Bombay High Court
Kabir Singh Chowdhry vs Sapna Moti Bhavnani And 6 Ors on 11 February, 2021
Author: G. S. Patel
Bench: G.S.Patel
KABIR CHOWDHRY V SAPNA BHAVNANI & ORS
1-IAL5420-2020 in comipl5415-2020-J.docx
Atul
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 5420 OF 2020
IN
COMMERCIAL IP SUIT (L) NO. 5415 OF 2020
Kabir Singh Chowdhry,
an Indian habitant, and having a place of
resident at House No. 9, Sector 4, ...Plaintiff
Chandigarh 160 001 (Applicant)
~ versus ~
1. Sapna Moti Bhavnani,
Atul G. an Indian Habitant, and a resident of
Kulkarni Flat No. 9, Kashi Kunj, Waterfield
Digitally signed
by Atul G.
Road, Bandra (West), Mumbai 400 050
Kulkarni
Date: 2021.03.15 AND also having her place of work at
Maaz Centre, Shop No. 3, Dr
11:39:10 +0530
Ambedkar Road, Bandra (West),
Mumbai 400 050
2. Amazon Com Services LLC,
a company incorporated under the laws
of USA and having its office at 2021,
7th Avenue, Seattle, WA 98121, United
States of America, through its Legal
Department
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3. Amazon Digital Services
LLC, a company incorporated under
the laws of USA and having its office at
2021, 7th Avenue, Seattle, WA 98121,
United States of America, through its
Legal Department
4. Priyadarshi Rishiraj,
having his place of residence and
business at 5048 Walnut Street
Philadelphia, PA 19139, United States
of America
5. Anupama Bose,
C/o Movie Saints, 5048 Walnut Street
Philadelphia, PA 19139, United States
of America
6. Google LLC,
a company incorporated under the laws
of USA and having its office at 1600,
Amphitheater Parkway, Mountain
View, CA 94043, USA
7. Indiepix Films, Inc.,
a company incorporated under the laws
of USA and having its office at 3101,
Vernon Blvd, 1st Floor Astoria,
NY11106 United States ...Defendants
A PPEARANCES
FOR THE PLAINTIFF Mr Rahul Ajatshatru, with Ankita Singh,
Krishma Shah, & Zalak Mody, i/b
A&P Partners.
FOR DEFENDANT NO. 1 Mr Rohaan Cama, with Sunil Zalmi, &
Ekta Jhaveri, i/b MZD Legal
Consultancy.
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FOR DEFENDANT NO. 6 Mr Shailesh Poria, with Swapnil Gupta, &
C Keswani, i/b Economic Laws
Practice.
CORAM : G.S.Patel, J.
DATED : 10th & 11th February 2021.
ORAL JUDGMENT:
1. This order will finally dispose of, by consent, the Plaintiff's Interim Application (L) No. 5420 of 2020. The Interim Application is to be finally numbered in the course of this week.
2. I begin with a very brief look at the litigation history.
3. The suit seeks an order and decree that the Plaintiff ("Chowdhry") be credited as the co-producer and joint owner of the copyright in a documentary film titled 'Sindhustan', made some time in 2019 along with the 1st Defendant ("Bhavnani"). Chowdhry and Bhavnani have had something of a personal history -- not ordinarily a matter that I would have dwelt upon, but for the fact that is so entangled with the legal entitlements claimed. Chowdhry brought suit for this and other reliefs on 20th May 2020. The second prayer is for a perpetual injunction. Then there is a prayer for a restraint without giving Chowdhry the credit he claims, another prayer for accounts, and then the usual prayer for interim relief in these terms.
4. Chowdhry first moved the matter on 22nd May 2020 before KR Shriram J. The order indicates that the hearing went on for a Page 3 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx while. The Court then felt that a reply and a compilation would be necessary. The Court issued directions. The matter was stood over to 29th May 2020. It came up on that day. Mr Ajatshatru for Chowdhry pressed for relief. Mr Cama for Bhavnani pointed out that the film had already been released on the internet on 12th May 2020. By that time, it was unreasonably beyond Court hours and the matter was adjourned to 2nd June 2020. It then came up before AK Menon J on 2nd June 2020. It was called at even a more unreasonable hour that day, around 6:00 pm, and the Court felt that it would not be possible to complete the hearing. Both sides agreed to file written submissions no longer than 10 pages (about which I will have to say something later). There were specific directions in this regard, and the parties were set at liberty to apply after these written submissions were filed. On 16th June 2020, the matter was adjourned to 23rd June 2020. On that date, it seems that although the written submissions were in fact filed (presumably in soft copy since all hearings were online at that time), nobody pointed this out to the Court, and today both counsel agreed that this was either not communicated or perhaps for some technical reason could not be communicated. Very possibly, there was an oversight. In any case, the learned Single Judge (BP Colabawalla J) said that having gone through the papers, he found no cause for urgency and declined ad-interim relief.
5. Chowdhry went up in appeal. The appellate order of 9th July 2020 remands the matter on this limited ground, viz., that the Court of first instance had not seen the written submissions and that the attention of the Court had not been drawn to them. Chowdhry came back to the learned Single Judge on 17th August 2020. This was now before SC Gupte J. He noted this history in brief and also noted that Page 4 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx the appellate order allowed the Interim Application to be taken up finally instead of only for ad-interim relief. Gupte J felt that the Interim Application itself should be disposed of, and since, at that time, only urgent ad-interim applications were being heard online, stood the Interim Application itself over to 7th September 2020 for final disposal. It came up before KR Shriram J on 11th September 2020. Both sides seem to have taken time to explore the possibility of a settlement. That has not happened. The matter was adjourned thereafter on one or two occasions until, finally, on 25th September 2020, both sides told the Court that talks had not come to fruition. It was suggested that the Interim Application be listed for final hearing since all filings were complete, and until the next date, the parties would again endeavour a settlement.
6. There is no settlement. The matter was then stood over to 16th October 2020, 23rd October 2020, 2nd December 2020, 18th December 2020 and 13th January 2021. It was listed before me on that date, and I directed that this matter, along with another litigation between the two parties, would be taken up on 8th February 2021 at 3.00 pm. By this time, hearings were in physical Court with a hybrid option. I readily made this available to Mr Ajatshatru, who is in Delhi. His entire presentation has been online, while Mr Cama for Bhavnani has been present throughout in Court. Mr Ajatshatru has had no difficulty in following Mr Cama's submissions and vice-versa.
7. On 13th January 2021, I permitted further written submissions, this time not only specifying the page length but the font size and spacing. This seems to have been done in the other matter. In this matter, I am told that all have adhered to these specifications. Except Page 5 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx the length, but perhaps the direction was unduly optimistic. The physical versions of the online filings are almost unreadable in many places. The print is faint. I have, therefore, had to use both physical and digital copies. The result is considerable confusion of page numbers. In addition, and to make matters even more interesting, there are compilations said to be somewhat euphemistically 'for convenience' -- whose I cannot tell; certainly not mine. The written submissions contain some very puzzling cross-references.
8. The two cases between the parties are listed together. But they are entirely different. This case is about the film Sindhustan. The other litigation, Commercial IP Suit (L) No. 7140 of 2020 (listed at Serial No. 2 today) relates to another film Mehsampur. The causes of action are entirely distinct. The claims are entirely different. Bhavnani is the 6th defendant in that suit. The plaintiffs in the Mehsampur suit are not only Chowdhry, but his firm Dark Matter Pictures, and Chowdhry's partner in Dark Matter Pictures, one Akshay Singh. Obviously, the two Interim Applications would have to be heard separately. I made this clear to both sides when I began hearing the Sindhustan matter on 8th February 2021. I have heard both sides on a day-to-day basis since then, i.e., on 8th, 9th and 10th February 2021. Both sides have agreed that this will be a final disposal.
9. I have already summarised the prayers in the suit. The prayers in the Interim Application are somewhat different, and I believe it is important to look at these because of the jurisprudential consequences that follow. Prayers (a), (b) and (c) of the Interim Application at pages 15 and 16 read thus:
Page 6 of 4510th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx "(a) Pending the disposal of the present suit pass interim orders restraining the Defendants, jointly and severally, by themselves of by through any other person from copying, storing, communicating to the public or offering for sale or hire the cinematograph film Sindhustan (2019) on any mode or medium without express written permission of the Plaintiff;
(b) Pending the disposal of the present pass interim orders restraining the Defendants, jointly and severally, by themselves of by through any other person form copying, storing, communicating to the public or offering for sale or hire the cinematograph film Sindhustan (2019) on any mode or medium without giving due and proper credit of being co-
producer and co-author of the Suit Film at all places including the film, its artwork, promotional material on all platforms including the Internet;
(c) Pending the disposal of the present suit pass interim orders restraining the Defendants, jointly and severally, to render true and faithful accounts against the Defendants of all amounts earned from the sale of any rights in the said film and/or from the exploitation of film Sindhustan (2019) in any manner whatsoever and further direct the Defendants to deposit the same in this Court."
10. It cannot be disputed that whatever the wording, prayer (b) of the suit and prayers (a) and (b) of the Interim Application are not ordinary restraints, but are in the nature of mandatory injunctions. Prayer (a) of the Suit is only for a declaration. Now prayers (a) and (b) of the Interim Application require a command that Bhavnani must take Chowdhry's permission before making any commercial use of the film Sindhustan, and prayer (b) of the Interim Application asks for an order commanding her to credit him as a co-producer and co-
Page 7 of 4510th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx author of that film. These prayers in the Interim Application correspond to prayers (b) and (c) of the plaint.
11. If I am right in my reading that prayers are in the nature of mandatory injunctions, then certain consequences follow. Even if I am not, the settled law is that the usual trinity of tests must be satisfied by any claimant for interim relief: a strong prima facie case, demonstration of balance of convenience; and establishing irretrievable prejudice or injury. But if these prayers are, as I do believe them to be, for a mandatory injunction, then the bar for a Plaintiff seeking such relief is set even higher.
12. In Samir Bhojwani v Aurora Properties & Investments Samir Bhojwani,1 the Supreme Court considered precisely this -- what must a Court do when asked to make a mandatory order at an interlocutory stage. First, there is no question of 'moulding relief'. Where a mandatory order or injunction sought, such a moulding can only be done at the final hearing of the suit. Second, as a matter of settled law, a mandatory order can be granted at the interlocutory stage only to restore the parties to a status quo ante and not to establish a new order of things; that is to say, a new factual scenario. The order cannot create a factual situation at odds with the one that existed at -- and this is important -- the date of institution of the suit. The Samir Bhojwani Court traced this position in law to the celebrated case of Dorab Cawasji Warden v Coomi Sorab Warden.2 It then set out the 1 (2018) 17 SCC 202.
2 (1990) 2 SCC 117.
Page 8 of 4510th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx guidelines that govern such cases culled from Warden. Paragraphs 16 and 17 of Warden v Warden say this:
"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The Plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant of refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
(Emphasis added) Page 9 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx
13. The Samir Bhojwani Court said that this principle has been consistently followed. It also reiterated that a mandatory injunction is not a remedy easily to be granted. It is given only in circumstances which are clear, and the prima facie material clearly justifies a finding that the status quo has been altered by one of the parties to the litigation and the interest of justice demand that the status quo ante be restored by way of a mandatory interim injunction. To gain a mandatory interim injunction, the claimant must make out not just a prima facie case but an exceptionally strong one.
14. Mr Ajatshatru, therefore, has before him a formidable task. At the very least, he must satisfy the fundamental and more basic test for the grant of any injunction or any interim relief. If the order he seeks is to be read as a mandatory injunction or direction, then the bar that he has set for himself is even higher and even more rigorous. That is not a relief he will readily be granted. He must be able to establish an overwhelming prima facie case that admits of not the slightest ambiguity; and, moreover, must establish that there existed such a status quo as satisfied the Plaintiff but that the Defendant has somehow altered it and his request must be read for a restoration or a rollback to that status quo ante.
15. Taking the last point first, I have not understood this to be Mr Ajatshatru's case at all, as we shall shortly see. To put it very briefly:
the struggle is about being credited as a co-producer of Sindhustan along with Bhavnani. The facts prima facie show that credit as the producer has been given to an entity called Akbar Pains (an anagram of Sapna and Kabir, the two parties' first names done in happier times) or to Akbar Pains and Bhavnani. This was, therefore, the status Page 10 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx quo ante on the date the suit was instituted. Nobody, therefore, claims that the status quo ante included Chowdhry's name as a producer.
What the prayers in the Interim Application, therefore, seek cannot possibly be a restoration of any status quo ante. They ask for a dramatic change or alteration to that status quo.
16. Very late in the arguments, in fact towards the closing of arguments, I specifically asked Mr Ajatshatru if his instructions were to say that his client would rest content with an order that the producer of the film would be shown as Akbar Pains alone. On instructions, Mr Ajatshatru said that he could not make that statement and that Chowdhry did press for his relief to be shown as a producer of Sindhustan along with Bhavnani or along with Akbar Pains or all three together. Chowdhry is not concerned, Mr Ajatshatru says, with how Bhavnani chooses to describe herself. He maintains and insists that he has joint copyright in Sindhustan along with Bhavnani and must, therefore, receive credit as a co-producer along with her.
17. What this tells us straight away is that the Interim Application automatically fails the Samir Bhojwani test required for the grant of a mandatory injunction. This failure is, of course, at one level. I will assess it more fully, and in the rest of this judgment, I propose to assess whether Chowdhry has made out any sort of prima facie case at all. If he has not, then there is no question of his being able to make out a very strong, exceptional, or overwhelming prima facie case. If he cannot make out a prima facie case, then there is also no question of looking to the next two determinants of the balance of convenience Page 11 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx or irreparable injury or prejudice. Everything, therefore, will turn on this assessment of the facts.
18. This is so far as the general principles on the grant of interlocutory relief is concerned. The second aspect of law is about the legal entitlement under the Copyright Act, 1957. The context is a cinematograph film. This requires us to consider some provisions of the Copyright Act. Section 17 tells us that subject to the provisions of the Act 'the author' of a work shall be 'the first owner' of the copyright therein. Sub-clause (b) of the proviso to Section 17 says that where a cinematograph film has been made for valuable consideration at the instance of any person, that person shall, absent any agreement to the contrary, be the first owner of copyright. Necessarily, this requires us to look at the definition of the word 'author' in the Copyright Act. We find this definition in Section 2(d). In relation to a cinematograph film or sound recording, 'the author' is the 'producer'. This takes us, in turn, to the definition of 'producer'. We find this in Section 2(uu). An amendment incorporating that definition came by an Act of 1994 with effect from 10th May 1995. Under the amended definition, a 'producer' in relation to a cinematograph film or sound recording means a person who 'takes the initiative and responsibility for making the work. There is no dispute about the definition of cinematograph film, and I will, therefore, not trouble with that. For completeness, I note that the definition in Section 2(y) of 'work' includes a cinematograph film.
19. Section 13 tells us that copyright subsists inter alia in cinematograph films. Section 14(1) deals with the exclusivity that attaches to copyright. This is subject to the provisions of the statute.
Page 12 of 4510th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx It empowers the holder of copyright to do or to authorise the doing of various acts in respect of a "work" or any substantial part thereof. For a cinematograph film, this right extends to making a copy of the film, including a photograph of any image that is part of the film; storing the film in any medium by electronic or other means; selling or renting or offering for sale or rent any copy of the film; selling or hiring out or offering to do so in respect of any copy of the film regardless of whether such copy has been earlier sold or hired; and the right to communicate the film to the public.
20. There is one more definition, to which Mr Ajatshatru turned very late in his rejoinder, and that is the definition in Section 2(z) of 'a work of joint authorship'. This is defined to mean a work 'produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors'.
21. An analysis of these statutory provisions suggests the following in the context of a cinematograph film:
(i) the author is the first owner of the copyright;
(ii) the author means the producer (and no one else); and
(iii) the producer is he or she who has taken the initiative and responsibility for making the work.
22. The argument of joint authorship in Section 2(z) consequently is a reference to more than one person who all 'took the initiative and responsibility' for making the work. These would be co-producers and they would enjoy the rights of a joint 'authorship' of a film. The Page 13 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx reason this is relevant will become apparent a little later in this judgment.
23. What this demands of Mr Ajatshatru is that he must now demonstrate that Chowdhry's participation in the making of Sindhustan was one of (i) taking the initiative and (ii) responsibility for the making of the work.
24. These expressions 'taking the initiative' and 'responsibility' were directly in question before this Court in the case of Ramesh Sippy v Shaan Ranjeet Uttamsingh & Ors3 decided on 1st April 2013. This was the case that involved the legendary film Sholay. The plaintiff, Ramesh Sippy, was the director of this landmark film, a watershed in the history of Indian cinema. He brought suit claiming to be the author and first owner of copyright and also claiming an author's special rights in Sholay (and for other films as well). Incidentally, Mr Ajatshatru appeared on the other side. The learned Single Judge specifically considered what was meant by the definition of producer and author under the Copyright Act. Leaving aside the discussion on whether a partnership firm could be the owner of the copyright, the learned Single Judge held clearly that for a cinema film, the author is the owner of the film at the time of its completion; that under the amended statute, the producer of a cinema film is its author and this is the person who takes initiative and responsibility. The learned Single Judge (SJ Kathawalla J) noted the submission before him in paragraph 25 in the following words:
3 2013 (5) Mah LJ 375.Page 14 of 45
10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx "25. Dr. Tulzapurkar further submitted that even if the amended definition is considered, the producer of a cinematograph film is the author of the cinematograph film and the producer is defined as the person who takes the initiative and responsibility for making the work. The two words are initiative and responsibility. It means it is the person who proposes to make a cinematograph film and who has the responsibility of making the film i.e. who undertakes the financial burden. The author of a cinematograph film will be the persons responsible for the arrangements, particularly in the financial sense. In the case of a film produced by a Partnership firm, the Partnership firm becomes the author, in the sense that the Partners at the time who were the owners of the film when the film was completed, become the authors of the film. This is clear from the definition of the term 'author' in relation to a cinematograph film, appearing in the Act that was prevalent at the relevant time. Therefore, considering the law as it stood, at the time when the film was completed, the Partners of Sippy Films who were Partners when the film was completed in August, 1975 were the authors of the film and not any erstwhile Partner who had ceased to be a Partner when the film was completed. The definition of 'author' in the Act prevailing at the time when the film was completed recognised only the owners of the film when it was completed. Admittedly, the plaintiff, having resigned as a Partner prior to the date of completion and having relinquished all rights in the assets of the firm to the Continuing Partners, was not the owner of the film at the relevant time and therefore was and is not the author of the film. It is submitted that once it is found that there are joint authors of a cinematograph film, the question of joint ownership must be approached in accordance with the law in force when the work was made."
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25. I will have some cause to return to this judgment and specifically to paragraph 28 of it at a later stage when I more fully consider Mr Ajatshatru's submission before me today, for I believe they are more than fully answered by the submissions he advanced before the Hon'ble Mr Justice SJ Kathawalla in Ramesh Sippy.
26. On considering the rival submissions, Kathawalla J held in paragraph 39 that the amendment made no change to the concept of authorship. The owner -- and this was again a noting of Mr Ajatshatru's submission for the 3rd defendant in that case -- is the 'entrepreneur who has taken the risk of commercial failure'. It is he who has always been the producer of the film in the history of Indian cinema. The Court then went on to reiterate the settled position that 'taking the initiative' and 'responsibility' must be understood as the taking of financial risk both specifically and generally. Paragraphs 41 and 42 of the judgment sum up the position thus:
"41. As submitted by the defendants, it is a well known fact that a producer is a person who spends on the making of the film, owns the film and the copyright therein and is the author of the film. In order to prove that the plaintiff was the maker of the film, he has to prove that he was financially responsible for the making of the film. The plaintiff has contended that he was the Director of the said film Sholay and was, like all Directors, involved very closely at every stage of the film, the finalising of the script, the screenplay, finalising the star cast, the location for shoot, getting the film shot at location, dubbing and editing after the shooting was over. But all this would not make the plaintiff the owner of the film. In fact, in the present case the plaintiff admits that it was the firm Supply films which paid for the entire cost of the film. The plaintiff however alleges Page 16 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx that since the firm provided finance he entrusted the job of distribution of the film to the said firm. Therefore, according to him, the said firm only lent the money for making of the said film Sholay. The plaintiff has also not produced his Accounts and/or Income Tax Returns to show that he was advanced any loan by the firm of that he has repaid any amounts to the said firm which were financed to him as a loan by the said firm in connection with making of the said film Sholay. If that would have been so, the plaintiff would have received proceeds/profits from the film Sholay after the firm recovered its alleged loan/finance advanced to the plaintiff. The plaintiff has nowhere alleged/asserted that he received any profits from the commercial success of the film or partook in the profits of the film after the firm recovered its alleged loan/finance advanced to the plaintiff. In fact, it is clear that the said firm cleared the film Sholay for exhibition from the Censor Board and distributed the film and received all the monies for such commercial exploitation of the film. The plaintiff's assertion of being the author/owner of the film Sholay is further belied by the fact that it is not even the plaintiff's case that he has entered into any agreements with the writers, lyricists, actors, music directors, etc. of the said film. It the plaintiff's assertion would be true, it is the plaintiff who would have entered into the required agreements with the writers, lyricists, actors, music directors, technicians qua their appointments as well as remuneration and would have produced at least copies of such Agreements.
42. An owner is therefore a person who has spent towards the production of the film and who has not merely arranged for the funds but in fact has taken the risk of commercial failure, i.e. one who will lose money if the film flops and who will reap the fruit of commercial success if the film is a hit. In the instant case, it is the said firm which spent on the production of the film and Page 17 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx accordingly the cinematograph film became the property of the said firm when the film was completed. Admittedly, the plaintiff has resigned from the Partnership Firm much prior to the completion of the film. The plaintiff has only directed the film 'Sholay' and has received accolades as a Director of the film 'Sholay'. Since it was the Partnership Firm which produced the film the name of late Mr. Vijay Sippy being a Partner in the said firm was also acknowledged and credited as Associate producer of the film. The plaintiff has therefore miserably failed to show that he has spent any amount whatsoever on the film Sholay by himself and/or by taking a loan. The plaintiff therefore at no point of time was the author and/or the owner of the said film Sholay."
27. Ramesh Sippy went in appeal.4 That appeal came before a Division Bench of which I was a member, and which was headed by the Hon'ble Mr Justice SJ Vazifdar, as he then was. The relevant discussion is in paragraphs 4, 13 and 23. This read:
"4. The appellant claims to have been the individual solely responsible for the creation of Sholay, in every sense of that term except for its financing. With a claim so emphatically mounted, one would reasonably expect to find some unequivocal supporting documentary material and, at the very least, a consistent pattern of conduct by the appellant to show that he held to this claim over the past several decades since Sholay's release in 1975. We find instead not only a complete absence of any cogent documentation favouring the appellant but also a conspicuous want of action by the appellant in defending his claims when others asserted the very rights that the appellant now contends always belonged exclusively to him. Other entities dealt with the rights in Sholay. They executed 4 2013 SCC Online Bom 1541.Page 18 of 45
10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx assignments and granted licenses. They launched litigations to defend those rights. In all of this, they acted as the owners of rights, especially the copyright, in Sholay. Much of this was in the public domain in the form of public notices and news reports. The appellant could not have been unaware of these actions. Yet he stood by. In one case, he supposedly even supported the actions of others who claimed these rights in Sholay. On a considered scrutiny of the factual material before us, and as the following discussion shows, it is not possible to hold that the appellant has made out a prima-facie case that he had rights in Sholay capable of enforcement today. We have been unable to find any valid ground for interference with the impugned order. As the appellant has failed to make out a case on merits that he is the owner of the copyright in Sholay, it is unnecessary for us to deal with the issues of law raised by both sides, especially at the ad-interim stage.
13. The appellant's case is that while the partnership firm may have provided the finance for the film, he and he alone was the author of Sholay, for it was he who took the initiative and responsibility for its making. This is the factual foundation of the appellant's claim, and it is on this basis that he claims that the copyright in the film vested in him. The fact that the partnership firm or G.P. Sippy are credited as producers of the film is, the appellant submits, irrelevant as there are irreconcilable discrepancies in the naming of the producer: in the censor certificate, the partnership firm is credited as the producer, while in the publicity materials it is G.P. Sippy. Equally irrelevant, according to the appellant, is the fact of his resignation from the partnership firm before its general public release in India. The film was otherwise complete and he had both copyright in the film as an unpublished work under Section 13(2)(ii) of the Copyright Act, 1957, copyright in the published work Page 19 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx after the film was released under Section 13(2)(i) of that Act, and an Author's Special Rights under Section 27.
23. The learned Single Judge found, as a matter of law, that it is permissible in law for a juristic entity such as the firm or company to be the owner of copyright, and further, that the law does not demand that the author of a film must necessarily be a natural person. We do not think that it is necessary to decide this issue finally at this stage. The view expressed by the learned Single Judge is admittedly a prima facie view at an ad-interim stage. This appeal is preferred from an ad-interim order. At this stage, we are only required to see whether the appellant has made out a prima facie case, whether the balance of convenience favours him and whether irretrievable harm and prejudice is likely to be caused to the appellant if reliefs are denied. These are the usual determinants for the grant of any interim or ad-interim order. In appeal, a further consideration is whether it can be said that the view of the Court below was so thoroughly improbably or implausible as to warrant interference in appeal. On a careful scrutiny of the material before us, we do not think so."
(Emphasis added)
28. But what will also be relevant for our purposes is a somewhat parallel factual scenario that we noted in paragraphs 18 and 19, viz., that the claimant stood by while the other side asserted rights under the Copyright Act.
29. What this tells us is that Chowdhry must establish, as a matter of fact, and, more importantly, with sufficient lack of ambiguity to satisfy the prima facie test (at any level), that he was the one who along with Bhavnani 'took the initiative' and 'responsibility'. This Page 20 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx now means taking the financial risk. This is the only way in which he can lay a claim to being a co-producer and sustain the interim application for such reliefs. It is not enough, therefore, to show that he did some other work such as editing, re-shooting, providing creative input or directing. None of this will give him rights as an author or as a joint author of copyright. I say this because I am rejecting at the threshold as inconsistent with law Mr Ajatshatru's argument taken very latterly that because Chowdhry did various other work on Sindhustan (and about which there does not seem to be very much dispute, including editing and re-editing, some re- shooting, some creative directing and so on), and was not remunerated for this, this will on its own elevate him to the status of a producer.
30. As to the financial question, Mr Ajatshatru's submission is that he forsook remuneration for his other work (editing, shooting etc.), and this is, therefore, sufficient to satisfy the test of responsibility. I can only say that the submission is far from compelling. There may have been, as Mr Cama submits, other forms of recompense, and it is not possible to find any one-to-one correspondence between doing work without remuneration and becoming a producer. Mr Ajatshatru may be correct in saying that there is no statutory requirement that there must be a written contract for co-production and, therefore, joint authorship. But that will make no difference, and the absence of a statutory requirement will not make up for the lack of proof, even prima facie.
31. If Mr Ajatshatru's submission is to be accepted, it would be fraught with all manner of unintended consequences, some of them Page 21 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx even dangerous. Every technician of a film, if not paid or if not sufficiently paid, could then claim to be a joint author. Mr Ajatshatru's reliance on the ruling by the Hon'ble Mr Justice Krishna Iyer in Indian Performing Rights Society v Eastern India Motion Pictures5 to the effect that a cinema film is an ensemble of several participants, all being brought together. But the judgment does not say that every person who renders some component element becomes a producer or can be said to be the person who took the initiative and responsibility for making the work.
32. The same reasoning will hold for Mr Ajatshatru's submission that Chowdhry 'took the initiative' by advising Bhavnani what she could do to improve or better the Sindhustan film as it stood before his involvement. I do not believe that is the correct interpretation and I dare say it would do considerable violence to the language.
33. My task, therefore, is to assess prima facie whether Mr Ajatshatru's client has been able to satisfy any of these requirements. If he has not, then, evidently, the interim application will have to be dismissed. If there is even a semblance of a prima facie case made out
-- that is to say, that Chowdhry is able to show that he did take the initiative and responsibility for Sindhustan -- Chowdhry's and Mr Ajatshatru's labours are far from done. For they must then establish that what they have constitutes a sufficient prima facie case; and if I am right in my reading of the prayers as required in the mandatory order, they must show that these facts constitute an especially strong 5 AIR 1997 SC 1443 : 1977 SCR (3) 206.
Page 22 of 4510th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx or overwhelming prima facie case that seeks to restore some status quo ante that existed on the date of institution of the suit.
34. This takes us to the final legal question or principle to which Mr Ajatshatru must address himself and of which he must be mindful. The principle is that while hearing an interlocutory application, no matter how complex and no matter how weighty the record, the interlocutory Court is not to engage in a mini-trial. This is a statement often made but far less frequently explained. I have understood this to mean that I am not required to examine each document with the minute scrutiny that might be expected of a trial Court. In a civil trial, that level of detailed scrutiny of every single document may not be required even at the final hearing of the suit. It is certainly not required at the interim stage. What is to be seen, consistent with the requirement of making out a prima facie case, is whether the material adduced by the plaintiff is, taken as a whole, sufficient to warrant or justify a finding that a Plaintiff seeking any form of interlocutory relief has made out a prima facie case.
Resumed on 11th February 2021:
35. With this jurisprudential background, I turn now to the factual material at hand. I have dealt with this material by class of document or material rather than every individual document taken chronologically.
36. The facts in themselves are not seriously in dispute. There are, in fact, two parallel narratives in this case. One of these is the story of Page 23 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx Chowdhry's and Bhavnani's personal relations. Both sides have shown admirable restraint in this regard. The second narrative is about the work on Sindhustan. Inevitably, the two overlap.
37. To introduce the participants, Chowdhry lives in Chandigarh. He is a filmmaker. He has several films to his credit, but perhaps the most notable of these is one called Mehsampur, the subject matter of the second suit. That was an April 2018 release. Chowdhry also has (or had) his own production house called Dark Matter Pictures, in partnership with one Akshay Singh.
38. Bhavnani lives in Bandra in Mumbai where she also works as what is known today as a hairstylist. She had her own salon in the days before the pandemic. This has or had a name that was decidedly less astrophysical than the Chowdhry's outfit. Bhavnani's was called Mad-O-Wat. Bhavnani's work put her in touch with a number of celebrities from the film and media world in Mumbai. She was on good terms with many of them. Nobody denies that Bhavnani began making Sindhustan as a documentary many years earlier. She says she saw it as a personal commitment. It is at one level, perhaps at its most essential level, a journey towards her own roots in the Sindhi community and in the now-Partitioned land of the Sindh. Bhavnani did not get permission to visit the Sindh, now in Pakistan. She collected stories from the Sindhi community and material relating to Sindhi culture. Remarkably, she seems to have had these stories actually tattooed on her own legs and body as a sort of permanent reminder -- perhaps of the anguish of the Sindhi community, its undoubted diaspora at Partition, its history and its deep connection with the land. The sheer visual imagery of this history is vast, Page 24 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx sobering, and uplifting, all at once. The Sindhi community has deep roots in many cities and places in India; and Mumbai is fortunate to be one of them. In this Court alone, the presence and contribution of the Sindhi community ranks among the most determinative, and our city's own history, especially since 1947, is replete with the quiet, yet immense, contributions of this particular community, from education to health-care, art and beyond. I say this because of the nature of the work: it is a documentary, not a work of fiction. The documentary apparently narrates those very stories that are etched into Bhavnani's corporeal being. Chowdhry does not deny the level of commitment or Bhavnani's passion, nor the fact that Bhavnani commenced this project many years ago.
39. What Chowdhry does say, however, is that no matter how deep or abiding that passion, it did not translate terribly well into a cinematic experience. The two seem to have met in Chandigarh sometime in late 2018 when Bhavnani was on her way to Shimla. Bhavnani seems to have asked for Chowdhry's help in improving what she had already got -- a working version of Sindhustan, what I will now call Version 1.0.
40. Bhavnani and Chowdhry developed a bond that grew into a relationship. Chowdhry seems to have done some more work on Sindhustan, yielding another version, yet sub-optimal, and which I will call Version 2.0.
41. Between September and roughly November 2018, Chowdhry helped Bhavnani complete Version 2.0. It was still thought to be Page 25 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx unsatisfactory. At this stage, Chowdhry was being asked only to re- edit the existing material. From November or December 2018, onwards Chowdhry was in Mumbai. By now, he and Bhavnani were in a more intimate and committed relationship. They stayed together in Bhavnani's home in Mumbai.
42. It is at this stage that additional work was done on what was to become Version 3 of Sindhustan. This was a re-edited of the initial film. According to Chowdhry, he also re-shot parts of the film. Bhavnani asked him what could be done to improve the film. The re- shoot was one suggestion. There was also further editing. Chowdhry claims that he also directed some part of it, and I will take this to mean that he directed that portion that was being re-shot (it could be nothing else). He also provided, so he says, creative input. All this resulted, Chowdhry claims, in a finished product -- the third version of Sindhustan, Version 3.0.
43. It is in this third version, arrived at by this process, that Chowdhry claims rights. Mr Ajatshatru fairly accepts that Chowdhry claims no rights in Version 1.0, assuming that it can be distinguished, nor in Version 2.0, but his claim lies in the final cut that is Version 3.0. This is conceptually problematic because Versions 1.0 and 2.0 do not exist as separate works. They are incorporated and meshed into Version 3.0. In any case, this version was ready by about February 2019.
44. At this stage, a number of events began to happen in quite rapid succession. By January 2019, there was the submission of the film Page 26 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx Sindhustan to a festival or event called DocEdge, Kolkata apparently intended to mentor documentary filmmakers. Sindhustan won an award at this event. Bhavnani then began sending the film around to various international film festivals, including New York, Atlanta, Ottawa, Stuttgart and so on. There is material to show that at many of the international festivals, the two travelled together. Their personal relationship continued at least until September 2019. Then they began to have differences. By December 2019, matters reached a head. They broke off their relationship. They have not been together since.
45. What Chowdhry claims, broadly stated, is that it is only after two separated that Bhavnani started claiming to be the producer of, first, his documentary film Mehsampur and for which he has filed a separate suit. There was some correspondence in regard to the Mehsampur claim and contentions in May 2020. By this time, of course, the world was in a lockdown. In early-May 2020, Chowdhry claims he discovered that Bhavnani was trying to commercialise Sindhustan to his exclusion and issued her a cease and desist notice requiring her not to exploit the copyright and claiming that he had joint copyright in Sindhustan. Chowdhry claims that Bhavnani wrongly denied his contribution and then says that she began removing his name from various media and social media platforms. Chowdhry also sent notices to the other Defendants, all of which are or are connected with online platforms, demanding that they not release Sindhustan on their services. The platforms did not comply. The correspondence carried on through May 2020. On 21st May 2020, Chowdhry filed the present suit.
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46. Leaving aside the dispute about Mehsampur, what is it that Chowdhry claims in regard to Sindhustan? His case is simply is that because of the work he did on Sindhustan (and this is now a reference to Version 3.0, the final cut), he is the 'joint author' of that 'work' and is, therefore, entitled jointly to exploit the copyright. Of necessity, this means, on any reading of the analysis of the Copyright Act that I have set out above, that Chowdhry's claim is to being a co- producer of Sindhustan; therefore, his legal entitlement to jointly exploit the copyright; and, concomitantly, his right to a restraint against Bhavnani from exploiting the copyright in Sindhustan without Chowdhry's permission or consent. This is actually the totality of his case.
47. Specifically, Chowdhry says that the work he did in December 2018/January 2019 of re-shooting, editing and providing creative input was without recompense. It was not intended to be done gratuitously. There may not have been a written contract, but the version that was finally produced took that form only because of Chowdhry's invaluable contributions and inputs in very many capacities: editor, cameraman, creative director, and perhaps more. These taken together and reckoned with the absence of any compensation being paid to him necessarily mean that he is a co- producer of the film.
48. This is Mr Ajatshatru's construct, and it depends on two distinct but connected aspects. The first, in law, is that this necessarily means that Chowdhry's claim is that he 'took the initiative' and 'responsibility' for the final cut of Sindhustan. In the law as it is settled, this means he ran some financial risk. As to Page 28 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx initiative, Mr Ajatshatru would have it that by telling or advising Bhavnani on how she could improve her initial raw work, he satisfies that test. So far as the responsibility aspect is concerned, and accepting the Ramesh Sippy standard, he says that the work that he did -- which Mr Ajatshatru describes as 'sweat equity' -- may not have received an immediate rupee compensation, but this only means that his recompense must come in the form of recognition of his rights of joint ownership of copyright. Otherwise, Mr Ajatshatru submits, his creative work is all for nothing with no form of recompense and no recognition of his labours.
49. Mr Cama has dealt with this argument at different levels, but there is one that I want to reject immediately. I understood him to say that since Bhavnani shared her home with Chowdhry while they were together in Mumbai, Chowdhry was given 'free boarding and lodging'. I do not believe the experience was that of a hotel owner and a guest to admit of such a description. When two parties are in a relationship, one does not count pennies or keep accounts. It is not possible to accept this is a 'form of recompense'. There may be other factors to be looked at, but this not one of them.
50. Mr Ajatshatru's construct on facts, therefore, given this legal background, is divided into distinct parts. Factually, at some point, Chowdhry seems to have decided to wind up his own partnership firm and separate from his partner Akshay Singh. There is also no dispute that in early-March 2019, the parties agreed on a new label called Akbar Pains. This was coined by Chowdhry as an anagram of their first names Kabir and Sapna, as Chowdhry claims. That it is a possible anagram is not in doubt. At this stage, Akbar Pains does not Page 29 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx seem to have had a formal legal structure. This becomes relevant because, as we shall shortly see, it is this Akbar Pains that has been credited in the title of Sindhustan as a producer, in some cases alone and in some cases with Bhavnani's name. At no point has Chowdhry's name appeared in the titles with or without Akbar Pains.
51. According to Mr Ajatshatru, there was between the parties an agreement regarding Sindhustan. This may not have been a contract in writing. It is nonetheless an understanding or an oral agreement and one that is very much enforceable. In his plaint, Chowdhry claims that as much as 60% of the finished film has the new material shot by Chowdhry under his direction. He also supervised most of the post- production work. In paragraphs 14 to 17, he says he took no fee for the work of filming, editing and direction but remained involved right through to the completion of the final product. This, he says, resulted in an executed contract of around February 2019 -- he cannot be more precise than this -- between the parties. Chowdhry performed all his obligations under this contract. The consideration for that contract and for the work done was co-ownership or joint ownership of the copyright in the finished work.
52. Not only is this, Mr Ajatshatru says, factually provable, but the law itself recognises Chowdhry's rights. He has 'taken the initiative' (in the manner described above). It was he who provided the creative input and helped shape the final product. His responsibility is certainly financial and economic in not taking his fee upfront or immediately. Mr Ajatshatru submits that of necessity, he is unable at this stage to show any documentary proof of the revenue share from any earnings of the film payable to a producer, but he maintains that Page 30 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx joint ownership of copyright was the consideration and was the agreement between the parties. The full conspectus of copyright, including moral rights, is vested jointly in Chowdhry and Bhavnani. They take as tenants-in-common. Neither can exploit to the exclusion of the other. In furtherance of this, Mr Ajatshatru says that the original proposal was to release the film jointly by the two independent enterprises, Dark Matter Pictures and Mad-O-Wat. This, for a variety of other reasons, did not come to pass.
53. Mr Ajatshatru now turns to the material to establish two things:
first, that such a contract existed with this consideration; and, second, to show that Bhavnani herself acknowledged in place after place Chowdhry was indeed not just the co-producer but the producer of this film. I turn to this material now. As I said earlier, I am not conducting a mini-trial. I am looking at this material in its broadest sense.
54. One incident on which Mr Ajatshatru relies is that when Bhavnani submitted the film to DocEdge, Kolkata, Chowdhry's name was shown as 'producer and creative director' in the informational material that is on record. He relies on Bhavnani's emails to the organisers of Doc Edge. Then there is material in the nature of Bhavnani's posts on her social media accounts around mid-February 2019 when the first publicity designs were created for Sindhustan. Chowdhry says that here again, Bhavnani announced the film as a co- production between the two parties' respective houses. At about this time, in early-March 2019, as I noted, Akbar Pains came into existence. Bhavnani ran up a separate Facebook page and said it was a joint banner of Chowdhry and Bhavnani. By April 2019, Sindhustan Page 31 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx had its own web page. This web page, one that Chowdhry says was managed and run by Bhavnani, specifically acknowledged Chowdhry as a producer in conjunction with the Akbar Pain's name. An update of about 24th April 2019 shows Chowdhry's name. The reason the film credits did not include either parties' names is, Mr Ajatshatru says, because they proposed to run it under the producership of Akbar Pains, which in turn was agreed would be jointly controlled by both of them.
55. It is for this reason that until September 2019, all credits in the film, i.e. in the opening or end credits only showed Akbar Pains as the producer. If Bhavnani has added her name in the credit rolls, this is without Chowdhry's consent or knowledge. She did this only after she and Chowdhry broke off their relationship.
56. Then there is the material relating to film festivals. There is a long list of these, about 13 or 20 in all. Many of these were overseas. There were two in America (New York and Atlanta) in May 2019. Chowdhry's case that when the parties travelled, Chowdhry's name was included as a producer in all the documentation for the festival, although it may not have been there in the credit titles (where only Akbar Pains was shown). At all these festivals, both Chowdhry and Bhavnani were co-producers, and Bhavnani always acknowledged Chowdhry as the producer/editor of the film.
57. The material on which Mr Ajatshatru relies varies a great deal. It is there in some background email correspondence. It is perhaps there in some promotional videos as well or interviews. Mr Ajatshatru Page 32 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx enthusiastically invited me to view some of this audiovisual material. I, with a corresponding lack of enthusiasm, declined the invitation. To return to this narrative, Mr Ajatshatru points out that the official website of the June 2019 Ontario Indian Film Festival acknowledged Chowdhry as a producer along with Bhavnani. For the July 2019 festival in Stuttgart, Germany, Bhavnani herself prepared a video invitation in which she acknowledged Chowdhry as a producer. That credit is also on the festival website. In an interview after the first screening, Bhavnani is supposed to have acknowledged Chowdhry's contribution to the film.
58. By September 2019, relations had already soured between the parties. They were then in Chicago. There is a video of that festival. Chowdhry claims that he was felicitated as a producer when introduced and called on stage.
59. Back in Mumbai in October 2019, at the MAMI festival, Bhavnani acknowledged Chowdhry as the producer while submitting Sindhustan as an entry into that festival. It is Bhavnani who supplied, Chowdhry says, the credit details to MAMI for the official entry. The email chain shows this, and it was Chowdhry who wrote back to MAMI surrendering his seat at the event.
60. There are joint interviews as well, one of them of 21st August 2019, in which Bhavnani is said to have acknowledged and admitted Chowdhry to be the co-producer of the film.
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61. See this in its entirety, Mr Ajatshatru urges; all this is the conduct not of Chowdhry, but of Bhavnani. If she has not once or twice, and not in a stray incident but repeatedly acknowledged Chowdhry as the producer or co-producer of Sindhustan, then there is no reason at all for relief to be denied. This is, taken as a whole and without the minute scrutiny required in a trial, furnishes a more than sufficient prima facie case is Mr Ajatshatru's submission.
62. Before I turn to Mr Cama's response to this, it seems to me that there is one significant, and possibly determinative, lacuna in this construct. Throughout, Mr Ajatshatru and Chowdhry rely on things they say Bhavnani did, said or wrote to establish Chowdhry's case. What none of this answers is what Chowdhry himself did -- or more accurately did not do -- in substantiation of the case he makes today. For this much is clearly beyond doubt: that it was Chowdhry himself who prepared the credits for Sindhustan, and in these credits he described only Akbar Pains as the producer. He did not credit himself. He did not credit himself and Bhavnani. He did not say that Akbar Pains was a joint venture of Chowdhry and Bhavnani. What Akbar Pains was and is conceivably is a crucial matter, for there is no prayer in this suit for specific performance of any contract in regard to Akbar Pains at all. I have not understood Mr Ajatshatru at any point to claim any rights in Akbar Pains as an entity. His entire case has been and only been that Chowdhry personally needs to be credited as a co- producer. Whether he is shown as a co-producer with Akbar Pains or with Akbar Pains and Bhavnani or only with Bhavnani is immaterial; Chowdhry's name must appear as a producer. That is his case.
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63. Chowdhry himself agrees that Akbar Pains was at best an unregistered trade mark, but more likely in the nature of a banner. He claims that it was agreed to be utilised by both. There is some controversy about a Chartered Accountant being engaged to draw up the necessary documents, but this is very seriously disputed because Mr Cama points out that the engagement of a Chartered Accountant had nothing to do with Akbar Pains but had to do only with a dissolution of Dark Matter Pictures. That is not an issue, therefore, that lends itself to an ad-interim prima facie determination. There is, however, material to show that Akbar Pains is a sole proprietorship of Bhavnani. To say, therefore, as Chowdhry does, that it is merely a brand name and that no copyright can vest in a label is incorrect. There are allegations at various places that Bhavnani has 'fraudulently' obtained a Shops and Establishment Act license from the MCGM in the name of Akbar Pains with her as a proprietor. The submission is that the legal status of Akbar Pains is inconsequential. Akbar Pains did not even exist when the film was completed and when copyright came to vest. Even if Akbar Pains is now shown as a producer there would have to be an assignment of copyright by a written contract between the original holders of the copyright and Chowdhry not having executed any such contract, there is no right that vests in Akbar Pains.
64. Even on its own, this presentation is by no means compelling. Instead of unequivocal evidence of a prima facie case, all that I have is a circuitous, elliptical, inferential set of documents. I am asked to infer that Chowdhry must have been the co-producer of the film. The legal test itself is not satisfied, for, as I have noted, merely saying that a person did this or that work on a film, something that Hon'ble Mr Page 35 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx Justice Krishna Iyer described as a glorious, collective ensemble does not elevate every such contributor to the level of a producer, i.e. the author and first owner of the copyright. As I have noted above, the consequences of accepting this submission are unimaginabl. That is not how the law is structured.
65. The second lacuna is the complete failure to demonstrate any such co-producing agreement at all. Again, at this prima facie stage, I am invited to infer it. I cannot. Whether or not it will be proved at trial is another matter altogether. Today, the material before me shows no such agreement.
66. But this is not all. There is a response from Bhavnani and this takes on every one of the different classes of assertions that Chowdhry makes and deals with them one by one. I will leave aside for now the questions of delay and acquiescence and come directly to the traverse on facts.
67. First, there is the fact that the credit rolls of the film, even though they were created by Chowdhry himself, never showed him as a producer. It was he who prepared these in his capacity as an editor. Chowdhry is credited with various other roles for camera work, as an editor, creative director and with 'special thanks', none of which have been taken away.
68. There is countervailing material in the form of an email from Chowdhry with a draft credit roll which was prior to Version 3.0, i.e. on 8th November 2018. It is possible that Chowdhry's envisioning of Page 36 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx his role has changed since, but what this tells us is that at least until November 2018, Chowdhry had no conceptualisation of his work or proposed work on the film being that of a person who would 'take initiative' and 'responsibility'.
69. Another telling circumstance is that the film certification application to the Central Board of Film Certification or CBFC was by Bhavnani alone. It referenced only Akbar Pains. This was in September 2019. The certificate came on 9th October 2019. It shows Bhavnani's name as the producer. Now the Ramesh Sippy judgment in appeal and that of the learned Single Judge both accept this as prima facie proof of ownership. Chowdhry could not have been unaware of the requirement of film certification. Between January 2019 to May 2020, there is absolutely nothing from Chowdhry that shows him asserting his rights as a producer. Indeed this is true throughout, where Chowdhry's entire case is based on what Bhavnani is supposed to have said, without any reference whatsoever to what Chowdhry himself did to assert the rights that he now claims.
70. This matter of looking at emails can go on endlessly. For every one email on one side, there will be two on the other. Mr Cama submits that there are equally emails from Chowdhry confirming that he was only the editor of the film. My task today is not to assess every one of these emails but to see if there is a prima facie case made out.
71. All invitations to the film festivals were addressed only to Bhavnani. It is she alone who responded. It is she who paid for all travel and stay. It was she alone who accepted all awards. There is Page 37 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx enough countervailing material to show that the references were to the film as being Bhavnani's with Chowdhry shown only as the editor
-- and all of this at festivals at which Chowdhry was very much present.
72. When it comes to the correspondence in relation to the film festivals, Bhavnani says that for the travel abroad, for some visa purposes, Chowdhry needed to be shown as a 'person of significance' to get the necessary class of visa.6 It is for this reason that he was shown in that correspondence as a producer. This never translated to any credit in the film itself. Mr Ajatshatru says that even assuming this to be true, which it is not, it could not possibly apply to subsequent visits. There were another 16 or 17 festivals at which there is no mention of him as being a producer. Again, I am at some pains to point out that I am looking at this material as a class to see whether, taken in totality, it bears out what Chowdhry claims.
73. On the one hand, therefore, I have some documents that are judicially recognised as important prima facie proof of ownership. These include the CBFC certificate, the credit titles and other registrations. There is also attendant material in the form of invitations, awards etc. As against this, and I have looked very closely for even one determinative document, all that I have from Chowdhry are references on Facebook or other social media posts, some 6 There is one entry on a website that in April 2019 bore the name of the Plaintiff as a producer but the explanation from Bhavnani is that this insertion was needed for a US visa and as supporting material for that visa. Given that the US trip was in May 2019, that is not an explanation so easily disregarded or discarded.
Page 38 of 4510th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx statements in correspondence that are inconclusive when seen as a whole. One must see the entirety of the evidence and in which direction it tends; and whether it can be said to be freighted with the conclusions Mr Ajatshatru invites. This inferential material is the only material that Chowdhry has. It is by no means persuasive. I have not the slightest intention of examining every one of these documents at this stage. Repeatedly, I asked for a single document from Chowdhry that satisfies even prima facie the legal determinants. Other than the correspondence and social media material of this type, I was shown nothing. Multiplying this will not give heft to an otherwise vulnerable case.
74. The ownership of Akbar Pains is perhaps something of a red herring. Chowdhry maintains it is irrelevant. I have considered that above. The answer from Mr Cama is to say explicitly that Akbar Pains is the proprietary concern of Bhavnani. He points out that Chowdhry is constantly shifting goalposts when it comes to Akbar Pains. At one place, he contends that it is a mere label, brand or shell. Then he contends that it was intended to be an entity in which both he and Bhavnani would have an equal stake. Then he claims that it continues to be only a label and is not the proprietary concern of Bhavnani and that she has obtained government licenses fraudulently. How this is fraudulent remains unclear. But if Bhavnani is shown as the proprietor of Akbar Pains for the purposes of the Indian Motion Pictures Producers Association and this is material of which Chowdhry was aware, then that is all that needs to be stated. The Akbar Pains website is one that Bhavnani owns. She alone does all its publicity. All documents relating to Akbar Pains stand in the name of Bhavnani. What Chowdhry has are tweets and Facebook posts.
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75. There is some concern about the delay in bringing the suit. Mr Ajatshatru says that it was brought as soon as possible and as soon as he learnt of Bhavnani's attempts to deal with the copyright independently. I find that hard to accept. Chowdhry did the credits for Sindhustan in January or February 2019. I do realise that he was in a relationship with Bhavnani, and that may have more than somewhat clouded his judgment, but that was the earliest time to have asserted his right to be a co-producer either with Bhavnani or anyone else. We find no such assertion. Indeed, in all of 2019, there is no such assertion at all, although, by September 2019, relations were already under stress, and by December 2019, they had been irredeemably broken down. By this time, to Chowdhry's knowledge, the film had been screened in festival after festival across the world where the credits and end titles were there for all to see. Not once did Chowdhry's name appear on that. He cannot now say, "I was Akbar Pains or part of it, and part of Akbar Pains was me'. If he does say that, he must seek relief for that -- which he does not. There is no such prayer whatsoever.
76. The first time Chowdhry asserts a right to being a co-producer is in his legal notice of 1st May 2020 in relation to Mehsampur. A copy of that is readily available at page 370 of the plaint.7 The is addressed to Bhavnani -- care of Akbar Pains. In paragraphs 5 and 8, Chowdhry referenced Akbar Pains as Bhavnani's 'production banner', i.e. that Akbar Pains was Bhavnani's concern and that he had no role in it. It is difficult to understand these vacillating stands from Chowdhry.
7 Not to be confused with the notice in regard to Sindhustan of 4th May 2020.
Page 40 of 4510th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx Can it be fairly be said that these facts, even taken as a whole, make out a sufficient prima facie case for the grant of relief?
77. I not only have the most serious reservations about this. I do not see how I can legitimately say that there is any sort of prima facie case made out, let alone the kind of strong prima facie case required for a mandatory injunction assuming my reading of the prayers is correct.
78. I do not think it is necessary to refer to the very many judgments and authorities on which Mr Ajatshatru has relied and of which I have a compilation. The written submissions on both sides are as exhaustive as they are debilitating -- and they are an invitation to engage in precisely what I cannot do, conduct a mini-trial at this stage. The references to authorities on joint ownership of copyright are immaterial because, as I have noted, even a joint author must satisfy the definition of an author, to begin with. In the case of a cinematograph film, this means that it must be the producer, and the producer must be somebody who is shown to have taken the initiative and responsibility. Chowdhry's contribution to the film is not denied. There was his contribution as a camera person, as a creative director, as an editor and one deserving of special thanks. But this does not in and of itself translate into him being one who could be said to have taken the initiative and responsibility for making the work. That requires considerably more. In a given situation, there may be a director who is also a producer in some capacity. This is well known in the cinema industry both here and overseas, especially where the directors are themselves prominent personalities and function in both capacities. There is the auteur's vision of the work, but when this is Page 41 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx matched with taking the initiative in conceptualising the work and bringing it into existence, and also accompanied by the risk-taking element of responsibility, then and only then does one become a co- producer entitled to protection under the Copyright Act for the purposes of a cinema film. Nothing short of this will do, and being a producer cannot, in my prima facie view, be something that can be asserted by inference or circular reasoning. The evidence of taking the initiative and responsibility must be strong and must be direct. In the absence of that, no relief is possible.
79. At the head of this judgment, I referenced the decision by Kathawalla J in the Sholay case. I pointed to paragraph 28 of that decision and said I would return to it. I do so now. And I do so because it reflects Mr Ajatshatru's submission before that Court as to why Ramesh Sippy could not be considered a producer. I do not suggest there is estoppel against counsel. But I do believe those very arguments that Mr Ajatshatru then made must apply equally against him today:
28. It is submitted on behalf of defendant No. 3 that it is an admitted position that the plaintiff was the principal Director of the film Sholay. Though the director of a film is expected to be involved at every stage in the creation of the film, he does not put in financial investment for the making of the film but it is the producer who either finances the film himself or arranges for the finance and it is the producer who takes the sole risk of suffering losses if the film is a flop. The director is paid his fee and bears no liability whatsoever if the film is not commercially successful. In the present case, the film Sholay was produced by the said firm and it was the said firm which arranged for the finances and solely took the commercial risk of failure.Page 42 of 45
10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx Much prior to the completion of the film in August, 1975, the plaintiff realising the risk of failure, voluntarily retired from the said firm on 12th June, 1975 and settled all accounts with the said firm to mitigate any liability of losses which the producer firm may have suffered if the film was not successful at the box office. Thus, at the time of completion of the film in August, 1975, the said firm was the sole producer and the owner of the said film Sholay and accordingly as per the provisions of the Act as it stood then, was the 'sole' author of the cinematograph film Sholay. The plaintiff may have been associated with the production and completion of the film after 12th June, 1975 but only as its Director and only doing all the jobs of the Director. The Directorship of the film in question has brought tremendous laurels to the plaintiff and he enjoys fame even till date. However, the Directorship does not entitle him to claim being the 'author' of the film and claim copyright and moral rights in the film, either at the time of release of the film or even today. It is submitted that there is nothing brought on record by the plaintiff to prove that he was the producer or owner of the said film Sholay at the time of its completion in August, 1975 or to show that he shouldered the risk of commercial failure if the film was a flop or for that matter he enjoyed the profits from the successful commercial exploitation of the film as the producer of the said film Sholay. It is submitted that the plaintiffs stand, on the role of a principal Director of a film in relation to authorship of a film is a matter of record and the defendant No. 3 has relied on "Department - Related Parliamentary Standing Committee on Human Resources Development on "The Copyright (Amendment) Bill, 2010"
("Bill) that was tabled in the Lok Sabha on 27th November, 2010, proposing inter alia to amend the definition of the 'author' of a cinematograph film to include the Producer as well as the principal Director. The plaintiff was a part of the Page 43 of 45 10th & 11th February 2021 KABIR CHOWDHRY V SAPNA BHAVNANI & ORS 1-IAL5420-2020 in comipl5415-2020-J.docx delegation of the Film and Television Producers Guild of India which vehemently opposed the proposed amendment giving authorship to the principal director of a film. It is submitted that the plaintiff is now taking a different stand before this Court on Authorship in the film Sholay and is therefore blowing hot and cold which cannot be permitted. It is submitted that the plaintiff was and remains only to be the Principal Director of the said film Sholay and nothing more, and therefore cannot claim authorship in the said film and consequently cannot claim any reliefs as prayed for in the suit and the Notice of Motion.
(Emphasis added)
80. In my view, there is no substance to this Interim Application. The Interim Application is dismissed.
81. Although this matter is in the Commercial Division and the amendments to Section 35 the Code of Civil Procedure 1908 effected by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 generally require costs to follow the event, I decline to make an order of costs in this matter. This is because the two parties are individuals. I do not see any reason to make orders of costs against them. There will be no order as to costs.
82. All observations on facts are only prima facie for the purposes of this Interim Application.
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83. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 45 of 45 10th & 11th February 2021