Kolkata: Is “Ooh-la-la-ooh-la-la”, the signature track of the film The Dirty Picture, a rip-off of a not-so-popular song from a 1983 movie?
Three judges of the Calcutta high court had the two tracks played to them—one of them in an open courtroom and the two others in their chamber—and concluded that the likeness between the two tracks was “substantial” enough for Balaji Telefilms Ltd, The Dirty Picture’s producer, to deposit with the court’s registrar Rs 50 lakh toward damages caused by this potential infringement of intellectual property rights (IPRs).
Discordant note: Saregama had written to Balaji Telefilms alleging that ‘Ooh-la-la-ooh-la-la’ was a rip-off of ‘Ui-amma-ui-amma’, a song from the film Mawaali sung by Kishore Kumar and Asha Bhonsle.
The question on infringement of IPRs, though, hasn’t yet been answered—the appeals court’s order from 24 April was only an interim measure to protect the interests of the firm claiming damages.
The trial judge overruled opinions given by two leading music composers and concluded that a “prima facie case of infringement” had been established. But the two judges of the appeals court said, “It is very difficult to express (an) opinion at this stage.”
The dispute dates back to early February. Months after the music release of The Dirty Picture in October last year, Saregama India Ltd—a Kolkata-based entertainment company with a sizeable repository of music rights—wrote to Balaji Telefilms alleging that “Ooh-la-la-ooh-la-la” was a rip-off of “Ui-amma-ui-amma”, a song from the film Mawaali sung by Kishore Kumar and Asha Bhonsle. Balaji Telefilms’s chairman Jeetendra Kapoor was one of the lead actors in Mawaali.
Claiming that it owned the music rights of Mawaali, Saregama asked Balaji Telefilms to secure from it the “appropriate licence” for the use of “Ooh-la-la-ooh-la-la”. When Balaji Telefilms refused to acknowledge that there was any similarity at all between the two tracks, Saregama moved the Calcutta high court claiming Rs 100 crore in damages.
Composer and singer Bappi Lahiri was caught in the crossfire, having composed the music for Mawaali, and sung along with Shreya Ghosal “Ooh-la-la-ooh-la-la” for The Dirty Picture.
He issued a statement saying that the two tracks were not similar in any manner and that they “constitute independent works and are distinct from each other”.
Shankar Mahadevan, another composer, issued a similar certificate saying “the musical works and notations of the songs are different and there is no similarity between them”.
Both were cited in court.
“The words (“Ooh-la-la-ooh-la-la”) are different, but when these words are set to the tune, the overall impact is substantially similar to the said part (“Ui-amma-ui-amma”) of the old song,” I.P. Mukerji, the trial court judge, said in his order.
Though he did not restrain Balaji Telefilms from commercially exploiting The Dirty Picture, he asked it to deposit Rs 2 crore with the court’s registrar.
Balaji Telefilms appealed against Mukerji’s order to the division bench comprising judges K.J. Sengupta and Asim K. Mondal.
The appeals court ruled, while reducing the amount to be deposited to Rs 50 lakh, that Balaji Telefilms and others commercially exploiting the film shall report to their lawyers details of the money made by them from The Dirty Picture.
This means even Multi Screen Media Pvt. Ltd—the company behind the Sony television channels, which acquired the telecast rights of The Dirty Picture for Rs 25 crore, according to court filings—has to comply with this directive.
Asked why Balaji Telefilms agreed to deposit the amount, its lawyer in Kolkata, Shourya Mandal, said, “It is only an interim arrangement—the matter is still to be decided by the court.”
Balaji Telefilms maintains there is no similarity between the two tracks and hence the question of copyright Act violation does not arise, added Mandal, who is a partner of law firm Fox and Mandal.
The company agreed to deposit the amount with the court because the satellite telecast of the film was at that time in danger, said Tanuj Garg, chief executive officer of Balaji Motion Pictures Ltd, referring to the aborted telecast of The Dirty Picture on Sony Entertainment Television.
Lawyers for Balaji Telefilms pointed out in court that Saregama took months to initiate legal proceedings against it. The judges from the appeals court said in their order that Saregama couldn’t explain the delay and that the “delay cannot be overlooked lightly”.
Saregama refused to comment on the dispute.
A bigger question on ownership of IPRs, however, is yet to be answered by judges of the Calcutta high court, which has in the past few years dealt with several similar cases.
Two years ago, the court dealt with a complaint of IPR violation filed by music composer Anandji and the successors of his creative partner Kalyanji against the use of a popular track, “Apni to jaise taise”, composed by them for Laawaris, a 1981 blockbuster. Under a licence obtained from Saregama, which owns Laawaris’s music rights, the song was remixed and used in Housefull, a 2010 film.
After several rulings, the court must now decide who owns the copyright to the track, said Mandal, who represented Anandji and the successors of Kalyanji in that case.
Under the copyright Act, the first owner is the author—hence the composer and/or the lyricist in the case of film music, Mandal said. But there are exceptions. If the music is found to have been composed “in course of employment under a contract of service”, the film’s producer—or the employer under such contract—will be seen as the first owner, he added.
The music composers of Laawaris challenged the producer’s right to transfer the film’s music rights to Saregama because there was no explicit contract of employment.