Mr. Dilip Jadhav And Anr. vs Ms. Lata Narvekar And Anr.
2005 Latest Caselaw 1246 Bom

JUDGMENT

S.U. Kamdar, J.

1. The present Notice of Motion has been taken out for appointment of Court Receiver, High Court, Bombay as receiver of all the cassettes, ACDs, VCDs and DVDs of the cinematograph film made of the programme 'Ala Bahar Lavanila / Ala Lavanila Bahar' and/or their distributors, stockists, retail sales agents, employees, officers, etc. with all powers under Order XV Rule 1 of the Civil Procedure Code, 1908. By prayer (b) injunction is sought restraining the defendants either by themselves or through their agents, servants, officers, assigns, distributors, retailers, dealers etc. from in any manner dealing with selling, reproducing and/or making copies of the said cassettes, ACDs, VCDs and DVDs and/or of any other audio, visual reproduction in any form of the said cinematograph film made of the programme 'Ala Bahar Lavanila / Ala Lavanila Bahar'. It has been further prayed that defendants also should be injuncted from dealing with, selling, reproducing and/or making any copies of the cassettes, ACDs, VCDs and DVDs and/or of any other audio, visual reproduction in any form of the said film and/or telecasting, broadcasting, showing, playing the said film in any manner on any audio visual medium and/or any channel or otherwise communicating the same to the public in any manner whatsoever and by subclause (2) of prayer clause (b) it has been prayed that the defendants should be restrained from assigning the rights of the said film. The present motion arises in the light of the facts which are briefly enumerated as under:

2. The suit has been filed by the plaintiff No. 2 which is known as Marathi Natyavyavasayik Nirmata Sangh, an Association registered under the Public Trust Act, 1950 and under the Societies Registration Act, 1860. The plaintiff is the present trustee of the said plaintiff No. 2. The defendant No. 1 is the Chairperson of the plaintiff No. 2 trust and defendant No. 2 is the distributor of the video films and CDs. Plaintiff No. 2 is the Association of producers of Marathi Commercial Drams and is established with the aim and object of espousing the interests of its members and the Marathi commercial theatre. The constitution of the said plaintiff No. 2 interalia provides under clause 9 that there shall be a Managing Committee which will be vested with the powers of running the Association and the Managing Committee will have a Chairman elected by the Managing Committee of the Trust. Every year, the said plaintiff No. 2 celebrates their Annual Day and Accordingly 30th Anniversary was celebrated on 21.6.99.

3. It is the case of the plaintiffs that for the 30th Anniversary Day Function of the plaintiff No. 2, a programme was organised at 'Shivaji Mandir' situated at N.C. Kelkar Road, Dadar (W), Mumbai 28 on 21.6.99. At the said programme, a dance item was presented known as 'Ala Bahar Lavanila' / Ala Lavanila Bahar' at the aforesaid venue. At the said function, various Lavani artists performed and their performance was videographed by plaintiff No. 2. ACDs, VCDs and DVDs etc were recorded of the said presentation of the programme. During the said time, defendant No. 1 was the chair person of plaintiff No. 2 and thus, in possession and incharge of plaintiff No. 2. It is the case of the plaintiff No. 2 that after recording the videography of the said programme which was stage at the official function of the plaintiffs the defendant No. 1 has illegally and unauthorizedly sold the said films to defendant No. 2 for the purpose of commercial exploitation thereof and the defendant No. 2 is selling the VCDs of the said programme in the market and defendant No. 1 is earning the amount therefrom personally.

4. It is the case of the plaintiffs that on 21.6.99 when the aforesaid programme was held the well known renowned artists in the field of Lavanis had taken part in the said programme known as 'Ala Bahar Lavanila/Ala Lavanila Bahar'. Under the aims and objectives of plaintiff No. 2 these artists had given services at almost small price and the same was videographed by plaintiff No. 2 and accordingly, it is the case of plaintiff No. 2 that they are the producers of the said film. It is further the case of the plaintiffs that they have made various payments to all the aforesaid artists who had taken part in the said programme.

5. It is further the case of the plaintiffs No. 2 that defendant No. 1 was acting as a Chairman of the institution at the relevant time i.e. on 21.6.99 and accordingly was incharge of the various programmes. Defendant No. 1 has copied the programme of plaintiff No. 2 and has made ACDs, DVDs and VCDs and sold in the market. It is further case of the plaintiffs that defendant No. 1 with malafide and with dishonest intention and clandestinely and behind the back of the members of plaintiff No. 2 sold the cassettes to defendant No. 2 and has received the consideration in respect thereof. It is further the case of the plaintiffs that in the CDs which are prepared by defendant No. 1, defendant No. 1 has super imposed the name "Prism" while transferring the contents of the video cassette on the compact disc. Thus, the said programme 'Ala Lavanila Bahar/Ala Bahar Lavanila' which has been produced by the plaintiffs and which has been performed by various artists in the 30th Anniversary Celebration has been copied by defendant No. 1 and is selling in the market.

6. In the light of the aforesaid fact, plaintiffs have filed the present suit for Copy Right as well as claimed that there should be an injunction restraining the defendants from selling the said ACDs, DVDs and VCDs in respect of the programme which has been produced by the plaintiff and of such ACDs, DVDs and VCDs of the said programme the plaintiff is the only owner thereof. In so far as the two facts are concerned, there is no dispute before me that at the relevant time, defendant No. 1 was the Chairman of the plaintiff No. 2 institution. Secondly, that the programme of which CDs are sold in the market was a programme known as 'Ala Lavanila Bahar/Ala Bahar Lavanila' and it was performed on 30th Anniversary Day of the plaintiff No. 2.

7. However, the learned counsel for defendant No. 1 has contended that there is no breach of any of the provisions of Copy Right Act and therefore the plaintiffs are not entitled to any injunction in respect of sale of the ACDs, VCDs and DVDs by defendant No. 1 to defendant No. 2 in the market. It has been contended that the artists who performed the programme have given their No Objection as well as she has entered into agreement with each of the artists permitting her to videograph the said programme. Defendants have filed affidavit and relied upon letters as well as affidavit in respect thereof. It has been further contended that the person is entitled to injunction only if the plaintiff is producer of such ACDs, VCDs and DVDs unless the said ACDs, VCDs and DVDs are produced by the plaintiffs and very same CDs, ACDs or DVDs are copied by another person the plaintiffs are not entitled to any injunction. It has been further contended that in so far as programme is concerned, defendant has independently videographed the same. Therefore, sale of ACDs, DVDs and VCDs by defendant No. 1 cannot give any ground for the plaintiffs to seek an injunction. It has been thus, contended that defendant No. 1 is producer of ACDs, DVDs and VCDs which has been photographed by her at the said function. The learned counsel for defendant No. 1 has in support of the aforesaid contention relied upon the provisions of Section 14b, 38 and 51 of the Act and it has been interalia contended that once performer having given permission and defendant No. 1 having videographed independently, defendant No. 1 has become producer of the said programme and cannot be injuncted from selling and/or distributing the said VCDs, DVDs and ACDs. He has also relied upon opinion of the author Copinger and Skone James particularly para 7-70 which reads as under:

"It is an infringement of the copyright in a film to make a copy of it, or substantial part of it, whether directly or indirectly and whether transiently or incidental to some other use. This includes making a photograph of the whole or any substantial part of any image forming part of the film includes storing it by electronic means, but again it is suggested that it does. Again, the copyright in a film is infringed if the recorded moving images are directly or indirectly copies but not if the same or similar images are created independently, for example by reshooting the subject matter of the film. Again, however, underlying works such as the screenplay may be infringed by such means."

8. The learned counsel for the defendants has relied upon the Judgment of the learned single Judge of this court in the case of Star India Private Ltd v. Leo Burnett (India) Private Limited in Notice of Motion No. 903 of 2002 in Suit No. 1008 of 2002 of F.I. Rebello, J. decided on 24.09.02 particularly para 5 on page 213. It has been contended by relying on the aforesaid Judgment that a person entitled for injunction must be producer of the said film.

9. I have considered the aforesaid rival contentions of both the parties. Firstly, I am of the opinion that on the admitted facts that the defendant No. 1 was the Chairman of the Institution at the relevant time and secondly that the function which was organised, was organised by plaintiff No. 2 and not defendant No. 1. It is clear that the programme was not of the defendant No. 1. The act of defendant No. 1 to do a videography in the course of the said programme was for and on behalf of plaintiff No. 2. Thus, producers were the plaintiff No. 2 and the artists performed in the programme which was of the plaintiff No. 2. The consents which are given to defendant No. 1 was obviously given to her in her capacity as a Chairman of the plaintiff No. 2 and the videograph was carried out by defendant No. 1 was also on behalf of the plaintiff No. 2 as she was the Chairman of the said institution.

10. In my opinion, thus, the programme or videograph prepared by defendant No. 1 is infact the programme produced by plaintiff No. 2 and not by defendant No. 1 in her personal capacity. It is in this light of the fact that the documents consists of namely the consents given by various artists produced by defendant No. 1 is obviously for the plaintiff No. 2. Reliance placed by defendants on an affidavits which are filed in the present proceedings is obviously affidavits of 2003 prepared by defendant No. 1 for the purpose of present proceedings as an afterthought. I am of the opinion that the defendant No. 1 is not the producer or owner of the said film because it was not the programme organised by her on her own but it was the programme of plaintiff No. 2. In that light of the fact the contention of the defendant No. 1 that she is the owner of the said films and /or producer of the said programme and entitled to videograph the said and thus become entitled to the said CDs in her own right has to be rejected.

11. The learned counsel for the defendants has thereafter contended that defendant No. 1 was entitled to go to any function or programme and videograph any programme and once such programme is videographed the person who has videographed the programme becomes the owner of the said film. It has been contended that a person need not be either an organiser or an office bearer of the said organiser. It has been further contended that any person even without any consent of any organiser or office bearer who is hosting the said programme can go to the programme videograph any part of the same and can prepare and sell any VCDs, DVDs and ACDs of any such function or any part thereof. According to him, a person becomes the producer of such a programme. The aforesaid contention is merely required to be stated to be rejected. In my opinion no person can walk into any function and videograph any programme without the permission of the organiser and sell the same in the market and make money thereof. It is necessary that for the purpose of protection of Copy Right the person must have herself the work of art or has created or organised a function, programme, film or work of any artistic creations on her own account and thus become entitled as producer. On the facts in the present case it is not in dispute that the programme was organised by plaintiff No. 2 for its own Annual Celebration. However, the learned counsel for defendant No. 1 further contended that though the programme 'Ala Lavanila Bahar/Ala Bahar Lavanila' was of plaintiff No. 2 still item of Lavani dance was the programme of defendant No. 1 in her individual capacity and not as Chairman of plaintiff No. 2 and therefore, the defendant No. 1 is entitled to videograph the same and sell the CDs thereof. The aforesaid contention is without any merits. Defendant No. 1 was a Chairman of the plaintiff No. 2 and was a part of the organisers of the function of the plaintiff No. 2 in her capacity as Chairman of the said institute and thus every act of the defendant No. 1 as on that day must be in her capacity as a Chairman of plaintiff No. 2 and therefore it is not open to the defendant No. 1 to claim any such programme as her own personal programme and make personal gains for herself in her individual capacity.

12. In that light of the matter necessary injunction is required to be passed in the present case. Accordingly, I made the motion absolute in terms of prayer clause b (1) and (2) and (c) (1). I also direct the defendant No. 1 to pay cost of the present notice of motion quantified at Rs. 15,000/-.

13. The learned counsel for the defendants seeks stay of the order. Application is rejected.