One of the most viral videos that most of us have come across on social media during these COVID times is undoubtedly – “Rasode Me Kaun tha’, starring our very own Kokilaben and Gopi bahu. Made by Yashraj Mukhate, an Indian music producer, composer and a social media personality, the short video clip was so entertaining that it went viral within hours and had people crying out loud in laughter. The video raked in millions of views, and generated huge revenues for the creator, the question that arises with most such videos is what constitutes parody and what constitutes copyright infringement? In this case, the video is a modification of a dialogue / conversation between the actors in the original serial “Saath Nibhaana Saathiya”, a famous Indian Television Series of Star India Pvt Ltd. The copyright act plays an important role here to determine whether this clip is a case of parody or that of copyright infringement.
Copyright and Parody
The general principle of copyright is that no one has copyright over an idea. There is no copyright on themes, movie plots or subject matter until the these are expressed and fixed on some tangible medium. In cases of parody, where the source is an original work, it is difficult to make a distinction between creative criticism and imitation. Some clarity has been provided by the court in this regard. The court has defined that when copying is done for criticism, it amounts to fair dealing and does not fall under infringement of copyright. The court in the matter of Civic Chandran has laid down 3 tests to determine infringement and fair use: “(1) the quantum and value of the matter taken in relation to the comments or criticism; (2) the purpose for which it is taken; and (3) the likelihood of competition between the two works.”[1] One more factor which needs to be considered is, ‘intent’ of the creator. One needs to find the intent behind making a parody. It needs to be checked whether the parody is made for commercial purpose and whether the goodwill of the original work is being used to exploit profit out of it, which ultimately constitutes copyright infringement.
Section 52(1)(a) of Indian Copyright (Amendment) Act 2012 provides for fair dealing exemptions where an original work is used for criticism and review. Such an act under this provision does not amount to copyright infringement.
Let us try to analyze whether the video ‘Rasode me kaun tha’ violates the right of the broadcaster or the performer under the Copyright Act, 1957 or not.
Broadcaster’s Rights
Section 37 of the Copyright Act provides for the broadcast reproduction rights of broadcasting organizations. It reads as follows:
“37. Broadcast reproduction right.— (1) Every broadcasting organisation shall have a special right to be known as “broadcast reproduction right” in respect of its broadcasts.
(2) The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.
(3) During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the right does any of the following acts of the broadcast or any substantial part thereof,—…“[2]
The broadcaster has the broadcast reproduction right up to 25 years and if somebody reproduces the content without the license of the broadcaster then it has a right to claim copyright infringement under Sec 39.
The main component of this section is that the person should use a ‘Substantial part’ of the cinematographic content. If we apply this condition to the video made by Yashraj, we find that the video is 56 seconds long whereas the original episode (Saath Nibhaana Saathiya Episode 67) is of 43 minutes. This therefore clearly cannot be considered as a substantial part of the original content.
It has been argued in many such cases that videos uploaded on social media provide the creator with an opportunity to earn from the content he/she broadcasts. If there is an economic benefit involved, then the intent of the person should not be considered as being creative but more as being profit-making in nature. In this case however, Yashraj’s video is firstly in no way a substantial part of the original work, hence it does not fall under the ambit of section 37. Secondly, the video “rasode me kaun tha” is an original work by Yashraj and if he earns anything from it on social media platforms then the broadcaster has no right to ask a share in these earnings.
Performer’s Right
Under section 38 of the Indian Copyright Act, performers are provided with some moral rights. One of these rights relates to distortion or modification of the performance of the performer under section 38B (b). The section reads as follows:
“1[38B. Moral rights of the performer.— The performer of performance shall, independently of his right after assignment, either wholly or partially of his right, have the right,—
(a) to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance; and
(b) to restrain or claim damage in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.”[3]
This section was added by an amendment in the act in the year 2012. As per this section if the performer’s performance is mutilated, distorted or modified in such a way that his/her performance affects the reputation of the performer then the performer can file for copyright infringement.
If we consider the case of Kokilaben’s character in the “Rasode me Kaun Tha” video we find that it has been modified, but does it devalue the reputation of the character Kokilaben or the performer Rupal Patel? It certainly does not. Contrary, it has brought Rupal Patel and the serial into the limelight once again 3 years after the show went off – air in 2017. The video has had such a massive impact that the second season of this show is now back on public demand. The video has been praised so much by people that actor Rupal Patel personally praised the work done by Yashraj Mukante. Recently, Paytm, an app-based payment company released an advertisement where Rupal Patel is seen acting similar to her Kokilaben character and using the keywords of her dialogue from the viral video. So, demeaning and distorting of character or performer’s image is not the contention in this case.
If the actor had felt that her reputation was being affected negatively the video then a case could have surely been made under the Act, but the actor in such an instance would have had to prove the damage she had incurred and how the character’s modification had affected her reputation.
Copyright ethics
The principle behind a copyright is to grant certain exclusive rights to the creator which would allow him/her to protect his/her work and receive economic benefits from his/her work of creativity. Copyrights promote the creativity of the creator and are aimed at achieving public good. While copyright intends to provide access to creative works to the public, it is important to understand that it imposes no obligation upon the creator to make his/herwork available to the public. In such a situation the work does not come into the public domain as a consequence affecting the public at large.
It is expected that one should take proper permissions from the owner of the work before publishing or altering or modifying the original work, but one cannot expect that every small project, a creator would have to go after the different owners of a copyrighted work to seek their permission. This would invariably prove to be a cumbersome task for the creator directly affecting the “creativity” of the creator. This is precisely something that copyright law would never intends to allow
Conclusion
Parody and spoof are contents which are made majorly for entertainment purpose and to criticize or review the original content. They are considered as fair use of the original work and do not fall under copyright infringement under the Copyright Act. The creator of the spoof or parody is expected to maintain a balance between the review of the content and tampering the image of the performer. Performers have been granted some moral rights and if they feel that their reputation is being distorted then they can move the court. The court also needs to see whether such modification and distortion indeed damages the reputation of the performer as claimed or not. This needs to be seen in a bigger context because, if all performers start to use Sec 38B (b) then the aim of this section would be defeated. Copyright act tries to maintain a balance between the protection of the owner and his work and the access of such work to the public at large. The latest amendment in the Copyright Act in 2012 provides the performers rights but it does not mean that the performance will not be available to the public at large. This act has seen many changes and amendments with time, trying its best to adapt and cope with new challenges faced in the copyright field.
The viral video of “Rasode me kaun tha” does not constitute a copyright infringement as it does not violate section 37 and section 38B of the act. It is purely a parody.[GM1] The creativity shown by the creator has been remarkable and appreciable. Such creativity cannot be restrained or hindered by the Copyright Act nor did the act intend to do so.
[1] Civic Chandran and Ors. v C. Ammini Amma and Ors., 16 PTC 329 (Kerala), 1996
[2] https://copyright.gov.in/Copyright_Act_1957/chapter_viii.html
[3] https://copyright.gov.in/Copyright_Act_1957/chapter_viii.html
[GM1]This is contrary to your definition of a parody.
Himanshu Sinha
Author
Himanshu is a 3rd-year student of Campus Law Centre, Faculty of Law, University of Delhi and he has pursued B.Com.(Hons.) from Hansraj College. He holds a key interest in IP Law.
Very elaborate. Thanks for enlightening