This suit has been instituted by SAREGAMA India Limited (Plaintiff) to restrain Balaji Motion Pictures Limited, ALT Digital Media Entertainment Limited and Zee Entertainment Enterprises Limited (Collectively called ‘Defendants’) from using its sound recording and the underlying musical and literary works in the song ‘Var Dhagala Lagli Kal’ from Marathi cinematograph film ‘Bot Lavin Tithe Gudgulya’, in the song ‘Dhagala Lagli’ in their to be released cinematograph film ‘Dream Girl’. The suit was filed along with ex-parte interim relief.
On the request of the counsels of the Defendants hearing was moved to 11th September 2019 to provide time to prepare for the arguments. Court also rejected the request of the Plaintiff to prevent Defendants from playing impugned song on the music promotion channels.
Plaintiff mentioned that it has acquired the rights over the sound recordings and underlying musical and literary works in the songs of the cinematograph film ‘Bot Lavin Tithe Gudgulya’ from the original producer of the said film i.e. M/s Sadichha Chitra vide an agreement dated 12th May 1979 for perpetuity. As per Section 55(2) of the Copyright Act, 1957, Plaintiff is to be presumed as the owner of the said works and hence has the exclusive right inter alia to all related rights thereof to use the said work. Hence, use by the Defendants without the license from the Plaintiff amounts to the infringement of copyright of the Plaintiff. It was also stated that intention of illegally exploiting its copyrighted works is evident as Defendant no. 1 had approached the representative of the Plaintiff on 5th August 2019 to license certain song forming part of the Plaintiff’s repertoire. However, once Plaintiff’s representative informed the terms and conditions, the Defendant No. 1 stopped communicating with the Plaintiff with regard to the same and Defendant No. 3 was paying license fee to the Plaintiff for the use of the same on its TV channels under the orders of this Court in Zee Entertainment Enterprises Limited v Saregama India Limited (CS(COMM) No. 3/2017).
Plaintiff relied on Ram Sampath v Rajesh Roshan (2008 SCC OnLine Bom 370) where it was held that copying part of the song in which another has copyright amounts to infringement.
Defendant no. 3 argued that the owner of this impugned song was Dada Kondke. His legal heir has instituted a suit in the District Court of Pune for declaration and injunction under Section 62 of the Copyright Act and one of the films subjected matter of the said suit was ‘Bot Lavin Tithe Gudgulya’ and vide judgment dated 5th July 2017 it was held that legal heirs of Dada Kondke to be having copyright and exclusive rights of video, dubbing, reproducing and/or redistributing the rights in respect of the films of Dada Kondke including ‘Bot Lavin Tithe Gudgulya’ and restrained the defendant therein from infringing the said copyright. Further it was argued that the agreement dated 12th May 1979 in favour of the Plaintiff has not been executed by Dada Kondke but by M/s Sadichha Chitra and it does not mention the subject film ‘Bot Lavin Tithe Gudgulya’ anywhere and thus the plaintiff could not have acquired any rights with respect to music of the said film under this agreement. Defendant also brought the attention of the Court to the Clause 4 (C) of the agreement where it was evident that it was not for the assignment but for the license of songs. Clause 6 of the agreement limits the term for 25 years from 12th May 1979 and hence it has lapsed in the year 2004. Thus, rights if any acquired by the plaintiff under the said agreement came to an end in the year 2004. Clause 14 and 16 of the agreement are also contrary to the fact that the said agreement was for assignment of copyright.
Defendant also brought the attention of this Court to the judgment of United States District Court in Saregama India Ltd. V Mosley (687 F.Supp.2d 1325(S.D.Fla.2009)) where interpretation of the agreement, as the agreement dated 12th May 1979 was discussed and held that this template agreement is not of assignment.
Defendant also argued that the communications between the Plaintiffs and Defendants is cited out of context as it was with respect to the song ‘Dream Girl’ from the movie ‘Dream Girl’ and not for the impugned song.
Moreover, Defendant relied on Indian Performing Right Society v Sanjay Dalia ((2015) 10 SCC 161)to argue that this Court does not have territorial jurisdiction as it was held in this case that where a corporation is having ordinary residence/principal place of business and cause of action has also arisen at that place, it has to institute a suit at the said place and not at other place.
Plaintiff pointed out in its rejoinder that Defendant no. 3 has accepted the title of the Plaintiff in the subject song and was paying royalty and therefore is estopped from disputing the title of the plaintiff to the subject song. Plaintiff also drew the attention of this Court to various publicity materials of ‘Dream Girl’ which has used title of impugned song to gather attention.
Court while granting injunction in favor of the Plaintiff observed that since Defendant no. 3 has accepted the right and title of the Plaintiff in the subject song, hence at this prima facie stage, the principles of estoppel would apply and said title has to be accepted. Court also observed “I have also heard both the songs and find the impugned song in the forthcoming film of the defendants has the same catch line and is likely to be referred in all music albums and otherwise by the same words, as the original song, with everyone identifying the song in the forthcoming film of the defendants with the original song in which the plaintiff claims copyright. Once it is so, infringement is established.”
Court further opined that defendants never denied infringement of copyright but also never argued that they have right or title to the song copyright wherein is infringed and hence should be restrained.
Court held that “An artist, as the lyricist and music composer or producers or their assignees, are most concerned, besides reaping monitory benefits, in their name and without legal formula of compensating for loss of the same being disclosed, injury from such exclusion in credits, is irreparable. On the contrary, the defendants, even at last minute, can make the requisite change”