Madras High Court
S.J.Suryah (A.K.A. S.Justin ... vs S.S.Chakravarthy on 12 November, 2021
OSA No.138 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.11.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
OSA No.138 of 2021
S.J.Suryah (a.k.a. S.Justin Selvaraj) .. Appellant
Vs.
1. S.S.Chakravarthy
2. Fakrudeen Ali (a.k. Raahul) ... Respondents
Appeal filed against the Fair and Decretal Order of this Court
dated 09.02.2021 in O.A.No.521 of 2020 in C.S.(Comm.Div.) No.282
of 2020.
For the Appellant : Mr.AR.L.Sundaresan, S.C.
For Mr.Roshan Balasubramanian
For the Respondents : Mr.Abdul Hameed
For AAV Partners
for respondent-1
Mr.P.S.Raman, S.C.
For Mr.Sanjay Ramaswami
for respondent-2
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OSA No.138 of 2021
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
This appeal is directed against a judgment and order of February
09, 2021 passed on a perceived copyright infringement action. By the
impugned order, the trial court willy-nilly found that no prima facie
case has been made out for the issue of any injunction.
2. The essential facts appear to be admitted. There is no dispute
that the first respondent herein produced a film by name “Vaalee”
which was directed by the plaintiff-appellant. According to the
appellant, credit for the story, screenplay and dialogue pertaining to
film “Vaalee” was also given to the appellant.
3. The appellant suggests that irrelevant considerations were
taken into account in holding that no prima facie case had been made
out by the appellant, despite it being the admitted position that the
appellant had been credited with the story as the author of the story
and the appellant admittedly being the director of the film. In
particular, the appellant says that merely because the appellant could
not produce the written agreement with the first respondent herein
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OSA No.138 of 2021
regarding the appellant having been appointed as the director of the
relevant film, the trial court refused to accept the case as made out
that the appellant was entitled to exclusively exploit the appellant's
copyright in the story, screenplay and dialogue and, to such extent,
the rights conferred by the first respondent to the second respondent
herein under the so-called remake agreement dated July 09, 2020
were in excess of the rights available to the first respondent as the
producer of the relevant film.
4. Indeed, it is a very high case that is asserted by the appellant
herein, that the producer of a cinematograph film has no right to
assign the copyright in the relevant film for it to be remade. Apart
from the fact that such a proposition may be completely flawed, it may
not lie in the mouth of the appellant herein to protest any remake
under the present agreement, since it is the undisputed position that
previous remakes of the film have been made in Kannada and Telugu
without any protest by the appellant herein, as rightly noticed in the
impugned judgment. It is not even the appellant's case that the
appellant had acquiesced in the remaking of the film “Vaalee” in
Kannada or Telugu for the appellant to assert that he is entitled to now
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OSA No.138 of 2021
protest the remaking of the said film under the present agreement.
5. There is no doubt that several persons own different aspects
of copyright, all of which go into the making of a cinematograph film.
While the music that is incorporated in a cinematograph film is
differently treated from the rest of the works in the cinematograph
film, the story, screenplay and dialogue, which go into the making of
the film, may also be capable of independent copyright. However, the
difficulty arises in a quia timet action where the plaintiff cannot
indicate the infringement or the degree thereof that may be proposed.
6. Copyright is a statutory right and the law in such regard is
captured in the Copyright Act, 1957 and there is no common law right
beyond the statute. As to who is the first owner of a copyright, the
extent of the work in which copyright subsists, the manner in which
copyright can be exploited and even the mode, manner and
circumstances in which it may be licensed or assigned, are provided in
the statute itself. In such regard, there can be no dispute that in
respect of a cinematograph film, it is the producer of the film who is
the owner of the copyright in the cinematograph film itself.
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OSA No.138 of 2021
7. Ordinarily, the producer of the film commissions and pays for
the story, the screenplay, the dialogue, the actors' performance, the
director's work and the like. Insofar as the copyright in the original
story or the original screenplay or dialogue is concerned, to the extent
the same is used in the film upon due consideration therefor being
tendered by the producer, the producer is also deemed to be the
owner of the copyright therein. It cannot be said, thus with any degree
of certainty, that when Section 14(1)(d) of the Act of 1957 permits the
owner of the copyright to make a copy of the film, such owner may be
precluded from making a remake thereof. If the owner of the copyright
in a cinematograph film is, by virtue of Section 14(1)(d)(i) entitled to
make a copy of the film or remake thereof, such proprietary interest
may also be assigned in accordance with law to any other. As is
elementary, the copyright subsists in the expression and not in the
idea, in the sense that a cloud described in a particular arrangement of
words may attract copyright over the arrangement of the words, but if
the idea conveyed by the arrangement of words were to be expressed
by a different set of words or even a dissimilar arrangement of the
same words, copyright of the original arranger of the words would not
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OSA No.138 of 2021
have been infringed.
8. In such sense, to assert in a quia timet action that the
copyright of the original author of the story or of the screenplay writer
or the author of the dialogue has been infringed without referring to
any infringing material, is somewhat difficult to appreciate. There is
nothing to say that the copyright of the appellant herein may
ultimately not been infringed. But, that is a matter of evidence and on
the satisfaction of the court, an injunction may issue only upon actual
infringement or a very wide possibility of infringement being
demonstrated. The appellant produced nothing apart from asserting
that as the director of the film and the author of its story, screenplay
and dialogue, the remaking of the film would not be possible without
infringing the appellant's copyright.
9. The Single Bench appropriately dealt with the matter by
applying the applicable law and by even referring to the relevant
provision from Section 17 of the Act. Plainly, the Single Bench did not
have any material to satisfy itself that there was any infringement or
likelihood of infringement of the appellant's copyright by the second
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OSA No.138 of 2021
defendant seeking to remake film "Vaalee" in another language,
pursuant to the agreement of July 09, 2020.
10. There is a further aspect which is canvassed by the appellant
by referring to the agreement for assignment. The appellant submits
that in the manner in which the producer's rights have been indicated
in the relevant agreement, the producer has apparently represented to
be the owner of larger rights than the producer may have had. In such
context, the trial court has referred to the stand taken by the producer
to the effect that the original story-line or the broad outline of the
story (the exact word used is "genesis") may had been brought by the
appellant herein, but the producer engaged a team to work on the
same for the ultimate story to be flushed out and its screenplay and
dialogue written.
11. The Single Bench found that no document had been relied
upon by the appellant herein to suggest that the appellant retained the
copyright in the story, screenplay or dialogue, notwithstanding credit
in respect thereof being given in the film to the appellant. It is
possible that the producer of a film engages a famous script-writer for
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OSA No.138 of 2021
valuable consideration to write the script upon indicating the outlines
of the story, whereupon the script is written and made over to the
producer to be used in the film. Iin such a scenario, since the work has
been commissioned at the instance of the producer and for valuable
consideration, it is the producer who retains the copyright in the script
notwithstanding the same having been created by the script-writer at
the instance of the producer. The credit in this case is given by the
producer by seeking to exploit the fame of the script-writer and such
credit does not amount to acknowledging the copyright of the script-
writer independent of the producer's right. It cannot be overlooked
that in the absence of documents in support of the appellant's case,
several aspects of the matter remained unclear before the trial court
and the injunction was clearly not warranted on the case that was
made out.
12. In any event, the order impugned makes sufficient room for
the appellant herein to produce appropriate material at the time of the
trial and the observations therein will not prejudice the appellant in
such regard. However, in the event the second respondent herein does
not remake the film by the time the suit goes to trial, the appellant
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herein may face the same difficulty as at the interlocutory stage at the
moment.
13. Much reliance has been placed by the appellant on a Division
Bench judgment of this court reported at 2017 SCC OnLine Mad 37588
(Thiagarajan Kumararaja v. Capital Film Works (India) Pvt. Ltd) for the
proposition that when the copyright in the screenplay and the dialogue
is owned by someone other than the producer, the right to remake the
film cannot be granted by the producer.
14. The reported judgment has been appropriately dealt with in
the judgment impugned herein. In that case, the appeal arose from a
decree and it was established that the appellant was the script-writer
of the film and was the owner of the copyright therein. In the present
case, the appellant has not been able to make out a prima facie case
that the appellant is the owner of the copyright in the screenplay or
the dialogue pertaining to the relevant film. Ordinarily, a producer has
the copyright in the cinematograph film and in the works
commissioned in connection therewith. If it is established that the first
respondent herein had commissioned the appellant for valuable
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OSA No.138 of 2021
consideration to write the screenplay and the dialogue, the appellant
cannot claim any copyright in respect of such matters. However, in
the event the appellant can establish that the screenplay or the
dialogue were not commissioned but were permitted to be used by the
appellant in course of the production of the film, it would be a different
matter.
15. Even at the interlocutory stage, a degree of the burden of
proof has to be discharged by a party seeking interim relief. As is
apparent from the impugned judgment, there was no material
produced before the Single Bench for the trial court to form a prima
facie view that it was the appellant herein who retained the copyright
in the screenplay and the dialogue. As aforesaid, merely because the
producer gave credit to the appellant herein as the author of the
screenplay or the dialogue would not amount to an acknowledgment of
the appellant's copyright therein.
16. There does not appear to be any basis to interfere with the
prima facie view taken in the judgment and order impugned in
declining the injunction as sought at a a stage where the work has not
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OSA No.138 of 2021
yet been born for the appellant herein to assert any infringement of
the appellant's copyright.
17. OSA No.138 of 2021 is dismissed. CMP Nos.6337, 6339 and
11416 of 2021 are closed. There will be no order as to costs.
(S.B., CJ.) (P.D.A., J.)
12.11.2021
Index : Yes
kpl
To:
The Sub Assistant Registrar
Original Side
High Court, Madras.
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OSA No.138 of 2021
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
(kpl)
OSA No.138 of 2021
12.11.2021
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