Patherya, J.:— The Court : In a suit for a decree of perpetual injunction restraining the respondents from reproducing the literary work or musical work incorporated in the song “Apni To Jaise Taise…” used in the film “Laawaris” and restraining the respondents from infringing the author's special rights this application has been filed and orders sought.
The case of the petitioners is that the respondent no. 4, Saregama, has a copyright in the sound recording which has been accepted in AIR 1997 CAL 63. It is on the basis of such sound recording that the copyright therein was sought to be registered. Section 2[xx] of the 1957 Act deals with “sound recording” so also Section 14[e] of the 1957 Act. By a letter dated 4.3.2010 the petitioners called upon the respondent Saregama to intimate the clause of the agreement under which license was granted to exploit the said song in the film “Housefull” The reply is silent in respect of such clause. Synchronization is a combination of the visual and audio portions. By an agreement dated 11.2.2010 re-recording and synchronization has been licensed to the respondent nos. 1 and 3 for exploitation in the film “Housefull” This has resulted in distortion and mutilation under Section 57 of the 1957 Act and is not in consonance with the 1981 agreement.
Counsel for the respondent Saregama submits that the claim has been made as the owner of the copyright by the petitioners herein. The statements made in the petition with regard to the non-existence of the agreement of 1981 is a false statement made an oath and disentitles the petitioners to any relief. There is no challenge to the said agreement in the suit filed. The claim has been made on the basis of the author's special rights and in view of the distortion, mutilation and modification of the literary and musical works the petitioner has alleged damage to reputation of Prakash Mehra. No particulars have been given how the author's special right has been mutilated and mere dissatisfaction of the representation and adaptation is not sufficient to seek relief under Section 57 of the 1956 Act. By virtue of Section 14[a][i] and [v] the owner of the copyright is entitled to do or authorise not only the reproduction of the work in material form but also to make any cinematographic film. Therefore, respondent Saregama was entitled to authorise exploitation of the subject song in the film “Housefull” The recreated song has been set out and from a reading it will appear that no part of the song has been distorted or mutilated and under Section 2[a][iv] and [v] rearrangement or alteration is permitted. In the shorter Oxford Dictionary the word “synchronize” means to combine. While the Concise Oxford Dictionary defines “distort” to mean “twist” and “mutilate” to mean cause injury resulting in any damage. In the letter of 31.3.2010 special rights have been claimed, without any case of distortion made out as done later in letter dated 6.4.2010 By an agreement of 11.2.2010 license has been granted to the respondent nos. 1 and 3 to re-record and synchronize the subject song in the film “Housefull” which it is entitled to do as the assignee of the copyright under Section 14[a][i][v].
The agreement of 1981 came up for consideration in AIR 1997 CAL 63 wherein it was held that as owner of the sound track and copyright Saregama had the right to deal with the copyright in any manner as such owner including exercising the right to destroy. From a statement handed to court this day, it will appear not only synchronization fees but fees on account of films have been received by the petitioners. As held in the unreported judgment of Anandji Virji Shah & Ors. v. Ritesh Sidwani & Ors. in suit [L] 2993 of 2006 payment of royalty is a factor to weigh with the court. In the suit filed in this court accounts has been sought for so also in the instant petition a collection of revenues is sought. In the Bombay suit filed the case of distortion and mutilation though made the defendants sought Rs. 50 lac as damages. As a claim for damages has been made the balance of convenience and inconvenience is not in favour of any order of injunction being passed.
Counsel for the respondent nos. 1 and 2 submits that the Bombay suit filed on 19.4.2010 is for the selfsame relief. The suit has been filed without withdrawal of the first suit. Therefore, this suit is not maintainable and no order be passed. Valuable consideration of Rs. 80 crores has been paid for international distribution and prints have been dispatched. In the State of Uttar Pradesh the film has already been released and from 4.3.2010 the petitioners have knowledge of the said film and have filed the instant suit only on 28.4.2010 Delay, therefore, does not warrant any interim order.
While considering an application of this nature three essential elements must be considered viz. whether a prima facie has been made out, irretrievable prejudice caused and balance of convenience. No prima facie case has been made out as three inconsistent cases have been made out by the petitioners. The ignorance of a subsisting agreement of assignment ex facie disentitles the petitioners to reliefs as sought, more so when compensation has been claimed and such compensation would be adequate relief. No case of royalty has been made out in the Bombay High Court suit and no particulars of the amounts received have also been mentioned. In fact, damages has been quantified at Rs. 50 lac in the Bombay suit. Delay also disentitles the petitioners to any order of injunction. The petitioners were aware of the subject song in the film “Housefull” since 4.3.2010 In fact, a specific letter to this effect was issued on 8.4.2010 by Super Cassettes. Therefore, there was no reason for the petitioners to wait for filing the suit till 28.4.2010 In fact, on 19.4.2010 a suit was filed in the Bombay High Court. For all the said reasons, the balance of convenience is in favour of no order being passed on this application. Reliance has been placed on 1999 FSR 168 for the proposition that in cases of mutilation the treatment given to the work is to be seen as it is to affect the reputation and honour of the author. In the instant case, no such evidence of mutilation or distortion has been given. No case under Section 57 has been made out. Therefore, the said section will not apply. Reliance has also been placed on an unreported decision in Industrial Gases Ltd. & Anr. v. Kamrup Industrial Gases Ltd. & Anr.. For all the said reasons, therefore, no order be passed.
In reply, counsel for the petitioner, submits that in AIR 1997 CAL 63 it was admitted that the respondent no. 1 was the owner of the sound track and any reproduction of records from the original plate and from the records produced without its authority will tantamount to infringement of copyright as has occurred in the instant case. Till the present time no occasion has arisen for Saregama to give any right to third parties to exploit its copyright in another film. The royalty paid is only in respect of the records sold. On the question of delay, the notice of 4.3.2010 was replied by letter dated 16.3.2010 In the reply, there is no indication of the clause under which the permission to record the subject song in the film “Housefull” has been given. The first cease and desist notice was issued on 31.3.2010 and the second was issued on 6.4.2010 To the second cease and desist notice a reply has been given on 8.4.2010 by Super Cassettes and on 12.4.2010 by Saregama. Saregama filed its suit on 16.4.2010 wherein it obtained an order of injunction restraining the release of the film “Housefull” and the petitioners from claiming any rights in respect of the lyrics or sound recording. Such order of injunction continued till 29.4.2010 when the same was vacated at about 1 p.m Although a suit had been filed in the Bombay High Court on 19.4.2010 In view of the order of 16.4.2010 the same could not be proceeded with and a subsequent suit was filed on 28.4.2010 Upon vacating of the order on 29.4.2010 the instant application was moved and order sought. The Bombay suit has been withdrawn on 29.4.2010 at 4.40 p.m with liberty to proceed before the Calcutta High Court. Therefore, there has been no delay on the part of the petitioners.
Having considered the submissions of the parties by the order dated 29.4.2010 passed in GA No. 1251 of 2010 the agreement of 1981 and the clauses thereunder have been considered and on a consideration thereof the conclusion that has been reached is that the exploitation of the subject song in the film “Housefull” is dehors the agreement between Saregama and Prakash Mehra Production. The said conclusion is based on reasonings set out in the said order and on the same reasoning including the interpretation given to “all other rights” in the agreement of 1981 there exists no reason to differ from the reasoning given therein, which reasoning for the sake of convenience is set out hereinbelow -
“The only document that needs to be construed at this stage is the agreement of 1981 and the rights, which flowed therefrom. From a reading of the said agreement of 1981 under Clause 3A producer Mehra transferred and assigned absolutely to the petitioner company — [i] the copyright to make records of all contracts works and [ii] the copyright, performing right and “all other rights” in the contract works embodied in its film. The phrase, which needs consideration, is “all other rights” The business of the petitioner as pleaded in paragraph 2 is sale and manufacture of sound recordings. Under the agreement of 1981 too, the petitioner company acquired a right in the sound track and, therefore, was assigned rights visa-vis such sound track as embodied in the producer's films. It was for such physical and non-physical rights that royalty was paid. In fact, from a reading of clause 5 of the agreement of 1981 it appears that the producer was to make available exclusively to the petitioner company the sound track and both the parties were to ensure the security of such sound track. To assume that such right extended to allow exploitation of the sound track in another film would be contrary to the terms agreed between the parties.
The agreement of 11.2.2010 is between the petitioner company and one Super Cassettes Industries Ltd. and Nadiadwala Grandson Entertainment Pvt. Ltd. Such agreement is in the nature of a licence and if it was restricted to re-recording the agreement could not have been faulted. The agreement does not stop there. In fact, it has proceeded to allow exploitation of the said song in the film “Housefull” This exploitation in the film is dehors the agreement between the company and Prakash Mehra Production.”
Saregama has all along treated itself as the owner of the copyright in sound recording and, therefore, got itself registered in the sound recording in the year 2000. Therefore, the rights claimed by Saregama are under the 1957 Act as amended in 1994 and the 1957 Act as amended is applicable.
Although the Mehras may have denied the existence of the 1981 agreement but such agreement is on record and the only right which was given to Saregama was in the literary, dramatic and musical works embodied in the producer's films and in all contract works but no right was given to exploit such literary, dramatic and musical works as embodied in the producer's films in another film.
The meaning sought to be given by Saregama to Section 14[a][iv] of 1957 Act cannot be accepted as the right to do or authorise doing of an act is in respect of the literary, dramatic and musical works and its translation into a cinematogaphic film, for example pygmalion [dramatic works] into My Fair Lady [Cinematograph film] or any musical works that may be made into a film.
As regards the question of delay, it is true that the first letter was written by the Mehras on 4.3.2010 and a reply was given on 16.3.2010 Prior thereto on 15.3.2010 the music of the film “Housefull” was released. This was followed by two notices of cease and desist dated 31.3.2010 and 6.4.2010 The second notice was replied to by Super Cassettes on 8.4.2010 and by Saregama on 12.4.2010 Four days thereafter on 16.4.2010 Saregama filed CS No. 101 of 2010 and an ad interim order of injunction was passed in terms of prayers [f], [g], [h] and [i]. By virtue of such order, the petitioners and the music composers were restrained from claiming any right in the literary works, musical works or sound recording. Such order continued till 29.4.2010 when the same was vacated and it is only thereafter that the instant application has been filed. It will not be out of place to mention that on 19.4.2010 a suit was filed in the Bombay High Court and such suit was withdrawn on 29.4.2010 Although prior thereto on 28.4.2010 the petitioners filed CS No. 112 of 2010 in the Calcutta High Court. Therefore, from a look at the sequence of events it is not that the petitioners Mehras sat quiet in respect of the said matter and the question of delay cannot be a factor to defeat the relief sought.
For all the said reasons, the petitioners are entitled to an order of injunction restraining the respondents from exploiting the subject song “Apni To Jaise Taise …” in the film “Housefull” till 30.6.2010
In view of the aforesaid findings, which are prima facie in nature, the case of distortion or mutilation need not be considered. In fact, on audio hearing of the two compact disc no ingredients under Section 57 of the Act was found. Accordingly, directions are given for filing affidavits. Affidavit in opposition within three weeks from date; reply thereto, if any, within one week after the summer vacation. Matter to appear in the list two weeks after the summer vacation.
Counsel for the respondent nos. 1 and 2 seeks stay of order passed this day on the ground that the film has been released and it will suffer irreparable prejudice as prints thereof have been distributed in the International circle, such prayer is considered and refused.
All parties concerned to act on a photostat signed copy of this order on the usual undertakings.
PATHERYA, J.
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