Delhi High Court
Shemaroo Entertainment Ltd. vs Amit Sharma & Ors. on 23 September, 2014
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 23rd September, 2014
+ I.A. No. 13807/2014 in CS(OS) No.1325/2012
SHEMAROO ENTERTAINMENT LTD ..... Plaintiff
Through Mr. Jayant K. Mehta, Mr. Sukant
Vikram, Mr. Yash Vardhan,
Ms. Madhavi Khare, Advs.
versus
AMIT SHARMA & ORS ....Defendants
Through Mr. Kunal Tandon, Ms. Nidhi
Jain, Ms. Kanika Jain, Advs.
for D-1 and D-2.
Mr. Ankur Sanghal, Adv for D-6.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiff has filed a suit for permanent injunction restraining the defendants from using the catch words of the song "Thodi Si Jo Pee Li Hai" (hereinafter referred to as the "suit song") from the film "Namak Halal" (hereinafter referred to as the "feature film") in their film "Department" (hereinafter referred to as the "suit film") without deleting the portion of the song and also from exploiting the audio rights of the suit film containing the above portion, by way of DVD's, MP3, CD's etc. Case of the plaintiff
2. The plaintiff is engaged in the business of acquiring rights and exploiting by diverse means cinematograph films and is also producer of cinematograph films.
CS (OS) No.1325/2012 Page 1 of 83. The plaintiff is the absolute owner of all negative rights and all copyright in the feature film originally produced by Satyandra Pal under the banner of Chaudhary Enterprises and directed by Prakash Mehra. The film was produced in the year 1981/1982 and thereafter vide an Articles of Agreement dated 23rd November, 2000 Chaudhary Enterprises assigned commercial and non-commercial rights including broadcasting rights, video rights, performance rights, internet rights etc. in the feature film to one Dimple video for a period of 99 years.
4. Vide agreement dated 17th September, 2007 the plaintiff acquired from Dimple Video Distributors negative rights of 5 films including the feature film and by virtue thereof, all copyright and intellectual property rights in the feature film vested in the plaintiff.
Case against the defendant as alleged by the plaintiffs.
5. Defendant Nos.1 and 2 are the co-producers and/or line producers of the suit film jointly with the defendant No.3. Defendant No.4 is the director of the suit film and defendant No.5 is the producer of the suit film. The defendant No.5 is the original producer of the feature film. The defendant No.6 is a company to whom defendant No.5 is believed to have granted limited right to make records of the film and the right to publish literary, dramatic and musical work and the sound and television broadcast, public performance and mechanical reproduction as also to make records embodying the sound tracks of the feature film.
6. It is stated that the defendants have sought to usurp the copyright in the song/musical work/lyrics of the suit song by copying CS (OS) No.1325/2012 Page 2 of 8 the same into a song in a yet to be released suit film. It is further stated that by incorporating the catchy part of the suit song, the defendants are seeking to ride upon the suit song for the commercial success of their suit film.
7. It is stated that on or about 20th April, 2012 the plaintiff became aware from market sources that a portion of the lyrics of the original suit song along with striking and catchy tune and subsidiary words from the feature film is being used in the suit film as a part of a song which is being promoted as the title song of the suit film. The film is yet to release, however the promotionals of the suit film are on the suit song using infringing words with the tune. The plaintiff also noticed that the YouTube website contains the trailer of the suit film which features a song which utilizes the lyrics from the original suit song.
8. It is stated that the plaintiff has not granted any rights or license to the defendants to utilize the lyrics of the original suit song. The defendants Nos. 1 to 4 have used several lines from the lyrics of the suit song and incorporated the same in the suit film which is an infringement of plaintiff's copyright in the feature film. Upon noticing the fact that the defendants proposed to incorporate the suit song in the suit film including the lyrics of the original suit song, the plaintiff through legal notice dated 24th April, 2012 called upon the defendants to confirm that the defendants will not use the suit song or part thereof. Vide reply dated 4th May, 2012, the defendant No.3 contended that the defendant No.2 have entered into a Works License Agreement dated 13th April, 2012 with the defendant No.6 CS (OS) No.1325/2012 Page 3 of 8 under which the defendant No.2 were assigned the right to synchronize 2 minutes and 30 seconds of the sound recording of the original suit song with the visuals of the suit film. It is further contended that the said agreement was entered into by the defendant No.2 on the representation of the defendant No.6 that they own copyright in the sound recording of the original suit song. But however, on perusal of the agreement between defendant Nos.5 and 6, the defendant No.6 does not have the rights to grant any right or license in the original suit song or any part thereof and thus, could not have entered into Works License Agreement or could not have granted any right of synchronization.
9. It is stated that the incorporation of the catchy tune with same words, which is the plaintiff's copyright is being used deliberately to attract the general public. It is further stated that even the actors and producers acting in the suit film are acknowledging the suit song to be a remake of the original suit song. The plaintiff has alleged that without having taken a license from the plaintiff none of the defendants No.1 to 4 could have used any portion of the original suit song.
10. It is stated that the standard form agreement executed by the defendant No.6 and the defendant No.5 on 29th September, 1983 in respect of the defendant No.5's films which is for three years and in accordance with the said agreement, the defendant No.6 does not have the right to use the lyrics alone or any part thereof of the original suit song separately and any rights that the defendant No.6 may have been granted are restricted only to the right to make CS (OS) No.1325/2012 Page 4 of 8 records of the film and the right to publish literary, dramatic and musical work and the sound and television broadcast, public performance and mechanical reproduction as also right to make records embodying the sound tracks of the feature film.
11. It is stated that the plaintiff has sought copies of the agreements under which the defendant No.6 claims, but the defendant No.6 failed and neglected to provide such copies apparently to prevent the plaintiff from securing material which would establish that the defendant No.6 does not hold rights that it purports to grant to others. Defendant No.6 has also failed and neglected to send revenue statement to the plaintiff in relation to the feature film although it is contractually bound to pay royalty to the copyright owner, viz. the plaintiff. The defendant No.6 has not granted any rights to the defendant Nos. 1 to 4 to incorporate portions of the original suit song in the suit film, the said defendants have no right whatsoever to utilize the original suit song or its music score, lyrics or any other component in the suit song of the suit film.
12. No written statement has been filed by the defendant No.1 rather an application being I.A. No.13807/2014 has been filed under Order 1 Rule 10 CPC by the defendant No.1 seeking deletion of his name from the array of parties.
13. It is stated in the application that the defendant No.1 along with defendant No.2 and defendant No.3 (who has been deleted from the array of parties vide order dated 19th February, 2013) entered into a production agreement dated 28th March, 2012 for the suit film. Defendant No.2 has further acquired its rights to utilize the CS (OS) No.1325/2012 Page 5 of 8 suit song in the suit film vide a separate Works License Agreement dated 13th April, 2012 from defendant No.6. This agreement is an exclusive one time license for use of 2:30 mins of the suit song in question in the suit film and consideration of Rs. 21,35,992/- has already been paid to the defendant No.6. Defendant No.2 entered into the said agreement on the basis of a representation made and declared by defendant No.6 that defendant No.6 "..... exclusively owns or otherwise controls the copyrights in the literary and musical works" of the suit song from the cinematographic feature film and have licensed the synchronization of the said sound recording under the said Works License Agreement. Defendant No.6 was assigned various rights under the agreement dated 29th September,1983 by defendant No.5 whereby inter alia, defendant No.5 assigned absolutely and beneficially the copyright for making records of all contract works (inclusive of the works in the feature film) which are made available to defendant No.6 under the terms of the agreement and further copyright, performing rights and all other rights, title and interest in and to the literary, dramatic and musical works in the producer's films including all rights of publication, sound and television broadcasting, public performance and mechanical reproduction of the said works (Clause 3A of the agreement dated 29th September, 1983).
14. It is further stated that the suit film was released on schedule in May, 2012 and since then has been broadcasted on television via satellite. With the release of the movie, the dispute qua the defendant No.1 (being the co-producers of the film along with the CS (OS) No.1325/2012 Page 6 of 8 erstwhile defendant No.3) has been decided and no claim remains against the defendant No.1. Hence, the defendant No.1 have no further role to play in the dispute between the plaintiff and therefore, the name of defendant No.1 be deleted from the array of parties.
15. Counsel appearing on behalf of defendant No.1 has stated that even defendant No.3 has also been deleted from the array of the parties by this Court vide order dated 19th February, 2013 and that the said order was passed on the application moved by the plaintiff being I.A. No. 2832/2013 under Order 1 Rule 10 CPC and therefore, the plaintiff ought not to have any objection in the application being filed by the defendant No.1 as his client is of similar footing.
16. Counsel for the plaintiff in his reply has denied the contentions of the defendant No.1 and has stated that by consenting to deletion of defendant No.3, the plaintiff did not give up the cause of action against the defendant No.1 as the plaintiff is Dominitis Litis and has the right to decide as to whom to proceed against. Therefore, the deletion of defendant No.3 did not vest any legal right in the defendant No.1 to seek deletion from the array of parties on the ground inter alia of deletion of defendant No.3. The cause of action against defendant No.1 persists even post the release of the suit film and the issue of ownership of copyright in the suit song is still disputed. Thus, the contention of the defendant No.1 that no dispute is left to be adjudicated lacks merit and deserves to be rejected. Counsel says that in view of certain reasons, the plaintiff did not CS (OS) No.1325/2012 Page 7 of 8 want to proceed the matter against defendant No.3 but no advantage can be derived by the defendant No.1 in this respect.
17. Having heard both the sides, I am of the view of that the application filed by the defendant No.1 for deletion of his name from array of parties is liable to be dismissed as there are specific allegations made in the main suit against the defendant No.2. The consent given by the plaintiff to delete defendant No.3 would not give any benefit to the defendant No.1 as plaintiff wants to proceed with the matter against the applicant. The plaintiff is Dominitis Litis who cannot be forced to withdraw the matter in case there are specific allegations in the plaint as well as prayer sought.
18. The application is accordingly dismissed.
CS (OS) No. 1325/201219. The present suit was filed on 7th May, 2012 and summons were issued to the defendant No.1 by this Court vide order dated 9th May, 2012. However, till date no written statement has been filed by defendant No.1, who is seeking to bypass the regular course of proceedings by raising objections by way of the instant application. The right to file the written statement on behalf of the defendant No.1 is closed.
20. List the matter before Joint Registrar on 16th October, 2014 the date already fixed for further proceedings.
(MANMOHAN SINGH) JUDGE SEPTEMBER 23, 2014 CS (OS) No.1325/2012 Page 8 of 8