Litigation News Between Rock and a hard place: Delhi court stops movie release over alleged infringement of late Parikrama guitarist Sonam Sherpa's works

A suit filed by the wife of the late Parikrama band member alleged that his works were used by another musician without consent or credit. Between Rock and a hard place: Delhi court stops movie release over alleged infringement of late Parikrama guitarist Sonam Sherpa's works  

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Aamir Khan  |  Bar & Bench |  29 Apr, 2022 :  In a legal battle over the works of late Parikrama band member and musician Sonam Sherpa allegedly being used in a movie without consent, a Delhi Court has prima facie found a case of copyright infringement [Dina Ramliani Ralte v. Shenpenn Khymsar & Anr].

District Judge Sanjiv Jain restrained the release of the film Broken Wings, saying it can only be released if the late artiste’s works are deleted.

"Prima facie case exists in favour of the plaintiff. Balance of convenience also lies in favour of plaintiff as if the defendant number 1 is allowed to use the same by the time, trial comes to an end, he would exploit the musical works to his full advantage to the detriment of the plaintiff,” the order reads.

The Court was hearing a suit filed by the late musician’s wife, Dina Ramliani Ralte, who alleged that her husband’s works were used by the defendant without consent or credit.

Upon scrutiny, the judge said that the use of Sherpa’s musical works in the film, which was set to be released on April 29, was without the authority or consent of the plaintiff. The Court decided to restrain the defendants from releasing the film if the two songs, Timro Mero and There She Goes, were not deleted till May 19, 2022.

"Defendants can however release the film if the aforesaid two songs are deleted from the film Broken Wings," the judge clarified.

The order observed that the law in cases of copyright infringement was well-settled, and normally, an injunction must follow. Grant of injunction, it stated, becomes necessary if it prima facie appears that the adoption was itself dishonest.

Sherpa, who was a leading guitarist in the Indian music scene, was said to have been in touch with the defendant Shenpenn Khymsar, who was stated to be the director of the film. There was correspondence over email in connection with the use of Sherpa’s songs in the film.

It was claimed that as part of the deal, it was believed that Khymsar and the producer would obtain a licence from Sherpa, who was the exclusive author and owner of the musical works as defined under Section 17 of the Copyright Act.

Sherpa's wife, however, claimed that no payment was ever made by the defendants to her husband. She came across a trailer of the film where the works of her husband were purportedly reproduced without credit.

Khymsar contended that in April 2018, he told Sherpa that he was planning to produce, direct and compose songs for Broken Wings, which is based on the Gorkhaland agitation.

Sherpa, who was born in the Himalayan foothills of Kalimpong, which was the epicentre of the agitation, “purely and out of friendship” offered to be the music director of the film for absolutely no monetary or financial benefit, it was contended.

The defendant highlighted that therefore, no contract was entered into by the two parties. Khymsar stressed that he had not used Sherpa’s compositions in the film, and on the contrary, he was the original author of the works that were in dispute.

He clarified that he only incorporated the songs There She Goes and Timro Mero and that Sherpa's wife did not have the right to claim any royalty according to Sections 8 and 19 of the Copyright law.

Sherpa's wife, on the other hand, brought an affidavit of noted Indian musician Tajdar Junaid on record. Junaid analysed the songs and gave his technical findings on the point of similarity or dissimilarity between the track Timro Mero filed by Khymsar during the proceedings, the track sent by Sherpa's wife to Khymsar by email, and the video track of the song that was released on social media in January 2021, which was incorporated in the movie.

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 The analysis found that the length of Khymsar’s track was 44 seconds and the track brought on record by Sherpa's wife was 3:05 minutes long, while the video uploaded by Khymsar on social media was of 2:56 seconds.

He observed that Sherpa's track and the final track were substantially similar in the arrangement of snare drums, march bass beat, chord progression, string arrangement, song-structure and guitar solo and fills.

The vocal melody in Sherpa’s track amounted to a new composition. The only difference found in the final track was increased pitch and tempo compared to Sherpa’s track with a minor change, sans any new input and creativity or originality. A closer look at the musical note-sheets of Sherpa’s track and the final track showed them to be almost identical, it was submitted.

After considering the analysis, the Court noted that Khymsar had not placed any material to support his claim that the songs were his original work of music.

While posting the matter on May 19, the Court clarified,

"Nothing mentioned herein above shall tantamount to be an expression of opinion on the merits of the case."

Advocates Swathi Sukumar, Naveen Nagarjuna and Tarini Sahai appeared for the plaintiff. Advocates Amal Chitale and Shweta Singh Parihar represented Khymsar

Courtesy & source