Own-it | Intellectual Property Know-How for Creative Businesses


Musical notes: The Indian method of valuing jingles

Published 13.07.09 at 10:02

The Indian music industry has taken note of plagiarism and is bringing about change. Experiments with various models seem interesting and full of possibility, says Arun Katiyar.

Composer, singer and music producer Ram Sampath is not new to the world of commercials. He has created some memorable advertising jingles for big brands such as Nike, Motorola and Sony-Ericsson. Last year, Sampath managed to persuade the Bombay High Court to restrain well-known Bollywood film producer Rakesh Roshan from releasing the movie Krazzy 4 which Sampath claimed included a song plagiarised from a tune he had composed for a Sony-Ericsson commercial. Roshan reached an out-of-court settlement with Sampath for Rs 20 million (approximately £250,000).

There are other cases that have been recently contested in court, amongst which have been those by Rabbi Shergill (the Supreme Court did not pass a judgment in his favour) and Bappi Lahiri (he won the case). These are just a few of the examples of IP violation that plague the £35,000,000 Indian advertising jingle industry. Immediately after the incident with Roshan, Sampath told the media he settled for the huge amount so that it acts as a deterrent in the future. Can you hear the dramatic roll of drums and the crash of cymbals? They herald a change in the way the Indian advertising industry may be forced to view music and the work of music artists.

Following the law
The Indian music industry has seen a dramatic change in the last five years. Speaking at the WIPO International Regional Forum on the role of IP rights, Indian Music Industry (IMI) secretary general Savio D'Souza said that the IMI had managed over 2,000 convictions across India clearly indicating that the law is enforceable. Conviction rates were in the region of 80%.

Says Varagur Subramanian Srikanth, director of Temple Advertising: 'There was a time when agencies and clients wouldn't think twice before lifting little bits of popular tracks for use in audio-visuals and TV commercials, especially if the music was western; which meant lesser chances of getting noticed, and even lesser chances of somebody actually bringing on a suit. Not anymore. Things have changed a lot over the last decade, especially in the last five years or so. Today, no self-respecting film producer/director, creative agency or musician would use popular tunes without prior permission from the rightful owners; often, I must add, despite pressure from some clients who seem to think there is no such thing as "IP rights" in music, and "how can using a little bit harm us anyway".' So, while everyone may be singing arias of praise for IP management, legislation, judiciary and law enforcement, the tremolo being heard is: what are the standards by which the value of music is judged?

Ahem! Good question. What made Roshan part with £250,000 to Sampath? Why not £500,000? 

Setting the right price
A Mumbai-based jingle-production house called Blue Frog has begun to address the issue. When a jingle is sold, the contract needs to indicate the buyer's rights; and second, the contract needs to arrive at a fair value of the music. It's the second issue that is interesting and the solution could take time to develop and mature. Blue Frog, in the meanwhile, is approaching the problem in a simplistic manner: like a pizza order where a basic pizza (music tune) has a certain value; if the jingle is created with the help of sessions artists (regular toppings), it will have an additional value; if a well-known guitarist is added on (premium toppings), the value will increase by a fixed amount and so on. Fundamentally, as the toppings change, so does the pricing. A person buying the music looks at the 'menu', orders the jingle and agrees to the consequent price. Fair? Not so, says Jishnu Dasgupta, bassist with Indian folk rock band Swarathma that has two releases behind it and a recent five-concert tour of UK. 'Everyone does two things with a pizza: eat it or trash it. Music has many more uses. It's the use to which the music is put that decides its value. If the music is sold outright in perpetuity, the value needs to be different. If it is sold for a one-time or single-purpose use, the value needs to be different.'

Now, add to it the fact that the IMI is gunning to increase the term of copyright for sound recordings that have already been expanded from 40 to 60 years and now want it to be 75 years. The value of the content will, naturally, go up. But will producers of TV spots – whose jingles are here today and gone tomorrow – be willing to pay for 75 years? Maybe not.  Says Srikanth, 'We used Shankar Mahadevan to do the music for Deccan Chronicle a year and a half ago, and I think the contract says we can use it for a maximum of two or three years after which it has to be renegotiated for further use. But the lesser music directors, who are used in over 95% of the TV commercials, don't insist on any such thing.'

Some standards and processes need to be built into the Indian advertising jingle production industry for the benefit of both – artists as well as buyers. These are slowly taking shape, given the big bucks now involved in the business. But, the question will always hang around: Can standards and processes capture creativity?

Photo credit: Nic Mcphee

Please note that this article provides general information only and is not to be regarded as legal advice.


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