The Arbitration Court of St. Petersburg and the Leningrad Region exacted 1.4 million rubles in compensation from the defendants in favor of the NMI and forbade the inclusion of the song in the performance.
As follows from the lawsuit, since November 2020, in the musical, which is shown at the LDM theater 3-4 times a month (the theater’s website offers tickets for the July screenings of the Diamond Chariot. – Ed.), The Star Called the Sun, co-authored by is Viktor Tsoi.
In the spring of 2020, composer Anton Tanonov applied to NMI for a license to use the song in the musical, but was refused. Among other things, the fact that actors in the form of Japanese geishas perform the song played a role in this decision, as indicated in the case file. Nevertheless, the composition was included in the performance. NMI, referring to an interview with the producer of “Diamond Chariot” Irina Afanasyeva, explains this step by saying that the use of this song was one of Boris Akunin’s conditions for issuing permission to stage the musical.
The defendants requested that the claim be dismissed. The Diamond Chariot referred to v. 1274 of the Civil Code of the Russian Federation, which allows parodying any works without the permission of the copyright holder. Before its premiere, the authors of the musical ordered a psychological and linguistic analysis of the song episodes. The experts recognized the numbers presented to them as parodies.
The arbitration appointed a forensic examination, which confirmed the parody nature of the “Diamond Chariot”, but Akunin’s novel itself is parodied, not the song. “When creating a parody, the original original work should be at the center of the new one, and not be its background or auxiliary means,” the court said.
Irina Afanasyeva told DP that she was ready to comment at a personal meeting after returning from vacation. It was not possible to contact the rest of the participants in the process.
Experts interviewed by DP agree that the parties to the dispute have chosen the right strategies in this process. “The plaintiff took all steps in his power to prove the fact that the exclusive rights to the song belonged and its illegal use,” notes Anastasia German, Intellect’s leading lawyer. “In particular, he made a video recording of the musical, provided license agreements to justify the amount of compensation. In anticipation, the publisher asked for a forensic linguistic examination – to level the defendant’s argument about the parody use of the song.
According to Vera Zotova, Senior Associate in the IT/IP Practice at Nordic Star Law Office, the respondent’s appeal to Art. 1274 Civil Code is a good tactic that could lead to success. “There is no legal definition of the concept of “parody”. When determining whether a work is a parody, the courts turn to definitions from explanatory dictionaries,” the expert says. The refusal of the court to recognize the reworking of the song as a parody is justified by the incorrect wording of questions for experts: none of the six questions sounded like “Are the songs performed in the musical a parody of the song “A Star Called the Sun”?”, Vera Zotova believes.
Passivity in an attempt to appoint a re-examination, as well as the lack of reviews on the conclusion of a forensic expert, did not play in favor of the authors of the musical, adds Anastasia German. Another study, conducted at the initiative of the defendants, could change the course of the case, the expert believes.
