Calcutta High Court
Mr. Anandji Virji Shah & Ors vs M/S.Nadiadwala Grandson on 29 April, 2010
Author: Patherya
Bench: Patherya
G.A.NO.1381 OF 2010
C.S.NO.109 OF 2010
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISCITION
IN THE MATTER OF :
MR. ANANDJI VIRJI SHAH & ORS.
VS.
M/S.NADIADWALA GRANDSON
ENTERTAINMENT LTD.& ORS.
BEFORE
THE HON'BLE JUSTICE PATHERYA
DATE:-29-04-2010
MR.GOUTAM CHAKRABORTY, SR. ADVOCATE,
MR.S.N.MOOKHERJEE,SR.ADVOCATE,
MR.RATNANKO BANERJEE, MR.D.N.SHARMA,
MR.SAYAN ROYCHOWDHURY, MR.AJOY
CHOWDHURY, ADVOCATES FOR SAREGAMA
INDIA LTD.
MR.ANINDYA MITRA, SR.ADVOCATE,
MR.ABHRAJIT MITRA, MR.JISHNU
CHOWDHURY, MR.SOUMYA ROY CHOWDHURY,
MR.SARVAPRIYO MUKHERJEE, MR.SANJIV
KR.TRIVEDI, ADVOCATES FOR LEGAL HEIRS OF
PRAKASH MEHRA
MR.PRATAP CHATTERJEE, SR. ADVOCATE,
MR.RANJAN BACHAWAT, MR.DEBNATH GHOSH,
ADVOCATES FOR APPLICANT IN G.A.NO.1381 OF
2010
THE COURT:- In a suit for a decree of perpetual
injunction restraining the defendant nos.1 to 7 from
reproducing the musical work in the song "Apni To Jaise
2
Taise..." in any material form including the use of such
musical works in the film "Housefull", this application has
been filed for interim reliefs.
The case of the petitioners is that in 1980, Kalyanji-
Anandji, music composers, had authored a musical
composition. One of such musical composition was later
married to the lyrics authored by Prakash Mehra into the
song "Apni To Jaise Taise...".As the author of such musical
composition the petitioners are the exclusive owner of the
copyright therein and are alone entitled to exploit the same.
During the making of the film "Laawaris", Prakash
Mehra production approached the music composer for a
musical composition and from amongst those already
authored one was chosen to result in the said song. As the
musical work was composed prior to 1981 and was not
commissioned by Prakash Mehra none except the music
composer has an exclusive right therein. Saregama India
Limited (Saregama) has nowhere in its pleadings alleged
assignment of such musical composition in favour of Prakash
Mehra or his production house. In fact, the case made out by
Saregama is that the music was composed for valuable
3
consideration and in the alternate under a contract of service
or apprenticeship. No deed of assignment in favour of
Prakash Mehra or his production house has been produced
as none exists. As the musical score merged into the film the
musical works were restricted only to that film and cannot be
extended to any other film. No right has been claimed in the
lyrics and under section 14 of the Copyright Act, the
petitioners have an exclusive right in the musical works and
for want of assignment the said continues to remain with the
petitioners. Under Section 57 of the Copyright Act 1957, the
petitioners are entitled to exercise special rights against
mutilation and distortion. The registered copyright of
Saregama exists only in the sound recording and as no
contract of employment has been produced in respect of the
musical works the copyright vests in the music composer.
Reliance is placed on 24 PTC 392 = AIR 2002 Calcutta 33,
AIR 1992 Karnataka 1; AIR 1974 Calcutta 257; 40 PTC 78
and AIR 1978 Calcutta 477. As the instant suit has been filed
no order need be passed as per the proviso to Section 60 of
the 1957 Act.
4
Counsel for the heirs of Prakash Mehra submits that
Saregama is a recording company and has a right to record
the songs of "Laawaris". It has a copyright in the sound
recording which has also been registered in May, 2000. In the
agreement of 1981 by virtue of clause 3A(ii) Saregama had an
exclusive right to make or authorize making of any record.
Royalty which has to be paid was only in respect of records.
As it had recording rights, therefore, the sound track was
given which was subsequently registered. By virtue of section
57 mutilation or distortion of the works is not permitted.
Prakash Mehra, the predecessor-in-interest of the
respondents, was the author of the lyrics. Therefore, the
special right of the author to distortion exists in his heirs. The agreement of 11th February, 2010 is between Saregama and Super Cassettes and Nadiadwala Grandson Entertainment Ltd. By virtue of this agreement Saregama has allowed the use of the recreated sound recording in the film "Housefull" to one Nadiadwala Grandson Entertainment Pvt. Ltd. This it could not have done. Section 60 of the Copyright Act, 1957 deals with groundless threat no order of injunction can be granted on this ground in view of the proviso thereto and in 5 view of the suit filed in Mumbai on 19th April, 2010 and Calcutta High Court on 28th April, 2010. Therefore, in view of AIR 2009 Calcutta 231 no ground exists for grant of injunction.
Dealing with the contentions of the petitioner and Prakash Mehra counsel for Saregama submits that as a music composer Kalyanji-Anandji may have an exclusive right but to establish such right, the musical score ought to have been produced so also the dummy words. None of this has been produced, the consideration received has also not been specified. The case for grant of permission to use is not substantiated by any document of permission. No musical notation has been produced and in the Mumbai suit filed the legal heirs and representatives of Prakash Mehra have specifically pleaded that for the purposes of the film "Laawaris" in 1980, Prakash Mehra Productions engaged the Music Director for valuable consideration to compose the musical works. Therefore, Kalyanji-Anandji cannot claim any copyright in the said musical works. As for valuable consideration the duo was engaged to compose, therefore, no right as an author can be exercised. Reliance is placed on the 6 definition of "adaptation" in section 2(a)(i)(v) of the 1957 Act prior to Amendment of 1994 and as existing in 1981. Under sections 17(b) and 17(c) of the 1957 Act also to claim a copyright an agreement to the contrary ought to have been produced, as held in AIR 1977 SC 1443. No such agreement to the contrary has been produced, therefore, the composer has no right far less author's right. AIR 1974 Calcutta 257; AIR 1978 Calcutta 477; AIR 2002 Calcutta 33 and 40 PTC 78 are distinguishable on facts. Reliance is placed on the unreported judgment in Suit (L) 2993 of 2006 (Anandji Virji Shah and Others Vs.Ritesh Sidhwani and Others) wherein the issues were very similar to those in the instant suit initiated by the composers and as no agreement to the contrary could be produced no interim order was passed. Therefore, no order be passed on the application filed by Kalyanji-Anandji.
To claim special right under section 57 mutilation by comparison must be alleged which will be prejudicial to the author's honour and reputation. In the letters dated 30th March, 2010 and 17th April, 2010 no prejudice to the author's honour or reputation has been alleged. In fact, the purchase of cassettes is after the letters of cease and desist and was 7 purchased on 21st April, 2010. Since January, 2010 the petitioners have knowledge about the said songs to be used in the said film "Housefull" and the instant suit and application be not entertained on the ground of delay. The heirs of Kalyanji can claim no authorship though mutilation can be claimed by them under section 57(2) of the 1957 Act. The music was released on 15th March, 2010 is another factor in support of delay.
In the event, the music composers have a copyright no royalty has been claimed since 1980-1981. The verification is also questionable. The agreement of 1981 assigns "all other rights, title and interest", therefore, no restriction be given thereto. Reliance is also placed on AIR 1997 SC 63 and 39 PTC 431. The decision cited in AIR 2009 Calcutta 231 is distinguishable.
Reliance has been placed on clauses 4(a) and (c) so also clauses 8 and 12(C) to show that besides rights in records Saregama also has rights in works included in the producers films and for such purposes royalty was paid under two heads. One in respect of records and the other in respect of all inclusive copyright royalty. From the statements of royalty, 8 it will appear that on account of non-physical royalty syncronization fees has been paid and accepted by the Mehras, therefore, the interim order passed be continued.
Counsel for the Mehras in dealing with the cases cited by counsel for Saregama submits that there is no dispute with the proposition laid down in AIR 1997 Cal 63 as it was a case where assignor had given a licence and the assignment was of the sound track as found by the trial court. Therefore, on a construction of the agreement in AIR 1997 Cal 63 which is similar to the agreement in the instance case, the agreement was one of an assignment of sound track and, therefore, section 14(e) of the 1957 Act will apply. Syncronization as held in AIR 1977 SC 1443 is the visual portion combined with the audible portion. In the letter dated 4th March, 2010, the Mehras have specifically enquired from Saregama the clause of the agreement under which the song in issue has been allowed to be exploited in the film "Housefull" and in its reply of 16th March, 2010 no specific averment will be found in respect thereof. The issues that were raised in AIR 1977 SC 1443 have both been answered in the positive and therefore Prakash Mehra Productions became 9 the first owner of the copyright in the said song. There is no answer to the issue raised in respect of section 57 and 39 PTC 431 is distinguishable as the injunction was granted only in respect of Chapter 13 of the 1957 Act and not on the grounds of groundless threats. Therefore, the orders by which civil remedies are restrained and in view of C.S.No.112 of 2010 filed, the order of injunction passed be vacated. As Saregama had no right to give another producer of "Housefull" or otherwise, the right to re-record the said song and exploit the same in its film or the right to distort, the orders passed be vacated.
Counsel for the music composer in reply submits that an author of any work in law is the holder of the copyright, unless he creates the work as an employee, the employer then will be the owner of the copyright. In the instance case, there is no proof of the contract of service and the Mehras could have only by assignment acquired right in the musical works. The purpose for which the decisions were cited by it have not been distinguished though distinguished on other points. Therefore, the proposition of law cited on behalf of musical composer has been accepted.
10
Having considered the submissions of the parties, the musical works in which the exclusive right has been claimed by the composer, though a creation of the composer, such creation was on commission. This will be evident from the pleadings of both the composer and the Mehras. The composer in paragraph 6 has specifically stated that the musical composition which was married to the lyrics of Prakash Mehra was authored in 1980. In paragraph 5 of the plaint filed by the Mehras in Suit (L) No.1338 of 2010 in the Bombay High Court it has been pleaded that it was in 1980 that the music composer was engaged for valuable consideration. Therefore, there is no dispute with regard to the time when such engagement took place. No independent musical notation or musical score has been produced to evidence that musical composition was independent of the film. Therefore, in the absence of such musical score or notation being produced at this stage there exists no document to evidence that the music composed was independent to any film far less "Laawaris". There is also no agreement to the contrary produced by the music composers as contemplated under sections 17(b) and (c) of the 1957. As 11 the music composed was on commission and the music composers were paid valuable consideration for the same, the composers in their application are not entitled to any interim order at this stage. Another reason for not passing any interim order is that in case the composers were owners of the said musical score royalty would have been claimed or paid. Nowhere has it been pleaded that any royalty was claimed at any point of time. Therefore, no interim order need be passed on this application and directions are given for filing affidavits.
Affidavit-in-opposition be filed within three weeks from date; reply, if any, be filed within two weeks thereafter.
Matter to appear in the list six weeks hence.
All parties concerned are to act on a photostat signed copy of this order on the usual undertakings.
(PATHERYA,J.) sb/ Assistant Registrar(C.R.)