Delhi High Court
Ja Entertainment Pvt Ltd vs Ms Sithara Entertainment & Ors. on 11 July, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11th July, 2022
+ CS(COMM) 191/2022
JA ENTERTAINMENT PVT LTD ..... Plaintiff
Through: Mr. Dayan Krishnan, Senior
Advocate with Mr. Achuthan Sreekumar,
Mr.Ameet Naik, Ms. Madhu Gadodia, Ms. Megh a
Chandra, Mr. Rohil Bansal and Mr. Sujoy
Mukherjee, Advocates.
versus
MS SITHARA ENTERTAINMENT & ORS. ..... Defendants
Through: Mr. Amit Sibal, Senior Advocate with
Mr. Aurup Das Gupta, Mr. Rohan Thawani,
Mr. Vinay P. Tripathi, Mr. Saksham Dh ingra an d
Mr. Mayank Bhargava, Advocates for D-1.
Mr. Jayant Mehta, Senior Advocate with
Mr. Dhiraj Mhetre, Mr. Sanampreet Singh,
Mr. P.D.V. Sikar and Ms. Sonali Mehta,
Advocates for D-2.
Mr. Achyuth Ajithkumar, Advocate for D-3 and 4.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
I.A. 4813/2022 (under Order 39 Rules 1 and 2, CPC, by Plaintiff)
6039/2022 (under Order 39 Rule 4, CPC, by Defendant No.1), 6078/2022
(under order 39 Rule 4, CPC, by Defendant No.2)
1. Present suit has been filed by the Plaintiff seeking permanent
injunction restraining Defendants No. 1 and 2 and all others acting on t heir
behalf from making, producing, exhibiting or communicating t o t he pu blic
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the suit film (as described hereinafter) or any part t hereof in an y m anner,
including but not limited to theatres, television, OTT platforms, etc., so as t o
infringe Plaintiff's copyright in respect of Remake and Du bbing Rights of
the Malayalam film in Hindi language.
2. Case of the Plaintiff as set out in the plaint is that in or around March,
2020, Plaintiff's creative team came across a Malayalam film 'Ayyappanum
Kozhiyum', which was released on 07.02.2020 and was a huge success
commercially. Plaintiff decided to remake the film in Hin di lan guage an d
being a commercially lucrative venture, Plaintiff approached the producer of
the film, i.e., Defendant No. 3 and Late Kovakattu (Defendant No. 4 h erein
is the wife of Late Kovakattu) and sought assignment of Hindi Remake
Rights in the Malayalam film.
3. Pursuant to negotiations, an Assignment Agreement was executed on
13.05.2020, between Plaintiff and Defendant No. 3 an d Lat e Kovakattu,
under which Hindi Remake Rights in the Malayalam film were assign ed t o
the Plaintiff. It is averred that under the said Agreement, Plaintiff was
assigned the exclusive, perpetual and irrevocable 'Remake and Du bbing'
rights, to be exercised in all modes, mediums and formats. The rights
assigned, to the extent relevant for the present case in cluded: (a) t he sole
right to make a new cinematograph film based on t he Malayalam film in
Hindi language; (b) right to dub the Malayalam film as well as t h e Hin di
remake in any or all languages; and (c) right to subtitle in any language for
any purpose through any media. Around July, 2020 Plaintiff commenced
pre-production of the Hindi Remake in accordance with rights granted under
the Agreement dated 13.05.2020.
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4. On or around 04.03.2022, Plaintiff came across a trailer of a Telu gu
film on YouTube, titled 'Bheemla Nayak' (hereinafter referred to as the 'suit
film'), dubbed in Hindi, though the release date was not an nounced. Since
this indicated a potential infringement of Plaintiff's rights, Plaintiff
immediately enquired from Defendant No. 3 about the nature of rights
assigned to Defendant No. 1, i.e., the producer of the su it film . Defendant
No. 3, in response, clarified that only limited rights h ad been assigned t o
Defendant No. 1 to remake the Malayalam film in Telugu language and also
supplied a copy of Assignment Agreement dated 18.03.2020, executed
between Defendant No. 3 and Defendant No. 1.
5. Plaintiff was categorically informed that Defendant No. 1 wan t ed t o
expand the scope of rights under the Agreement dated 18.03.2020 an d h ad
circulated an amended version of the Agreement to include clause 3, so as to
acquire rights of dubbing beyond the Telugu language, but Defendant No. 3
had refused to execute an amended Agreement.
6. However, on learning that exploitation rights of the suit film had been
assigned to one Goldmine Telefilms Pvt. Ltd., Plaintiff sent a Legal Not ice
highlighting its rights and called upon Defendant No. 1 to cease an d desist
from releasing the suit film in theatres or through any other mode or
medium, as that would amount to infringement. On receiving a reply t o t h e
Notice from Defendant No. 1 stating that by virtue of being the producer of
the Telugu remake suit film, Defendant No. 1 was the copyright owner,
Plaintiff had no option but to approach this Court.
CONTENTIONS RAISED ON BEHALF OF THE PLAINTIFF
7. The Malayalam film of which Defendants No. 3 and 4 are equal
owners is a copyrighted work within the meaning of Section 13 of the
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Copyright Act, 1957 (hereinafter referred to as the 'Act') and t hey are t h us
entitled to exploit the copyright in a manner they deem fit. Exercising t heir
rights, Defendant No. 3 and Late Kovakattu assigned certain rights in favour
of the Plaintiff, which rights amongst others included t he right t o Rem ake
and Dub the Malayalam film in Hindi language an d were in t he n ature of
limited derivative/adaptation rights qua Hindi language.
8. The rights assigned to Defendant No. 1 under t he Agreement dated
18.03.2020 were a separate set of limited derivative/adaptation rights in t he
Malayalam film which did not include Remaking and Dubbing rights in
Hindi language. The rights were restricted to Rem aking an d Du bbing t he
Malayalam film into Telugu language and subtitling in all languages. Th us,
Defendant No. 1's act of dubbing the suit film in Hindi language amounts to
infringement of Plaintiff's copyright.
9. The suit film being a derivative work, admittedly derived from t he
Malayalam film and/or its underlying works will be protected by copyright
only to the extent provided under Section 14(1)(d) of the Act. Since the
assignment in favour of Defendant No. 1 was only partial, Defendant No. 3
remained the owner of the rights not assigned to Defendant No.1, by virt ue
of provisions of Section 18 of the Act. Reliance was placed on the
judgments in The Wellington Cinema v. The Performing Right Society
Ltd., 1937 SCC OnLine Bom 14 and British Actors Film Company Ltd. &
Ors. v. Glover, [1918] 1 K.B. 299. Once the righ ts accru ing t o Defendant
No. 1 are read in light of Sections 14 and 18 of the Act, it is clear that
Defendant No.1 had no right to utilise the script of the Malayalam film for
any purpose other than Remaking and/or Dubbing in Telugu language on ly.
Reliance was placed on James Stewart v. Sheldon Abend, 1990 SCC
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OnLine US SC 65, Terry Gilliam et al. v. American Broadcasting
Companies Inc., 538 F. 2d 14 (1976) and G. Ricordi & Co. v. Paramount
Pictures, Inc., 189 F. 2d 469 (1951).
10. A bare perusal of the Assignment Agreement dated 18.03.2020,
specifically clauses 1, 2, 3 and 12, shows that the only right assigned was t o
Remake and Dub the film in Telugu and no other language and a
commercial understanding to a contract is the only way the effect of a
contract must be interpreted, as held in Bangalore Electricity Supply
Company Limited (BESCOM) v. E.S. Solar Power Private Limited and
Others, (2021) 6 SCC 718. The right to dub is a separat e righ t under t he
bundle of rights forming a copyright in a work an d it can n ot be said t h at
assignment of a right to remake a film would include right to du b t he same
in any language. Heavy reliance was placed on the Judgement in
Thiagarajan Kumararaja v. Capital Film Works (India) Pvt. Ltd. and
Another, 2017 SCC OnLine Mad 37588.
11. The suit film is not a 'completely new work' vest ing in Defendant
No.1 an independent copyright, as the same is admittedly a 'Remake' of t h e
Malayalam film and mere cosmetic alterations cannot give a 'new work'
flavour to the Telugu film. The burden to prove that the Telu gu film is so
different from the Malayalam film so as to constitute a 'new work', is on the
Defendants, which they have failed to discharge on the threshold of 'Test of
Substantial Similarity' laid down in R.G. Anand v. M/s. Delux Films and
Others, (1978) 4 SCC 118 and Arbaaz Khan Production Private Limited v.
Northstar Entertainment Private Limited & Ors., 2016 SCC OnLine Bom
1812.
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Signed By:KAMAL KUMAR
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12. Plaintiff is the owner of the right to rem ake t he Malayalam film in
Hindi language under the Agreement dated 13.05.2020 and thus, Defen dant
No.1's act of remaking the Malayalam film into Telugu language and
thereafter dubbing the same into Hindi language effectively amounts to
remaking the Malayalam film into Hindi language and amounts to
infringement of Plaintiff's copyright under the Act. Copyright is a right
in rem and owner of a copyright in any work is entitled to defen d t he sam e
against anyone who infringes that right, by virtue of provisions of Section 51
of the Act.
CONTENTIONS RAISED ON BEHALF OF DEFENDANT NO. 1
13. A Deed of Assignment dated 18.03.2020 was executed between
Defendant No. 1 and Defendant No. 3 and Late Kovakattu. Defendant No. 1
acquired copyrights in the story and for re-making and dubbing the
Malayalam film into Telugu language and subtitling righ ts in to all In dian
and world languages, without any geographical restrictions as well as to
exploit the same throughout the world in all formats and media. The
assignment thus included the right to exploit the remade Telugu film in all
formats including by dubbing in all other languages. All copyrigh ts wh ich
emanate from the remade suit film vest solely and exclusively with
Defendant No. 1 alone and none else.
14. The Assignment Deed categorically sets out that t he Assignors will
have no rights whatsoever over the film produced in Telugu language.
Furthermore, no limitations as envisaged under Section 18 of t h e Act h ave
been placed over the rights assigned to Defendant No. 1 an d n or is t h ere a
negative covenant in the said Deed which restricts Defendant No. 1 from
exploiting the rights in the remade film. Defen dant No. 1 is, in fact , t he
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owner of the entire bundle of copyrights in the remade Telu gu film . Un der
Section 13(1)(b) read with Section 13(3)(a) of the Act, every cinematograph
film is a 'work', in which copyright subsists, unless a substantial part of t h e
film is an infringement of copyright in another work.
15. On a conjoint reading of Section 17 with Section 2(d)(v) an d 2(f) of
the Act, it is explicit that owner of the copyright in the Telugu film will be
its author i.e., the producer of the film, which is Defendant No. 1 and thus, it
has exclusive rights under Section 14(d) of the Act, which would include the
right to communicate the film to the public under Section 14(d)(iii). Inherent
in the right to communicate is the right to communicate by du bbing in all
languages. This is clear from the observations of the Madras High Cou rt in
Thiagarajan Kumararaja (supra). Owner of copyright in a cinematographic
work, inter alia, has a right to both subtitle and dub its work, though subject
to any restrictive condition being put by the parties concerned.
16. Allegations of infringement of Plaintiff's copyright are misplaced and
baseless. Defendant No. 1 has not dubbed the Malayalam film in Hindi
language and has only dubbed the remade suit film, under the exclusive right
to do so by virtue of the Deed of Assignment. Under the Assignment Deed
dated 13.05.2020, Plaintiff inter alia acquired the right t o: (a) rem ake t he
Malayalam film in Hindi; (b) dub the Malayalam film or the remade Hindi
film in any language; (c) subtitle in any language; an d (d) t o rem ake as a
separate and independent work the cinematographic film as owner of
copyright by virtue of rights under Section 14(d) of the Act. Alleged
infringement would require to be tested on the anvil of these rights and when
so examined it is crystal clear that dubbing the remade Telugu film in Hin di
cannot even remotely amount to infringement of Plaintiff's copyrights. Th e
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test of infringement is not the degree of similarity between Telugu film
dubbed in Hindi and the Malayalam film dubbed in Hindi and, therefore, the
question that is to be posed is whether dubbing the Telugu film in Hindi, in
order to communicate it to the public, is an exclusive right of the Plaintiff. If
the answer is in the affirmative, Plaintiff may have a cause of action.
Clearly, no such right has been assigned to the Plaintiff and on the contrary,
it is the exclusive right of Defendant No. 1 as producer of the Telugu film to
dub the Telugu film in Hindi. In the absence of a right, Plaintiff can make no
claim of infringement against Defendant No.1.
17. The suit film has a new name and star cast and is in a different
language, though the script is similar to the Malayalam film an d t hus t he
copyrights of the respective films are distinct and constitute separate work.
Deed of Assignment dated 18.03.2020 sets out that the Assignors will h ave
no rights over the remade film, produced and du bbed in Telugu language
and subtitled in various languages, without geographical restrictions. There
is nothing in the Agreement which prevents or restricts the right of
Defendant No.1 from dubbing the suit film in to a lan gu age of it s ch oice,
including Hindi. Defendants No. 3 and 4 cannot claim the right t o du b t he
remade suit film into Hindi as they have expressly given up all rights in t he
Telugu film including the right to communicate by du bbing an d Plaintiff
cannot claim better rights than them. In any event, Plaintiff does n ot even
claim any relief for the remade Telugu film and adm its in t he reply t o t he
application being I.A. 6078/2022, filed by Defendant No. 2 that remade
Telugu film has a completely new and different star cast and is based on re-
worked screenplay, dialogues, direction and music composition. Plaintiff has
also admitted in para 28 of the plaint that the Agreements dated 18.03.2020
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and 13.05.2020, respectively, operate in two completely different areas an d
there is no ambiguity and/or overlap in the rights granted to the Plaintiff on
one hand and Defendant No. 1 on the other hand.
18. Plaintiff has sought to rely on the amendment sought in the
Agreement dated 18.03.2020 and non-execution of the amended Agreement,
to contend that Defendant No. 1 had no rights under the executed Agreement
to dub the suit film in Hindi. This contention is misconceived in as m u ch as
an unexecuted document does not have the effect of n ovation of a sign ed
agreement and moreover is of no consequence as the executed Agreement
dated 18.03.2020 confers the right to dub the su it film into all lan guages
including Hindi. It is wrong for the Plaintiff to contend that Defendant No. 1
attempted to expand the scope of acquired rights under the Agreement dated
18.03.2020, to include dubbing rights in Hindi by insertion of clau se 3 an d
amendment of the Agreement, but remained u nsuccessful. If Defen dant
No. 3 intended to circumscribe/restrict the dubbing right of Defendant No. 1,
then the executed Agreement would have clearly and expressly con tained a
negative covenant to the effect. Section 2(d)(v) defines 'author' t o m ean in
relation to a cinematograph film, the producer. Section 2(f) defines
'cinematograph film' to mean any work of visual recording an d in cludes a
sound recording accompanying such visual recording. 'Producer' is defin ed
in relation to a cinematograph film a person who takes initiative and
responsibility for making the work. Section 17 of the Act provides t hat t he
author of a work shall be the first owner of the copyright therein. Therefore,
the producer of a cinematograph film is the author and the author is the first
owner of the copyright and Section 14 enumerates the exclusive copyrights,
which in case of a cinematograph film would include the right to
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communicate the film to public. Section 13(1)(b) stipulates t hat copyright
shall subsist in the cinematograph films while Section 13(3) carves ou t an
exception that if a substantial part of the film is an infringement of copyright
in another work, the copyright shall not subsist. Section 51 of t h e Act list s
out the contingencies where the copyright is infringed. Holistic reading of
these provisions shows that Plaintiff is bound to show that it has the
copyright to make a Telugu remake of the Malayalam film in order to allege
infringement by Defendant No. 1, who has made a remake of the Malayalam
film in Telugu language and it is the latter which it is dubbed in Hindi.
Plaintiff is unable to show any right, leave alone exclusive right under
Section 14 of the Act allegedly infringed by Defendant No. 1. In fact,
Plaintiff has no locus to file the present suit against Defendant No. 1 as there
are no pleadings disclosing which copyright, vest ing in t he Plaintiff, h as
been infringed by Defendant No. 1, who admittedly has not remade the
original Malayalam film in Hindi. Reliance is placed on t h e ju dgment in
Thiagarajan Kumararaja (supra) for the proposition that produ cers being
the authors are entitled to ownership of cinematograph film and would h ave
all the rights therein, as conferred under Section 14 (d)(iii) of the Act, which
would include the right to dub. Reliance was also placed on Shanthi
Thiagarajan v. K. E. Gnanavel Raja and Ors. 2021 SCC OnLine Mad
5341 to contend that once the rights are conferred t o remake a m ovie in a
particular language, the right to dub the movie which is rem ade cannot be
questioned and no suit can be filed by the assignor alleging infringement of
copyright.
19. The case of the Plaintiff, as reflected from the pleadings, is predicated
primarily on the alleged commercial loss or disadvantage that would occur
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to the Plaintiff due to launch of the suit film dubbed in Hindi. Such
speculative averments can have no consequence in law, besides the fact t hat
Defendant No. 1's Telugu film with a different cast, screenplay et c. would
possibly have no impact on the viability of Plaintiff's proposed film.
Commercial viability is wholly irrelevant as long as provisions of the
Copyright Act are not violated and a claim for infringement is not made out.
Reliance is placed on the judgment in M/s. Sunder Pictures Circuit and
Another v. Moti Mahal Theatres and Ors., 1965 SCC OnLine AP 295.
CONTENTIONS RAISED ON BEHALF OF DEFENDANT NO.2
20. Deed of Assignment was executed between Defendant No. 3 and
Defendant No. 1, wherein Defendant No. 1 was granted complete and
absolute copyright of the story of the Malayalam film to remake the same in
Telugu language. Defendant No. 1 remade the Malayalam film in Telu gu
language with a completely new and different star cast, lyrics, reworked
screenplay, dialogues, etc. Subsequent thereto, on 16.04.2021 a Film
Assignment Agreement was executed between Defendant No. 1 and
Defendant No. 2, whereby Defendant No. 1 assigned the Dubbing Rights in
the suit film in Hindi and North Indian languages in favour of Defen dant
No. 2 and the Hindi dubbed version of the su it film was set t o release on
31.03.2022.
21. Defendant No. 3 is the author and first owner of the Malayalam film
having all rights as provided under Section 14 of the Act, including the right
to remake the film in Telugu language and dubbing in any language, with no
negative covenant(s) thereunder. Defendant No. 1 having an unencumbered
right in the Telugu film has assigned t he righ t t o du b t he sam e in Hin di
language to Defendant No. 2. In these circumstances, even Defendant No. 3
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cannot claim rights in or impose any restrictions on the Telugu film , wh ich
constitutes 'new work', much less the Plaintiff, who has no right in the
Telugu film, so as to allege infringement against Defendants No. 1 and 2.
22. Copyright in the cinematograph work, i.e., the Malayalam film, vested
in Defendant No. 3 and not the Plaintiff, whose rights in t he said film , are
restricted to those assigned under the Assignment Deed. Para 9 (iv)(a) of the
Plaint sets out the salient features of the assignment in favour of the
Plaintiff, which as encapsulated and relevant for the present case, con fers a
right to remake the Malayalam film in Hindi and has n othing t o do wit h a
Remake of the said film in Telugu. The arguments of the Plaintiff also
overlook the fact that Defendant No. 3 is not a holder of rights in the Telugu
remake film and therefore, the Plaintiff cannot claim better rights than
Defendant No. 3. Moreover, in para 10 of the Plaint, Plaintiff h as pleaded
that it has commenced only pre-production of t h e Hindi remake, t hereby
admitting that no film has been made at present and the apprehensions are
based on mere speculations.
23. Plaintiff is unclear of the rights it is seeking to assert, i.e., copyrights
or contractual. If copyrights are asserted, then such righ ts m ust reside in a
work, which in the present case does not exist as no film has been m ade so
far by the Plaintiff. In case a contractual right is enforced, then there can not
be a suit for copyright infringement. Pertinently, once Plaintiff itself admits
in its reply to I.A. 6078/2022 that the suit film is a completely new and
different film, it constitutes 'new work' in terms of the judgment in Eastern
Book & Ors. v. D.B. Modak & Anr., (2008) 1 SCC 1, wit h all copyrights
that a 'owner' has under the Act.
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CONTENTION ON BEHALF OF THE PLAINTIFF, IN REJOINDER:
24. Reading of Section 13 (1) and (3) and Section 18(2) of the Act sh ows
that where a copyright is assigned, the rights have to be positively assigned
and cannot be implied or presumed. The agreement dated 18.03.2020
between Defendant No. 3, Defendant No. 4 and the Plaintiff shows that
limited rights were assigned, i.e., remaking and dubbing in Telugu language
only, which is evident from the various Clauses of the Assignment Deed. It
is a settled law that copyrights can only be assigned in writing by a Deed of
Assignment and thus the rights that flow to the assignee must also em anate
from the Assignment Deed and Defendant No. 1 can n ot claim an y righ t
outside the Assignment Deed dated 18.03.2020.
ANALYSIS AND FINDINGS:
25. Having heard learned counsel for the Plaintiff and learned Senior
Counsels for the Defendants, the question t hat com es t o fore is wh et her
dubbing the Telugu film in Hindi by Defendant No. 1 constitutes
infringement of Plaintiff's rights under the Copyright Act. In order to
examine the said question, it would be relevant to exam ine t he Sch eme of
the Act and the provisions therein, to the extent relevant to this case.
26. The Copyright Act of 1957 repealed and replaced the Indian
Copyright Act of 1914. Section 2(y)(ii) of the Act defines 'work' as follows:
"2. Interpretation.-- In this Act, unless the context otherwise
requires,--
(y) "work" means any of the following works, namely:-
(ii) a cinematograph film."
27. 'Cinematograph film' means any work of visual recording and
includes the sound track, if any, and is defined as under:
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"2. Interpretation.-- In this Act, unless the context otherwise
requires,--
(f) "cinematograph film" means any work of visual recording
and includes a sound recording accompanying such visual
recording and "cinematograph" shall be construed as
including any work produced by any process analogous to
cinematography including video films."
28. The works in which a copyright subsists are enumerated in Section 13
and to the extent relevant, provisions of the said Section are as under:
"13. Works in which copyright subsists.-- (1) Subject to the
provisions of this section and the other provisions of this Act,
copyright shall subsist throughout India in the following classes
of works, that is to say,--
(b) cinematograph films; and"
xxx xxx xxx
(3) Copyright shall not subsist--
(a) in any cinematograph film if a substantial part of the film is
an infringement of the copyright in any other work."
29. Meaning of copyright is provided under Section 14 of the Act and for
the purpose of cinematograph film copyright means to do or au t horize t he
doing of any of the following acts:
"14. Meaning of Copyright.-- For the purposes of this Act,
"copyright" means the exclusive right subject to the provisions
of this Act, to do or authorize the doing of any of the following
acts in respect of a work or any substantial part thereof,
namely-
(a) in the case of a literary, dramatic or musical work, not
being a computer programme,--
xxx xxx xxx
(iv) to make any cinematograph film or sound recording
in respect of the work;
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xxx xxx xxx
(d) in the case of a cinematograph film,--
(i) to make a copy of the film, including--
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other
means;
(ii) to sell or give on commercial rental or offer for sale
or for such rental, any copy of the film.
(iii) to communicate the film to the public."
30. Section 17 of the Act provides that the author of a work sh all be t h e
first owner of the copyright therein and t he relevant portion is ext racted
hereunder for ready reference:
"17. First owner of copyright. -- Subject to the provisions of
this Act, the author of a work shall be the first owner of the
copyright therein: ....."
31. It thus becomes imperative to understand who is t h e 'author' u nder
the provisions of the Act. Section 2(d)(v) defines author in relation to a
cinematograph film to mean the producer. 'Producer', in turn, is defin ed in
Section 2(uu) in relation to a cinematograph film, as a person who takes t he
initiative and responsibility for making the work.
32. Quite clearly, from a conjoint reading of Sections 17, 2(d)(v) and
2(uu) of the Act, what emerges is that the author of a work is the first own er
of the copyright and in relation to a cinematograph film, the producer is t h e
author and thus the first owner of the copyright therein. Under the provisions
of Section 14(a)(iv), author of a work has a right to make a cin em atograph
film and Section 14(d) provides the rights that the author would have in t he
said film which inter alia including right t o communicate t he film t o t he
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public. The expression 'communication to the public' has been defined
under Section 2(ff) of the Act and is as under:
"2. Interpretation.-- In this Act, unless the context otherwise
requires,--
(ff) "communication to the public" means making any work or
performance available for being seen or heard or otherwise
enjoyed by the public directly or by any means of display or
diffusion other than by issuing physical copies of it, whether
simultaneously or at places and times chosen individually,
regardless of whether any member of the public actually sees,
hears or otherwise enjoys the work or performance so made
available.
Explanation.-- For the purposes of this clause,
communication through satellite or cable or any other means of
simultaneous communication to more than one household or
place of residence including residential rooms of any hotel or
hostel shall be deemed to be communication to the public."
33. Section 18 deals with assignment of the copyright as under:
"18. Assignment of copyright.-- (1) The owner of the
copyright in an existing work or the prospective owner of the
copyright in a future work may assign to any person the
copyright either wholly or partially and either generally or
subject to limitations and either for the whole term of the
copyright or any part thereof:
xxx xxx xxx
(2) Where the assignee of a copyright becomes entitled to any
right comprised in the copyright, the assignee as respects the
rights so assigned, and the assignor as respects the rights not
assigned, shall be treated for the purposes of this Act as the
owner of copyright and the provisions of this Act shall have
effect accordingly."
34. Section 51 enumerates eventualities in which copyright in a work
shall be deemed to be infringed and relevant portion is as follows:
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"51. When copyright infringed.-- Copyright in a work shall be
deemed to be infringed--
(a) when any person, without a licence granted by the owner of
the copyright or the Registrar of Copyrights under this Act or in
contravention of the conditions of a licence so granted or of any
condition imposed by a competent authority under this Act--
(i) does anything, the exclusive right to do which is by
this Act conferred upon the owner of the copyright...."
35. Since the conundrum that is required to be resolved in the present case
essentially revolves around the dubbing rights of the respective part ies, it
would be useful to understand the expression 'communication to the public'.
In Thiagarajan Kumararaja (supra), the Division Bench of the Madras
High Court held that dubbing would fall within the ambit of the expression
'communicating to the public' while interpreting the expression 'otherwise
enjoyed' in Section 2(ff) of the Act. Relevant would it be to refer to the
following paras in this context:
"17. In other words, it makes available to the producer/author,
the right to make a cinematograph film available for being seen
or heard or enjoyed by public directly or by any means of
display or diffusion.
17.1. The use of the expression "otherwise enjoys" after the
words seen or heard enlarges the scope of how communication
with the public has to be made. If this was not so, the
Legislature would have restricted the communication to aspects
which are relatable to the obvious sensory attributes of human
beings such as hearing and seeing. The Legislature it seems
consciously has enlarged the scope of the expression
"communication to the public" by bringing in the aspect of
enjoyment. Dubbing would, thus, in our view, fall within the
ambit of the expression communicating to the public.
18. In the context of a film, undoubtedly, dubbing involves
embedding a sound track in a film, which is in a language
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different from that of the original. [See Concise Oxford
Dictionary, Tenth edition (Revised) at page 440]
xxx xxx xxx
18.2. Therefore, while the translation of the literary work is
carried out ordinarily by using a writing medium, dubbing
involves the use of the sound track. The question, which, thus,
comes to fore is whether the producer or the author of a
cinematograph film is conferred with right to dub?
18.3. To our minds, the answer has to be in the affirmative, as
the right in a cinematograph film is independent to the right
that a person may have in the underlying works, such as, the
story, the script and/or the screenplay. In some cases, it may so
happen that each of these rights vest in different persons. On
the other hand, there could be a case, where, one or more
rights vest in the same person.
18.4. In the instant case, admittedly, the story, the script and the
screenplay was written by the appellant, and hence, the
authorship qua them vests in him. The appellant, agreed to
make a film with the help of respondents. The initiative and
responsibility in respect of the same was, admittedly, taken by
the respondents. The appellant was paid a sum of Rs.7,00,000/-.
Therefore, quite clearly, in so far as the subject cinematograph
film is concerned, the producers, being its authors', are entitled
to its ownership. The respondents, therefore, as the
producers/authors of the cinematograph film, in our view,
would have all the rights in the subject film as conferred
under Section 14(d)(iii) of the 1957 Act, which would include
the right to dub.
xxx xxx xxx
18.6. In short, the principle being that the owners of copyright
in a cinematographic work will, inter alia, have the right to
both sub-title and dub their work. This of-course, is subject to
any restrictive condition being put in by the parties."
(emphasis supplied)
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36. At this stage, it is pertinent to note that it is not the case of the
Plaintiff that the Telugu film made by Defendant No. 1 infringes the
copyright of the Plaintiff. No relief, as rightly argued by the Defendants, is
claimed against the remade Telugu film and in fact it is an admitted case by
the Plaintiff that the remade Telugu/suit film titled 'Bheemla Nayak' h as a
completely new and different star cast, screenplay, dialogues, direction an d
music composition. The dispute centres on the dubbing of the Telugu film in
Hindi language by Defendant No. 1, which according to the Plaintiff
infringes its copyright. While it is the case of the Plain tiff t hat Defendant
No. 3 had assigned restricted right to Defendant No. 1 to remake and dub the
Malayalam film in Telugu language only and did not include the right to dub
in any language as also that the suit film is not a 'new work' en titled t o an
independent copyright therein, the case of the Defendants is that there
subsists a separate and independent copyright in the remade Telugu film and
Defendant No. 1 is the owner of that copyright having the right to exploit the
film in all formats, including dubbing the same in any language.
37. In order to test the respective arguments, it would be necessary to
examine the nature of assignments in favour of the Plaintiff an d Defendant
No. 1 under the respective Deeds of Assign ment executed by Defen dant
No. 3. Relevant paragraphs of the Deed of Assign ment executed bet ween
Defendant No. 3 and Defendant No. 1 on 18.03.2020 are as under:
"NOW THIS AGREEMENT WITNESSES AS FOLLOWS:
The ASSIGNORS do here by these present grant, assign, convey
and transfer to the ASSIGNEES, the complete, absolute and
exclusive copy right of the said story of the Malayalam Feature
film AyyappanumKoshiyum starring Prithviraj, BijuMenon and
others., directed by Sachy and produced by Mr. Ranjith and P
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M Sasidharan for remake and dub into Telungu language and
subtitle into Indian and all world languages without any
geographical restrictions and to exploit the said remade and
dub version and subtitled version film for and throughout the
world on all the formats mentioned above for a Forever period
and ASSIGNORS have irrevocably agreed not to entrust, assign
and or transfer the Telungu language rights of the said picture
to any other person or party and the ASSIGNORS have
irrevocably agreed and confirmed to assign and transfer of the
entire Remaking and Dubbing and subtitling rights of Telungu
languages rights of the said picture to the ASSIGNEES herein.
The ASSIGNORS will have no rights whatsoever over the film
produced and dubbed in Telungu language and subtitled in
Indian and all world languages without any geographical
restriction which is produced and dubbed based on the
assigned rights.
1. WHEREAS the ASSIGNEES have agreed to acquire the
remaking and dubbing and subtitling rights of the film for
producing and dubbing in Telungu language based on the
transfer of the copy right of the story by the ASSIGNORS in
favour of the ASSIGNEES and have entered into this
agreement and acquired the remake and dubbing and
subtitling rights for Telungu language of the said story of the
said picture, AyyappanumKoshiyum starring Prithviraj,
BijuMenon and Others and directed by Sachy and produced
by Mr. Ranjith and Mr. PM Sasidharan.
xxx xxx xxx
3. The ASSIGNORS have assigned all copy rights of the said
story of the Malayalam Feature film AyyappanumKoshiyum
in favour of the ASSIGNEES to remake and dub into
Telungu language and subtitle into all indian and all world
languages and to exploit the same throughout the world in
entire format and the ASSIGNEES shall have the full rights
to deal, sell and enjoy the benefits with the copy right. The
ASSIGNEES shall have all the rights to alter, delete, add,
modify the story and screenplay of the said picture in any
manner to suit the convenience of the ASSIGNEES.
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xxx xxx xxx
12. The ASSIGNEE reserves the rights to exploit / sell /
distribute / re-assign the assigned Telungu language
Dubbing and remaking rights and subtitling rights to
anybody any manner he think fit."
38. Perusal of the above recitals would show that Defendant No. 3 bein g
the absolute owner of the original copyright of the story and producer of t h e
Malayalam film, as an Assignor assigned to Defendant No. 1 the entire
rights for Remaking and Dubbing the said film in Telugu language and
subtitling in all Indian and world languages. Additionally, Assignee was
given the right to alter, delete, add, modify the story and screenplay of t h e
Malayalam film in any manner to suit the convenience of the
Assignee/Defendant No. 1. The Assignment Deed also reflects that the
Assignors renounced all their rights whatsoever over t he film 'produced'
and dubbed in Telugu language and subtitled in all world languages, without
any geographical restriction.
39. On the other hand, under the Deed of Assignment dated 13.05.2020,
executed between the Plaintiff and Defendants No. 3 an d Lat e Kovakattu,
the following covenants are relevant:
"Whereas, the Assignee is, inter alia, engaged in the business
of production of cinematograph films. Whereas the ASSIGNEE
wants to acquire from the ASSIGNOR on an exclusive,
perpetual and irrevocable basis, the Remake and Dubbing
Rights (defined below) of the Film for the Language (as defined
below) for the territory of the world, to be exercised by the
Assignees on all Modes, Mediums and Formats not known or
coming into existence in the future. For the purpose of this
Agreement, "Remake and Dubbing Rights" shall mean the
sole and exclusive right to (i) make a new cinematograph film
based on the Film and the underlying works thereof ("New
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Film") in the Hindi language ("Language") and (ii) the right
to dub the Film in any and all languages now known or coming
into existence in the near future ("Dubbed Film"). The Remake
and Dubbing Rights shall further include without limitation the
sole and exclusive rights viz. : (i) The exclusive right to
produce, co-produce the New Film in the Language based on
the literary works of the said Film; (ii) The right to use the title
of the Film and underlying works therein including but not
limited to the literary works in the New Film with/without
adaptations, mutilations or modifications, as the case may be,
at the sole discretion of the Assignee; (iii) The right to exploit
the New Film/Dubbed Film and exploitation rights of the New
Film/Dubbed Film on all available on all Modes Mediums and
Formats, platforms of exploitation, present and/or future in
perpetuity including but not limited to theatrical, non-
theatrical, satellite, home video, DTH, on demand, mobile,
digital, internet, broadband, website etc.; (iv) The right to use
the characters, story lines, titles, characterizations with or
without sound accompaniment and with or without the
interpolation of musical numbers therein to adapt, rearrange
and make any changes in, deletions from or additions to the
underlying works of the said Film, to change the sequence
thereof, to use a portion or portions of any underlying works, to
change the characters and the description of the characters of
the said Film, to use any component, underlying work of the
said Film; (v) the right to dub the New Film/Film in any
language currently existing or coming into existence in the
future; (vi) The right of edit, clip right of the New Film/Dubbed
Film, right to sub-titling, in any language for any purpose
through any media; (vii) The rights to use excerpts, summaries
and extracts of the New Film/Dubbed Film in any form such as
books, posters, news items, trailers, etc. for purpose of
exploiting, promoting the New Film/Dubbed Film in the
Language; (viii) All other ancillary rights, including without
limitation to derivative rights, in the New Film, Dubbed Film
and all underlying works thereof; (ix) The right to recreate
and/or use any theme music and/or any background music of
the Film for the New Film; (x) The right to exercise and enjoy
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all rights comprised in copyright in the New Film and the
Dubbed Film as first owner thereof, including the right to
register and secure copyright, trademark and domain name
registrations and renewals in the Assignee's name and expense
throughout the Territory and; (xi)All other ancillary rights in
the underlying works of the New Film;
xxx xxx xxx
2. GRANT OF RIGHTS
2.1. The Assignor, declaring itself as the true, legal and
beneficial owner of the remake rights in the Film hereby
irrevocably, unconditionally and exclusively grants, assigns,
sells, conveys and transfers to the Assignee solely and
absolutely, 100 (one hundred) % of the Remake and Dubbing
Rights (Hindi), as defined above, in perpetuity throughout the
world with respect to the Film and the New Film. The
ASSIGNOR do here by these presents, grant, assign, convey
and transfer to the ASSIGNEE, on an exclusive, perpetual and
irrevocable basis, the complete, absolute and exclusive Remake
and Dubbing Rights in the Film to produce, create, distribute,
market and exploit the New Film and Dubbed Film without any
geographical restrictions i.e across all territories of the world
and in perpetuity in all Modes, Mediums, Formats, platforms
etc. and ASSIGNOR has irrevocably agreed not to entrust,
assign and or transfer the Remake and Dubbing Rights in the
Film to any other person or party other than the Assignee for
the territory of the world and in perpetuity. The ASSIGNORS
will have no rights whatsoever over the New Film or any
underlying works thereof."
40. It is explicit from a reading of the Deed of Assignment that the
Remake and Dubbing rights assigned to the Plaintiff by Defen dants No. 3
and Late Kovakattu in the Malayalam film inter alia were t o m ake a n ew
cinematograph film based on the Malayalam film and the underlying works
thereof (New Film) in Hindi language and the right t o du b t he Malayalam
film in any and all languages known or coming in to exist ence in t he n ear
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future (Dubbed Film). Plaintiff was also assigned the right t o du b t he New
Film in any language existing or coming in to exist ence in fu ture, wh ich
needless to state included dubbing in Hindi language.
41. As held by the Andhra Pradesh High Court in M/s. Sunder Pictures
(supra) copyright in a work as envisaged in the Act consists of a nu mber of
rights and there can also be different assignees in respect of different rights.
In respect of any of the rights which may be assigned, assignee shall be
treated as owner of the copyright for the purpose of this Act. In Thiagarajan
Kumararaja (supra), the Division Bench held that the owner of a copyrigh t
in a cinematograph film will inter alia have the right to both subtitle and dub
its work, subject to any restrictive condition being put by the parties.
42. The primordial grievance of the Plaintiff is that Defendants No. 3 an d
Late Kovakattu while assigning the copyright to remake the Malayalam film
in favour of Defendant No. 1, had restricted the rem aking an d du bbing t o
Telugu language and therefore this restrictive covenant prevents Defen dant
No. 1 from dubbing the Telugu remake in Hindi. Therefore, according to the
Plaintiff the act of dubbing the suit film in Hindi violates and in fringes t he
copyright of the Plaintiff. Needless to state, the argument has to be test ed in
the light of the relief claimed by the Plaintiff in the present su it an d in t his
context, the prayer clause is extracted hereunder for ready reference:
"42.(a) An order for permanent injunction restraining the
Defendant nos. 1 and 2, by themselves, their servants, agents,
licensees, franchisees, partners, proprietors or any one
claiming through, under or by them, and/or otherwise, from
making, producing, exhibiting, or communicating to the public
the suit film or any part thereof in any manner, including but
not limited to theatres, television, OTT platforms and/or
internet, so as to infringe the Plaintiff's copyright in respect of
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the Remake and Dubbing Rights of the Malayalam film in the
Hindi language as also any other rights as set out in
paragraph 19(iv) of the plaint."
43. On a plain reading of the prayer clause, it is evident that Plaintiff
seeks an injunction against Defendants No. 1 and 2 from making, producing,
exhibiting or communicating to the public the suit film or any part t hereof,
in any manner, so as to infringe Plaintiff's copyright in respect of 'Rem ake
and Dubbing rights' of the Malayalam film in Hindi language as also ot h er
rights detailed in para 19(iv) of the plaint. Therefore, what is requ ired t o be
seen is the Remake and Dubbing rights that were assigned to the Plaintiff by
Defendant No. 3 in the Malayalam film. The recitals of the Deed of
Assignment dated 13.05.2020, as extracted above, prima facie show that the
'Remake and Dubbing rights' inter alia included making a new
cinematograph film and the underlying works t hereof in Hin di lan guage
with the right to dub the Malayalam film as well as the New Film in any and
all languages known or coming into existence in the near future. Admittedly,
the Plaintiff was not assigned the right t o rem ake t he Malayalam film in
Telugu language, which was a right assigned to Defendant No. 1 by
Defendant No. 3. It is also not the case of the Plaintiff that Defendant No. 1
is dubbing the Malayalam film in Hindi and at the cost of repet ition it m ay
be noted that Plaintiff has no grievance wit h remaking of t h e Malayalam
film in Telugu. Defendant No. 1, even according to the Plaintiff, is du bbing
the remade Telugu film in Hindi, which has triggered the present suit.
44. Section 51 provides that a copyright in a work shall be deem ed t o be
infringed when any person, without a license granted by the copyright owner
or Registrar of Copyrights or in contravention of the licence conditions, does
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anything, the exclusive right to do which is by the Act conferred u pon t he
owner of the copyright. Simply put under Section 51 of the Act, a grievan ce
with respect to infringement of a copyright can arise on ly if t h e exclusive
right to do an act conferred upon the copyright owner is infringed.
Therefore, if Defendant No. 1 had remade the Malayalam film in Hindi
language or had dubbed the same in Hindi language, Plaintiff may have h ad
a cause of action for infringement. Beyond a doubt, the case of alleged
infringement would require to be tested within the four corners of the
provisions of Section 51 of the Act and the limited issu e at t his st age t hat
requires consideration would be the exclusive rights given t o t he Plain tiff
under the Deed of Assignment and to see if those rights are infringed.
Dubbing of the remade Telugu film into Hindi, in my prima facie view, does
not amount to infringement of the exclusive right of the Plaintiff t o rem ake
the Malayalam film in Hindi language and to dub the New Film as well as
the Malayalam film in all languages.
45. In light of the aforesaid, in my prima facie view, Defendants are righ t
in their argument that the test of infringement in the present case is n ot t he
degree of similarity between the Telugu film dubbed in Hindi and the
Malayalam film dubbed in Hindi, but the test is whether dubbing the Telugu
film in Hindi in order to communicate it to the public infringes on any
exclusive right of the Plaintiff, which is not the case here.
46. Perusal of the ex parte ad interim injunction order dated 31.03.2022,
granted by this Court shows that the considerations t hat weighed wit h t he
Court while granting the injunction were the contentions of the Plaintiff that:
(a) the right to remake the Malayalam film in Hindi language was
exclusively vested in the Plaintiff, which was infringed by Defendant No. 1
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under Section 51of the Act; (b) Defendant No. 1 was not assigned t he righ t
by Defendant No. 3 to dub the Malayalam film or its remake in Hindi
language; and (c) Plaintiff has invested considerable amount of money in the
pre-production stage of its proposed Hindi remake of t h e Malayalam film
and if the suit film is allowed to be released, commercial viability of
Plaintiff's proposed film shall be considerably damaged. Reliance was
placed by the Plaintiff on the judgment in Thiagarajan Kumararaja
(supra), more particularly, paragraph 18 thereof.
47. After hearing the parties extensively, in my prima facie opinion, none
of the contentions raised by the Plaintiff at the time of gran t of ex parte ad
interim injunction hold water in law. Plaintiff, no doubt, has a right to
remake the Malayalam film in Hindi language as well as dub the same or the
New Film in any language, however, Defendant No. 1 has admittedly
dubbed the remade Telugu film (suit film) in Hindi, which does not infringe
the Plaintiff's right, applying the provisions of Section 51 of the Act. Insofar
as the contention that the Deed of Assignment in favour of Defendant No. 1
restricts the right to dub the Malayalam film or its remake in Telugu
language only is concerned, as aforementioned, Defendant No. 1 is n eit her
remaking nor dubbing the Malayalam film in Hindi language an d Plain tiff
can have no grievance with the manner Defendant No.1 is exploit ing it s
rights in the remade Telegu film. Even assuming for th e sake of argu ment
that Defendant No. 1 is violating the terms of the Deed of Assignment
executed with Defendant No. 3, in terms of dubbing the remade Telugu film
in Hindi, it may at the highest give rise to a cause of action in favour of
Defendant No. 3, who has not chosen to sue Defendant No. 1, but cannot be
the basis of an infringement action in favour of the Plaintiff.
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48. As far as the commercial viability of the proposed film of the Plaintiff
is concerned, as rightly argued by the Defendants, this is a fact or wh ich is
wholly irrelevant to the issue of alleged violations of the provisions of t h e
Copyright Act, under which an action for infringement can only be
predicated on existence of a copyright. Both sides have placed considerable
reliance on the observations of the Division Bench in Thiagarajan
Kumararaja (supra), wherein the Court has essentially laid down t hat t he
producer being the author of a cinematograph film has all t h e rights in t he
film as conferred under Section 14(d)(iii) of the Act, including t he righ t t o
dub and subtitle, subject, however, to any restrictive condition(s) bein g put
by the parties. In view of the aforesaid prima facie finding t hat Defendant
No. 1 is not infringing any exclusive right assigned to the Plaintiff by
Defendant No. 3, this argument or the observation of the Division Bench at
this stage are wholly irrelevant and need not detain the Court, any further.
49. This Court also prima facie finds merit in the contention of Defendant
No. 1 that the ownership of the copyright in the Telugu film vests in
Defendant No. 1. As brought out above, under Section 2(uu) of the Act
'producer' in relation to a cinematograph film m eans a person wh o t akes
initiative and responsibility for making the 'work' and t he producer is t h e
'author' under Section 2(d)(v). Section 17 clearly provides that the author of
a work shall be the first owner of the copyright therein and therefore,
Defendant No. 1 is the owner of the copyright in t he Telugu film. Th is is
further evident from the Assignment Deed dated 18.03.2020, whereby
Defendant No. 3 has referred to Defendant No. 1 as a 'producer' of the
Telugu film and has renounced all rights in the film so produced. Since
Defendant No. 1 is the owner of the copyright in the Telugu film, it sh all be
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Signing Date:11.07.2022
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entitled to the exclusive rights of a copyright owner under Section 14(d) of
the Act, which would include the right to communicate t he film t o pu blic
under Section 14(d)(iii). As held by the Madras High Court in Thiagarajan
Kumararaja (supra), the right to communicate would in clude t he righ t t o
dub. Therefore, by the operation of law, Defendant No. 1 in its own righ t as
a copyright owner has a right to dub the Telugu film in any language
including Hindi and Plaintiff cannot assert any right to rest rain Defendant
No. 1 from dubbing the Telugu film in Hindi.
50. The judgments in The Wellington Cinema (supra) and British Actors
Film Company (supra) were relied upon by the Plaintiff for the proposition
that a copyright owner in any work may assign t he righ t either wh olly or
partially and either generally or subject to limitations an d m ay grant an y
interest in the right by licence. These judgments, in my view, do n ot com e
to the aid of the Plaintiff as in the present case, the assignor under t he Deed
of Assignment dated 18.03.2020 has assigned the rights in t he su it film in
favour of Defendant No.1, without any restrictions or limitations and
pertinent is it to mention that the assignor has in fact renounced all its righ ts
in the suit film in favour of Defendant No.1, which is clearly eviden t from
the recitals in the Assignment Deed.
51. The judgments in James Stewart (supra), Terry Gilliam (supra) and
G. Ricordi & Co. (supra) lay down the proposition that m erely becau se of
derivative work has been created, the pre-existing rights in the original work
are not extinguished. The said judgments do n ot apply t o t h e fact s of t h e
present case and cannot enure to the advantage of the Plaintiff. In the present
case, as aforementioned, Defendant No.3 has assigned various rights in
favour of Defendant No.1 in the suit film and after so assigning, has
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renounced the rights in the newly produced film. Moreover, Plaintiff cannot
raise any grievance with the exploitation of the rights qua the suit film sin ce
no rights in the said film were assigned in favour of the Plaintiff an d all it s
rights exist qua the Malayalam film or the new film made from the
Malayalam film by it.
52. For all the aforesaid reasons, the ex parte ad-interim injunction
granted vide order dated 31.03.2022 is hereby vacated.
53. Needless to state, the observations and the views rendered in the
present judgment are only prima facie and shall not affect the final
adjudication of the rights and contentions of the parties in the su it aft er t he
trial is complete.
54. All the above applications are disposed of in the above terms.
JYOTI SINGH, J
th
JULY 11 , 2022
rk/shivam/sn
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Signed By:KAMAL KUMAR
Signing Date:11.07.2022
22:36:32
