At the heart of the controversy surrounding Badshah’s new song Genda Phool lies a simple truth: all folk compositions in the public domain are not “expressions of traditional culture or folklore”, and therefore cannot be reproduced or sampled at will.

Genda Phool emerged on March 26, amidst a nation-wide lockdown over the Covid-19 pandemic. The music video for the track, which also features the voice of Payal Dev, has Badshah romancing Jacqueline Fernandez at a Durga Puja event. The catchy hook is taken from the Bengali folk song Boroloker Biti Lo, originally written by singer Ratan Kahar. However, Badshah was credited with the composition and lyrics of Genda Phool across streaming platforms.

Boroloker Biti Lo was written in 1972 and performed by Swapna Chakrabarti in 1976. The original tune is on Saregama Bengali’s official YouTube channel, and remains popular among Bengalis.

Genda Phool by Badshah.

There are multiple grounds for copyright violation in Genda Phool. Folk music is presumed to have been in existence for generations, is collectively “owned” by one or more groups or communities, and is likely to be of anonymous origin. In such cases, the present copyright regime does not grant a monopoly to any individual or set of individuals. The music is free to be used and recreated.

Indian copyright law is primarily author-centric. For traditional cultural expressions, the idea of an “author” is absent. Therefore, such expressions take the shape of a general idea held by the group or community and enjoyed by them in their daily lives. However, if the author of the original song is identifiable, the copyright exists with him.

Section 14 of the Copyright Act, 1957, defining the scope of copyright law, talks of protection of original literary, artistic, musical and dramatic woks. More specifically, the authors of copyright in such works enjoy exclusive economic rights under this section.

Further, copyright exists for the lifetime of the author and 60 years after his death. If the actual lyricist of the song is alive, the lyrics too are protected through copyright law. Using the lyrics in toto in a different song amounts to copyright infringement.

From the credits section of the YouTube video, nothing suggests that Genda Phool has been licensed or assigned to Sony Music India, the music producer.

‘Moral rights’

Apart from economic rights, there are special rights, better known as “moral rights”. Section 57 of the Copyright Act, 1957, talks of the author’s special rights, which includes the right to paternity and the right to integrity.

Moral rights represent social values concerning authorship, creativity and artistic work. Such rights flow from the fact that a literary or artistic work reflects the personality of the creator, just as much as economic rights reflect the author’s need to keep body and soul together. Moral rights bring a culture focus to copyright law. The right to paternity allows the author to claim authorship over his work.

The right to integrity permits the author to restrain or claim damages in the case of any distortion, mutilation, modification or any other untoward act done to his work, which is prejudicial to his honour or reputation. The right extends in perpetuity – it passes on to the author’s estate upon death as well as to a third party to whom the works have been licensed or assigned by the author.

In the case of Genda Phool, not giving due credit to the actual lyricist as well as the singer violates the right to paternity. Even though it might be a common industry practice to lift parts of songs originally written and/or composed by others, credit has to be given to the original author and composer.

Secondly, the original song has a very specific context. It is about an unmarried mother sitting with her daughter, tying her long and luscious hair. The mother talks about being abandoned by her lover, who is from a wealthy family. Her daughter is beautiful because she has the genes of a rich father, according to Kahar’s lyrics.

The music video of Badshah’s version of a folk song born out of a woman’s tragic life story sexually fetishises the woman. The original tune’s history and context have been jeopardised. The right to integrity prohibits any distortion, mutilation or other modification of the author’s work. “Modification”, in the sense of the perversion of the original, will amount to distortion or mutilation.

Ratan Kahar has stated in interviews in Bengali newspapers that he was pained that his due credit was denied. After the outcry following the video’s release on YouTube, Badshah, through his Twitter account, stated that he was attempting to bringing folk music to a wider audience, and that Genda Phool, should be seen within this context.

“After receiving much information from the Bengali community, I have been constantly trying to reach out to him [Kahar] and connect with him and be able to do justice to all my might,” Badshah said in his statement. “I urge you all to hear this song as a new way of introducing forgotten melodies to the new generation, as a celebration of Folk Music, PEOPLE’S MUSIC.”

Badshah still hasn’t said whether he will give Ratan Kahar his due credit. The platforms on which Genda Phool can be viewed and heard now credit “traditional Bengali folk” – but not the man behind the song.

Senjuti Chakrabarti is an advocate at the Calcutta High Court.