New Delhi: A Delhi court has stopped release of the film Broken Wings over the works of late Parikrama band member and musician Sonam Sherpa’s works allegedly being used in the movie without consent.

The Delhi Court has prima facie found a case of copyright infringement.

Restraining the release of the film, District Judge Sanjiv Jain said the film 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. She alleged that her husband’s works were used in the film, which was set to be released on April 29, by the defendant without consent or credit.

Advocates Swathi Sukumar, Naveen Nagarjuna and Tarini Sahai appeared for the plaintiff. Advocates Amal Chitale and Shweta Singh Parihar represented Vancouver-Darjeeling based filmmaker Shenpenn Khymsar.

According to the judge, Sherpa’s musical works were used in the film 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.

File photo of Sonam Sherpa Credit: File image

“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 defendant Khymsar. There was correspondence over email with regards to the use of Sherpa’s songs in the film.

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

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

“My husband Sonam Sherpa was roped in to work for the music by Shenpenn in 2018. Lot of emails were exchanged, working as a professional. It doesn’t need a contract he (Shenpenn) said but there are copyright violations. Upon my husband’s passing, he said Sonam is not part of the music or movie and that is where the problem started,” Dina told EastMojo.

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.

Speaking to EastMojo, Khymsar said, “The clipping of the songs affected us aesthetically, but the soul of the movie is still intact. I am a law-abiding citizen, but I admit that those two songs were from my heart. I was planning to go ahead with the songs but my team functions from Mumbai.”

“It was like a game of chess. The timing of the court order. The film is devoted to Sonam Sherpa but the songs in contention, I wrote them 7-8 years before ‘Broken Wings’ was made. I was keen to help talent from the hills and Sonam Sherpa, as a friend, was one of them. The guitar to the songs were his but the melody and lyrics were mine. So he was part of the session. If Sonam were alive and here today, he wouldn’t want this. The people from the hills should have supported instead of pulling the legs,” he added.

The founding member of the Indian band Parikrama was born in the Himalayan foothills of Kalimpong, which was the epicentre of the Gorkhaland agitation.

Sherpa, “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 no contract was entered into by the two parties.

Khymsar mentioned 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 and that he only incorporated the songs There She Goes and Timro Mero

He said that according to Sections 8 and 19 of the Copyright law, Sherpa’s wife did not have the right to claim any royalty.

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.

It was 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.

However, the only difference found in the final track was increased pitch and tempo compared to Sherpa’s track with a minor change, but without 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.

On May 19, the Court clarified, “Nothing mentioned herein above shall tantamount to be an expression of opinion on the merits of the case.”

‘Broken Wings’, which premiered in Gangtok on Friday, did not feature the two songs written by Sherpa.

Broken Wings: Film on Gorkhaland agitation to premiere in Gangtok

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