Bombay High Court
Shemaroo Entertainment Ltd. vs Saregama India Limited And 2 Ors on 12 August, 2025
2025:BHC-OS:13267
IA 5236-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 5236 OF 2022
IN
COMMERCIAL IP SUIT NO. 557 OF 2022
Shemaroo Entertainment Ltd., ]
A company incorporated under The ]
Companies Act, 1956, having its ]
registered office at Shemaroo House, ]
Plot No. 18, Marol Co-op. Industrial Estate, ]
Off. Andheri-Kurla Road, Andheri (East), ]
Mumbai: 400 059. ] ...Applicant.
In the matter between :
Shemaroo Entertainment Ltd., ]
A company incorporated under The ]
Companies Act, 1956, having its ]
registered office at Shemaroo House, ]
Plot No. 18, Marol Co-op. Industrial Estate, ]
Off. Andheri-Kurla Road, Andheri (East), ]
Mumbai: 400 059. ] ...Plaintiff.
Versus
1) Saregama India Limited ]
A Limited Company registered ]
Under the Indian Companies Act, 1913 ]
having its registered address at 33 ]
Jessore Road, Dum Dum, ]
Kolkata - 700 028, West Bengal ]
and place of business at 2nd floor, ]
Spencer building, 30 Forjeet Street ]
Near Bhatia Hospital, Grant Road (West), ]
Mumbai: 400 036, Maharashtra. ]
]
2) Gravity Zero Entertainment LLP, ]
A Public Limited Liability Partnership ]
Firm Registered under the Limited ]
Liability Partnership Act, 2008 ]
having its registered address at 10A, ]
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Floor 0, Plot-71B, Mota Mandir Marg, ]
J.M Compound, Chingi Tabela, ]
Kalba Devi, Mumbai: 400002, Maharashtra ]
and also at 210, Mohid Heights, ]
2nd Floor, RTO Road, Suresh Nagar, ]
Andheri (West), Mumbai, Maharashtra. ]
]
3) Babbar Subhash ]
Commonly known as B. Subhash, ]
the sole Proprietor of the concern ]
named B. Subhash Movie Unit ]
having its address at 1, Coelho House, ]
Juhu Tara Road, Juhu, ]
Mumbai-400049, Maharasthra. ] ...Defendants.
------------
Mr. Rashmin Khandekar, Anand Mohan, Mahesh Mahadgut and Kaivalya Shetye
for the Plaintiff.
Mr. Rohaan Cama and Sandeep Jalan i/b Mehul A. Shah for Defendant No. 3
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : July 3, 2025
Pronounced on : August 12, 2025.
Judgment :
1. The suit seeks the substantive relief of declaration that the
Plaintiff is the sole, exclusive and absolute owner of the negative rights
and all other rights as described in the assignment agreement with
respect to the suit film titled "Disco Dancer" and for permanent
injunction and damages.
PLEADINGS:
2. The Plaintiff had impleaded the producer of suit film along with
the Defendant Nos.1 and 2, who according to the Plaintiff were jointly
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launching / producing an adaptation of suit film by making a stage
play / musical theater named "Disco Dancer-the Musical" to be
showcased from 16th November 2022 to 20th November 2022 and
thereby infringing upon the Plaintiff's right without authorization or
consent of the Plaintiff. The plaint pleads that in or around October
2011, the Defendant No.3, who was the producer of suit film,
approached the Plaintiff and offered to assign to the Plaintiff negative
rights and certain other rights in 12 films produced by the Defendant
No.3 including the suit film and on 11 th November 2011, the
assignment agreement was entered into between the Plaintiff and
Defendant No.3 by which the Plaintiff acquired exclusive negative
rights and other rights inter alia over the suit film.
3. The pleading in the plaint under the heading "Defendants
unauthorised exploitation of Plaintiff's said rights" reads as under:
"18. In or around 1st November 2022, the Plaintiff was
shocked to come across previews of the Stage Play title
"Disco Dancer-the Musical" (the Infringing Work) on the
Social Networking Platform "Instagram". The previews
unequivocally claimed the play was an adaption of the Suit
Film. From the previews it was also clear that the Infringing
Work uses the characters, concept, costumes, script etc of
the Suit Film. More particularly, the previews show that the
Infringing Work was being promoted as under:
"Bollywood's Iconic Film Disco Dancer comes alive on
stage". Now, you can enjoy the songs and the story of
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Disco Dancer, live on stage,with Saregama Live's
adaptation of the film. Journey back to the 80s with the
costumes, dances and style of Disco Dancer."
4. On 2nd November 2022, a legal notice was issued to the
Defendant Nos.1 and 2, in response whereof the Defendant No.1
alleged that in or around September 2019, it had acquired rights to
adapt and use the story, characters, concept and other elements of the
suit film for its musical from Defendant No.3.
5. In paragraph 28, it is stated that in the telephonic discussion
which took place between one Mr. Vinod Karani of the Plaintiff and the
Defendant No.3 where the Defendant No.3 appeared to assert rights
contrary to what was given to the Plaintiff under the assignment
agreement and reference in the passing was made to the letter
exchanged between the parties dated 19th September 2019 which has
absolutely no bearing on the facts of the present case and the letter
does not vest any right with the Defendant No.3 with respect to
making an adaptation of suit film.
6. In paragraph 31, it pleaded that left with no alternative, the
Plaintiff has been forced to file the present suit in extreme urgency
inter alia seeking protection of its rights in the suit film. Under the
heading "Submissions", it is pleaded that by virtue of assignment
agreement executed between the Defendant No.3 and the Plaintiff,
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the Plaintiff is the sole, exclusive and absolute owner of negative rights
of suit film and other rights set out therein including and particularly
remaking, adaptation, dubbing, subtitling, etc. It is pleaded that the
Defendant Nos.1 and 2 are attempting to capitalize and encash the
goodwill of suit film by making an unauthorised adaptation of suit film
by way of infringing work and are generating revenue by issuing tickets
of the theatrical release of the infringing work which is scheduled to be
premiered in London between 16 th November 2022 and 20 th November
2022.
7. To the plaint annexed at Exhibit D1 to D5 are the screenshots of
official trailer of the infringing work which was titled as "Bollywood's
Iconic Film Disco Dancer comes alive on stage".
8. During the pendency of proceedings, the suit came to be settled
between the Plaintiff and Defendant Nos.1 and 2 and consent decree
was passed qua the Defendant Nos.1 and 2.
9. The Affidavit in reply dated 18th January, 2023 filed by the
Defendant No 3 pleads that under the special stipulation Clause 30 of
agreement dated 11th November 2011, the remaking rights in respect
of the film remained with the Plaintiff and the Defendant No 3 has not
given any right except remaking the Suit Film in association with
Defendant No.2. It was contended that as per letter dated 19 th
September 2019, the Plaintiff confirmed that Defendant No.3 has
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become the perpetual remake right holder of the film Disco Dancer
and the Plaintiff has agreed and consented to waive off the limitation
period of 10 years of the suit film. It is further contended that the
Defendant No.3 had parted with negative rights of the suit film in
favour of the Plaintiff however as per Clause 30 of the agreement,
remake rights of the suit film was with the Plaintiff earlier for a period
of 10 years and thereafter it was extended vide letter dated 19 th
September 2019.
10. In the Affidavit in rejoinder dated 15 th February, 2023, the
Plaintiff has specifically pleaded that the submissions are made in
relation to following two topics:
(1) The present suit does not pertain to remaking rights in
respect of the suit film and
(2) Misinterpretation of the assignment agreement and
letter dated 19th September 2019.
11. In so far as Topic No.1 is concerned, in paragraph 4 it is
contended that the present suit does not pertain to remaking rights in
respect of the suit film and only pertains to illegal adaptation of suit
film and unauthorised use of characters, concepts, costumes, script, etc
of the suit film. It is pleaded that adaptation and remaking rights are
recognised as separate and distinct rights, as they are in law. In
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paragraph 7 it is pleaded that the present suit does not pertain to "re-
making rights" in respect of suit film and is in respect of the stage
play / musical theater named "Disco Dancer- the Musical", the stage
play which is and was advertised as an adaptation of the suit film and
inter alia utilises its story, characters, concept and script amongst
various other components which rights are assigned to the Plaintiff
and could not have been assigned by the Defendant No.3 to any other
party.
12. As regards the misinterpretation, it is pleaded that letter dated
19th September 2019 does not waive or extend the time period of 10
years and the letter was issued during the subsistence of Defendant
No.3's right in respect of the remaking of suit film.
13. The additional affidavit-in-reply of the Defendant No.3 dated
22nd June, 2023 pleads the steps taken to direct and produce the
remake of film. It was pleaded that as per Clause 30 of the Assignment
Agreement, the remaking rights which include adaptation rights,
remained with the Defendant No.3 for a period of 10 years from the
date of agreement and that order of injunction deserves to be
modified to the extent of remaking rights including the adaptation
rights of suit film. It is contended that the Defendant No 3 is remaking
the film under the joint venture agreement dated 23 rd December, 2020
and ad interim order be modified.
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14. In response, the Plaintiff by Affidavit dated 23 rd February, 2024
re-iterated the pleadings in the plaint. It was contended that the suit
has been settled between the Applicant and the Defendant Nos 1 and
2 and came to be decreed as per consent terms and that the
Defendant No.3 now belatedly seeks to precipitate the matter and is
seeking modification of injunction order to the extent of his alleged
remaking rights including the adaptation rights to be excluded from
the purview of injunction order. It was pleaded that the right to re-
make the film was for period of 10 years and upon expiry of the said
period in November, 2021, the remaking rights reverted to the
Applicant. It was pleaded that the assignment agreement recognises
different and distinct rights in respect of the film inter alia including re-
making rights, adaptation rights etc. It was pleaded that remake
doesn't include an adaptation of film into a stage play or any other
work apart from a film and it also does not include any tinkering with or
changing of the original story-line or original characters as far as
remake version is concerned. It was pleaded that the Joint Venture
Agreement dated 23rd December, 2020 regarding remaking of the suit
film in fact refers to a prequel and/or sequel and/or an entirely
different work based on the Suit film. It was pleaded that from the
brief synopsis of the script set out in the Additional Affidavit it is
evident that the film contemplated by Defendant No.3 is not a remake
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of the suit film and the storyline is starkly different and the Defendant
No 3 is making a sequel.
SUBMISSIONS:
15. On the basis of above pleadings on record, the arguments were
canvassed by the learned Counsel for the parties. It was necessary to
set out the pleadings in some detail for the reasons which are
discussed hereinafter in the order.
16. Mr. Khandekar, Learned counsel appearing for the Plaintiff
submits that by the agreement dated 11 th November 2011, the Plaintiff
acquired omnibus and exclusive assignment of all negative rights and
other rights inter alia in relation to the film including all underlying
works in relation thereto. He points out various clauses of the
agreement and in particular Clause 4, Clause 4(iii) and Clause 30(1) of
the agreement in order to contend that the Defendant No.3 was
granted only a limited right to remake the film within a period of 10
years from the date of agreement. He would further submit that the
Defendant No.3 is trying to travel beyond the purport of his limited
remake rights by attempting an adaptation / sequel of the film which
the Defendant No.3 could not do. He submits that the case of the
Defendant No.3 that the right to remake includes the right to adapt, is
misconceived in both fact and law. He submits that the right to remake
a film is traceable only to the right to make any cinematographic film in
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respect of literary / musical work or substantial part thereof available
under Section 14(a)(iv) of the Copyright Act, 1957 and the right to
remake is distinct from the right to adapt which is traceable to Section
14(a)(vi) of the Copyright Act, 1957. He submits that under Section 2(a)
of the Copyright Act, 1957 adaptation can be only in respect of literary
or artistic work and is not available in respect of the cinematographic
film. He submits that the assignment agreement recognises the
distinction between an adaptation and remake by separately
enumerating the same. He submits that the Defendant No.3 could
therefore have made the film based on original script / story / music or
substantial part thereof meaning that he could introduce twist /
embellishment while still making a film substantially based on original
script / story. He submits that the Defendant No 3 had a right to make
the film differently but still had to remake that film or a substantial
version thereof.
17. He submits that the Defendant No.3 is making a sequel which
will pick up from where the original left off and which will follow the
story of Jimmy and his son which will never qualify as remake. He
would submit that prayer Clause (a) of the Interim Application seeks
restraining orders against such unauthorised exploitation / adaptation.
He has taken this Court in detail through various clauses of the
agreement dated 11th November 2011 and would submit that the
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contract reserves a time limited right in favour of the Defendant No.3
qua the remake of film and that the letter dated 19 th September 2019
cannot amount to any waiver or limitation or relinquishment of the
right of Plaintiff in respect of the remake beyond 10 years window. He
submits that no film was made within the time bound period as
stipulated under Clause 30 of the assignment agreement and the right
reverted to the Applicant and no rights remained with Defendant No 3.
18. He would further submit that from the agreements entered into
by Defendant No.3 it is clear that Defendant No.3 was attempting to
adapt the script of the film without any right whatsoever and that the
2011 agreement specifically recognised the distinct and different
rights mentioned therein which includes remaking rights / adaptation
rights, screenplay, etc. He would submit that by the injunction order,
this Court has already come to a finding that all rights including
specifically adaptation rights are assigned to the Plaintiff. He would
further submit that the conduct of Defendant No.3 amounts to
misrepresentation as after assigning rights in the film to the Plaintiff,
the Defendant No.3 has assigned the same rights to third parties by
misrepresenting that he is the exclusive owner of copyright and other
rights in film and transferred adaptation rights in film to create a
musical theater adaptation of film. In support of his submissions he
relies upon the following decisions:
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Narendra Hirawat v. M/s. Alumbra Entertainment & Media Pvt
Ltd.1
Zee Entertainment Ltd. v. Ameya Vinod Khopkar Entertainment2
Nabha Power Ltd. v. Punjab SPCL3
19. Mr. Cama, learned counsel appearing for the Defendant No.3
submits that the entire cause of action in the present suit pertains only
to staging of a play based on Disco Dancer which was proposed to be
done in November 2022 on the basis that the play was illegal
adaptation of film Disco Dancer. He would further point out the ad
interim order dated 15th November 2022 and would contend that
perusal of the order would show that the same does not refer to
Clause 30 and there is no reference to the letter dated 19 th September
2019 by which the Defendant No.3 invoked its remake rights. He would
submit that the order which is an ad interim order cannot bind the
Court at the hearing of interim application. He would further submit
that there is no allegation as to how the proposed new film, which is
intended to be made by Defendant No.3, in any manner infringes any
copyright in favour of the Plaintiff and the Plaintiff is not even aware
of the contents of the said film and is purely operating in the realm of
speculation. He submits that the cause of action for filing suit was the
illegal adaptation by virtue of the stage play derived from the film
1 2017 SCC OnLine Bom 2432.
2 2020 SCC OnLine Bom 11301.
3 (2018) 11 SCC 508.
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Disco Dancer.
20. He draws attention of this Court to the affidavit-in-rejoinder
dated 15th November 2023 filed by the Plaintiff expressly stating that
the present suit does not pertain to the remaking rights in respect of
the proposed film and only pertains to the illegal adaptation into stage
play. He would further submit that upon a holistic reading of plaint,
the allegations of an action being taken purportedly contrary to the
assignment agreement dated 11th November 2011 is only in the
context of adaptation of Disco Dancer into a stage play and there is no
reference to the proposed new film being produced by the Defendant
No.3 being an alleged infringement of the rights purported to be
assigned under the agreement dated 11th November 2011.
21. He submits that the plaint has not been amended and no
attempt has been made to incorporate any prayer in respect of the new
film. He would further submit that Plaintiff's interpretation of the term
"remaking rights" to mean only a right to make the same film with the
same characters and script / songs is not a correct interpretation and
even assuming that the same is correct interpretation of the term
"remaking rights", the rights were invoked on 19th September 2019 and
no injunction could then be granted. He submits that as the Plaintiff
contends that term "adaptation" is not equivalent to the term
"remake", then relief sought in the prayer Clause (a) which applies only
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to adaptation can absolutely have no application whatsoever to remake
of the film.
22. He would point out Section 2(a)(v) of the Copyright Act, 1957
defining the terms "adaptation" and submits that the right of remaking
will have to include an alteration / rearrangement of several aspects of
the story, dialogue, characters, songs etc to align with the
contemporaneous time period. He submits that the remake has to be
understood as making a new and different version of the film and not a
copy paste of the old film and therefore would clearly fall within the
definition of "adaptation" under Section 2(a)(v) of the Copyright Act.
He would further point out that Clause 4 of the agreement referring to
the term adaptation differently from the term remake cannot be
accepted as the same clause also uses different terms such as
screenplay, songs, scenes, sequences, etc. and it would be absurd to
contend that while making a remake, the Defendant No.3 will not be
able to use the underlying works of the original film.
23. He would further submit that Clause 30 which is a special
stipulation clause if validly invoked by Defendant No.3, then to that
extent, the Defendant No.3 would retain all rights in respect of the
said Film and would be entitled to make a new film with all attendant
rights and exploitation entitlements. He submits that Mr. Khandekar
during the submissions has fairly admitted that the rights in Disco
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Dancer, if remade by Defendant No 3 ought to be read to include the
rights for screenplay, songs, dialogues etc failing which the remake
rights would be meaningless.
24. He would submit that the Plaintiff's case in reply to the
additional affidavit that Defendant No.3 appears to be making a sequel
of the film Disco Dancer is pure hypothesis based on on certain online
articles which are misleading and interim relief cannot be granted
based on such hypothesis. He would further submit that without
prejudice that even if Defendant No. 3 is making a sequel of the film
Disco Dancer, it is a settled position in law that the right of making a
sequel not being expressly assigned to the Plaintiff, there cannot be
any question of infringement of the Plaintiff's copyright.
25. He would submit that so far as the decision in Narendra Hirawat
v. M/s. Alumbra Entertainment & Media Pvt Ltd (supra) relied upon by Mr.
Khandekar is concerned, the same takes a view that right of making a
sequel, which is a right in respect of a different film, was never
assigned to the Plaintiff in that case and therefore there was no
question of granting any injunction which in fact assists the case of
Defendant No. 3. He would further submit that even in the case of Zee
Entertainment Ltd. v. Ameya Vinod Khopkar Entertainment (supra), the
Clause therein provided that for an assignment of all rights to the
Plaintiff and despite the wide language in the Clause, the Court
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declined to grant injunction on the ground that right to make a sequel
was not assigned and the words "sequel" or "sequel rights" were
conspicuously absent in the assignment agreement.
26. He would further submit that Defendant No.3 has invoked Clause
30 within a period of 10 years and both parties understood the said
Clause to mean that the right had to be exercised within a period of 10
years as it is well known that the films may take a more than a decade
to be made and on an average every film takes about 5 to 6 years to
make. He submits that communication of 19th September 2019 issued
by the Plaintiff expressly accepts the invocation and therefore there is
no question of contending that the invocation was not within time.
He submits that there was significant publicity and newspaper articles
as regards the steps taken by Defendant No.3 towards the production
of proposed new film and at no point of time the Plaintiff raised any
objection and the only objection was raised to the stage play being
proposed in the month of November 2022 which was well after the 10
years period had lapsed in November 2021. He submits that the
judgment in Union of India v. D. N. Revri & Co (supra) is cited to contend
that when interpreting clauses of the agreement, a logical commercial
interpretation should be given. He submits that once the Clause was
bona fide invoked, there was no reversion of right to the Plaintiff under
Clause 30. In support, he relies upon the following decisions.:
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Union of India v. D. N. Revri & Co.4
Krishika Lulla v. Shyam Vithalrao Devkatta5
27. In rejoinder, Mr. Khandekar submits that the frame of the suit
and pleadings therein makes it clear that the Plaintiff had sought direct
relief against the Defendant from engaging in any unauthorised
adaptation of the suit film in any manner whatsoever. He submits that
Defendant No.3 understood this suit to include the reliefs against
Defendant No.3's purported right to make an adaptation and therefore
prayed for modification of the ad-interim order. He submits that the
Defendant No.3 claims to have the right to make an adaptation and/or
sequel, which right is directly in issue.
28. He submits that Clause 30 has to be given its express meaning
and the Defendant No 3 is not entitled to merely invoke the rights
within the stipulated 10 year period and was required to complete the
film within the 10 year period. He submits that remake rights are
meaningless without implying a wider grant. He submits that the
remade film becomes a new work and the Defendant No 3 would be
entitled to exploit the remade film without recourse to the Plaintiff's
rights on account of the said remade having been made legitimately.
4 (1976) 4 SCC 147.
5 (2016) 2 SCC 521.
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29. He submits that by the assignment agreement all rights including
the underlying works were assigned to the Plaintiff and the Defendant
No 3 retained nothing. He submits that once the underlying work
vested with the Plaintiff, it is only the Plaintiff who could have made
the sequel based on the underlying work in exercise of that right. He
submits that the fact that the Defendant No 3 has taken steps not
towards a remake but sequel is evident from the material relied upon
by the Defendant No 3 itself.
REASONS AND ANALYSIS:
30. The interim Application seeks the following reliefs:
"(a) that pending the hearing and final disposal of the Suit,
this Hon'ble Court be pleased to pass a temporary order and
injunction restraining the Respondents by themselves, their
Directors, partners/proprietor, heirs, representatives, successors in
business, assigns, distributors, agents or any one claiming through
them, from infringing the Applicant's copyright subsisting in the
Suit film titled 'Disco Dancer' and/or any other rights contained in
the Agreement annexed at 'Exhibit-B' to the Plaint by performing
or causing to be performed or releasing or causing to be released
or exhibiting or causing to be exhibited or distributing,
communicating to the public by any means, broadcasting,
telecasting or otherwise publishing or in any other way producing/
preforming/ releasing/exhibiting the stage play named 'Disco
Dancer-The Musical' or any adaptation of the Suit film/the
Applicant's rights, including using the concept, story, script,
adaptation, dialogue, characters, dance, choreography, costume,
the title of the Suit film in any manner whatsoever;
(b) that pending the hearing and final disposal of the
Interim Application, this Hon'ble Court be pleased to direct the
Respondents to furnish a copy of their Agreement to the Applicant
on the basis of which they are claiming rights in the stage play
named 'Disco Dancer-The Musical'.
31. By order of 15th November 2022, this Court granted ad interim
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relief in terms of prayer clause (a). Paragraph 2 of the order of 15 th
November 2022, records as under:
"2. The present suit and the interim application seeking urgent ad-
interim orders have been filed on the basis that on 01.11.2002, the
plaintiff came across preview of a stage play titled "Disco-Dancer-
The Musical" on the social networking platform Instagram. It
became evident from the previews that a drama, to be stage at the
behest of defendant no 1 as a musical infringed the rights of the
plaintiff in the film "Disco Dancer" as per the aforesaid agreement
executed in favour of the Plaintiff by the Defendant No.3.It was
revealed that defendant no 1 is to stage the aforesaid musical
drama, completely based on the film "Disco Dancer" from
16.11.2022 in London for five days."
32. The submissions recorded in paragraph 4 of the order on behalf
of the Plaintiff would indicate that what was canvassed before the
Court was that the Defendant No.1 could not claim rights of adaptation
of characters and storyline of the said film for staging the musical in
London from 16th November 2022. During the hearing, the Defendant
No.3 did not appear. The arguments canvassed on behalf of the
Defendant No.1 was that by the agreement dated 11 th November 2011,
executed in favour of the Plaintiff the Defendant No.3 had only
assigned rights in a cinematographic film Disco Dancer and not the
rights pertaining to adaptation or staging of musical or drama.
33. This Court upon perusing various clauses of the agreement held
that prima facie all rights pertaining in the suit film stood assigned to
the Plaintiff and there is prima facie substance in the Plaintiff's
contention that this would include adaptation of the said film in
various manners including dramas and musicals based on the content,
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storyline and characters of the said film. It prima facie held that the
Defendant No.3 had already assigned all rights including the
intellectual property rights etc in favour of the Plaintiff and any
subsequent agreement executed by the Defendant No.3 claiming to
assign adaptation rights or the rights to stage the musicals pales in
significance. It was recorded in paragraph 24 of the ad-interim order
that appropriate directions can be granted for balancing the equities in
so far as staging of the musical in theaters in London was concerned
and granted ad-interim relief in terms of prayer clause (a) without
affecting the staging of the musical subject to Defendant No.1
depositing the entire collections with the Court.
34. The pleadings in the plaint which are reproduced hereinabove
when read in the meaningful manner conveys that the case of the
Plaintiff was that there was an assignment of copyright in the film
"Disco Dancer" in Plaintiff's favour by an assignment agreement dated
11th November 2011, between the Plaintiff and the Defendant No.3,
who was the producer of the film, which copyright is sought to be
infringed by reason of promotional material which has come to the
knowledge of Plaintiff that the Defendant Nos. 1 and 2 are jointly
producing an adaptation of suit film by making a stage play/musical
theatre "Disco Dancer-The musical." The fact that Defendant No.1 and
2 are impleaded as party to the proceedings would indicate that the
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cause of action for filing of suit arose by reason of the Defendant
Nos.1 and 2 proposing to adapt the suit film into a stage play/musical
theatre. The legal notice issued by the Plaintiff was also issued to
Defendant No.1 and 2. Particularly, in paragraph 28 of the plaint, it is
pleaded that there was a telephonic discussion with Defendant No.3
when Defendant No.3 referred in passing to the letter dated 19 th
September 2019, and there is specific pleading that the said letter has
no bearing on the facts of the present case and the letter in no manner,
whatsoever vest any right with Defendant No.3 with respect to making
an adaptation of suit film. It is in this frame of the suit that the interim
application was filed seeking interim relief against infringement of
copyright.
35. Prayer Clause (a) of the Interim Application is widely worded and
seeks relief against (a) infringing the Applicant's copyright and/or any
other right in the suit film (b) by performing or causing to be
performed or releasing or causing to be released or (c) exhibiting or
causing to be exhibited or (d) distributing, communicating to the public
by any means (d) broadcasting, telecasting or otherwise publishing or
in any other way producing/ performing/ releasing/ exhibiting the
stage play named "Disco Dancer- The Musical" (e) or any adaptation of
the Suit film/the Applicant's rights, including using the concept, story,
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script, adaptation, dialogue, characters, dance, choreography, costume,
the title of the suit film in any manner whatsoever.
36. The interim relief thus seeks to restrain the Defendant from
staging the musical play or from any adaptation of the suit film
including using the concept, story, script dialogue, characters etc of the
suit film. The cause of action as pleaded in paragraph 47 of the plaint
is that on 1st November, 2022, the Plaintiff came across the
promotional content of Defendant No 1 and on account of refusal of
Defendant No.1 from exploiting the suit film and claiming rights in the
suit film, the present suit has been instituted. There is no pleading in
the plaint as regards Clause 30 of the Assignment Agreement dated
11th November, 2011 and on the contrary the specific pleading is that
the communication of 19th September, 2019 has no bearing on facts of
the present case whereas entire submissions of the learned Counsel
for the parties revolved around the interpretation of Clause 30 and
letter of 19th September 2019.
37. The Affidavit in rejoinder dated 15 th February, 2023 of the
Plaintiff specifically pleads that the present suit does not pertain to
remaking rights in respect of the suit film and in paragraph 4 it is
contended that the present suit does not pertain to remaking rights in
respect of the suit film and only pertains to illegal adaptation of suit
film and unauthorised use of characters, concepts, costumes, script, etc
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of the suit film. In paragraph 7, it is pleaded that the present suit is in
respect of a stage play/musical theater named "Disco-Dancer-the
Musical" which is and was advertised as an adaptation of the suit film.
38. The submissions canvassed during the hearing of the ad-interim
relief did not make any reference to the rights of remake for period of
10 years or the letter of 19th September, 2019 and were confined to
seek an ad-interim relief against the staging of the musical which
demonstrates that the interim application was confined to seek orders
against the staging of the musical and the reference to adaptation
rights of the suit film in the prayer Clause (a) of Interim Application was
in context of the musical play.
39. What is now sought to be argued by Mr. Khandekar is not the
pleaded case of the Plaintiff in the plaint. Mr. Khandekar would base
his arguments on the proposed new film of the Defendant No.3, which
according to him, is a sequel of the suit film. This new line of argument
is based on the Additional Affidavit in reply of the Defendant No 3 that
under the Assignment Agreement dated 11th November, 2011 read
with letter dated 19th September, 2019, the Plaintiff has no remaking
rights including adaptation rights in respect of the suit film which vests
with Defendant No 3 and he is remaking the film under Joint Venture
Agreement dated 23rd December, 2020, and that order of injunction be
accordingly modified.
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40. Despite a query by this Court as to whether the Plaintiff would
want to amend the plaint/interim application to seek appropriate
relief, Mr. Khandekar submitted that there is no requirement as prayer
clause (a) of the Interim Application seeks injunction against
infringement of the Plaintiff's rights not only in respect of the musical
play but also adaptation including using the concept, story, script,
dialogue, characters etc. The said submission is fundamentally flawed
as the quia timet action can lie on an apprehension of breach and in the
present case there is no apprehension of breach of the Plaintiff's
copyright by reason of the proposed new film. There is not even any
pleading regarding the remake rights of the Defendant No 3 qua the
limited time period of 10 years as stipulated under Clause 30 of the
Assignment Agreement dated 11th November, 2011 or the subsequent
proposed new film by the Defendant No 3 by invoking the said re-
making rights.
41. There is no pleading to demonstrate prima facie infringement of
the Plaintiff's copyright ownership by virtue of exercise of remaking
rights/sequel by the Defendant No.3. The cause of action for
infringement of the Plaintiff's copyright in the plaint was the proposed
musical play to be staged by the Defendant Nos.1 and 2 in London. The
injunction against adaptation was premised on the staging of musical
play. The cause of action for grant of interim relief qua the musical
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play was exhausted upon grant of ad-interim relief on 15 th November,
2022 and in any event upon the consent terms being executed
between the Plaintiff and Defendant Nos.1 and 2.
42. The entire submissions of Mr. Khandekar based on interpretation
of Clause 30 of the Assignment Agreement and the communication
dated 19th September, 2019 is not the Plaintiff's pleaded case and what
has been pleaded has not been argued before this Court. The
submissions canvassed based on the contentions of the Defendant
No.3 in the response Affidavits, goes beyond the scope of the plaint
and sans the appropriate amendment to the plaint / interim application
setting out the necessary material in respect of purported
infringement of the Plaintiff's copyright in the suit film based on what
was brought on record by the Defendant, it is not possible to consider
the said submissions.
43. Mr. Khandekar seeks to make a distinction between right to
adapt and right to remake and as prayer clause (a) of the interim
application makes a reference to the staging of the musical play or any
adaptation by using the suit films concept, story etc even otherwise
the prayers would not cover the apprehension as regards the proposed
new film. Mr. Cama is right in contending that the Plaintiff is seeking
relief in respect of infringement without any complaint of act of
infringement.
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44. The relief sought in the interim application has run its course
upon the consent terms being executed between the Plaintiff and the
Defendant Nos.1 and 2. For seeking any further relief in respect of the
proposed new film, it is necessary for the Plaintiff to atleast prima facie
demonstrate that the proposed new film is either a remake, without
any right to remake subsisting in the Defendant No.3 due to expiry of
period of 10 years or a sequel, which the Defendant No.3 is not entitled
by reason of no right subsisting to use the underlying works. There is
no pleading in the plaint/interim application on the basis of which this
Court can come to a prima facie finding as to whether the proposed
new film is a remake or a sequel or a completely new film. Equally in
dark is the Plaintiff about the proposed new film as the submissions
canvassed by Mr. Khandekar is based only on some news articles, which
quotes the Defendant No.3 that the proposed new film is the sequel.
Pertinently, in the Additional Affidavit in reply, the Plaintiff pleads
that on reading of the Joint Venture Agreement from brief synopsis of
the script, the Defendant No 3 is not making a remake of the suit film
and the storyline is starkly different. That being the specific pleading
of the Plaintiff, the Assignment Agreement dated 11 th November, 2011
will not cover a starkly new film and there is no cause of action for
seeking any injunction. The arguments of Mr. Khandekar about the
proposed new film are in the realm of speculation, which cannot form
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the basis of an injunction. Assuming arguendo that the proposed new
film is a sequel, the same will take the story forward and the Plaintiff is
required to bring material on record to demonstrate prima facie that
the sequel proposed by the Defendant No 3 uses the underlying works
such as script, screenplay, songs, lyrics, scenes etc in which the
Defendant No 3 did not have any subsisting copyright by reason of the
Assignment Agreement dated 11th November, 2011. In absence of any
material on record, this Court cannot come to a conclusion that the
proposed sequel uses the underlying work of the original suit film
without any subsisting right. Sans such material, there cannot be any
prima facie finding that the proposed new film infringes the copyright
in the suit film subsisting in favour of Plaintiff. Despite specifically
calling upon the Plaintiff to amend the plaint and seek appropriate
relief in respect of the proposed new film, the Plaintiff chose to
continue with the facts as it stood, and therefore now must suffer the
consequences.
45. The Interim Application/plaint does not seek any relief of
injunction specifically restraining the Defendant No.3 from proceeding
with the proposed new film or challenging the joint venture agreement
and the plaint/interim application makes no averments whatsoever as
to how the proposed new film intended to be made by Defendant
No.3 in any manner infringes the copyright in favour of the Plaintiff.
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46. As regards the interpretation placed on the definitions of
"remake" and "adaptation", it would be appropriate to consider the
relevant statutory provisions. Section 2(a) define the terms
"adaptation" as under:
"(a) "adaptation" means,--
(i) in relation to a dramatic work, the conversion of the
work into a non-dramatic work;
(ii) in relation to a literary work or an artistic work, the
conversion of the work into a dramatic work by way of
performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any
abridgement of the work or any version of the work in
which the story or action is conveyed wholly or mainly
by means of pictures in a form suitable for reproduction
in a book, or in a newspaper, magazine or similar
periodical;
(iv) in relation to a musical work, any arrangement or
transcription of the work; and
(v) in relation to any work, any use of such work involving
its re-arrangement or alteration;"
47. Perusal of the said provision would indicate that there is a
specific reference to the literary,, artistic, dramatic, musical work while
defining adaptation and sub-clause (v) makes a reference to any work
and any use of such work involving its rearrangement or alteration.
Section 2(y) defines the "work" as under:
(y) "work" means any of the following works, namely:-
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording.
48. Section 2(y)(ii) makes a specific reference to a cinematograph
film and the expression "work" which is used in Section 2(a) (v) will
include a cinematograph film. Conjoint reading of section 2(a) (v)and
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section 2(y)(ii) would make it clear that a cinematograph film is covered
by the expression adaptation and would mean the use of
cinematographic film involving its re-arrangement or alteration. The
submission of Mr. Khandekar that adaptation can be made only in
respect of literary or artistic work and is not available in respect of
cinematograph film runs contrary to the relief sought by Plaintiff
seeking to restrain the Defendants from any adaptation of the suit film
and Clause 4 of the Assignment Agreement which makes specific
reference to adaptation. The Interim Application pleads that the
infringing work of staging the musical play uses characters and story of
the suit film and the Defendant No 1 had evidently adapted the
infringing work from the suit film. Having specifically pleaded about
adaptation of the suit film, even otherwise the Plaintiff cannot assert
that adaptation right is not available in respect of cinematograph film.
49. The Plaintiff has approached the Court by understanding that
the term "adaptation" means the conversion of film into a stage play
and therefore while seeking relief in respect of stage play, the order of
15th November 2022 records in paragraph 22 that the drama to be
staged at the behest of Defendant No.1 as a musical infringes right of
the Plaintiff in the film as per the assignment agreement. In the
context of cinematographic film, the term "remake" would mean a film
which retells the story in the same format with new interpretation,
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which would involve updating the film to make it contemporaneous
using new actors and changing some portion of the plot while retaining
the original script, whereas an adaptation would mean to bring the
story to a new audience in different format and will involve
transformation of story from one medium to another, i.e., is from a film
to a novel, or from a play to a musical. A sequel would take the story
forward from where the original film had left off and introduce new
characters and new script while retaining some of the original
characters to keep the narrative in sequence.
50. It is the adaptation of the suit film into a musical which was
sought to be assailed by the Plaintiff by filing the suit by relying upon
the assignment agreement dated 11th November 2011. It is also
evident from paragraph 7 of the affidavit-in-reply filed by the Plaintiff
that the suit is in respect of the stage play-musical theater, which is and
was advertised as an adaptation of suit film. In paragraph 11 of the
plaint, the story of film Disco Dancer has been narrated in brief stating
that the story is fictional and revolves around a young street performer
named Anil a.k.a Jimmy from the slums of Bombay and when the
manager, David Brown is fed up with the tantrums of the current Indian
disco champ, Sam and looks for some new talent, he happens to see
Anil dance-walking across the street. Rebranded as Jimmy, the rising
star must take the throne from Sam and win the heart of Rita.
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According to the affidavit-in-rejoinder, the script which is stated to be a
remake of the film Disco Dancer and is proposed new film "Disco
Dancer Star" gives the story in brief as under:
"Shankar and Parvati are small time singers and performers in
town. Harikisan and Jaikishan are Shankar's friends. They take
Shankar's songs and publish them in their company. They never
give Shankar's name as singer and throw him in an asylum when
he comes to ask for his share. After 20 years Shankar's son
comes to Mumbai and becomes a star. Shankar manages to
escape the asylum and discloses to his son Raj about the
cheating of his friends. Raj takes revenge from Harikishan and
Jaikishan."
51. Prima facie it appears that the script of the film Disco Dancer,
which was as regards the central character Jimmy - a street performer
being made a star, is not being used in the proposed new film. There
appears to be an introduction of certain other characters and tale of
revenge by the son of central character in the proposed new film. The
contention of Plaintiff in the additional affidavit-in-reply is that the
joint venture agreement annexed to the additional affidavit of
Defendant No.3, which refers to remake of original film Disco Dancer,
with an adaptation of original storyline or adaptation of characters of
the original Disco Dancer in a future scenario or past scenario, etc., is
not a remake and the storyline is starkly different. That being the
specific pleading by the Plaintiff in the additional affidavit, it is
incomprehensible as to how prima facie case of infringement is made
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out. The Plaintiff would rely upon the media articles to contend that
the Defendant No.3 is not making a remake but a sequel. There is no
authentic material placed on record by the Plaintiff from which this
court can come to a conclusion as to whether the new storyline is
different or is a remake or is a sequel and the Plaintiff and Defendant
No.3 have taken varying stands in that respect. The question of
interpretation of Clause 30 of the Assignment Agreement dated 11 th
November, 2011 or whether the right of remake was rightly invoked by
the Defendant No 3 would arise only if the interim application seeks
appropriate reliefs based on appropriate pleadings.
52. In the absence of any pleading in the plaint/interim application
to demonstrate prima facie infringement of the Plaintiff's right under
the Assignment Agreement dated 11th November, 2011 by reason of
the proposed new film by Defendant No 3, I am not inclined to consider
the rival contentions. It is therefore not necessary for this Court to
consider the citations. Though this Court had called for the script of
the new film in sealed cover, in absence of any pleadings, I have not
considered the script. The script of the proposed new film is re-sealed
and handed over to the learned Counsel for Defendant No.3.
53. The ad-interim order of 15th November, 2022 granting ad-interim
relief in terms of prayer clause (a) while balancing the equities in so far
as the staging of musical play is concerned has served its purpose as
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the interim relief was sought only in respect of staging of the musical
based on the suit film. The wide import of prayer clause (a) of the
Interim Application cannot be extended to cover the proposed new
film by the Defendant No 3 without amendment of the pleadings by
the Plaintiff to demonstrate infringement of the Plaintiff's copyright in
the suit film. The filing of the consent terms between the Plaintiff and
Defendant Nos 1 and 2 has rendered the interim application
infructuous and the prayer for interim relief qua the proposed new film
cannot be considered without the pleadings being amended.
54. In light of the above discussion, the Interim Application stands
disposed of. It is open for the Plaintiff to take out appropriate
proceedings to amend the pleadings and seek appropriate relief
against the Defendant No.3. Needless to clarify that the observations
made in the present order will not have binding effect on the
subsequent interim proceedings, if any.
[Sharmila U. Deshmukh, J.]
55. At this stage, request is made for stay of the present order.
Order is stayed for a period of six weeks.
[Sharmila U. Deshmukh, J.]
Patil-SR (ch) 33 of 33
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 12/08/2025 20:49:27
