Music and poetry have long been the favoured mediums of freedom fighters the world over. Regardless of the country or community, the struggle for sovereignty, independence and autonomy have yielded a wide range of musical and literary works that continue to play a crucial role in the way we understand contemporary socio-political dynamics. A country’s government will often choose its national anthem — a musical and literary work symbolic of the country’s national pride — from this repertoire.
National anthems find a place in all kinds of official events — cultural, sporting and educational. There is a quality that national anthems achieve that makes them lofty, untouchable and almost sacrosanct.
A national anthem, however, is a song, and like any other song, is subject to ownership and the rules of copyright… or is it?
Who holds the copyright over a national anthem?
The copyright holding and ownership of a country’s national anthem depends on the country’s government and intellectual property rights policies. It also depends on the historical origins of the song itself — was it written on request, or was it the result of efforts motivated solely by creativity? Did an individual or a group write the song and was it ever intended to be sung; and if so, who put the words to a melody?
As it turns out, ascertaining the copyright over a national anthem is no different from determining the copyright holding of a song (more about this here), and similar to other musical works, the copyright over a national anthem is also subject to expiration. The implications of copyright expiration of a national anthem can be quite serious, since this would make the anthem public domain, and thus fair game for adaptation and remixing.
What happens when the copyright over a national anthem expires?
This was the question on everyone’s minds in Ireland, when back in December 2012, the Irish national anthem, Amhrán na bhFiann (The Soldier’s Song), officially entered the public domain following the expiration of the Irish Department of Finance’s copyright over it. The song, written by Peadar Kearney, entered the public domain as per the local law, seventy years from the date of his death in 1942.
Controversy and discussion over the copyright of Amhrán na bhFiann arose in response to the assumption that since the song had officially entered the public domain, it was free to be remixed, adapted and reinterpreted by artists and other individuals. Political representatives rallied back and forth over the need for a separate statute that would exempt Amhrán na bhFiann from the rules of the public domain, awarding it a special status.
This was not the first national anthem to enter the public domain; Britain’s God Save The Queen and USA’s The Star Spangled Banner are examples of national anthems that have long been in the public domain, sampled and rehashed by musicians and authors including The Sex Pistols and Jimi Hendrix. Why then, was there apprehension surrounding the change in the Irish national anthem’s copyright status? The obvious answer is fear — fear that the national anthem was now legally open to reinterpretation and/or disassociation from its original context. Worse still, what if the national anthem were in some way made derogatory, disrespected, and pulled down from its position of lofty splendour, to be reduced to a work of commercial significance, capable of being monetized by anyone?
Does commercial use amount to disrespect?
There seems to be a fair amount of division on this. The question has popped up in the context of the Indian national anthem thanks to Bollywood film director, Karan Johar, whose movie Kabhi Khushi, Kabhi Gham incorporated a rendition of Jana Gana Mana in a scene. The reference became the subject of litigation in the case of Karan Johar v. Union of India (2004) 5 SCC 127, in which the court ultimately dismissed the complaint. The litigation leading up to this judgment revealed some interesting arguments and insights into the attitude towards the Indian national anthem, alluding to the idea that its commercial use could be considered disrespectful. To be fair, this case was largely concerned with the argument that the film should have alerted audiences in some way before the national anthem was played — so they could stand up in theatres, as a show of respect — clearly not the most ideal way to show national pride.
So does this mean that the Indian national anthem is free for use?
As per a letter dated March 11, 2016, from the Indian Government’s Ministry of Human Affairs, any clarification regarding the national anthem’s usage can be sought from a set of ‘Orders relating to the Indian National Anthem’. According to these orders, there doesn’t seem to be a problem with incorporating the anthem into a commercial film or documentary. Strictly speaking, India’s national anthem is not subject to copyright protection as the term has expired. Having said that, there are multiple orders and statutory rules which seem to suggest that rehashing, remixing and even adapting the national anthem or insignia into a context that isn’t indicative of national pride is bound to attract serious repercussions. In addition it is important to understand that while the melodic and lyrical content of a national anthem might be free to reinterpret or adapt, ordinary copyright protection and the rules of infringement apply to a specific sound recording and arrangement of a national anthem.
In conclusion, national anthems are subject to the terms of copyright law, but owing to their significance, are regulated by other laws, both statutory and societal.