Alt Digital Media Entertainment ... vs Pride Media And 4 Others
2022 Latest Caselaw 933 Tel

                                   1




             HON'BLE SMT JUSTICE P.SREE SUDHA

                        C.M.A.No.100 OF 2022

JUDGMENT:

This Civil Miscellaneous Appeal is preferred against the

order dated 23.02.2022 passed in I.A. No. 272 of 2022 in OS No.

84/2022 by the XI Addl. Chief Judge, City Civil Court,

Hyderabad.

2. Alt Digital Media Entertainment Limited (Alt Balaji)

represented by its Chief Executive Officer, filed this appeal

contending that the impugned order was passed without

recording the reasons and without serving a notice to them and

depriving an opportunity of being heard and it is in violation of

Order XXXIX Rule 3CPC. Respondent No.1 has not served the

copy of document on which it relied and thus, failed to discharge

their duties under Order XXXIX Rule 3 (a and b) CPC. It is

further contended that respondent No.1 filed IA No.272 of 2022

at the eleventh hour in spite of the public being aware of the

release of reality show "Lockupp reality show" from 01.02.2022.

As 3rd party rights are created regarding the release of reality

show, the balance of convenience is in their favour. It is further

stated that the 'The Jail' was registered with Screen Writers

Association, but not with the Copy Right Board of India.

Moreover, respondent No.1 was not a party in whose name the

'The Jail' was registered with the Association and thus, he has no

locus standi to seek relief against them and finally stated that the

impugned order is prejudicial to them and is liable to be set

aside.

3. In fact, the suit was filed by Pride Media proprietary Firm

represented by its proprietor Abdul Haleem Baig for declaration

and permanent injunction under section 62 of the Copy Rights

Act in which he stated that the proprietary Firm was registered

under the Telangana Shops & Establishment Act, 1988 on

10.03.2021 and the proprietor also became a member of "Indian

Motion Pictures Association", in the process of producing a reality

TV show, he contacted the Writer and Director by name

Shantanu Re, a reputed director and come up with the story by

name the 'The Jail' and prepared script with 22 celebrities. The

concept story is the reality show for 100 days and the story was

registered in "Screen Writers' Association." They could not

produce the same due to lock down and COVID -19 when they

are gearing up to mobilize production, they came to know about

the release of "Lockupp reality show" reality show on 27.02.2022.

On seeing the promo, they found that it is not only similar to the

concept of the 'The Jail' but also totally copied the concept as

"Lockupp reality show", and thus, they infringed the Copyright of

the plaintiff and liable for the consequences as per Sections 51

and 52 of the Copy Rights Act. As such, they invoked the

jurisdiction of this Court under Section 62 of the Copy Rights Act.

The cause of action arose when they prepared the script on

07.03.2018 and registered it in the name of 'The Jail' and also on

19.02.2022 when the defendants released promo in the name of

"Lockupp reality show" reality show with a proposal to screen it

on 27.02.2022. The suit was filed on 22.02.2022 along with IA

No. 272/2022 for ad interim injunction against the defendants

from releasing, exhibiting, publishing the series in the name of

"Lockupp reality show" in theaters, OTT platforms, Youtube, and

electronic social media.

4. The ad interim injunction was granted by the XI Addl. Chief

Judge by an order dated 23.02.2022, and aggrieved by the said

order, this CMA is preferred.

5. Learned counsel the appellant argued that reasons were not

assigned by the Addl. Chief Judge while dispensing with urgent

notice as required under Order XXXIX Rule 3 CPC and he further

contended that the appellant was marketing the "reality show

Lockupp" since 02.02.2022. Press conference was held on

03.02.2022. First poster was put out on 10.02.2022, first teaser

was released on 11.02.2022, trailer was released on 16.02.2022

and the release of show/ live streaming show was scheduled on

27.02.2022 and thus, the public were aware of the "Lockupp

reality show" since 01.01.2022 as per the news clippings, but

they approached the Court at the eleventh hour and obtained

injunction order even without issuing notice to them. He relied on

the decision of the High Court of Bombay in Dashrath B. Rathod

and Ors. Vs. Fox Star Studios India Pvt. Ltd., and Ors1., wherein

it is held as under:

"This practice of parties claiming copyright infringement coming to Court at the eleventh hour and expecting Courts to drop all other work to listen to and decide their applications on a priority basis must be discouraged. In a given case, where the plaintiff had no prior knowledge an exception will of course always be made. But, where it is shown, and especially where it is admitted, that the plaintiff knew several weeks in

2017 (3) BomCR 664

advance of the release of the film, I see no reason to grant priority that would be an unconscionable indulgence."

He relied upon the decision of the Apex Court reported in

John Hart and Ors. Vs. Mukul Deora and Ors2, wherein it is held

as under:

"Delay in approaching the Court, so far as grant of equitable relief is concerned, is always fatal. If the plaintiff is a serious producer of film, he ought not to have ignored gossip within his trade, whether it was in the form of press reports or exchange of communication to the Guild or Association claiming the same title. At this present moment I am unable to find any plausible reason for not filing the present case at least upon the defendants performing its Mahoorat. The plaintiff has waited for the defendants to expend large sums of money and energy in the completion of the film with the same title, thereby shifting the balance of convenience in favour of the defendant. The situation that is arrived at is that the likelihood of passing off is almost wholly eradicated. The subsisting claim may, at the highest, be the use of a title which the plaintiff has itself failed to

AIR 2021 Delhi 79

use. The right as well as the loss can only be determined after the trial."

6. Learned counsel of respondent further contended that

at the best the appellant is entitled for damages if at all

there is any infringement of Copyright Act, 1957. It is

further contended that the appellant spent Rs.6,28,43,050/-

on various marketing initiatives including print media, TV,

Social Media, Press reports and it will be live streamed for

72 days and thus, the delay in launching will have massive

and irretrievable cascading effect on viewership. The

appellant further contended that they will also suffer

significant monetary loss of Rs.17.5 lakh per day if the show

is not aired.

7. Learned counsel for the respondents contended that

the scope of the appeal is extremely limited. The trial Court

assigned reasons in para Nos. 3 and 4 of the order. " In fact,

the trial judge has gone through the video clippings regarding

trailer of "Lockupp reality show" played in the open Court and

clearly held that the concept of story that was registered by

the petitioner under the copy of Synopsis of the story along

with registration certificate and the official promo "Lockupp

reality show" appears similar. As the "Lockupp reality show"

is going to be released on 27.02.2022 on OTT platforms and

the petitioner therein has made out a prima facie case,

granted ad interim injunction by dispensing with the urgent

notice and also directed them to comply with Order XXXIX

Rule 3 CPC by 5.00 p.m. on the next working day and ordered

notice by 9.3.2022."

Learned counsel further contended that the scheduled

release date of 27.02.2022 can be postponed and the order

of the trial Court needs no interference. He also relied upon

the decision of the Apex Court in A. Venkatasubbaiah Naidu

Vs. S. Chelappan and others3 and submitted that aggrieved

party is entitled to file vacate stay petition before the trial

Court as he has other alternative remedy, he ought not to

have invoked the jurisdiction of the High Court.

8. The appellant filed an application under the Copyrights

Act, 1957 for registration of copyright for "Lockupp reality

show" by providing detailed description/concept note of the

show and receipt was given on 15.11.2021, but no formal

objection was raised against the said application. Later,

(2000)7 SCC 695

another application was filed before the 'Indian Film and TV

Producers Council' for registration of the title of "Lockupp

reality show" and it was registered for confirmation of title

dt. 26.11.2021 and 14.02.2022. Even as per the cause of

action in the suit, the script of the 'The Jail' was registered

on 07.03.2018 itself and they came to know about the

promo of "Lockupp reality show" only on 19.02.2022 and

also regarding screening of it on 27.02.2022, but they

approached the Court on 22.02.2022 and they have not

explained the reasons as to why they could not approach the

Court immediately after the knowledge on 19.02.2022. The

said fact was not ascertained by the trial Court.

9. Learned counsel for the respondents contended that

the appellant totally copied their concept and infringed their

copyright and thus, liable for consequences as per Sections

51 and 52 of the Copyright Act. In R.G. Anand Vs. Deluxe

Films4, it was held as under:

"It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but it resembles with the original in a large measure is sufficient to indicate that it is a copied."

AIR 1978 SC 1613

The trial court held that they perused the document placed

by the petitioner and also video clippings regarding trailer of

"Lockupp reality show" and they appears to be similar.

10. Admittedly, the "Lockupp reality show" was also

registered under Copyright Act on 15.11.2021 and the title

was confirmed on 26.11.2021 and 14.02.2022 and thus, the

appellant made out prima facie case. The appellant

contended that public were aware of the release of "Lockupp

reality show" since 01.03.2022 through various news

clippings. Even as per the respondents, they know about

the release of promo on 19.02.2022 and they further stated

that after seeing promo, they contacted the defendants and

requested them not to infringe their copyright as already

they registered the concept with Screen Writers' Association

and also sent the certificate of registration along with

synopsis, but the defendants contended that they have every

right to screen it on 27.02.2022 and thus, they invoked the

jurisdiction of the Court under section 62 of the Copyright

Act.

11. As per Order XXXIX Rule 3 CPC, "The Court shall

in all cases except where it appears the object of granting

injunction would be defeated by delay before granting an

injunction, direct notice of the application for the same to be

given to the opposite party. In case of dispensing the notice,

the Court shall record reasons for its opinion."

12. It is not the case of the respondents that they

have no knowledge of the release of "Lockupp reality show"

till 22.02.2022, they specifically stated that they made some

correspondence, but it was not considered. No doubt, the

concept of 'The Jail' and the concept of "Lockupp reality

show" were registered by both the parties and both of them

spent huge amounts. When it is the case of the respondents

that their concept was copied by the appellant, it is for the

respondents to invoke the appropriate jurisdiction

immediately so as to afford an opportunity of hearing to the

other side before granting injunction. As per the averments,

the concept of 'The Jail' was registered way back in the year

2018 but could not produce the film due to the lockdown

and COVID situation, but the team of "reality show of

Lockupp" is already produced the show and also spent huge

amount on marketing in the month of February, 2022 and

intended to live streaming the show on 27.02.2022 and

thus, the balance of convenience is in their favour. Unless

and until it is established that the concept of both shows is

similar, and in fact, the concept of "Lockupp reality show"

was copied from the story of the concept of 'The Jail', it

cannot be said that it will prejudice the rights of the

respondents.

13. Thus, the ad interim injunction granted by the

trial Court on 23.02.2022 regarding releasing, exhibiting

and publishing the series, is set aside and the Civil

Miscellaneous Appeal is allowed accordingly. No costs.

Miscellaneous petitions, if any, pending shall

stand closed.

_________________________

JUSTICE P.SREE SUDHA

Date: 26.02.2022 rkk/BDR