The Copyright Loophole: How Copycats Weaponize Audio Cloning

Introduction

Today, almost every app we use has its own distinct sonic cues, whether when opening it or while using its features. In a world where digital saturation is overwhelming, tech. companies have increasingly begun using short audio cues to hook our brains with sounds that associate with their apps, and this is what has begun to define their brands. Whether it is an urgent “knock-knock” notification or the dramatic “Ta-Dum” of Netflix, digital applications have now gone far beyond visual design and rely on sonic cues to enter our subconscious minds.

However, even as creators invest time and resources in producing these sounds, traditional intellectual property frameworks are ill-suited to address such situations. While copyright protects original creative expression, sonic cues lasting only a few seconds are routinely disqualified under the de minimis threshold, because a brief notification tone rarely possesses the length or structural complexity required to qualify as a protected musical composition.

As a result, whether one has digital ownership of an audio has shifted to Non-Traditional Trademarks (NTMs), where a sound is evaluated on its capacity to serve as a source identifier. Yet, obtaining a trademark for a sound still seems too difficult, as evidenced by the European Union initially rejecting Netflix’s famous intro sound for being too structurally simple. However, as copycat developers engage in audio cloning, there is a need to revise the law to be more permissive toward these non-traditional practices. To understand why tech platforms may be vulnerable to this acoustic piracy, it is necessary to examine the split between copyright and trademark law when applied to sound. 

Copyright v. Trademark Law for Sonic Cues

Copyright Law

Copyright law fails to protect audio, and to understand this, it is important to know the core objective behind copyright law. The objective of copyright law is to protect original creative expression. When a developer creates a melodious, three-minute soundtrack for a video game or another such purpose, it falls within the domain of copyright protection. However, when UX designers engineer a short sonic cue, copyright law often fails to recognise these as qualified for protection.

The primary reason behind this is that courts apply the doctrine of de minimis non curat lex, meaning the law does not concern itself with trifles. Thus, in copyright law, for an unauthorised copy to be actionable, it must be shown that the concerned material is both quantitatively and qualitatively substantial. Because these notifications only last a second or two, they often do not clear this bar. 

Even if it is argued that the microsound is unique to the software and is creative, these software interfaces are governed by a different set of copyright restrictions. This idea stems from the case of Apple Computer, Inc. v. Microsoft Corp. While this case is most widely known for debating the visual “look and feel”, the Ninth Circuit Court also established a strict rule for software use interfaces: functional, restricted or highly standard elements are highly limited in copyright protection. It establishes two major defences that heavily affect app audio designers:

• The Merger Doctrine: This applies when an idea and its expression “merge” because there is only a limited number of ways to express the concept. For example, if an app needs an audio cue to communicate “an error occurred”, the designer will usually use a low-pitched, abrupt, or harsh tone. Because this idea of an error warning merges with the expression of the sound, copyright law refuses to grant a monopoly over that sound. Because if that were done, it would prevent any other developer from using audio logic in a similar way.

• The Scenes a Faire Rule: This doctrine holds that elements that are indispensable or standard to a specific genre cannot be protected. These are treated like ideas and therefore not protected by copyright because a “ping” or a pop” in an instant messaging app is often used to signify that a message has been sent. These sounds have become such standard industry expectations that they belong to the public hub of software design rather than to any individual corporation.

Thus, copyright law has treated UI sounds as a matter of utility rather than fine art, leaving the app’s digital identity unprotected. It has treated sonic cues as functional in a machine, forcing the developers to look outside copyright and look toward trademark law.

Trademark Law

Now, instead of attempting to protect their work as creative art, developers are looking towards Non-Traditional Trademarks (NTMs). Under trademark law, a sound is not required to be a creative expression; it simply must fulfil an original function. When a user triggers an alert, the sonic cue must act exactly like a visual logo, instantly identifying the specific company behind the application. However, securing a trademark for an audio is rigorous, requiring you to overcome two main obstacles: proving distinctiveness and avoiding the functionality trap.

• The High Bar of Distinctiveness: For a traditional mark or a visual sign, distinctiveness is usually easy to prove. However, this is not the case for a sound, as it is considered an unconventional mark; hence, IP law presumes that a standalone sonic cue does not automatically make an average consumer aware of its commercial origin.

This was observed in the case of Netflix, Inc. When Netflix attempted to register its signature “Ta-Dum” audio cue as a standalone sound mark, the EU Intellectual Property Office rejected its application. They held that a two-second cinematic dual-thud was too brief and simple. The office argued that the average consumer would perceive the audio not as a commercial brand identifier but merely as a generic, functional signal indicating that a video file was starting or ending.

To bypass this rejection, a Netflix executive created a multimedia workaround in 2019, successfully refitting a multimedia mark that couples the sound directly with the colour-shifting “N” animation. This showed that continuous commercial use permanently trained the consumer’s brain to pair a microsound with a specific company.

• China’s Watershed Case: In Re Tencent Holdings Ltd.: While Western jurisprudence has been reluctant to register short sonic cues, China has delivered a major judicial victory for modern judicial practice in the case of Re Tencent Holdings Ltd. In this case, Tencent sought to trademark its brief, rhythmic “beep-beep-beep” sound that alerts users to incoming messages in its QQ messaging app. The China National IP Administration initially rejected this application, declaring the sound too generic and lacking distinctiveness; however, Tencent appealed to the Beijing High Court. 

Tencent won by presenting massive empirical data showing that hundreds of millions of active users uniquely associated those specific beeps with the QQ platform. The court agreed, ruling that, through intensive, long-term commercial use, the brief notification had acquired the requisite distinctiveness to serve as a legally protectable sound mark.

However, even if a trademark provides distinctiveness, the major hurdle is the functionality doctrine. Trademark law strictly states that a mark cannot be registered if it is functional, meaning it is essential to the use, purpose, or mechanical operation of the concerned product. This means that while a highly stylised brand introduction sound can be trademarked, they cannot trademark a generic functional output, such as an alarm app making repetitive buzzer sounds or a camera app making a shutter sound. This means that developers need to carefully engineer a sound that is sufficient to be associated with their brand, but that serves no technical utility.

How Indian Law Deals with Sonic Cues

Just like the global system, Indian IP law also distinguishes between creative expression (copyright) and commercial branding (trademarks), creating distinct procedural and statutory hurdles for developers.

Indian Copyright Law

The Indian Copyright Act, 1957, is anchored to definitions of art and media, making it difficult to protect modern UI sound designs. To claim copyright, the developer must categorise their asset as either a “sound recording” or a “musical work”. However, Section 2(p) requires that a musical work consist of a combination of melody, harmony or a structural composition. Thus, a micro-sound that rarely contains any such arrangement would not satisfy this definition. It would be viewed as an isolated sonic event, not a musical work, thereby leaving it outside the boundary of copyright.

Moreover, enforcing a copyright claim over a Sonic cue would face the following hurdles in Indian courts:

• The De Minimis Defence: In the case of India TV Independent News Service (P) Ltd. v Yashraj Films (P) Ltd, the Delhi High Court validated the de minimis non curat lex exception for audio copying in India. It was established that if a copied audio fragment is trivial or brief or has negligible impact on the market, then it would be considered to constitute copyright infringement.

• The Originality Test: This was established by the Supreme Court in Eastern Book Company v. D.B. Modak, which held that a work must demonstrate a “substantial degree of skill, industry, and cleverness” to earn copyright protection. Thus, a basic sonic cue would rarely carry such creative weight to clear this standard meaning; copycats can mimic the sound with zero legal consequences.

Indian Trademark Law

Since copyright law again leaves the work unprotected, the fight proceeds under trademark law. Under the Trade Marks Act, 1999, Section 2(1)(zb) required that any protectable mark be “capable of being represented graphically,” which paralysed app developers, since short sonic cues cannot be written down as traditional text.

However, this changed significantly with the implementation of the Trade Marks Rules, 2017, which introduced Rule 26(5). This update created dual-submission guidelines: (1) A developer must submit a direct digital reproduction of the sound in an MP3 format, which must strictly not exceed 30 seconds, and (2) the digital file must still be accompanied by a visual representation of its musical notations.

Despite the technical ease of submitting such audio, India’s Manual of Trade Marks Practice and Procedure enforces a gatekeeping policy under Section 9, where the examiner explicitly denies rejection to Ultra-Short Clips, Standard Utility Chimes, and Children’s Media sounds like nursery rhymes.

The Issue of Audio Cloning

As application ecosystems grow increasingly crowded, copycat developers have moved from visual theft to a subtler form of audio mimicry. Because human brains process auditory information faster than visual information, a familiar notification triggers an immediate, subconscious sense of trust. Thus, by engaging in audio clogging, they subtly alter the premium app's signature chime by just a single semitone or use GenAI audio tools to clone recognisable brand audio. By doing so, they trick users into inputting sensitive financial or personal data, thereby turning sound design into a dangerous weapon used for phishing and consumer fraud. In India, where mobile payment applications like Paytm, PhonePe, and Google Pay rely on audio alerts to confirm financial transactions, audio cloning poses a severe threat to consumer safety and corporate trust.

Even though Copyright and trademark law fail to prevent audio mimicking, Indian law protects in the following ways:

• Passing off: If a brand satisfies the “Classical Trinity” test set out by the Supreme Court of India, where they must prove (1) goodwill and reputation attached to the specific sound, (2) intentional misrepresentation and (3) likelihood of financial or brand damage, the premium app can sue for passing off, even if they don’t hold a registered sound trademark.

• The Consumer Protection Act: Section 2(47) of the Act explicitly bans “unfair trade practices” which include misleading representations that confuse consumers about the origin of the goods or services. Audio cloning directly violated this by using deceptive audio layouts to create a false association with an established brand.

Ultimately, courts must look beyond literal visual representations and treat an app’s holistic sound design as vital, especially to protect consumer trust.

Conclusion

In conclusion, the Copyright and Trademark Law frameworks around the globe are currently ineffective at addressing the challenges posed by sonic cues. Even though they are sometimes vital to the app's identity, they’re often rejected for being too short or too basic. This has inevitably manifested as the problem of audio cloning, which is not only an issue for corporations but also for consumers who associate this audio with the premium app. Thus, it is necessary for IP law to make way for a framework suitable to incorporate even sonic cues as intellectual property.

Author: Samiksha Pai, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

Endnotes

1. Copyright Act, 1957, §§ 2(p), 2(xx), 13, 14. The Act defines "musical work" and "sound recording" and sets out the scope of copyright protection and the exclusive rights of copyright owners.

2. Eastern Book Company v. D.B. Modak. The Supreme Court held that copyright subsists only where a work demonstrates a minimum degree of creativity and intellectual effort, establishing the "modicum of creativity" standard in India.

3. India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd.. The Delhi High Court recognised the applicability of the doctrine of de minimis non curat lex in copyright infringement disputes and identified factors relevant to determining trivial copying.

4. Apple Computer, Inc. v. Microsoft Corp.. The United States Court of Appeals for the Ninth Circuit held that functional and standard elements of software user interfaces are entitled to only limited copyright protection, applying the merger and scènes à faire doctrines.

5. Trade Marks Act, 1999, §§ 2(1)(zb) & 9. These provisions define a trademark and prescribe the grounds on which distinctive and non-distinctive marks, including non-traditional marks, may or may not be registered.

6. Trade Marks Rules, 2017, r. 26(5). The Rules prescribe the filing requirements for sound marks, including submission of an MP3 file not exceeding 30 seconds together with graphical representation.

7. Office of the Controller General of Patents, Designs and Trade Marks, Manual of Trade Marks Practice and Procedure (2015, as updated). The Manual explains the examination standards applicable to sound marks, including distinctiveness and functionality requirements.

8. European Union Intellectual Property Office, Decision on Application No. 017912475 (Netflix Sound Mark, 2020). The EUIPO refused registration of Netflix's standalone "Ta-Dum" sound, holding that consumers would perceive it as a functional audiovisual cue rather than as an indicator of commercial origin.

9. Tencent Holdings Co., Ltd. v. China National Intellectual Property Administration. The Beijing High People's Court recognised Tencent's QQ notification sound as a registrable sound trademark after finding that extensive commercial use had enabled the sound to acquire distinctiveness among the relevant public.

10. Consumer Protection Act, 2019, § 2(47). The provision defines "unfair trade practice" and prohibits deceptive practices that mislead consumers regarding the source, sponsorship, or characteristics of goods and services, providing an additional remedy against misleading audio cloning practices.