands to be the composer
  3. The tune and the lyrics together are protected as a song recording that can be owned by either the music label or the Producer.
  4. The singer of the song has performing rights and moral rights.

Violation of Right to Publicity of Bhuban Badyakar:

The right of publicity is an intellectual property that safeguards against the misappropriation of the name, likeness, or other indicia of personal identities- like nickname, pseudonym, voice, signature, likeness, or photograph of a person, for the purpose of commercial benefit, by any other person. So, when a video of Bhuban Badyakar is uploaded on social media, especially for commercial purposes then any person/ YouTuber/ social media influencer uploading the video should have due licence and permission from Bhuban Badyakar. Posting any video of Bhuban Badyakar without permission and licence is a violation of his right to publicity. The responsibility for complying with the laws of copyright while uploading any third-party video is a necessary and basic requirement. The theory of unjust enrichment consideration treats identity misappropriation as equivalent to theft of goodwill. The publicity right is purported towards providing an economic incentive for an individual’s enterprise, creativity, and achievement.

L-(n)o-w Renumeration for Collaboration:

With the series of Intellectual property issues around the ownership and licencing of the song “Kacha Badam”, another legal issue was added when Bhuban Badyakar collaborated with Godhuli Bela Music. The commissioned services or work for hire basis practice is very common in the entertainment industry wherein the Producer engages the services of a music composer or the singer for an amount pre-decided by the parties and the composer transfers all his rights arising from the musical works to the producer but Moral Rights under section 57 of the Indian Copyright Act always belong to the original author/creator. However, in this case, Bhuban Badyakar is completely unaware of its Moral Rights and while the remix version created through this collaboration which was uploaded on Godhuli Bela Music’s YouTube Channel on 26th December 2021 became an overnight hit online by recording 50 million views on YouTube and created a major euphoria. An Agreement of INR 3 lakhs was signed as remuneration for work for hire music video having Bhuban’s vocals and appearance, Bhuban did not even receive the signed remuneration till 18th February 2022 for a video that was released on 26th December 2021. Another collaboration of Bhuban Badyakar was with Amit Dhull, a Haryanvi singer and music producer along with actress and model Nisha Bhatt for a Haryanvi remix version of the song “Kacha Badam” whereas the copyright of this song is owned by music Label Bajewala Records Haryanvi while the Bhuban Badyakar is signed for remuneration.

Newfound fame at cost of Copyright Violation:

A peanut hawker Bhuban Badyakar is now looked at as a singer and all the attention might leave him in an awkward position, but little did the poor Bhuban knows about the royalties that he deserves for his amazing creation. As per Indian Copyright Act, nobody can waive off the right to receive royalty payments from the author of the artistic, musical, or literary work once the work has been put to use, even after all rights that are available to the author of the artistic, musical or literary work under section 14 have been duly assigned out to the music label or the producer. The Hon’ble High Court at New Delhi in Indian Performing Right Society Ltd. v. Aditya Pandey & Ors. (2012) 50 PTC 460 upheld that “the authors of literary and musical works incorporated in sound recordings would remain entitled to receive an equal share of royalties accruing from the utilization of the sound recordings”. Bhuban Badyakar owns every right to demand royalty on the exploitation of any sound recordings or music videos incorporating his original works and their variants because that moral right of Bhuban Badyakar is the soul of his work. He has the right to preserve, protect, and nurture his creations irrespective of the assignment of such copyright, whether wholly or partially. As per Indian Copyright Act, a person who derives unjust enrichment from others work should not be allowed to benefit from the same, therefore, the right of authors to receive royalties and benefits should be protected and commercially exploiting the work of an author should be duly followed by him receiving credit for the same by the payment of royalties.

Amar kache pabe sudhu kacha, badam …:

People from different parts of the world are grooving with Bhuban’s creation which proves language is no barrier when it comes to music and dancing but also highlights rising IP issues due to changing dynamics and evolution of the Internet. One of the primary copyright issues on the Internet is establishing the periphery between private use and public use. The Indian Copyright Act makes a distinction between reproduction for public use and private use. Reproduction for public use can be done only with the right holder’s permission.

Anyway, Bhuban Badyakar will soon be making an appearance on a reality show Dadagiri Unlimited 9 alongside former Indian cricket captain Sourav Ganguly.

Ending with a fun fact for all the readers – while the word ‘Badam’ means Almond in Hindi and several other languages, in Bengal and Assam it is used as a generic term for several nuts.  So, the “Kacha Badam” here is referred to Peanut and not Almond.

About Swagita Pandey 12 Articles
Swagita is a young professional intrigued by and interested in the fields of IPR and Entertainment laws. She is currently working as an Associate with a leading Law Firm based in New Delhi. In parallel, she is also pursuing Post Graduate Diploma in Intellectual Property Rights from Indira Gandhi National Open University (IGNOU). She graduated in B. Com LL.B. (Hons.) from the School of Law, UPES, Dehradun. She is very adept at Trademark laws. Her straightforward, easy to deal with and forward-looking view makes her leader at heart and a winner in spirit. Swagita is a young professional intrigued by and interested in the fields of IPR, Media and Entertainment law.

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