Delhi District Court
M/S Gringo Entertainments Through Its ... vs Sh. Dev Inder Singh on 29 February, 2024
-1-
IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURTS, NEW DELHI
CNR NO.: DLND010064562022
CS (COMM.)/669/2022
IN THE MATTER OF:-
M/s Gringo Entertainment LLP
Through Its Partner
Sh. Avneet Singh Mac
Having its office at :
Shop No.98, Bhagat Singh Market
New Delhi - 110001
...PLAINTIFF
VERSUS
Sh. Dev Inder Singh
Display name : Music Mixer G
R/o : # 21, Bhandal Dona
Kapurthala - 144601
Punjab
...DEFENDANT
Date of Institution : 30-07-2022
Date of reserving judgement : 20-02-2024
Date of pronouncing judgement : 29-02-2024
JUDGMENT
1. Vide this judgment, I shall decide the present suit for permanent injunction, rendition of accounts and damages, filed by plaintiff against the defendant.
BRIEF FACTS OF THE CASE:
2. The case of the plaintiff, as set out in the plaint, is that the plaintiff is a registered Limited Liability Partnership (L.L.P.) Firm and is a renowned brand in the Music Industry that promotes and publishes the heartfelt Music all around the world. Further, it is claimed that from CS (Comm.) No.:669/2023 Page 1 of 16 -2- coordinating the production, manufacturing, distribution, marketing to the enforcement of copyright for Music recordings, the Plaintiff is an expert in managing each and everything. Further, the policy of the Plaintiff is to produce best music in a most transparent manner. The Transparent recording contract of the Plaintiff with its artists make the new talents sure to confirm all the contract details before signing any contract. It is further averred that due to transparent and flexible contract policy of the Plaintiff, makes them unique because they believe in long-term and good relation with their clients. The Plaintiff is having a substantial goodwill worldwide for supplying quality products and fair dealing.
3. It is further case of the plaintiff that during the course of its business, the Plaintiff signs various artists. Sh. Karanbir Singh Aka Kahlon is a signed artist of the Plaintiff, vide agreement dated 20-10-2020. Being the signed artist, Sh. Karambir Singh Kahlon has written and gave voice to the song titled "Gucci Di Sole", which is composed by Lakshay Wassan Aka MXRCI. Vide Agreement dated 22-06-2022, said Sh. Karanbir Singh Aka Kahlon has assigned the entire copyright and literary works, musical works and performances under Sections 14, 19, 38, 38A and 39 of the Copyright Act for the territory of entire world and for the period in perpetuity. Further, after execution of agreement dated 22-06-2022, the song "Gucci Di Sole" is being exclusively owned by the Plaintiff, who can exploit the literary work and performance of the said song in any manner.
CS (Comm.) No.:669/2023 Page 2 of 16 -3-4. It is also the case of the plaintiff that it has announced in public about the audio and video release of the said song "Gucci Di Sole" on 06-07-2022 and have promoted the song on various platforms. It is claimed that on 06-07-2022, the Plaintiff has released the said song on its renowned channel Gringo Entertainments at Youtube Platform. The Plaintiff has also initiated the process of registration of Copyright of the said song in its favour. Hence, it s claimed that the Plaintiff is the exclusive owner, having all rights for exploitation of all rights on all formats.
5. It is further averred that the aforesaid song of the Plaintiff is getting good response. The work of the Plaintiff firm is a creative work in the field of music. The creation of good music and publishing the same to its viewers is a tedious work, which involves a lot of money and efforts. Like every industry, money is essential and vital for the music industry also but apart from money, in music industry, the recognition is equally important. Recognition not only gives motivation to the artists and brand but also can be used as a tool for getting prospective business. The Plaintiff provides recognition to new artists by giving them opportunity to work, by providing platform, where they can discover better avenues for success. The Plaintiff also works hard for keeping the fair image of Plaintiff's brand, thus, is entitled to receive the highest degree of protection.
6. The plaintiff has, thus, claimed that it has the exclusive right to use, publish, reproduce or otherwise deal with the CS (Comm.) No.:669/2023 Page 3 of 16 -4- song "Gucci di Sole" and its artistic work and nobody can be permitted to use the same or identical with or deceptively similar song of the Plaintiff or for that matter, for any specification of services and business without the leave and license of the Plaintiff.
7. It is alleged that as per information available online, the Plaintiff came to know that the Defendant is having a Youtube Channel namely "Music Mixer G" through which the Defendant uploaded certain music work. Further, it is alleged that Defendant due to malafide intention, has stolen/ plagiarized the contents of the song "Gucci di Sole"
and made a duplicate song with the same title "Gucci Di Sol" and released the same claiming that the song belongs to him. The Defendant has stolen and copied the lyrics and composition of the song namely "Gucci Di Sole", which is written and sung by the Plaintiff's signed artist Kahlon and composed by Lakshay Wassan Aka MXRCI, who have already assigned their rights in favour of the Plaintiff firm, vide Agreement dated 22-06-2022.
8. It is stated that when the Plaintiff came to know about such misconduct on the part of the Defendant that he is exploiting the hard earned reputation, goodwill associated with the Plaintiff's product and the efforts and money put in by the Plaintiff for creating original track, the Plaintiff requested the YouTube for striking off the said duplicate song by way of email communication dated 13.07.2022 made by the Plaintiff to YouTube. That on the basis of the said communication, YouTube has struck off the song and CS (Comm.) No.:669/2023 Page 4 of 16 -5- sought reply from the Defendant. In response to the said complaint, the Defendant has claimed the song to be his song and also claimed that the Plaintiff has demanded money from him. The Defendant further claimed that he has made complaint in this regard, whereas, there is no communication held in between the Plaintiff and the Defendant. It is further stated that the actions of the Defendant are dishonest and fraudulent. The Plaintiff came to know about the counter filed by the Defendant through the email sent by the YouTube on 16.07.2022. The mail dated 16.07.2022 sent by YouTube to Plaintiff containing the counter, has also been placed on record.
9. It is further averred that the song "Gucci Di Sole"
is undoubtedly a hit song but that does not give right to the Defendant for making duplicate of the said song.
10. It is further alleged that the Defendant, after stealing the original track, made duplicate thereof and released it on his channel for exploiting the song for his financial purpose. The impugned act of the defendant induces gullible music lovers and the members of the trade to falsely believe that the song is created by the defendant. By doing so, the Defendant has not only attempted to exploit the good music and earn unfair gain but has also tried to cause loss to the Plaintiff. The adoption and use of the said song by the defendant clearly shows dishonesty and malafide attempt to earn undue gains.
CS (Comm.) No.:669/2023 Page 5 of 16 -6-11. Hence, the plaintiff has filed the present suit praying therein, inter alia, that a decree be passed in favour of plaintiff and against the defendant for permanent injunction restraining the Defendant, his officers, agents, servants, representatives etc. from using/exploiting the infringement of copyright by using the plagiarized version of the Plaintiff's song titled as "Gucci di Sole" in any manner on any platform whatsoever and from doing any other thing as may constitute passing off and acts of unfair competition.
12. It may be noted that in view of judgement in case titled as 'Vishal Pipes Limited v. Bhavya Pipe Industry' FAO-IPD No.1/2022 & CM APPLs No. 12-14/2022 dated 03-6-2022, the plaintiff had moved an application under Order VI Rule 14 read with S. 151 CPC for amendment of plaint, which was allowed, vide order dated 16-8-2023, passed by Ld. Predecessor of this Court, whereafter summons of the suit and notice of accompanying applications were issued to the defendant. The defendant was duly served by way of e-mail on 06.12.2022 as per report of Process Serving Agency. However, despite being served with the summons of the suit, the defendant neither put his appearance nor filed any written statement within maximum permissible period of 120 days and hence, defence of the defendant was struck off, vide order dated 12.4.2023, passed by Ld. Predecessor of this Court.
CS (Comm.) No.:669/2023 Page 6 of 16 -7-13. In support of its case, the plaintiff has examined only one witness i.e. its Account Executive namely Sh. Tarandeep Singh as PW1. He led examination-in-chief by way of affidavit [Ex.PW1/A] and deposed in terms of the facts of the plaint and relied on the following documents:-
Sr. Document/Particulars Exhibit(s) no
1. The authority letter dated Ex.PW-1/1 10.10.2023
2. Copy of LLP Registration Ex. PW1/2
3. Copy of the Agreement dated Ex. PW1/3 20.10.2020 executed between plaintiff and Sh. Karanbir Singh Aka Kahlon (signed artist) who assigned entire copy right and literary works, music works and performance in favour of plaintiff
4. Copy of Agreement dated Ex. PW1/4 22.6.2022 executed between the plaintiff and Lakshay Wassan Aka MXRCI who composed the song 'Gucci Di Sole'
5. The printout of posts published at Ex. PW1/5 Instagram, whereby it is shown that plaintiff has announced in public about the audio and video release and have promoted the song on various platform
6. E-mail communication dated Ex. PW1/6 13.7.2022, made by the plaintiff to YouTubve for striking off the impugned song
7. E-mail dated 16.7.2022 sent by Ex.PW1/7 YouTube to the plaintiff containing the counter of the defendant
8. Graph of the YouTube earning Ex.PW1/8 CS (Comm.) No.:669/2023 Page 7 of 16 -8-
14. In view of statement of the Counsel of plaintiff made on 17.10.2023, PE was closed, vide order dated 17.10.2023.
15. After the closure of PE, final arguments were heard.
16. It may be noted that on 24.1.2024, counsel of defendant made statement to give up relief/ prayer clause nos. B and C of the amended plaint with respect to reliefs of rendition of account and damages respectively. Resultantly, the said prayers were permitted to be given up, vide order dated 24.01.2024. Thus, the present suit only survives with respect to prayer of permanent injunction.
17. I have already heard Ld. Counsel of the plaintiff. I have also gone through the material available on record including the plaint and the evidence, oral as well as documentary, led from the side of the plaintiff.
PERMANENT INJUNCTION:
18. Ld. Counsel of plaintiff has argued that the entire testimony of PW-1 has remained unchallenged and un-rebutted from the side of defendant and therefore, the plaintiff is entitled to the decree, as prayed for. In support of his submission, Counsel also relied upon the documents [Ex.PW1/1 to Ex.PW1/8] proved by PW1 during the course of trial.
ANALYSIS & CONCLUSION:
19. I have considered the submissions made on behalf of the plaintiff. The averments made in the plaint are duly supported by the documents proved during the course of CS (Comm.) No.:669/2023 Page 8 of 16 -9- evidence. PW-1 has deposed on the identical lines of averments made in the plaint and has proved various documents, as already referred to above.
20. The plaintiff has filed agreement titled as 'Artist Services Agreement Basic Terms' dated 20.10.2020 executed between the plaintiff and Sh. Karanbir Singh Aka Kahlon in support of its contention that Sh. Karambir Singh Aka Kahlon is their signed artist who wrote and gave vocal to the song titled "Gucci Di Sole", which is composed by Lakshay Wassan Aka MXRCI and said Sh. Karanbir Singh Aka Kahlon has assigned the entire copyright and literary works, musical works and performances under Sections 14, 19, 38, 38A and 39 of the Copyright Act for the territory of entire world and for the period in perpetuity. Further, after execution of agreement dated 22-06-2022 between the plaintiff and Lakshay Wassan Aka MXRCI i.e. the music composer, the song "Gucci Di Sole" is being exclusively owned by the Plaintiff, who can exploit the literary work and performance of the said song in any manner.
21. It is apposite here to reproduce the relevant extracts of the agreement dated 20.10.2020 executed between the plaintiff and Sh. Karanbir Singh Aka Kahlon, which has been duly proved by PW1 as Ex.PW1/3, as under :-
"ARTICLE 10. INTELLECTUAL PROPERTY RIGHTS 10.1 xxx 10.2 The Artist hereby unconditionally and irrevocably assigns all rights including but not limited to Intellectual Property Rights and copyright in the works resulting from CS (Comm.) No.:669/2023 Page 9 of 16 -10- the Services rendered by the Artist ("Works") exclusively in favour of GEL for the entire Territory and in perpetuity. Such assignment shall be applicable for all the modes, media and formats of exploitation in respect of "Works"
including the Modes, Media and Formats mentioned in Annexure-I and Artist hereby expressly acknowledges the adequacy of the Consideration towards the assignment of the rights for exploitation of the Works on all the Modes, Media and Formats of exploitation. The Artist hereby acknowledges and undertakes that the assignment of copyright in the Works as granted herein is not and will not be contrary to the terms and conditions of the rights already assigned to a copyright soiety in which the Artist is a member. GEL shall be the owner of the Works and shall have the sole and exclusive right to exercise all rights comprised copyright in the Works in accordance with Section 14(a) to 14 (e) the Copyright Act, 1957 as amended from time to time and/ or any other equivalent provisions thereof.
10.3. The Artist further acknowledges that GEL shall be the sole and exclusive owner of Intellectual Property Rights, derivative rights and/ or adaptation rights in the Works and the author of the recording. GEL and/ or its assignees shall have the absolute power and authority to use and exploit the Works, the recordings and / or the Shows embodying such Services or other related work, created by the Artist for commercial and/ or non- commercial purposes, through all possible modes, media and formats, whether presently existing or when so known or developed, and the Artist shall not have any claim of any nature whatsoever in respect of the same.
(emphasis provided)"
22. The plaintiff has also placed on record copy of agreement dated 22.06.2022 (Ex.PW1/4) executed between the plaintiff and Lakshay Wassan AKA MXRCI, on record. According to the case of the plaintiff, Lakshay Wassan AKA MXRCI has composed music for the said song. It is also apposite to reproduce the relevant extract of the agreement dated 22.06.2022 as under :-
"4. ASSIGNMENT :
Music Director further acknowledges that the sound recordings included in the Deliverables have been made CS (Comm.) No.:669/2023 Page 10 of 16 -11- on behalf of the Producer for inclusion in the Song and form an inseparable part of the Song, and that Producer is the author and first owner of copyright therein: 4.1 The Music Director agrees and acknowledges that the Deliverables and Works resulting from services rendered by the Music Director shall at all times constitute and shall be deemed to constitute works- made- for-hire /commissioned works developed at the instance of the Producer in accordance with the Copyright Act, 1957 under a 'contract for service' and the Producer shall be the first and exclusive owner of all rights including but not limited to intellectual property rights and copyright in all the Deliverables for all purposes, for the entire Territory and in perpetuity. The Producer as the first and exclusive owner, shall have the sole and exclusive right to exercise all rights in the Deliverables including Works under Section 14 of the Copyright Act, 1957, as amended, or any other equivalent provision thereof;
4.2 Notwithstanding the above, the Music Director hereby further irrevocably and exclusively assigns the entire copyright in the Deliverables and Works exclusively in favour of Producer for the entire Term extending to the entire Territory for exploitation through all modes and mediums whether now known or hereinafter developed or invented including the entire copyright in any residual rights remaining in the Deliverables created at the instance of and under commission from the Producer by the Music Director. In jurisdictions where copyright assignment is not recognised by the applicable national law, Producer shall be deemed to be the exclusive licensee of all rights assigned herein. Pursuant to the assignment the Producer shall have all rights to do or authorize doing of all acts, by virtue of being the owner of copyright in the assigned Works, as may be permitted under the Indian Copyright Act, 1957 (amended from time to time). 4.3 Accordingly, Producer being owner of the entire copyright in the Deliverables, Works and Songs shall have all rights including but not limited to the sole and exclusive rights to do or authorise the doing of any of the following acts in respect of the said Deliverables Works and Songs or a substantial part thereof, namely:
(a) to reproduce the Deliverables or Sound Recordings/Audio Visual Recordings/ or any other format embodying the Deliverables and the storing of the Deliverables in any medium by electronic means;
(b) to issue copies of the Deliverables, Works and Songs to the public, in all or any formats;CS (Comm.) No.:669/2023 Page 11 of 16 -12-
(c) to perform the Deliverables, Works and Songs in public or communicate them to the public in any medium by any means or technology;
(d) to make any Cinematograph Film or Sound Recording in any format in respect of or including the Deliverables, Works and Songs;
(e) to make any copy of any Cinematograph Film made in respect of or including the said Deliverables, Works and Songs in any format including but not limited to a photograph of any image forming part thereof;
(f) to sell or give on hire or offer for sale or hire any copy of the said Songs or any Cinematograph Film or Sound Recording made in respect of or including the Deliverables, Works and Songs in any format regardless of whether such copy has been sold or given on hire on earlier occasions;
(g) to communicate the Deliverables, Works and Songs to the public in any format by broadcast by means of television or radio or other broadcasting medium including any means of simultaneous communication existing or future and whether the Deliverables, Works and Songs are communicated to the public live or as recorded in any other format or medium including but not limited to Sound Recordings and Cinematograph Film by broadcast of the said format or medium;
(h) to communicate the Deliverables, Works and Songs to the public or make them available to the public in any format in any medium by any technology whether simultaneous or non-
simultaneous, including but not limited to the Internet or any form of telephony, or by any other means of display or diffusion;
(i) to exploit the Deliverables, Works and Songs directly or indirectly by any means including but not limited to the doing of any of the acts specified hereinabove; or
(j) to make any translation or adaptation of the Deliverables, Works and/Songs or to exploit the said translation or adaptation by any means including but not limited to the doing of any of the acts specified hereinabove.
4.4 The parties further agree that this assignment shall remain valid for all rights and no right shall lapse back to Music Director during the Term for any reason whatsoever including but not limited to failure to exercise CS (Comm.) No.:669/2023 Page 12 of 16 -13- any particular right notwithstanding the provisions of Section 19(4) of the Copyright Act or any other law. Copyright in all the Deliverables/Songs shall vest in Producer in terms of this clause throughout the Territory and during the Term.
4.5 The parties intend that in the mutual interest of the parties for more effective exploitation of the Works/Song, the means and modes of exploitation by Producer shall be given the widest possible range. The exclusive rights assigned to Producer under this Agreement shall extend to and include, but are not limited to, the following modes and mediums:
To reproduce the work in any material form including the storing of it in any medium by electronic means; To make any other sound recordings or Mobile and Digital Content embodying it either alone or together with any other work; to issue copies of the work to the public; to sell or give on hire, or offer for sale or hire, any copy of the sound recording or such Mobile and Digital Content regardless of whether such copy has been sold or given on hire on earlier occasions; to perform the work in public or communicate it to the public; to broadcast, to make any cinematograph film or sound recording in respect of the work; to synchronize the works in any form; to make or authorize the making of any translation and any adaptation or version (s) of the work or Mobile and Digital Content in relation to the work, and to do in relation to a translation or an adaptation of the work or version (s) of the work or Mobile and Digital Content, and to broadcast, communicate and/or transmit including through internet broadband or through any other medium or device now known or hereafter invented. 4.6 The Producer shall be free to synchronize the Song/Sound Recordings and/or the Works/Deliverables with any feature Film being produced or co- produced by the Producer or with any other feature Film whose music rights are controlled by the Producers for commercial exploitation thereof and use the sound recordings and/or Works as part of any other album/film soundtrack. 4.7 The Music Director hereby give his No- Objection Certificate in favour of the Producer or the Producer's assigns and undertakes to take necessary steps including executing any other document that may be necessary for the Producer or his assigns in obtaining and enforcing in their own name a copyright registration with respect to the Deliverables, Works and Songs."
23. As per document i.e. Ex.PW1/5, it is shown that the said CS (Comm.) No.:669/2023 Page 13 of 16 -14- th song was released on 6 July, in public domain. Further, copy of email dated 31.07.2022 written by plaintiff to YouTube requesting them to strike off the impugned song, as also e-mail dated 16.7.2022 written by YouTube to plaintiff containing counter notification of the defendant, have also been placed on record and proved by PW as Ex.PW-1/6 and Ex.PW-1/7 respectively.
24. As already noted above, the defendant despite being served with the summons of the suit by way of e-mail on 06.12.2022, chose not to appear nor he filed written statement contesting the suit. Therefore, the entire testimony of PW-1 which is duly supported by documents on record, has gone unrebutted, uncontroverted and unchallenged and thus, the case of the plaintiff stood proved against the defendant on the basis of preponderance of probability.
25. Therefore, in the totality of the facts and circumstances of the case, the Court is of the view that the plaintiff has succeeded in proving that plaintiff has exclusive copy right in the song "Gucci Di Sole" and no other person is allowed to use the same without leave and licence of the plaintiff. It is duly established on record that the defendant has illegally copied the lyrics and composition of the said song and uploaded it on YouTube platform thereby infringing upon the copy right vested with the plaintiff. Therefore, Court is of the view that the copy right of plaintiff in the song 'Gucci Di Sole' is required to be protected.
26. Thus, the Court is of the opinion that the plaintiff is CS (Comm.) No.:669/2023 Page 14 of 16 -15- entitled to permanent injunction restraining the defendant his officers, agents, servants, representatives etc. from using/exploiting the infringement of copyright by using the plagiarized version of the Plaintiff's song titled as "Gucci di Sole" in any manner on any platform whatsoever and from doing any other thing as may constitute passing off under the law.
RELIEF:
27. In the light of the aforesaid discussion, the Court is of the view that the plaintiff has been able to prove its case on the basis of preponderance of probability. Thus, the suit is decreed in favour of the plaintiff and against the defendant and the following relief is granted:-
(i) Decree of permanent injunction is granted in favour of plaintiff and against the defendant and consequently, the defendant, his officers, agents, servants, representatives etc. are hereby restrained from using/exploiting the infringement of copyright by using the plagiarized version of the Plaintiff's song titled as "Gucci di Sole" in any manner on any platform whatsoever and from doing any other thing as may constitute passing off under the law; and
(ii) Cost of the suit is also awarded in favour of the plaintiff.
28. Decree sheet be prepared accordingly.
CS (Comm.) No.:669/2023 Page 15 of 16 -16-29. File be consigned to Record Room, after due compliance.
Digitally signedAnnounced in the open court VIDYA by VIDYA PRAKASH on 29th Day of February, 2024. PRAKASH Date: 2024.02.29 17:08:22 +0530 (VIDYA PRAKASH) DISTRICT JUDGE (COMMERCIAL COURT)-02 PATIALA HOUSE COURTS, NEW DELHI CS (Comm.) No.:669/2023 Page 16 of 16