Bombay High Court
Zee Telefilm Limited vs Aalia Productions And Others on 24 November, 1999
Equivalent citations: 2000(2)BOMCR251
Author: R. M. Lodha
Bench: R. M. Lodha
ORDER R. M. Lodha, J.
1. By this action initiated by the plaintiffs it is prayed that the plaintiffs be declared the assignees and owners of all copyrights in the programmes/tele serial "INDIA'S MOST WANTED" comprising episodes 1 to 65 already produced and also the further episodes 66 to 104 and that all such copyrights vest in the plaintiffs to the exclusion of any one else in respect of all episodes of the said programme which have been produced and which are to be produced in the future. In the alternative to the said prayer, the plaintiffs have prayed that in respect of episodes 66 to 104 of the said programme it be declared that all copyright therein vest in the plaintiffs as assignees/owners thereof immediately upon the said episodes coming into existence and that assignment agreement Exhibit 'B' read with the addendum Exhibit "C" between the plaintiffs and the defendants assigning in favour of plaintiffs all rights in respect of the programme "INDIA'S MOST WANTED", inter alia comprising episodes 66 to 104 is valid and subsisting and that the defendants are bound to perform the said agreement specifically in favour of the plaintiffs by completing the balance production of delivering to the plaintiffs episodes No. 66 to 104 forming part of the above programme. The plaintiffs have prayed by a decree in the sum of Rs. 15 crores as per particulars of claim and injunction restraining the defendants from in any manner directly or indirectly (i) granting or transferring any rights is respect of the said programme comprising episodes 1 to 104 to any one else, (ii) using the title "IMW" on signature tune or music or structure or format of the said programme in any other programme whatsoever; (iii) reproducing or publishing or telecasting the said programme or any of the episodes of the said programme "INDIA'S MOST WANTED" either in the same name/concept and/ or any other name/concept and or those which all be produced hereafter and/ or from publishing/ telecasting the same in any manner on any TV channel or otherwise howsoever so as to infringe the plaintiffs' copyright therein and/or plaintiffs rights under the said assignment agreement and further restraining the defendants in any manner assigning or licensing or disposing of or parting with or transferring or delivering or entering into any arrangement or agreement or acting upon any arrangement or agreement, if any entered into, in respect of the said programme known as "INDIA'S MOST WANTED" or any other similar programme/concept so as to constitute any infringements on the rights assigned in favour of the plaintiffs and/or the plaintiffs' rights under the said agreement with other ancillary reliefs.
2. By way of the notice of motion taken out by the plaintiffs, pending the hearing and final disposal of the suit, the plaintiffs have prayed for appointment of receiver of further episodes i.e. 66 to 104 of the said programme "INDIA'S MOST WANTED" as and when produced by the defendants with all powers under Order 40, Rule 1 of the Code of Civil Procedure to take physical possession thereof and to hand over the same to the plaintiffs and restraining the defendants from in any manner telecasting any of the episodes "INDIA'S MOST WANTED" already produced and/or those which would be produced hereafter in the future (i.e. episodes 1 to 104) and/or publishing/ telecasting the same in any manner on any TV channel or otherwise howsoever so as to infringe the plaintiffs' copyright therein and/or the plaintiffs' rights under the said assignment agreement without the express written per-
mission or licence of the plaintiffs and also restraining the defendant from in any manner assigning or transferring and/or disposing off or parting with or transferring or delivering or entering or acting upon any arrangement or acting upon any arrangement or agreement, if entered into, in respect of the programme "INDIA'S MOST WANTED" or any other similar programme concept so as to constitute an infringement or the rights assigned in favour for the plaintiffs and/or the plaintiffs rights assigned under the said agreement and further restraining the defendants from in any manner directly or indirectly granting or transferring any rights in respect of the said programme comprising episodes 1 to 104 to any one else, sing the title "IMW" on signature, tune, or music or structure or format of the said programme in any other programme whatsoever, reproducing or publishing or telecasting the said programme or any of the episodes of the said programme "INDIA'S MOST WANTED" either in the same name/concept or any other name/concept and or those which shall be produced hereafter and/or from publishing/telecasting the same in any manner on any TV channel or otherwise so as to infringe plaintiffs copyright therein and/or the plaintiffs rights under the said agreement.
3. In the assignment agreement dated 14-5-1998 between the plaintiffs and defendants it is recorded that the defendant is in business of producing feature films/tele films/short films/T.V. Audio/Chat shows/Quiz/tele serials etc. and has expertise to match, shape and emerge to pre-decided theme or story line converted to a script/screenplay as per specifications and currently the defendant is intending to produce the title and specifications mentioned in Schedule I and II attached to the agreement. The production to be so made as per Schedule I and II has been described in the assignment agreement as 'Programme'. It is the case of the plaintiffs that the title of the said programme was given as "INDIA'S MOST WANTED" which was to be produced by defendant and the consideration amount payable was Rs. 2,50,000/- per episodes. The number of episodes was fixed at 13 with liberty to the plaintiffs to change the number of episodes at their sole discretion. The plaintiffs have averred that in terms of the said assignment agreement dated 14-5-98, the defendants duly and validly assigned the copyright in respect of the said programme in favour of the plaintiffs and that the plaintiffs have became sole and absolute owners of the copyright in the said programme. The agreement dated 14-5-98 has been annexed as Exhibit 'A' with the plaint. As regards further episodes, the case set out by the plaintiffs is that the defendants sought a revised budget for further episodes and after discussion it was mutually agreed between the parties to have 104 episodes in the aggregate. Accordingly, an assignment agreement was executed on 28-8-98 which is marked as Exhibit "B" to the plaint. Further case of the plaintiffs is that all the episodes 14 to 104 forming part of the said programme were duly assigned to and came to vest in the plaintiffs and they have become owners of the copyright and all rights therein. The defendants produced additional episodes upto and inclusive of 65 episodes under the said agreement and the consideration amount was paid at the rate of Rs. 3,25,000/ - per episode. The plaintiffs have averred that vide letter/addendum dated 28-8-98 it was mutually agreed between the parties that the consideration per episode from episode No. 66 onwards for the balance episodes could be increased as to be mutually decided but upto a maximum of 10%. It is plaintiffs case that the defendants from time to time despatched to the plaintiffs 65 episodes of the programme and all the 65 episodes of the said programme have been telecast by the plaintiffs on Zee TV channel. The said programme acquired a distinction, came to be identified by the public with the plaintiffs as the plaintiffs programme and due to plaintiffs reputation for quality of their products and services, the marketability of the said programme has significantly enhanced. The plaintiffs spent large sums of money and developed a substantial goodwill. According to the plaintiffs, the defendants were bound to produce the balance number of episodes 66 to 104 of the said programme, but upon completion of 65th episode, the defendants raised false and artificial dispute by wrongly alleging that plaintiffs were in the process of introducing another similar programme which was totally untrue and the defendants wrongly took up the stand that the assignment agreement was expiring after completion of episode No. 65; the defendants complained in letter dated 16-6-99 that consideration was to be increased by 10% and that from the 66th episode the new budget has not been mutually agreed upon and the defendants wrongly took up the stand that there was no obligation on their part under the agreement to the plaintiffs after 65 episodes. The plaintiffs case is that the defendats wrongly stopped supplying to the plaintiffs episodes of the said programme after 65 episodes though plaintiffs have at all times been ready and willing to perform their part of the contract and were always ready and willing to make payment including increased payment in terms of assignment agreement read with addendum. In the background of these facts, the plaintiff has prayed for the aforesaid reliefs in the suit and interim reliefs by way of notice of motion.
4. The defendants are contesting the notice of motion and have filed affidavit in reply through defendant No. 2. The defendants in their affidavit in reply have set up the defence that specific performance of the agreement and/or negative covenants sought to be enforced by the plaintiffs cannot be granted as the said agreement and addendum thereto both dated 28-8-98 annexed to the plaint are void and unenforceable being in restraint of trade; the agreement is one sided and unconscientious; the agreement is in the nature of personal service agreement dependent upon volition of parties and cannot be specifically enforced; the agreement is totally vague and uncertain: the defendants have assigned to the plaintiffs copyright in respect of the episodes already produced and delivered to the plaintiffs and for whcih the plaintiffs have paid the defendants and defendants cannot be compelled to produce further episodes for the plaintiffs. The defendants have also stated that the plaintiffs have not come to the Court with clean hands and themselves were not ready and willing to perform their part of the contract in as much as they engaged the services of some third person for continuing production of the serial "INDIA'S MOST WANTED" and, therefore, notice of motion deserves to be dismissed.
5. I have given thoughtful consideration to rival contentions. The first assignment agreement was executed between the parties on 14-5-98 whereunder the plaintiffs claim that the defendants assigned copyright, negative rights, etc., of the programme titled "INDIA'S MOST WANTED" having 13 episodes- Though the plaintiffs have annexed the copy of the said agreement dated 14-5-98, Schedule I and II referred to in the said agreement have not been annexed. However, since the present dispute is not in respect of the agreement dated 14-5-98 and, therefore, nothing further is required to be stated in respect of the said agreement. The present suit relates to the agreement dated 28-8-98 whereunder the plaintiffs claim copyrights, negative rights, etc. in respect of the programme specified in that agreement and its specific performance. The relevant parts of the said assignment agreement dated 28-8-98 reads thus:-
"ARTICLES OF AGREEMENT made at Mumbai this 28th day of August, 1998, BETWEEN M/s. AALIA PRODUCTIONS, having its office at 2, Masjid Kasturba Gandhi Marg, New Delhi 110001, hereinafter referred to as "PRODUCER" which terra unless repugnant to the context or meaning thereof shall include its heirs, executors, administrators and assigns on the other part AND M/s. ZEE TELE FILMS LIMITED, having their office at 135, Continental Building, Dr. Annie Besant Road, Worli, Mumbai 18, hereinafter referred to as "OWNER" which term unless repugnant to the context or meaning thereof shall include their successors and assigns, of the other part.
The PRODUCER is in the business of producing feature films/tele films/ short films/TV audio/chat shows/Quiz/ tele serials, etc, and has necessary expertise to produce the same on audio visual medium to faithfully match, shape and emerge to pre-decided these and/or literary story line converted to a script/screenplay, as per specifications and currently the PRODUCER is producing/proposes to produce such above mentioned production, the titles and specifications of which are as mentioned in Schedule 1 & II attached hereto hereinafter referred to as "PROGRAMME" which term unless repugnant to the context thereof shall mean and be deemed to include feature films/short films/ tele films/tele serials/documentaries/chat shows/quiz etc. finally titled under the name/s as given in the annexed Schedule I and as per concept/synopsis/story/script submitted to the "OWNER" by the PRODUCER as given in the annexed Schedule II and with or without any changes, additions, alterations, cuts or substitution occurring inter alia in concept, story, dialogues, commentary etc. (as applicable) and/or in any format. If more than one, they would be described as Programme I, Programme 2 and so on: all such programmes shall constitute the "PROGRAMME".
Whereas the OWNER is in the business of acquiring rights of copy right, negative rights, perpetual rights for exploiting feature films, short films, documentary films, tele serials, and audio visual entertainment programmes of all types for commercial exhibition, transmission, broadcasting and distribution in India and overseas throughout the entire world, through all media, by all means and technology now in existence or in future developed including the commercial exploitation of audio, music, performance, sons and merchandising, etc. AND WHEREAS the PRODUCER owns the exclusive, unqualified and unrestricted rights of copyright of the programme and all its treated elements (visual and audio) performance rights of created musical works merchandising etc., and required authority to use such material owned by others, as part of the PROGRAMME as its PRODUCER/COPYRIGHT HOLDER. The PRODUCER has approached the OWNER with a proposal of each PROGRAMME which he is producing and/or compiling and is desirous of entering into an agreement to transfer the ownership rights of copyright, negative rights, music performance rights of music created for and of the PROGRAMME (when produced) to the OWNER who is desirous for acquiring the complete perpetual right of the same PROGRAMME when ready and all it's elements as above or exploitation by the OWNER in various ways as stated above.
NOW THEREFORE IT IS AGREED BETWEEN BOTH PARTIES AS FOLLOWS :
1. The PRODUCER represents and warrants to the OWNER :
a) That he is producing and/or proposes to produce the PROGRAMME strictly in accordance with concept/script/synopsis, theme, story, library material, in the given medium, delivery date, production credits, etc. annexed hereto (Schedule I & 11).
3. The PRODUCER declares and affirms that he shall not grant or in any way transfer any rights of the said programme to any other person, party, company or organisation.
6 By virtue of these rights of the PROGRAMME which the PRODUCER claims to hold as per the aforesaid presentations and declarations and believing the same to be true, the OWNER hereby accepts the ownership of copy right of the complete unecumbered ownership of rights of copy rights and all other rights in the PROGRAMME (when produced). Similarly the copy rights for the audio, music, songs, commentary, still photographs, visuals, idea/s characters, and the performing rights in any musical work in the PROGRAMME shall also vest exclusively with the OWNER at all times. This would not include library material not owned by the PRODUCER however the PRODUCER shall have the rights to use the library material as part of the PROGRAMME in context. On execution of this agreement and fulfilment of the terms of payment and delivery as agreed the PRODUCER shall not claim any right, at any time in this regard, nor any additional payments.
7. The OWNER in whom shall vest the perpetual exclusive ownership rights, would have complete freedom and absolute power and authority to use, schedule and exploit the same for commercials, non-commercial and other purposes in every and all possible ways with every and all possible modifications, deletions, insertions, dubbing, sub-titling, voice over, etc. in any language and in any part of the world through any medium/format by means of any technology now known and hereinafter developed.
10. This being an agreement for assigning ownership rights from PRODUCER to OWNER for the PROGRAMME when completed, nothing in this agreement shall be construed to imply that the OWNER is involved and/or connected in the production of the PROGRAMME or deem to constitute a partnership between the parties.
12. In consideration of the said assignment in favour of the OWNER by the PRODUCER in the manner aforesaid, the OWNER agrees to pay the PRODUCER the sum indicated in the annexed Schedule I as per the instalments mentioned therein. The sum payable for the PROGRAMME whether in part or full as indicated in Schedule I shall not be increased under any condition either due to escalation of production cost at a later stage or for any other reason whatsoever. One time cost (if applicable), once paid shall mean automatic transfer of ownership to OWNER of sets, consumes, titles, music graphics, etc. created/compiled for the said PROGRAMME, whether or not any other part of the PROGRAMME is produced/delivered or not.
14. It is hereby agreed and declared that on completion of the PROGRAMME and/or individual complete parts like episodes the following as the case may be shall become, the property of the OWNER, on payments for the part or whole of the PROGRAMME and shall be transferred and/or handed over to the OWNER.
15) The PRODUCER further agrees.
a) That he shall seek the consent of the OWNER, on the concept, story, script, scenario, commentary, song and music (as applicable) of the PROGRAMME.
i) Not to enter into any agreement of sale of the rights of the PROGRAMME its music or any components to any third party.
25. The PRODUCER also agrees that the rights to use the Title signature, tune, music, structure, format etc. of the PROGRAMME, in any manner and at any time, for this or any other PROGRAMME within or beyond the scope (the No. of parts/episodes as mentioned and/or as revised after the review period in Schedule I) of this Agreement vest solely with the OWNER. The PRODUCER shall not be entitled to any credit, compensation or claim on the use of above by the OWNER. The PRODUCER shall not be entitled to use the Title and other above mentioned elements in any other PROGRAMME produced for any other party, person, company or organisation.
27. In case the PRODUCER for whatever reason fails to deliver all the materials as mentioned on Item No. 23 of the I Schedule to this Agreement of the PROGRAMME of required quality within the stipulated period (time being of essence of this agreement), unless the OWNER terminates this Agreement in writing which the OWNER is entitled to do at its sole discretion without assigning any reason, the same shall subsist with all obligations of PRODUCER remaining intact, and the OWNER shall have absolute right of election to take or to reject the delivery of the said PROGRAMME and claim for damages that may accrue to the OWNER by way of loss of revenue and additional cost of delivery of the Software/Episode to the plave of transmission/broadcast as per actual cost incurred by the OWNER. In addition to this, the PRODUCER must submit each episode at least 7 days prior to the scheduled telecast failing which Rs. 20,000/- per episode will be deducted from the consideration of the episode in question. In the event the programme is not up to the standard required by the OWNER then in that event the OWNER in its sole discretion may reduce the number of episodes by giving notice of such number of episodes as may have been decided and more specifically mentioned in Schedule I of this agreement."
6. Schedule I of the assignment agreement reads thus :
SCHEDULE - I OF ASSIGNMENT AGREEMENT DATED 28th August, 1998 BETWEEN M/s. AALIA VISION AND M/s. ZEE TELE FILMS LIMITED OPERATIVE PRODUCER SPECIFICATION AND OTHER ITEMS
1.
Title India's Most Wanted.
2. Category Thriller.
3. Language Hindi
4. No. of Parts/ Episodes 104 Episodes
5. Notice Period 4 Episodes
6. Running Time (Per Episode) 24 Minutes
7. Producer Suhaib Ilyasi
8. Phone/Fax Nos. of Producer 011 -3383979/ 3383980 Fax : 3782970
9. Director Suhaib Ilyasi 10 Star Cast/Compere Anju Ilyasi/Suhaib Ilyasi
11. Script/ Story Writer Suhaib Ilyasi.
12. Script Play/Dialogue Talib Rampuri
13. Music Director Arvinder Singh, Abhishek
14. Lyricist (If any) ...
15. Camera Pradeep, Inderjeet, Shashi, Rajesh Verma
16. Editor Prakash Verma, Mangesh Bapat.
17. Date of Start of Delivery Immediately.
18. Medium of Production BETACAM-. SP
19. Locations Delhi /Bombay.
20. No. of Sets One
21. Publicity & Promo Materials (Free of Cost) :
20 Sees and 30 Secs spots one each after every 6 episodes. 5 copies of synopsis required number of photographs per episode to be given in advance. Occasional spots with quotes from celebrities/actors in the serials.
22. Promotions : The Producer is advised to consider organising (suggested) at least one press conference and one advertisement in national daily before start of broadcast.
23. Material required per Episode (free of cost) Following shall be delivered by the Producer :
1) Beta Mixed Copy
2) Beta Unmixed Copy (2 Nos.)
3) 2 VH S (beta Mix) Copy
4) Script of the Episode.
5) Synopsis of the Episode.
6) Photographs and their negatives as per the technical specifications given by the Owner.
24. DELIVERY SCHEDULE : In lots of 4 episodes at a time so as to ensure timely telecast of each episode.
25. AMOUNT (per episode & inclusive of material cost) : Rs. 3,25,000/-.
Total in Words : (Rupees Three Lakhs & Twenty Five Thousand only).
26. TECHNICAL CHARGES : In case the OWNER is required to spend for Editing or any other technical corrections including S & P requirements due to PRODUCERS faults then the amount so spent shall be recovered from the Producer.
27. SCHEDULE OF PAYMENT: 100% Payment Fifteen days after telecast.
28. The No. of Parts/episodes decided in item 4, in subject to change depending on the quality, delivery, fulfillment condition, Advertising Support, etc., and could be changed at the sole discretion of the Owner after each review period even without assigning any reasons. Other conditions and specifications as above shall remain unaltered, and be applicable to the charged/ reduced number of parts/episodes.
29. INCOME TAX NO. OF-PRODUCER :-
7. There is addendum to the assignment agreement by way of letter of the same date which reads thus :
"28th August, 1998.
Mr. Suhaib llaysi M/s Aalia Productions.
2, Big City House, Masjid Kasturba Gandhi Marg, New Delhi- 110001.
Ref : Programme INDIA'S MOST WANTED Dear Sir, We had commissioned to you the production of the above mentioned serial vide agreement dated 14-5-1998 for 13 episodes on the terms and conditions mentioned therein. The said agreement has been extended for further 104 episodes vide agreement dated 28th August, 1998 and the budget per episode has been enhanced to Rs. 3,25,000/-per episode for episode No. 14 to 65. The budget per episode from episodes No. 66 onwards for the balance episodes shall be decided mutually at a later date.
1) Till the programme is telecast on Zee TV, you shall not commence the programme CRIME STOPPER or a programme by any other names on the same lines as India's Most Wanted on Doordarshan or any other Terrestrial or Satellite Channel.
2) We agree and confirm that during the pendency of our abovesaid agreement we shall not commission the production of the above programme to any other party or produce the programme inhouse.
3) In view of the above you have specifically agreed that at the time of the renewal of our agreement dated 28th August, 1998 or any adden dum thereon, you shall not ask for a hike in the budget beyond 10% (ten percent) of the existing budget.
Kindly confirm the above, by counter-signing below FOR ZEE TELE FILMS LTD.
FOR AALIA PRODUCTIONS.
Sd/-
Sd/-
Rajesh Mishra Suhaib Ilyasi (G.M.-Legal & Commercial) (Poroducer)"
8. The question that arises is whether on the face of the assignment agreement dated 28-8-98 and addendum of the 'same date, plaintiffs have been able to show prima facie that they have acquired copy rights in respect of episodes 66 to 104 of the programme titled "INDIA'S MOST WANTED" in thriller category in Hindi language. From the assignment agreement, par-
ticularly Schedule I attached thereto it transpires that the programme shall be of 104 episodes. It gives names of producer, director, star cast, script/story writer, screen play/dialogue, music director, editor and also gives running time per episode. The assignment agreement states that the concept/synopsis/story/script submitted to the plaintiffs by the defendant is given in Schedule II. However, Schedule II is not annexed. The learned Counsel for the plaintiffs admitted that in fact there is no Schedule II appended to the assignment agreement dated 28-8-98. In the absence of Schedule II, concept/synopsis/story/script of the programme titled "INDIA'S MOST WANTED" cannot be said to be specific and as a matter of fact becomes totally vague and uncertain. The effect of want of Schedule II giving specifications of story/script/synopsis/format or structure is that the agreement entered into between the parties is rendered totally uncertain and vague. Clause 25 of the agreement which provides that the defendants agree that the rights to use the title, signature tune, music, structure, format of the programme in any manner at any time for this or any other programme or beyond the scope (the No. of parts/episodes as mentioned and/or as revised after the review period, in Schedule I) of the agreement shall vest solely on the plaintiffs is wholly rendered uncertain and vague in the absence of any script or format of the programme which is only specified in Schedule II but not appended to the agreement. As a matter of fact nothing certain can be said to be what was agreed between the parties about the concept/synopsis/story and/or script of the programme. There cannot be copy right in any concept or idea as such and in the absence of any definite and certain agreement between the parties about the structure and format of the programme since Schedule II in which it has been specified as per the agreement itself being not available, the plaintiffs cannot be said to have acquired copy right in whatever is produced or production is made by the defendants. The learned Counsel for the plaintiffs heavily relied upon section 18 of the Copyright Act, 1957 and urged that the plaintiffs being the owner of the copyright in the existing work and the prospective owner of the copyright in future work, the assignment fastens as soon as the future work comes into existence and, therefore, the production that has been made by the defendants and which is telecast from other channels under the title "FUGITIVE MOST WANTED", the plaintiffs have acquired the ownership. I have already indicated, in the absence of any Schedule II which is referred to in the assignment agreement at various places providing concept/synopsis/story/script of the programme and in the absence of there being any definite specific and certain details of the concept/synopsis/story/script in the agreement otherwise, the plaintiffs cannot be said to have become owners of episodes produced by the defendants under the title "FUGITIVE MOST WANTED". Moreover it would be seen from the agreement ownership of copyright in that the programme shall vest in the plaintiff when produced. The defendants have not produced any episode of title IMW after 65th episode. The plaintiffs at best can claim copyright in the title "INDIA'S MOST WANTED" which has been assigned to plaintiffs as described in Schedule I of assignment agreement dated 28-8-98 and also the signature tune and music and to that extent the plaintiffs are entitled to restrain the defendants from using the title "INDIA'S MOST WANTED" its signature tune and music. The learned Senior Counsel for the defendants fairly submitted that the defendants are not in any manner dealing with the programme "INDIA'S MOST WANTED" and its signature tune and music of which the plaintiffs have become copyright owner. Prima facie, therefore, I do not find any case in favour of the plaintiffs that they have become owner of copyright of episodes 66 to 104 produced or not produced in whatever name.
9. It is true that in the assignment agreement Clauses, 3, 15(i) and 25 are negative convenants. Clause 3 provides that defendants shall not grant or in any way transfer any rights of the programme "INDIA'S MOST WANTED" to any other person, party or organisation. Clause 15(i) provides that defendants shall not enter into any agreement of sale of the rights of the programme, its music or any components to any third party and Clause 25 provides that the defendants agrees that the rights to use the title, signature tune, music, structure, format, etc. of the programme, in any manner at any time shall vest solely with the owner and the defendants shall not be entitled to use the title, signature tune, music, structure and format in any manner for this or any other programme produced for any other party, person, company or organisation. What may be noted here is the following recitation in the assignment agreement:
"The PRODUCER is in the business of producing feature films/tele films/ shortfilms/TV audio/chat shows/Quiz/tele serials, etc. and has necessary expertise to produce the same on audio visual medium to faithfully match, shape and emerge to pre-decided these and/or literary story line converted to a script/screen play, as per specifications and currently the PRODUCER is producing/proposes to produce such above mentioned production, the titles and specifications of which are as mentioned in Schedule I & II attached hereto hereinafter referred to as " PROGRAMME" which term unless repugnant to the context thereof shall mean and be deemed to include feature films/ short films/tele films/tele serials/documentaries/chat shows/quiz etc. finally titled under the name/s as given in the annexed Schedule I and as per concept/synopsis/story/script submitted to the "OWNER" by the PRODUCER as given in the annexed schedule II and with or without any changes, additions, alterations, cuts or substitution occurring inter alia in concept, story, dialogues, commentary etc. (as applicable) and/or in any format. If more than one, they would be described as Programme I, Programme 2 and so on; all such Programmes shall constitute the "PROGRAMME"."
In the absence of Schedule II as a matter of fact the very use of the expression "programme" at all places in the agreement, prima facie is vague and incapable of enforcement. The learned Counsel for the plaintiffs submitted that the defendant has produced episodes 1 to 65 and the concept of the programme is unsolved crime and for apprehending the criminals of those unsolved crimes and, therefore, there is no vagueness and uncertainty in the programme. It is very difficult to accept the submission of the learned Counsel for the plaintiffs. After all the plaintiffs have filed the suit basing their rights upon the agreement dated 28-8-98 (Exhibit B) and the addendum Exhibit C. There is clear reference of specification of programme as per Schedule I and II in the agreement and, therefore, merely because in the absence of Schedule II, the defendants produced 65 episodes and to the extent of 65 episodes no dispute arose between the parties, it cannot be said that in relation to episode 66 to 104 even in the absence of specifications of concept/ synopsis/story/script, the defendants should be compelled to produce the episodes in the same format and structure which were produced by him from episode No. 1 to episode No. 65. The plaintiffs cannot seek enforcement of negative covenants of an uncertain, unspecific and vague agreement. Prime fade, therefore, I do not find any case in favour of the plaintiffs for enforcement of negative convenants.
10. It is true that after the dispute arose between the parties, the defendants have produced the programme titled "FUGITIVE MOST WANTED" which is being telecast on Doordarshan and the said programme also broadly deals with the unsolved crime as admitted by the learned Senior Counsel for the defendants but then in the absence of any specific rights assigned by the defendants in respect of concept/script/story/synopsis/structure and/or format of such programme, the plaintiffs cannot seek injunction against the defendants. Since I have found prima facie that the assignment agreement executed between the plaintiff and the defendants as regards structure, format, concept, synopsis and script vague and uncertain, the plaintiffs are not entitled to any interim relief. For the reasons already indicated above, I am not dealing with the aspects of the conduct of the plaintiffs raised by the defendants.
11. The learned Senior Counsel appearing for the defendats made a statement that the defendants shall not grant or transfer any rights in respect of the programmes comprising of episodes 1 to 65 of TV Serial "INDIA'S MOST WANTED" of which plaintiffs are copyright owners and that the defendants shall not use the title "INDIA'S MOST WANTED" in any programme and also signature tune of the programme "INDIA'S MOST WANTED"
12. Accordingly, in view of the aforesaid discussion, the notice of motion is disposed of by the following order:-
(i) The statement of the learned Senior Counsel for the defendants to not to grant or not to transfer any rights in respect of the programme comprising of episode 1 to 65 of TV serial INDIA'S MOST WANTED" and further statement of not using the title "INDIA'S MOST WANTED" and its signature tune is accepted and to that extent the defendants are injuncted during the pendency of suit.
(ii) Save and except above, the notice of motion is dismissed.
13. Cost as cost in the cause.
Notice of Motion dismissed.