Introduction

In the current era of social media and Indian music culture, one recurring feeling is becoming impossible to escape. Every month or so, as soon as a new hindi film song is released, the avid music listeners do not get late in pointing out or drawing comparison or similarity to some old song, be that Indian or from any other country. A tune released by an independent artist in Kolkata might remind fans of a Tamil melody from the 1990s. A Punjabi pop track, trending on Instagram, may echo the rhythmic phrasing of another song that was popular two summers ago. These reactions are not merely superficial but they reflect a growing public sensitivity to similarity and influence in music. Social media has amplified this curiosity where within hours of release of a song, thousands of users upload comparison videos, mashups, and side by side analyses.

This cultural environment has coincided with a global rise in copyright disputes. The controversy surrounding Blurred Lines, the prolonged battle over Led Zeppelin’s Stairway to Heaven, and the litigation that embroiled Ed Sheeran’s Shape of You have transformed the legal conversation around music borrowing. In the United Kingdom, Sheeran had to testify and sing in court to demonstrate how songwriters naturally rely on recurring musical patterns. These disputes are not limited to the West. In India, Ilaiyaraaja’s objections to unauthorised use of his compositions, the public debate over similarities between Varaha Roopam and Thaikkudam Bridge’s Navarasam, and longstanding confusion around rights ownership in film music demonstrate that India faces its own unique challenges.

Additionally, music making and producing has been fundamentally changed by the introduction ad use of modern technologies i.e. AI Models, high tech softwares. Producers can now isolate a micro second sample from an old ghazal, modify it digitally and embed it into a film soundtrack. Streaming platforms thrive on remixes and recreated versions. It can be safely concluded that music is travelling way more faster than law and this has been creating tension. Listeners expect originality but often reward nostalgic familiarity. Creators, investors face uncertainty because judicial standards, public perceptions and receptions vary from case to case, therefore, Policymakers must protect creativity without discouraging reinterpretation. The relevance of music borrowing has intensified as the modern music ecosystem has grown increasingly complex. In this moment, a careful examination of music borrowing becomes crucial.

Background

Music borrowing refers to incorporating elements of an already existing composition or recording into a new work. Borrowing can be both creative and legitimate, or it can cross into actionable infringement. The distinction often depends on what is borrowed, how recognisable it is, and how the action is interpeted by the law.

Forms of Music Borrowing

Inspiration is the most common and most accepted form. Musicians internalise countless melodies, rhythms, and phrases over their lifetime. British musicologist Philip Tagg notes that popular music relies heavily on shared musical vocabularies. A four chord sequence like I V vi IV appears in so many global songs that it cannot be controlled through copyright. A well known Indian example of this phenomenon is R. D. Burman’s Mehbooba Mehbooba from the film Sholay about which music critics and researchers have often noted that its melodic contour resembles Demis Roussos’ song ‘Say you love me’. Yet, both were ‘based’ on an old folk song, ‘Ta Rialia’.  By reinventing the motif within Indian orchestration, rhythm, and cinematic emotion, he created a work that is now considered an Indian classic. This example shows how inspiration, borrowing, and originality frequently coexist in popular music.

Stylistic imitation involves borrowing the “feel” of a genre. For instance, the soundscape of contemporary Hindi pop is shaped by certain synthesizer beats, trap influenced tunes, and Punjabi percussion. However, as style of music can not be monopolised, these similarities are not legally problematic.

Adaptations and remixes modify an existing composition. In India, these require explicit permission from the copyright owner. Bollywood frequently produces such remakes, where older melodies are rearranged with new instrumentation and vocals.

Sampling involves copying a portion of a sound recording to use in a new track. This is common in hip hop, indie music, and electronic genres. Sampling raises distinct legal issues because sound recordings are separately protected under the Copyright Act.

Cover versions involve re performing an existing composition. Indian law allows statutory licensing for covers, subject to conditions.

Unconscious copying occurs when composers inadvertently replicate material they have previously heard. The My Sweet Lord judgment involving George Harrison is the most famous illustration. Even “subconscious plagiarism” can be infringement if similarity is substantial.

Musical Work and Sound Recording

Indian copyright law protects two distinct rights relevant here. The musical work protects notation and melody, while the sound recording protects the captured performance. Sampling often engages both rights simultaneously. This duality complicates reuse, particularly in film industries where ownership structures are multiple layered.

Originality and the Idea Expression Dichotomy

Following the Supreme Court decision in Eastern Book Company v. D. B. Modak, originality in India requires minimal creativity. However, musicologists argue that originality should not be measured against a purely Western copyright lens because Indian classical and film traditions rely on common melodic structures. Scholars such as Mark Katz and Joanna Demers emphasise that musical creativity evolves through reuse and reinterpretation.

Substantial Similarity and the Ordinary Listener Test

Indian courts often rely on whether an ordinary listener perceives the new song as substantially similar to the earlier one. In Gramophone Company v. Super Cassettes, the Delhi High Court applied this reasoning. However, this test can be subjective, especially when judges lack formal musical training. Without structured reliance on expert evidence, decisions may vary.

Main Discussion

The Creative Legitimacy of Borrowing

Borrowing is intrinsic to how music develops. Indian classical music is built upon ragas that are shared across generations. Folk melodies change subtly across regions. Bollywood’s golden age composers, from S. D. Burman to Ilaiyaraaja, drew inspiration from a vast array of global sources while producing highly original interpretations. This creative exchange is not plagiarism but dialogue. Academic scholarship supports this view. Lawrence Lessig, in his book Free Culture, argues that creativity thrives when artists have room to reinterpret existing works. Similarly, Kembrew McLeod and others note that strict copyright enforcement risks criminalising normal artistic behaviour.

Listeners also enjoy borrowing. A familiar melodic phrase may evoke nostalgia. A remix may reintroduce a classic to younger audiences. A sampled beat may create emotional continuity across genres. Borrowing enriches the musical experience, and the law should respect this creative function.

When Borrowing Becomes Infringement

Courts face the difficult task of determining where influence ends and copying begins.

Melodic Similarity

Melody often carries the strongest protection. If two melodies share a distinctive sequence of notes, courts are more likely to find infringement.

The Blurred Lines case is a global example. Although the composition was not copied directly, similarities in mood and texture led to a finding of infringement. Musicologists heavily criticised the judgment because it blurred the boundary between style and expression. In India, melodic disputes often arise in film music. In the Navarasam versus Varaha Roopam controversy, Thaikkudam Bridge alleged that the makers of Kantara replicated core melodic and rhythmic structures from their song. Although the case was resolved through negotiations, it highlighted how Indian courts would benefit from clearer analytical frameworks for melodic similarity.

Harmonic and Rhythmic Similarity

These elements are harder to protect. For example, in Ed Sheeran’s Shape of You case, the UK High Court ruled that the similarity in the “Oh I” hook was based on common rhythmic and scale patterns. The court held that such commonplace elements cannot be appropriated.

Aural Impression and Expert Testimony

Indian courts often use their personal listening impressions to assess similarity. However, academic literature on musicology strongly recommends systematic expert analysis. Scholars like Peter Albrecht and David Huron explain that human recognition of musical similarity is shaped by cultural conditioning, making subjective evaluation unreliable.

Indian Illustrations

Ilaiyaraaja’s disputes offer an instructive lens. He has objected to the unauthorised use of his compositions at live events and in films. These disputes involve ownership and assignment issues rather than similarity, but they also reflect how Indian film music lacks clear contractual structures, making reuse contentious.

Similarly, Bappi Lahiri and R. D. Burman faced criticism for songs that resembled global tracks, yet many of these borrowings were transformative in context. They demonstrate how cultural reinterpretation can produce new creative meaning even when rooted in existing material.

Sampling in India: A Complex and Underregulated Practice

Sampling has shaped the sound of modern Indian indie music. However, Indian copyright law has not evolved to address this technique. Independent artists routinely sample old Bollywood vocals, devotional chants, or classic Indian pop recordings. Many hip hop producers in Mumbai and Delhi borrow percussive loops from old Hindi film songs. These practices mirror global trends. The famous “Amen Break”, a six second drum loop from a 1969 track, has been used in over 5,000 songs and influenced entire genres.

Legal Challenges in India

Sampling requires licences for both musical works and sound recordings. Indian law does not provide fair use style exceptions for sampling, even when the borrowed material is transformed. This legal gap creates uncertainty. Small creators often lack the resources to license samples, while large labels aggressively enforce rights.

Academics like Katz and Demers argue that sampling is not merely copying but a form of musical commentary. Treating it solely as reproduction undervalues its cultural significance.

Bollywood Remakes and the Question of Moral Rights

Bollywood’s recent flood of remakes has revived debates about artistic integrity. Songs like Humma Humma, Aankh Marey, and Tip Tip Barsa Pani have been recast with modern production. While these remakes are usually licensed, they often provoke criticism for altering the spirit of the original.

Under Section 57 of the Copyright Act, authors retain moral rights to object to distortion or mutilation. Ilaiyaraaja has strongly advocated for recognition of moral rights, arguing that his works are integral to cultural memory. Vishal and Shekhar have expressed discomfort when their songs are remixed without artistic justification.

Courts must determine whether a remake harms the author’s reputation. This involves balancing artistic vision, commercial interests, and evolving public tastes. The debate around moral rights in film music suggests that India must develop clearer guidelines.

The Need for Consistent Judicial Standards in India

Indian courts would benefit from a structured framework for analysing musical similarity. Such a framework could include:

• identifying precise melodic motifs
• distinguishing between protectable expression and common musical elements
• requiring expert testimony from trained musicologists
• analysing works using both qualitative and quantitative measures
• recognising cultural norms in Indian music where sharing is common
• establishing clearer guidelines for sampling and transformative use

Such reforms would reduce unpredictability and support both creative freedom and legal certainty.

Conclusion

Music borrowing is central to the way creativity operates in India and around the world. It is not a malicious act but a natural process through which artists converse with traditions. However, legal uncertainty creates tension in an era defined by AI generated music, viral remixes, global copyright disputes, and shifting cultural tastes. Indian copyright law must evolve. It should provide clearer standards for determining similarity, recognise the creative value of sampling, strengthen moral rights in film music, and encourage transparency in licensing practices. The goal is not to restrict borrowing but to allow it responsibly and fairly. Music thrives when originality and influence coexist. A transparent and affordable sampling licence system would reduce disputes, legitimise creative reuse, empower independent artists and align India with global production practices.Such reform would support cultural innovation while upholding creators’ rights.The future of Indian music will depend on how effectively law, culture, and technology navigate this delicate balance.

Endnote References

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