Delhi High Court - Orders
Ja Entertainment Pvt Ltd vs Ms Sithara Entertainment & Ors on 31 March, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 191/2022
JA ENTERTAINMENT PVT LTD ..... Plaintiff
Through: Mr. Pravin Anand, Mr. Dhruv Anand
and Ms. Ndit A.M. Patro, Advocates.
versus
MS SITHARA ENTERTAINMENT & ORS. ..... Defendants
Through: Mr. Achyuth Ajithkumar, Advocate
for D-3 and 4.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 31.03.2022
I.A. 4814/2022 (Addl. Doc.)
1. Present application has been preferred on behalf of the Plaintiff seeking leave to file additional documents under Order 11 Rule 1 CPC.
2. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015.
3. Application is disposed of.
I.A.4815/2022 (Exemption)
4. Subject to the Plaintiff filing originals, clearer copies, translated copies and left side margins on which it may seek to place reliance within four weeks from today, exemption is granted.
5. Application is allowed and disposed of.
I.A. 4816/2022 (Seeking extension of time for filing court fees)
6. For the reasons stated in the application, Plaintiff is permitted to file requisite Court Fees within two weeks from today.
Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 1 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:107. Application is allowed and disposed of.
I.A. 4817/2022 (seeking exemption from institution of pre-litigation mediation)
8. For the reasons stated in the application, the requirement of pre- institution mediation is dispensed with.
9. Application is allowed and disposed of.
CS(COMM) 191/2022
10. Let plaint be registered as a suit.
11. Issue summons.
12. Mr. Achyuth Ajithkumar, learned counsel enters appearance on behalf of Defendants No. 3 and 4.
13. Written statement be filed by Defendants No. 3 and 4 within 30 days. Along with the written statement, Defendants No. 3 and 4 shall also file an affidavit of admission/denial of documents of the Plaintiff.
14. Replication be filed by the Plaintiff within 15 days of the receipt of the written statement. Along with the replication, an affidavit of admission/denial of documents filed by Defendants No. 3 and 4 shall be filed by the Plaintiff. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
15. Upon filing of process fee, issue summons to Defendants No. 1 and 2, through all permissible modes, returnable on 01.08.2022. Summons shall state that the written statement shall be filed by Defendants No. 1 and 2 within 30 days from the receipt of summons. Along with the written statement, Defendants No. 1 and 2 shall also file an affidavit of admission/denial of the documents of the Plaintiff.
16. Replication be filed by the Plaintiff within 15 days of the receipt of Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 2 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:10 the written statement. Along with the replication, an affidavit of admission/denial of documents filed by Defendants No. 1 and 2, shall be filed by the Plaintiff. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
17. List before the Joint Registrar for marking of exhibits on 11.07.2022.
18. List before the Court on 01.08.2022.
I.A. 4813/2022 (under Order 39 Rules 1 and 2 CPC)
19. Present application has been preferred by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure 1908 for grant of ex-parte ad interim injunction.
20. Issue notice.
21. Mr. Achyuth Ajithkumar, learned counsel accepts notice on behalf of Defendants No. 3 and 4.
22. Reply be filed by Defendants No. 3 and 4 within a period of two weeks from today.
23. Rejoinder be filed by the Plaintiff within a period of one week thereafter.
24. Issue notice to Defendants No. 1 and 2, through all permissible modes, returnable on 01.08.2022.
25. It is averred in the plaint that the Plaintiff is a company incorporated under the provisions of the Companies Act, 1956. Plaintiff was founded in 2008 and since then has been engaged inter alia in the business of film and advertisement production in the media and entertainment industry and has produced multiple films that have been widely successful commercially, in addition to being critically acclaimed. Plaintiff's portfolio of films includes, but is not limited to, films such as "Vicky Donor", "Madras Café", Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 3 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:10 "Parmanu", and "Batla House". Owing to the superlative quality of the productions under its banner, Plaintiff has garnered a substantial goodwill and reputation and is today, one of the most sought-after production houses amongst members of the trade.
26. It is averred that Plaintiff executed an Assignment Agreement with Defendant No. 3 on 13.05.2020, under which the Hindi remake rights in the Malayalam film 'Ayyappanum Kozhiyum' (hereinafter referred to as 'Malayalam Film'), which was produced by Defendant No. 3, were assigned to the Plaintiff. Plaintiff in July 2020 commenced pre-production of a Hindi remake of the Malayalam Film, in accordance with the rights granted under the Assignment Agreement dated 13.05.2020.
27. It is averred that meanwhile, Defendant No. 1 produced and released the Telugu remake of the Malayalam Film, titled 'Bheemla Nayak' on 25.02.2022. Thereafter, on or around 04.03.2022, Plaintiff came across a trailer of the Telugu Film titled 'Bheemla Nayak' dubbed in Hindi (hereinafter referred to as 'suit film'), on YouTube, uploaded on 04.03.2022, for which no release date was mentioned. Viewing of the trailer revealed that the film was a Hindi-dubbed version of the Telugu Film titled 'Bheemla Nayak', which in turn was a Telugu Remake of the Malayalam Film.
28. It is pleaded that the Plaintiff immediately on 04.03.2020, enquired from Defendant No. 3 and its partners with respect to the nature of rights granted to the Director of the suit film, i.e. Defendant No. 1. Defendant No. 3, in turn, supplied to the Plaintiff a copy of Assignment Agreement dated 18.03.2020, executed between Defendant No. 3 and Defendant No. 1 and clarified that under the said Agreement, limited remake rights of the Malayalam Film in Telugu language only (with the right to subtitle the Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 4 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:10 proposed Telegu remake into all Indian languages) were assigned to Defendant No. 1.
29. It is also averred by the Plaintiff that perusal of the Agreement dated 18.03.2020 reflects that the following limited rights were assigned in favour of Defendant No. 1 by Defendant No. 3 and Mr. Kovakattu (represented by legal heir as Defendant No. 4 in the present suit):
(i) The right to remake and dub the Malayalam Film into the Telugu language only;
(ii) The right to subtitle the proposed Telugu remake into all Indian languages;
(iii) Exploitation rights in relation to the aforesaid.
30. Plaintiff avers that the ambit of the Agreements dated 18.03.2020 and Agreement dated 13.05.2020 being separate, has also been confirmed and acknowledged by Defendant No. 3 in its notice dated 09.03.2022 addressed to Defendant No. 1. In fact, the same is also fortified by the brazen attempt of Defendant No. 1 to execute an amended version of the Agreement dated 18.03.2020 on the same date, wherein the only amendment proposed was the following sentence in Clause 3 thereof:
"The Assignees are not entitled to dub the Telugu remake film in to Malayalam language alone during the course of this Agreement which is assessee of the agreement."
31. It is the contention of Mr. Anand that the rights to remake the Malayalam film in Hindi language were exclusively vested in the Plaintiff and the impugned action of Defendant No.1 amounts to breach of Plaintiff's rights under the Assignment Agreement dated 13.05.2020. Pursuant to the said rights under the Assignment Agreement, Plaintiff has become the owner Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 5 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:10 of copyright in the derivative rights i.e. the right to adapt the Malayalam film under the Copyright Act, 1957, in Hindi language. Any attempt by Defendants No. 1 and 2 to infringe upon the said rights amounts to infringement under Section 51 of the Copyright Act.
32. It is further contended that the owner of a copyright in a cinematographic work, inter alia, has a right to both subtitle and dubbing of its work, however, this is subject to any restrictive condition being put in by the parties. In the present case, the Deed of Assignment in favour of Defendant No. 1 clearly reflects the restrictive rights given to Defendant No.1 by Defendant No. 3 and apparently Defendant No. 1 was not assigned the right to dub the Malayalam film or its remake in Hindi language. For the said proposition, reliance is placed on the judgment in Thiagarajan kumararaja vs. Capital Film Works (India) Pvt. Ltd. and Another, 2017 SCC OnLine Mad 37588, wherein it has been held as under:-
"18. In the context of a film, undoubtedly, dubbing involves embedding a sound track in a film, which is in a language different from that of the original. [See Concise Oxford Dictionary, Tenth edition (Revised) at page 440] 18.1. Translation of a work involves an exercise by which words or text used in the original work are expressed as closely as possible in another language [See Concise Oxford Dictionary Tenth Edition (Revised) at page 1523].
18.2. Therefore, while the translation of the literary work is carried out ordinarily by using a writing medium, dubbing involves the use of the sound track. The question, which, thus, comes to fore is whether the producer or the author of a cinematograph film is conferred with right to dub?Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 6 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:10
18.3. To our minds, the answer has to be in the affirmative, as the right in a cinematograph film is independent to the right that a person may have in the underlying works, such as, the story, the script and/or the screenplay. In some cases, it may so happen that each of these rights vest in different persons. On the other hand, there could be a case, where, one or more rights vest in the same person.
18.4. In the instant case, admittedly, the story, the script and the screenplay was written by the appellant, and hence, the authorship qua them vests in him. The appellant, agreed to make a film with the help of respondents. The initiative and responsibility in respect of the same was, admittedly, taken by the respondents. The appellant was paid a sum of Rs. 7,00,000/-. Therefore, quite clearly, in so far as the subject cinematograph film is concerned, the producers, being its authors', are entitled to its ownership. The respondents, therefore, as the producers/authors of the cinematograph film, in our view, would have all the rights in the subject film as conferred under Section 14(d)(iii) of the 1957 Act, which would include the right to dub.
18.5. An analogous principle is found embedded in Article 14 of the Berne Convention (1971 Paris Act).
18.6. In short, the principle being that the owners of copyright in a cinematographic work will, inter alia, have the right to both sub- title and dub their work. This, of-course, is subject to any restrictive condition being put in by the parties.
18.7. As would be evident in the facts of the case and the discussion made hereafter that no restrictive condition was put in by the appellant on the respondents qua dubbing. ..."
33. Learned counsel contends that Plaintiff has invested considerable Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 7 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:10 amount of money in the pre-production stage of its proposed Hindi remake of the Malayalam film. If the suit film is allowed to be released, the commercial viability of the Plaintiff's proposed film shall be considerably damaged, since a cinematographic film is watched by the public solely for creativity and novelty.
34. In my view, Plaintiff has made out a prima facie case for grant of ex- parte ad-interim injunction. Balance of convenience also lies in favour of the Plaintiff and it is likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.
35. Accordingly, by way of an ex-parte ad interim injunction, Defendants No. 1 and 2, their servants, agents, licensees, franchisees, partners, proprietors or any one claiming through, under or by them, are hereby restrained, till the next date of hearing, from producing, exhibiting or communicating to the public the suit film, i.e. Hindi dubbed version of the Telugu film titled 'Bheemla Nayak' or any part thereof, in any manner, including but not limited to theatres, television, OTT platforms, internet, etc., so as to infringe the Plaintiff's copyright in the Malayalam film.
36. Provisions of Order 39 Rule 3 CPC shall be complied with by the Plaintiff, within a period of five days from today.
JYOTI SINGH, J MARCH 31, 2022/rk Signature Not Verified Digitally Signed CS(COMM) 191/2022 Page 8 of 8 By:KAMAL KUMAR Signing Date:01.04.2022 19:16:10