Playboy Enterprises ... vs Mr Chaitanya Prabhu & Ors
2009 Latest Caselaw 1540 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS)1670/2006

%                                  Date of decision: 21.04.2009

PLAYBOY ENTERPRISES                                   ....... Plaintiff
INTERNATIONAL INC.
                        Through:    Mr. Pravin Anand and Mr Dhruv
                                    Anand, Advocates

                                Versus

MR CHAITANYA PRABHU & ORS                         ....... Defendants
                        Through: Ex parte


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?                No

2.     To be referred to the reporter or not?               No

3.     Whether the judgment should be reported              No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The plaintiff being the publisher of the PLAYBOY MAGAZINE

has instituted the present suit against the defendants involved in

publishing, selling and marketing of the DEBONAIR MAGAZINE for

the relief of permanent injunction restraining the defendants from

reproducing, printing, publishing, selling and offering for sale in any

manner photographs or any other works or publications carrying

photographs or any other works of which the plaintiff is the

copyright owner. The plaintiff has further averred that some other

photographs/materials, in which even though the plaintiff may not

have the copyright but which are published in the magazine

aforesaid of the plaintiff, are also reproduced by the defendants in

their magazine. The plaintiff has also claimed the relief of

permanent injunction in that regard. The ancillary reliefs of

rendition of accounts, delivery etc have also been claimed.

2. Vide ex parte order dated 5th July, 2000 the defendants were

restrained from reproducing, printing, publishing, selling, offering

for sale or distributing photographs or any other work of which the

plaintiff has the copyright.

3. The defendants appeared and contested the suit by filing the

written statement. The defendants at the outset stated that the

plaintiff has no right to institute the suit with respect to the

photographs in which the plaintiff itself admits it does not have the

copyright. The defendants have otherwise contended that they have

published the photographs in their magazines supplied to them by

different photographers for valuable consideration. It is denied that

the photographs published in the magazine of the defendants are the

photographs in which the plaintiff has the copyright or that the

defendants have in any way violated any rights of the plaintiff. The

defendants have otherwise generally denied the contents of the

plaint.

4. On the pleadings of the parties issues were struck on 10th

September, 2007 as to whether the plaintiff had the copyright in

pictures subject matter of the suit and as to whether the defendants

had infringed the copyright of the plaintiff and as to the entitlement

of the plaintiff to rendition of accounts etc. However, it is not

deemed expedient to record the issues verbatim since the defendants

have since stopped appearing and have been proceeded against ex

parte. On 10th September, 2008, the ex parte order was confirmed to

the extent of restraining the defendants from reproducing, printing

and publishing and offering for sale the photographs which are the

subject matter of the suit.

5. The plaintiff has in the plaint in paras 10 and 15 thereof given

particulars of the photographs in which the plaintiff has copyright

and which have been reproduced/published by the defendants in

their magazine. The defendants have also given particulars of the

magazines of the defendants in which the photographs in which the

plaintiff has copyright have been published. The defendants in their

written statement in paras 10 and 15 generally denied the contents

of the corresponding paras of the plaint. Significantly, the

defendants have neither pleaded that the plaintiff does not have the

copyright in the photographs particulars of which are given in the

said paragraphs of the plaint nor given the source of the

photographs published by them and which are alleged by the

plaintiff to be infringing the copyright of the plaintiff. The defendants

have again harped upon the averments of the plaintiff in the plaint in

relation to other photographs in which the plaintiff does not claim

copyright. The plaintiff has alongwith the plaint also filed the

photographs appearing in its magazine and the photographs

appearing in the magazine of the defendants and which establish the

identity of the two.

6. As aforesaid, the defendants stopped appearing and were

today ordered to be proceeded against ex parte. The counsel for the

plaintiff has confined the relief in the present suit to a decree for

permanent injunction with respect to the photographs / material in

which the plaintiff has copyright.

7. The suit has inter alia been filed with respect to the

photographs found infringing its copyright by the plaintiff and

published by the defendants till the date of institution of the suit. A

question which arises is whether the decree for permanent

injunction should be confined to those photographs only, as has been

done in the interim order or to all photographs in which the plaintiff

may have a copyright. It would be travesty of justice to confine the

relief in the present suit to the photographs particulars whereof are

given in the plaint itself. Such a decree for permanent injunction

would be futile inasmuch as the defendants having already published

the photographs in their magazine are unlikely to publish them

again. The plaintiff cannot be expected to institute successive suits

for permanent injunction as and when it acquires copyright in

future/further photographs. The defendants also have no claim or

right or authority to publish the photographs in which the plaintiff

has a copyright. The plea of the defendants that the defendants

acquired the photographs published by them from different

photographers and for consideration is no plea in law. Even if the

defendants have acquired for consideration the photographs in

which the plaintiff has a copyright, does not entitle the defendants to

infringe the copyright of the plaintiff. The defendants before paying

consideration to the photographers ought to satisfy themselves of the

rights of the persons selling the photographs to the defendants. If

the defendants are lax in doing so, they ought to suffer for the same

and cannot be heard to say that they have not infringed the

copyright directly owing to the existence of an intermediary. The

plaint is verified and accompanied by affidavits in accordance with

law. Since the defendants have been proceeded ex parte, need was

not felt to direct the plaintiff to file affidavits by way of examination

in chief. The position in law being undisputed in the written

statement of the defendants also that the defendants are not entitled

to publish the photographs and other materials in which the plaintiff

has copyright, a decree for permanent injunction in terms of prayer

paragraph (a) is accordingly passed in favour of the plaintiff and

against the defendants. The parties, however, as conceded by the

counsel for the plaintiff are left to bear their own costs. The decree

sheet be drawn up.

RAJIV SAHAI ENDLAW (JUDGE) April 21, 2009 M