Bombay High Court
Shri Anand Patwardh A N vs The Director General on 31 March, 2009
Author: Roshan Dalvi
Bench: Roshan Dalvi
1
IN THE HIGH COURT OF JUDICATURE
AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 225 9 OF 200 4
Shri Anand Patwardh a n ...Plaintiff
Vs.
The Director General, Directorate General of
Doordars h a n & Ors. ...Defenda nt s
Mr.P.A. Sebastian with Ms. Mahar u k h Adenwalla for Plaintiff
Mr. S.R.Rajgur u for Defenda nt s
CORAM: SMT.ROSHAN DALVI, J.
DATED: 31 ST MARCH , 200 9
JUDGMENT:
1. The Plaintiff is a docume nt a ry film maker. The Plaintiff had made inter alia a documen t a ry film "Waves of Revolutio n" (the suit film) in 1975. The Defenda nt No.4 acting on behalf of Defenda nt s 1 to 3 has made a docume nt a ry film "26 th June 197 5" (the impugned film) in 2003. The suit film is about the Bihar Movement led by Jay Prakas h Narayan, a Freedom Fighter and a Revolutionary depicting the stude nt s' revolt in Bihar which led to and is stated to have been repressed by the Declaration of Emergency in 1975. The impugned film shows in a diametrically different perspective the persons and their actions before and at the time of the Declaration of Emergency. The suit film was ::: Downloaded on - 09/06/2013 14:28:56 ::: 2 telecast in 1977. The impugned film was telecast on 26 th Ju ne 2003, the anniversary of the Declaration of Emergency.
2. The Plaintiff claims that the Plaintiff had copyright in the suit film, which was breached and infringed because various extracts contained in these incidents were lifted from the suit film and inserted in the impugned film without the Plaintiff's permission or without any payment or any credit offered to the Plaintiff and without his knowledge. The Plaintiff learnt about the docume n t a ry only when it was broadcast on the Television by the Defenda nt s upon being informed that the said film showed parts of the suit film.
3. It is the Plaintiff's case that the impugned film contained subst a n ti al footage from the suit film made in 1974- 75 which has been used with a new meaning and entirely different sound track and different view -point and differs radically and funda me n t ally from the view- point expressed in the suit film.
It is the Plaintiff's case that it highlights the role of persons close to the ruling party of India on 26 th Ju ne 2003 and underplays or ignores the roles played by those persons during and before the Declaration of Emergency who found no favour with the ruling party of 2003.
4. It is the Plaintiff's case that the Defenda nt s have ::: Downloaded on - 09/06/2013 14:28:56 ::: 3 broadcast on the Television chan nel of Doordars h a n the Plaintiff's film upon the lifting of the Emergency after acquiring the telecast rights for a fee of Rs.500 / - . The copy of the film so broadcast remained in the archives of the Defenda nt s. It is also the Plaintiff's case that there is no existing equivalent footage of the Bihar Movement other than what was recorded by the Plaintiff. It is the Plaintiff's case that Defenda nt s 1 to 3 colluded with Defendan t No.4 to misappropriate the Plaintiff's copyright in the said film and incorporated parts of that film selectively in the impugned film.
5. The Plaintiff follows a secular democratic ideology. The ideology of the persons shown in the impugned film is the " Hindutva " ideology. It is also the Plaintiff's case that the impugned film shows essentially the acts of certain persons who follow an ideology completely different from that of the Plaintiff and accordingly the several shots of the suit film of the Plaintiff being shown in that impugned film constitutes an act to defame the Plaintiff. It is his case that his friends and acquaint a nce s who viewed the impugned film believed that the Plaintiff has renou nced his ideology and had sold himself. Accordingly the Plaintiff claims that his stat us was lowered and his public image was tarnished which resulted in public loss of face and mental trau m a.
::: Downloaded on - 09/06/2013 14:28:56 ::: 46. The Plaintiff claims that the suit film was mutilated which was precisely against his contract with Defendan t s 1 to 3 for acquiring the telecast rights and which resulted in dishonest misappropriation of the suit film by the resulta nt conversion by incorporation of parts of the film so misappropriated into another film of a different message thus violating his copyright. The Plaintiff has sued for damages of Rs.31 lakhs upon defamation by infringement of copyright as well as for injunction restraining the Defendan t s from screening and re-
screening and circulating the impugned film carrying the footage from the Plaintiff's film and for an issue and publication of an unconditional apology.
7. The Defenda nt s have denied copyright of the Plaintiff in the suit film or its infringement or the resulta n t defamation. They deny that the suit film is the Plaintiff's original work and any knowledge of the Plaintiff's copyright therein. The Defenda nt s claim that the Defenda nt No.4, who was the Producer and Director of the impugned film, took the shots of the film from the Doordars h a n Kendra (DDK) archives tape and did not know that it was the Plaintiff's docume nt a ry film. The Defenda nt s contend that that tape did not mention about the origin of the archive shots or whether its use would entail a liability. Defenda nt No.4 claims to be an innocent user of ::: Downloaded on - 09/06/2013 14:28:56 ::: 5 the archive material lying with the DDK. The Defenda nt s have denied that the impugned film contains subst a n tial footage of the suit film. The Defendant s also contend that the impugned film relates to a historical event and current events being telecast on the anniversary of the Declaration of Emergency to educate the people in political history with no intention to defame the Plaintiff. Accordingly the Defenda nt s have denied any breach of copyright or defamation arising therefrom and conseque ntly the liability for the reliefs sought.
8. Based upon the respective cases of the parties the following issues have been framed and answered as follows:-
ISSUES FINDINGS
1. Whether the suit is barred by the Law of Limitation. No
2. Whether the Plaintiff is the Producer / Author of the docume nt a ry film "Waves of Revolution". Yes
3. Whether the Plaintiff has copyright in respect of the said document a ry film and is entitled to invoke the protection under the Copyright Act. Yes
4. Whether the Defendan t s have pirated and plagiarised the said film or any part thereof. Yes ::: Downloaded on - 09/06/2013 14:28:56 ::: 6
5. Whether Dooradar s h a n had acquired the telecast rights of the Plaintiff's film for a fee of Rs.500 / - . Yes - per telecas t subject to limitati o n s impos ed by the Plaintiff as contain ed in Exhibit- B.
6. Whether the Defendan t s distorted and mutilated the Plaintiff's documen t a ry film and broadcast the same by breach of trust. Yes
7. Whether the Plaintiff suffered traum a and mental anguis h upon deriving knowledge of the telecast of the film "26 th Ju ne, 1995"
and whether it led to defamation. No
8. What relief, if any, that the Plaintiff is entitled to ? As per final order
9. The Plaintiff has examined himself and one other witness to prove the defamation alleged by the Plaintiff. The Plaintiff's examination- in- chief essentially makes out the case in the plaint. The additional affidavit of examination- in- chief of the Plaintiff shows the films made by him telecast on DD and for which he won certain awards. It further sets out his ideology and the consideration he received under the contract with the Defenda nt s for giving them the right to telecast the suit film. The affidavit further sets out how and to what extent his copyright in the suit film has been infringed by 6 extracts from ::: Downloaded on - 09/06/2013 14:28:57 ::: 7 his film intersper sed at various points in the impugned film.
It shows that his film was virtually the only authe n tic docume nt a ry footage of the Jay Prakas h Narayan movement.
It shows how he came to learn about the telecast of the impugned film and how he obtained the copy thereof as proof of telecast. It further shows the claim of damages made by the Plaintiff. His further affidavit of examination- in- chief shows the certificate obtained by the Plaintiff from the Central Board of Film Censor which is marked Exhibit- A in evidence, the contract between the parties shown by the Defenda nt s' letter setting out its terms marked Exhibit- B and the fact of the Plaintiff's telecast reported in a newspaper marked Exhibit- C. The Plaintiff has shown how his copyright was infringed and his anguish at the defamation caused by piracy and mutilation of the film.
10. Aside from these docume nt s, the parties have tendered a CD of the suit film and the impugned film as exhibits E & F respectively. Upon the parties' request the Court has viewed both the films in their entirety as also again viewed parts of the films specifically sought to be shown by the Plaintiff and Defenda nt No.4 and heard these parties' comment s on both the films. Several shots and stills of the suit film which have been incorporated in the impugned film are interalia Jay Prakas h Narayan in a boat crossing a river, a shot of student ::: Downloaded on - 09/06/2013 14:28:57 ::: 8 protesters upon a train, Jay Prakas h Narayan in a jeep, in a rally, people throwing garlands upon him, Plaintiffs handwriting "Bihar, Movement 1974 " on a Newspaper.
11. The cross examination of the Plaintiff is essentially on the content s of both the films and the fact that the shots and stills of the suit film incorporated in the impugned film are of a very short length in the entire film by the virtue of the fact that the total length of the copied shots and stills is over a very short duration in the impugned film. The fact that the same frames or images of several shots and stills of the suit film have been taken in the impugned film is not denied. It has been the case of the Defenda nt s that there has been no infringement of copyright. A chu nk of the cross examination sets out the description of the entire impugned film to show that it was different from the suit film during a great length of the film. The Plaintiff has also been cross examined upon the contract between the Plaintiff and Defenda nt s 1, 2 and 3 under which it has been the Defenda nt s' case that they were assigned the copyright of the suit film and hence can allow its user as they wished, so that none of the Defendant s has infringed the Plaintiff's copyright.
12. The other witness of the Plaintiff one Shashi Mehta who is a social activist has been examined to show that she knew the ::: Downloaded on - 09/06/2013 14:28:57 ::: 9 Plaintiff's ideology and character and that when she saw the impugned film telecast on DD the Plaintiff went down in her esteem. She, therefore, rang up the Plaintiff to confront him upon the fact that he had " sold away his principles " .
13. Her cross examination shows her members hip in various social organisations and her role for social causes. She has been cross examined upon the 5 other document a ry films of the Plaintiff, all of which she had seen. Her evidence shows that she had only seen the suit film in 1977 on DD.
ig She deposed about the Bihar Movement as a movement against social and economic injustice for grassroot democracy. She has agreed that the impugned film shows interviews of the political persons who have criticized imposition and contin ua nce of Emergency and that many people from the political party opposed to the Plaintiff and her ideology, were detained in Emergency. She has stated about various characters of the impugned film. She has nat ur ally no knowledge about any telecast rights of the suit film, she having come to know that the DD was not entitled to show excerpts of the suit film under a special agreement of the Plaintiff with Defendan t s 1,2 and 3 only after she saw parts of the suit film in the impugned film and questioned the Plaintiff.
14. Defenda nt No.4 has examined himself on behalf of the ::: Downloaded on - 09/06/2013 14:28:57 ::: 10 Defenda nt s. He is also a docume nt a ry film maker. The impugned film was produced and directed by him in 2003. His evidence shows that the entire empha sis of the impugned film was the fight against the Emergency imposed in 1975. He has interviewed leaders of all different political parties having different ideology and backgrou n d to show their opposition to the Emergency, including Jay Prakas h Narayan. He claims to be an innocent user of the archives material lying with the D.D.K and claims to fall under the proviso of Section 58 of the Copyright Act. His evidence further shows that he had no intention to defame the Plaintiff in any way. He claims that since DD had paid Plaintiff Rs.500 / - for purcha se of the film it was the property of the DD and that such contract s cannot be altered or modified by the Plaintiff. He has been extensively cross examined upon the characters in the film and their ideology. He has been cross examined upon the length of the footages by way of stills / s h o t s / images taken by him. He claimes that he did not defame the Plaintiff merely by his usage of the footage from the suit film.
15. The issues require to be considered upon such oral and docume nt a ry evidence upon the law of copyright applicable to the case.
ISSUE NO.1 :- Re: Limitation:
::: Downloaded on - 09/06/2013 14:28:57 ::: 1116. The impugned film was telecast on D.D. on 26 th May 2003. The infringement alleged by the Plaintiff could have taken place on that date. The conseque nces of the infringement, if any, would be thereafter. This Suit is filed on 11 th Ju ne 2004 within 3 years of the alleged infringement. Hence, it is not barred by the Law of Limitation. Issue No.1 is answered in the negative .
ISSUE NO.2 :- Re: Plaintiff producer of the suit film:
17. The Plaintiff has stated that he has produced, directed, written, photograp hed and edited the suit film. The Plaintiff has produced the certificate of the Central Board of Film Censors issued on 29 th July, 1977 as Exhibit- A showing him to be the Producer of the Film. Hence, issue No.2 is answered in the affirmativ e .
ISSUE NO.3 : Re: Plaintiff's Copyright :-
18. The legal concepts under the Copyright Act (the Act) would require to be first noted and understood. The Plaintiff claims copyright in a cinematograp h film and claims to invoke protection under the Act.
1. Under Section 2(f) of the Act a cinematograp h film is a work of visual recording on any medium produced from a process from which a moving image is produced.::: Downloaded on - 09/06/2013 14:28:57 ::: 12
2. Under Section 2(y) of the Act "work" is, interalia, a cinematograp h film.
3. Under Section 13(1)(b) of the Act a copyright subsist s in cinematograp h films.
4. Under Section 17 of the Act the first owner of the copyright is the author of the work.
5. Under Section 2(d)(v) the producer is the aut hor of the cinematograp h film.
6. Under Section 26 copyright in a film subsists for a term of 60 years from the year in which the film was produced. The suit film was produced in about 1977.
19. The Defendant s contend that the Plaintiff cannot claim copyright on the ground that the Plaintiff's copyright is not registered under the Copyright Act. The Defendant s rely upon the case of M/s. Mishra Bandhu Karyalaya & Ors. Vs. Shivratanlal Koshal A.I.R. 197 0 MP 261 in which it is held that only after the copyright is registered can it be claimed. It is observed that only once it is registered, the author can acquire property right in it. Aside from the fact that the ::: Downloaded on - 09/06/2013 14:28:57 ::: 13 legislation relating to the copyright itself does not provide for registration, but only mainten a n ce of the register of copyrights under Section 44 of the Act, the said judgment has been dissented from, in the case of R.Madhavan Vs. S.K.Nayar A.I.R. 19 8 8 Kerala 39 in which it is observed that Sections 44 and 45 are only enabling positions.
20. The Plaintiff being the producer of the suit film is its author and accordingly its first owner. The Plaintiff, therefore, has copyright in his work, being the suit film, even without its registration. Hence, Issue No.3 is answered in the affirmativ e .
ISSUE NO.4 : Re: Infringement of Copyright :-
21. The Plaintiff claims that various shots / s t ills / i m ages of his film showing the Bihar Movement which led to the Declaration of Emergency were bodily lifted from the suit film and verbatim incorporated in the impugned film constituti ng infringement of his copyright in the suit film.
22. The Plaintiff has stated that at 6 - 7 places in the impugned film, the shots / s t ills / i m ages of the suit film photograp hed and edited by him are reproduced. Such reprod uction is identical to the Plaintiff's shots / s tills / i m ages.::: Downloaded on - 09/06/2013 14:28:57 ::: 14
23. The Defenda nt s contend that the suit film, after its telecast in 1977, remained in the archives of the Doordars h a n Kendra (DDK) amongst other tapes. Defendan t No.4, whilst researching material from the archives took parts of certain tapes of films without knowing or realising that they were parts of the suit film or that the Plaintiff had copyright therein. Hence Defenda nt No.4 denies that he is an infringer and claims to be an innocent user of the archives material.
The Defenda nt s also contend that Bihar Movement shown in the impugned film is a part of history and hence carries no copyright.
24. The Defenda nt s further contend that extent of copying is minusc ule in the impugned film which extends to a mere 86 seconds of the film which spans about an hour in duration and hence that is no subst a n ti al copying and conseque n tly no breach of copyright. The Defenda nt s also contend that the inclusion of the shots of the suit film are only incidental to the main theme of the film shown only by way of backgrou n d and hence would not constitute infringement.
25. Piracy would involve infringement of the Plaintiff's copyright in the suit film. What is copyright and its infringement must, therefore, be understood.
::: Downloaded on - 09/06/2013 14:28:57 ::: 15a) Under Section 14 of the Copyright Act , copyright is an exclusiv e right to do or aut horise the doing of certain specified acts in respect of a work or a substan tial part inter alia of a cinematorgrap h film.
b) Under Sub Section14 (d)(i) such copyright is the right to make a copy of the film including a photograph of any image forming a part thereof.
c) Under Section 2 (m)(ii) of the Act an infringing copy of the cinematograp h film is a copy of a film made on any medium by any mean s.
d) Under Section 51 of the Act a copyright is taken to be infringed when any person without a licence from the owner of the copyright interalia does anything which is in the exclusiv e right of the owner of the copyright.
e) The explanation to that Section provides that reproduction interalia of an artistic work in the form of a cinematograp h film is an infringing copy.
f) Under Section 2 ( c ) of the Act artistic work means a painting, sculpt ure, drawing, engraving or photograph , a ::: Downloaded on - 09/06/2013 14:28:57 ::: 16 work of architect u re and artistic craftsma n s hi p.
g) Under Section 52(s) such photograph cannot be of a part of a film.
h) Under Section 52 (u)(ii) of the Act an inclusion of an artistic work only by way of background or which is only inciden tal to the principal matt ers in the film would not constitute infringement.
i) Under Section 58 of the Act, the infringing copy of the work is deemed to be the property of the owner of copyright.
j) However under the proviso to that Section, there is no remedy in respect of the conversion of any infringing copies if the infringer was not aware of the subsis t e n c e of copyright in the work or reasonably believed that the copies did not involve infringement of the copyright.
26. The seminal contention of the Defenda nt s is that they have not infringed the Plaintiff's copyright, if any, as Defenda nt No.4 as the Producer and Director of the impugned film, took the shots from the tapes in the archives of the DDK being tape No.80 without realising the origin of the shots or ::: Downloaded on - 09/06/2013 14:28:57 ::: 17 the liability for copying the shots.
27. An Archive, as defined in Black's Law Dictionary, is a place where public, historical or institution al records are systematically preserved. It also means any system atic compilation of materials, especially writings in physical or electronic form.
28. Mr. Sebastian rightly argued that once it is seen that the film is a work in which copyright subsists, any shot or still from any film cannot be lifted and reused as that would be breach of copyright contained in that film. It is for the person who researched material relating to the Bihar Movement, or for that matter for any of the events that led to Declaration of Emergency from the DDK archives, to ascertain and verify the origin of the shots. The shots and stills as taken are from the suit film.
29. The suit film, has been produced by the Plaintiff as Exhibit- D in evidence. The suit film shows the name of the Plaintiff as the Producer, Director, Editor and Photographer.
Though Defenda nt No.4 can research the idea contained in the suit film from the D.D.K Archives, he cannot bodily lift any single shot or image of the film and use it in his new film without infringing the stat utory copyright that it carries. The ::: Downloaded on - 09/06/2013 14:28:57 ::: 18 liability for so dealing with such copyright is the stat utory liability to which he exposes himself unless he takes the licence or permission of the author to reproduce the shots in his film or pays consideration as agreed by the aut hor for utilisation of the work in which the aut hor has copyright.
30. The cross examination of Defendan t No.4 shows that he took the footage of the suit film from D.D.K archives. The footage had no soundt r ack. He used his own soundt r ack in the impugned film. He has stated how he got pieces of footage from D.D.K archives which were uncon nected pieces of a film which turned out to be the suit film. He had no knowledge that it was the suit film or that it was of the Plaintiff. He did not know the Plaintiff. He could not identify the docume nt a ry of which the footage was part. He had not heard about the suit film or seen it. He only used the shots from the D.D.K archives' tapes. The tape library did not make any mention about the particular s of the shots and permitted its unconditional use. He had independe ntly written the impugned film script and edited the visuals. How he has edited the visuals from the suit film is not explained in his evidence. He has also been cross examined on his own position with the DD. He is the contract u al employee required to make news reports and docume n t a ry films as directed by his superiors. He was assigned the production of the ::: Downloaded on - 09/06/2013 14:28:57 ::: 19 impugned film by the then Additional Director General of the DDK. The script was provided by the superiors. The decision to interview the people in the film was not his. It was of the then Additional Director General of the DD. However, he did " some researc h " . He has explained how he accessed the DDK archives and what he claimed from them for making his docume nt a ry film. He has deposed that there were no names on the archival types of visuals which he got from the DDK without any soundt r ack which he used as his visuals in his docume nt a ry film. He did not know or recognise the Plaintiff in the film. He did not know the sources from where the visuals which he used originated. He freely used the footage from the DDK archives without knowing from where it originated, but upon the premise that it was either bought by DDK or shot by its cameram e n. Since the visuals in different pieces given to him had no soundt r ack or credit titles and the DD maintains no record, he claims that there is no infringement of copyright. His cross examination shows that after the suit was filed DD formed an internal committee to ascertain as to whether any footage of any outsider was used. He deposed that DD does not sell footage, but in National interest provides footage from case to case depending on various factors.
31. A copyright is not contained in an idea. The same idea ::: Downloaded on - 09/06/2013 14:28:57 ::: 20 can be used by various persons in different forms. Copyright is contained in the original expression of that idea. It is therefore, the expression of thought. It would depend upon the frame of the product. It is, therefore, the thought that is sought to be portrayed or conveyed which carries a copyright and not the original idea. In this case the original idea is the Bihar Movement led by the late Jay Prakas h Narayan (J.P.). There is no copyright in that idea. Anyone can portray the said idea in any work, including a cinematograph film. Once it is portrayed, be it by way of a film, the specific cinematograp shots of that film would have a copyright. That frame or image so portrayed of the idea of the Bihar Movement would, therefore, have a copyright. It is that expression of thought which has originated from that author in that particular mode.
Conseque n tly, therefore, portraying the Bihar Movement would itself not tanta mo u n t to breach of copyright. The idea may be taken from any source, but once that idea, so researched, is meant for use and expression, it would require to be used and expressed in any mode chosen by that author himself. That mode of expression of that idea cannot be verbatim copied by taking shots or stills of the film containing that idea. Hence, whilst the idea is not unique to the author, the image portrayed or the expression made is unique to the author.
::: Downloaded on - 09/06/2013 14:28:57 ::: 2132. It has been the Plaintiff's evidence that the only cinematograp hic expression of the Bihar Movement is contained in the suit film which is the Plaintiff's work. The Defenda nt No.4 could certainly have shown the idea of the Bihar Movement in the impugned film, but not the precise shots and stills from the suit film. Hence, though the Bihar Movement can certainly have been shown in the impugned film, it could not have been shown from any material which has copyright by way of a reproduction of frames and images of such film. Mere showing by Defenda nt No.4 the idea of Bihar Movement would not give the Plaintiff a right to complain of infringement of his copyright, but showing the precise stills / s h o t s / i m a ges of the suit film would bring the act of Defendant s squarely within the mischief of the term infringement which denotes " reproduction " of the work in which copyright exists. To underst a n d this concept better it may be mentioned that upon the mere showing of the Bihar Movement, as has been done by Defenda nt No.4 in the impugned film, any other author of Bihar Movement who may have written about the movement describing the movement as it transpired or a film maker who may have made a film on the Bihar Movement differently would have no cause of complaint, since the idea of Bihar Movement does not carry copyright. However, the expression of that idea by the specific frames and shots does carry a copyright and hence only the author of ::: Downloaded on - 09/06/2013 14:28:57 ::: 22 the work whose precise frames and shots are copied, such as the Plaintiff would have a cause of complaint of infringement of his copyright.
33. A viewing of the suit film and the impugned film Exhibits- D & E at one sitting one after another has shown several shots of the film bodily lifted from the suit film and reproduced in the impugned film together with the defects in those shots.
The Plaintiff who was present at the time of the viewing by the Court showed the Court several shots of his film containing certain defects in a bottom corner of the frame of several shots. The same shots with the same defects are seen in the impugned film. The Defenda nt No.4, who was also present at the said viewing, brought to the notice of the Court certain green colour defects which he contended were the defects that originated from the D.D.K Archives. These shots in black and white in his otherwise colour film show that they were taken from a very old production. Indeed the Plaintiff's production was a quarter of a cent ury older than that of the Defenda nt No.4. It is unmist a ka ble that these were the shots from the Plaintiff's film and nowhere else. The defects in green colour reflected in the impugned film, aside from showing that they may have been taken from the D.D.K. Archives after not having been maintained in a chaste condition for the number of years when the film remained there, shows that they were ::: Downloaded on - 09/06/2013 14:28:57 ::: 23 in fact taken from the Plaintiff's film which was black and white and made at such length of time.
34. It further shows that Defendan t s 1 to 3 callously kept and allowed them to be lifted and used indiscriminately by Defenda nt No.4 without the slightest heed to the copyright of the producer of the film in their archives.
35. Defenda nt No.4 has, in vain, feigned ignorance of the Plaintiff's copyright.
ig He contends that the tapes in the DDK archives did not show the Plaintiff's name in the credits of the film or the fact that he was the producer of the film and hence the author of the work.
36. Aside from the fact that such a vague, bald stateme n t only deserves rejection for total lack of subst a n tiation of such a gross and callous act leading to infringement of copyright in the material of a public body like the DDK, kept and maintained by the Governme nt, the evidence shows that that stateme nt is incorrect. In answer to Question No.42 about the length of the copied footage of the suit film, Defendan t No.4 has deposed that after the suit was filed and the sum mon s served upon the Defenda n t s, DD News formed an intern al committee to ascertain as to whether any footage of any outsider was used. This itself shows the knowledge and ::: Downloaded on - 09/06/2013 14:28:57 ::: 24 underst a n di ng that the footage of an outsider cannot be used or allowed to be used by any of the Defenda nt s.
37. Ignorance of the subsiste nce of copyright in a work contemplated under the proviso to Section 58 of the Act can never apply to a film in which copyright is implicit. It is for the Defenda nt s to ascertain and verify whether copyright is assigned to Defenda n t s 1 to 3 or whether its term had expired.
38. Right from the ig earliest case of Murray Vs. Bogue judgmen t dated Decemb er 9, 185 2 (1) DREWRY,35 3 at page 48 7 the natu re of copying which would constitute infringement has been considered. That was a case of travel book relating to travel in Switzerland called a " hand- book "
initially published in English and translated in Germa n. The Germa n translation was re- translated in English and the re- translation showed parts of the Plaintiff's work in his hand- book which was copied. The printing, binding and the get -up of the copied work was like the initial work of the Plaintiff. It was bound and boarded in red cloth with gilt lettering. It was held that inspection and comparison of the respective works was required. Upon such comparison it was found that certain routes in certain areas of Switzerland were taken from the Plaintiff's work. The Plaintiff showed similarity in errors to show the piracy. The Defendant showed the material ::: Downloaded on - 09/06/2013 14:28:57 ::: 25 additions made in the later Editions of his work. The Defenda nt contended that he had obtained his information from other sources. Upon comparison the Court felt that to some extent the Defenda n t had made use of the Plaintiff's hand- book. The Court observed that the Defenda nt's book was in may parts a translations of, or an abridgment of the Germa n version. The Court compared the Plaintiff's work and the Germa n translation and thereafter the German translation and the Defendan t's work. The Court accepted the Defenda nt's contention that though the general plan and scheme were of the Plaintiff, it is essentially a frame work of the Plaintiff filled up in the Germa n translation by the aut hor in his own way. Hence, the Plaintiff's ground work alone was not sought to be used. The Germa n translation was observed to be subst a n tially the original. Thereafter the Defenda nt's work was compared with the Germa n translation. The Defenda nt freely and literally had translated from the German translation. The Defenda nt's work was observed to be in many parts " a servile copy " . The Court had to consider whether making certain use of Plaintiff's work with free use of the German translation as well as other works, the Defenda nt's work would amou nt to an extraction of the vital part of the Plaintiff's hand- book thus making an unfair use of the Plaintiff's work. The Court considered that two guide books relating to the same country must of necessity have ::: Downloaded on - 09/06/2013 14:28:57 ::: 26 much that is similar; the same objects of interest are likely to be noticed by all who visit a particular place. The Court observed that the general scheme of the two books are quite different. The Defendan t's work is more limited than that of the Plaintiff or of the German translation. The Court observed that the Defendan t differed from the Plaintiff in showing the places on the same road in the country including many places which were not mentioned either by the Plaintiff or in the Germa n translation and omitting places mentioned by them. The Court, therefore, concluded that the Defenda nt's work was not a unfair use of the Plaintiff's hand- book and hence would not tanta mo u n t to piracy or infringement of the Plaintiff's copyright.
This judgment shows the test of determining whether Defenda nt No.4 actually verbatim copied the frame of the Plaintiff's photograph s as they were in the film or whether he, taking the Plaintiff's information and idea about the Bihar Movement, sought to create his own frame in his own way and by his own skill, exertion, labour and art in bringing out the same fact of the Bihar Movement himself.
39. Admittedly in this case Defenda n t No.4, unlike the Defenda nt in the case of Murray Vs. Bogue (supra), did not do anything of the kind. He bodily lifted several shots and stills ::: Downloaded on - 09/06/2013 14:28:57 ::: 27 from the Plaintiff's film, together with its defects and mistakes and incorporated them without any further work in the impugned film.
40. The " cut and paste " job therefore, constit ute s infringement of copyright, though adoption of an idea upon research is not. If the Defendan t No.4 researched the events which led to the Emergency for making of the impugned film in the D.D.K Archives, he could have compiled the material that could be obtained therefrom and could have produced it in his own way, giving it his own image. The D.D.K Archives had inter alia several films broadca st by the D.D.K. A copy of the tape of the suit film remained with the D.D.K upon the licence given by the Plaintiff about 25 years ago to the Defenda nt s 1 to 3 which shall be considered presently. It was perfectly legitimate for Defendant No.4 to research it. However, it is illegitimate for Defenda nt No.4 to cut and paste and accordingly copy such material in his film. This concept has been considered in the case of Macmillan Vs. Suresh Chunder Deb 18 9 0 I.L.R . 17 Calcutta 951 at page 961 thus:-
"In the case of works not original in the proper sens e of the term, but compo s e d of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take ::: Downloaded on - 09/06/2013 14:28:57 ::: 28 away from anyon e else the right to produce anoth er work of the same kind, and in doing so to use all the materials open to him. But, as the law is concis el y stated by Hall, V.C., in Hogg Vs. Scott 'The true principle in all these cases is, that the defendan t is not at liberty to use or avail hims elf of the labour which the plaintiff has been at for the purpose of produci ng his work - that is, in fact, merely to take away the result of anoth er man's labour,or, in other words, his property."
This proceeds upon the funda me n t al principle of Copyright Law laid down in the case of University of London Press, Ltd. Vs. University Tutorial Press, Ltd. 191 6 2 Ch. 61 0 which has been off quoted:
" What is worth copying is prima facie worth
protecti n g"
41. What would not be breach of copyright is well illustrated in the case of Franz Hanfstae ngl Vs. H.R. Baines & Co. Limited 189 5 A C 20 (H.L.) in that case the theme of a young man and young lady dating in the countryside was pictorially represented. Breach of copyright was alleged by the owner of the artistic work who made the initial picture. The further statu tes and posters depicting the same idea and theme was challenged as infringement of his copyright. Whilst holding that they were not, it was observed that the artist who made those sketches did not make copies of the original photograp h s . The faces were different. The counten a n ce of the ::: Downloaded on - 09/06/2013 14:28:57 ::: 29 persons had no resembla nce to those depicted by the artist.
Though there was a resembla nce in the sketch and the photograp h showing a man and a woman standing beside one another close to a stile or fence, with the woman's head shaded by a parasol, with similar dress of the man, the pictorial represent a tion was seen to be of great antiquity. The difference in the faces, the whole style, the dress, the pose, the attitudes, the backgrou n d and the foregroun d were noticed. It was held that the sketches were not copies of the photograph because the subjects held in them were neither special nor exceptional. The subject was an idea as old as the world - the theme of dating - upon which none could have monopoly to claim copyright.
42. With regard to infringement of copyright by copying Halsburys Laws of England, Fourth Edition 200 6 Volume 9 (2) in paragrap h 314 at page 207 shows:-
"Copying a film include s making a photograph of the whole or any substan tial part of any image forming part of the film".
43. Hence, a single shot taken from a film would be sufficient to constit ute infringement of copyright. Of course the conseque nce of the infringement would depend on the facts of each case and upon seeing what kind of shot, under what circumst a n ce s and to what end is copied. In this case the ::: Downloaded on - 09/06/2013 14:28:58 ::: 30 shots / s t ills / i m ages showing Jay Prakas h Narayan crossing river along with the studen t s and large masses of people, the shot of the train also showing the studen t s revolting etc. are shots which the Plaintiff has with his skill, labour and art devised, edited, and cast into his film. The copyright in these shots belong to the Plaintiff and none else. Bodily lifting these shots and incorporating them, as they initially were, in the impugned film, is enough to constitute infringement.
44. In Spelling Goldberg ig Producti on s Inc.Vs. B.P.C .
Publishi ng Ltd., 198 1 R.P.C . 283 on page 291 (CA) the conseque nces of publishing a single photograph of a frame in another film was considered. In that case certain details from a certain film were published in a magazine and a wall poster.
The Plaintiff contended infringement of their copyright in the film by reprod uction of a single frame of the film. The Defenda nt s contended that it was not a substa n tial part of the film and hence does not amount to infringement. It was held, reversing the trial Court judgment,t h a t making a copy of a frame of a film infringed its copyright. Because a single frame is a part of the film, even if it does not possess the characteristics of a film, it would be infringement of copyright to reproduce a subst a n tial part of a frame of a film. The photograp h s published by the Defenda nt s in the magazine were derived from individual frames of the film. Considering ::: Downloaded on - 09/06/2013 14:28:58 ::: 31 the definition of a "copy" defined thus:
"copy" means any print, negative, tape or other article on which the film or part of it is recorded, or any substan tial part of the film, or of that part of the film, is recorded,"
the Defenda nt s were held to have made a copy of the film.
Considering various sections of the Copyright Law in England including the definition of the infringing copy, cinematograp film and photograp h it was held by Buckley L.J ., at page 296 that a single frame from a film is a part of that film within the meaning of the definition of "copy".
Similarly it was held at page 298 by Templema n L.J ., that copying of a single frame infringed the copyright in the film as cinematograp h film as well as photograph are expressly protected under the Copyright Act.
45. Reading Section 14 of the Copyright Act, including Sub-
section 14(d)(i) the owner of copyright has the exclusive right to make copy of the film including a photograph of any image forming part thereof.
46. It would be seen that the right is in respect of the work or its subst a n ti al part in respect of the cinematograph film extends to a copy of the film or even a photograph of any ::: Downloaded on - 09/06/2013 14:28:58 ::: 32 image in the film.
47. The copyright under Section 14 which is the exclusive right to do or authorise the doing in respect of a cinematograp h film is a copy of the film including a photograp h of any image forming part thereof. Hence, a copy of a single photograph / f r a m e / s t ill / s h ot of a film would constitute infringement.
48. Conseque ntly when we have to see what is substa n tial part of the film it would include the subst a n tial part of the photograp h / f r a m e / s t ill / s h o t of the film. If that photograp h / f r a m e / s t ill / s h o t is taken and reprod uced after bodily lifting it from one film and putting it in another, it would be a copy of the photograph of the image forming the part of the film and would fall squarely within the mischief of Section 14(d)(i) of the Copyright Act, 1957.
49. Hence, a concept of " subst a n ti al part of the film ' would extend to whether there was reproduction of the substa n tial part of a still /im age / s h o t / f r a m e of the film and if what is copied of such single image / s till / s h o t / f r a m e is not subst a n ti al it would not constitute infringement, but if the entire shot / s till /i m age / f r a m e is copied, be it only one such shot / s till / i m age / fr a m e, it would constitute infringement.
::: Downloaded on - 09/06/2013 14:28:58 ::: 3350. An illustration of a single shot of a cinematograp h film used in another may be given, as being exceeding popular in India it would, at once, bring home the concept. A shot in film of R.K. Films showing the star Nargis, forlone and dejected, was also used in the same style in another film upon another star therein. The other film was also the production of R.K.Films . The shot immediately brought out memories of the earlier film in the viewers. The producer was the same in both the films. He had copyright in the earlier film.
ig Under the provision of Section 14(d)(i) he alone had the right to make a copy of the earlier film including a photograp h of any image forming a part of the earlier film. Had the later film been produced by another film maker, the said shot by itself, singly, would have constituted breach of the copyright of R.K. Films.
51. Every film per se carries a copyright. Copyright is implicit in a film. A copy of a film is an infringing copy. The entire film would never be copied - that would be absurd. Parts of a film may be copied. Those parts would be the stills / s h o t s / i m a ge s of the film. They would show the frame of the shots copied. It would be copied if no permission is taken from the owner to use such shots or stills just as they are in his film. No one can feign ignorance of the fact that all shots / i m age s / s t ills of the film are copyright material. Each of ::: Downloaded on - 09/06/2013 14:28:58 ::: 34 those shots / s t ills / i m ages is the property of the owner. The producer of the film is the first owner. In this case the Plaintiff is the owner of the suit film. He has copyright in his film or subst a n ti al part of his film. He has the exclusive right to make a copy of his film including a photograph of any image forming a part thereof. None other has such right.
Hence, copying a single shot / s till / i m age would constitute infringement of the owner's copyright thereu n d er. Similarly copying a subst a n tial part of each of the shots / s t ills / i m ages would also constitute infringement.
ig What is subst a n ti al part of the film or the images of a film would have to be seen.
52. The Defenda nt s also contend that the Bihar Movement is a historical event , which led to the Declaration of Emergency and that such historical event does not carry a copyright. It is meant to educate the people about a fact which happened by way of news and hence, the Plaintiff's copyright, if any, is not infringed.
53. Mr. Rajguru relied upon the case of A. Balakrishnan Vs. R. Kanagavel Kamaraj & Anr. 200 0 PTC 525 (Madras High Court) in which the grandson of the deceased political leader was held not entitled to prevent making of a film of the leader on the promise that he was not a custodian of history. That judgment, however, does not show a position contrary to the ::: Downloaded on - 09/06/2013 14:28:58 ::: 35 Copyright Law that any theme of history can be copied by any one from an earlier work. The Bihar Movement, which is a part of history, could certainly be shown by the Defenda n t s in any film. The Plaintiff being not a custodian of history, would have no claim to it, if it is shown otherwise than by the shots / s t ills / i m ages / f r a m e s of his film.
54. The Defenda nt s also contend that even upon copying from the suit film; there is no infringement under Section 52(u)(ii) of the Copyright Act, it being only by way of a background and complet el y inciden tal to the principal matter represented in the film.
55. Under Section 52(u)(ii) of the Act an inclusion of an artistic work only by way of backgroun d or which is only incidental to the principal matters in the film would not constitute copyright. Artistic work as defined in Section 2( c ) of the Act is painting, sculpt ure, drawing, engraving or photograp h s , a work of architectu re and artistic craftsm a n s hi p.
56. Inclusion of an artistic work in a film would not constitute infringement if the artistic work is by way of a backgrou nd or incidentally shown. The artistic work is not the film itself. It is also not a part of the film. It is, therefore, not a single ::: Downloaded on - 09/06/2013 14:28:58 ::: 36 shot / s till / i m age of the film. Only an artistic work is exempted. The exemption does not extend to the film itself or any shot / s t ill /i m age of the film. Hence though an artistic work can be included in a film, a part of another film cannot be included in a film even if it is merely by way of a backgrou n d or incidentally shown as a film is not included in the definition of artistic work. Copyright subsist s interalia both in artistic works and films.
57. What is artistic work and ig why is only artistic work exempted from constit uting infringement of copyright if it is the backgrou n d of a film or shown incidentally must be understood. It can be explained best by way of an illustration. If a painting of M.F.Huss ai n is to be shown in a shot of a film showing a Hotel or a hall (painting being an artistic work) it would not constitute infringement of the copyright of M.F.Huss ai n in the painting, but a shot of a film shot exactly as it was in another film is quite different. Copyright exists separately, independe n tly, individually in each shot of the film. The producer of the film, in whom the copyright is vested, has either personally or through another (a director, photograp her, editor, camera m a n) got a particular shot shot in his own unique way using his labour and skill which gives him the copyright in each such shot. That is not an " artistic work " ; There is no copyright in it as a copyright in artistic ::: Downloaded on - 09/06/2013 14:28:58 ::: 37 work. He has copyright in such shot as a part of his film -
each shot / s till / i m p age of the film makes up the whole cinematograp h film: Inclusion in a film of a part of another film or a part of any shots / s t ills / i m ages of aut hor a film is, therefore, not exempted.
58. The Defenda nt s contend that the total shots / s tills / i m ages of the suit film taken by Defenda nt No.4 in the impugned film spans a minusc ule 86 seconds in an hour long docume nt a ry and hence is not substa n tial reproduction of the original work of the Plaintiff.
59. Mr. Rajgur u on behalf of Defenda nt s would contend that the quantity of the copied material is neither subst a n ti al nor material and therefore, constit ute s only 'a fair use ' made of the publication and conseque n tly any wrong, if done, falls under the maxim "de minimus non curat lex" .
60. The contention is entirely misconceived. The "substa n ti al part" is the part of the original work. It is not to be judged upon seeing it as a part of the infringing copy.
61. The test of the subst a n tial part of the whole having been copied which may result in infringement is laid down in the case of Ladbroke (Football), Ltd. Vs. William Hill (Football), ::: Downloaded on - 09/06/2013 14:28:58 ::: 38 Ltd. 19 6 4 AER 465(HL). The majority judgment of the House of Lords considered the question of infringement of Copyright in a literary work upon reproduction of a part of the work.
That was the case of certain coupons containing lists of matches to be played each week by a firm of Bookmakers. Each list had an appropriate title and contained explanatory notes. One of the lists enumer ated the full list of matches. The others were lists of selected matches. The coupons offered 148 different varieties of bets. A great deal of skill, judgment, experience and work was required in designing the coupons.
It was held that such work was artistic and hence entitled to copyright. Upon such a situation the House of Lords was called upon to consider whether reproduction of a part of the coupons would infringe the Author's copyright. The majority opinion essentially delivered by Lord Reid, with separ ate opinions by 4 others assenting thereto, considered the question of " subst a n ti al part of the copyright " . The copies of the infringer was seen to be adopted in a form closely similar to the Author's coupons. It contained 15 lists whereas the Author's coupon contained 16 lists. They were almost identical. Some of the lists were found in one or more of the other Bookmaker's coupons and some were found in almost all of them. Everything was not copied. The copying was recorded as a single work or a single compilation protected by the Copyright Act. It was observed thus:-
::: Downloaded on - 09/06/2013 14:28:58 ::: 39S.4 9(1) Broadly, reproducti o n means copying, and does not include cases where an author or compiler produces a substantially similar result by independ e n t work without copying. If he does copy, the questio n wheth er he has copied a substa n tial part depend s much more on the quality than on the quantity of what he has taken . One test may be wheth er the part which he has taken is novel or striking, or is merely a com m o n plac e arrangem e n t of ordinary words or well- known data. So it may som et i m e s be a conve ni e n t short cut to ask wheth er the part taken could by itself be the subject of copyright. But, in my view, that is only a short cut, and the more correct approach is first to determi n e wheth er the plaintiff's work as a whole is "original" and protec t e d by copyright, and then to inquire wheth er the part taken by the defendan t is substa ntial"
Hence it matters not that only 86 seconds of the impugned film is brought within the mischief of the rule against plagiarism. The suit film deals essentially with the Bihar Movement. It shows several significant, identifiable shots of that movement - to cite - the shot of J.P crossing the river with the studen t s, the shot of the train taken over by the student s etc. The shots which are copied by Defenda nt No.4 and incorporated in the impugned film show the Bihar Movement made up of the several shots / s t ills / i m ages of the suit film constit uting its substa n tial qualitative part.::: Downloaded on - 09/06/2013 14:28:58 ::: 40
62. The suit film deals essentially with the Bihar Movement.
The impugned film deals essentially with the interviews of various political figures who state about their roles at the time of and before the Emergency. The impugned film is not on the Bihar Movement. It is about how Emergency was declared, who suffered therein and what they did. As Bihar Movement was the necessary and essential catalyst for the Declaration of Emergency it was required to be and was shown as a part of the events leading to Emergency. The entire aspect of the Bihar Movement shown in the impugned film is taken from the suit film. Hence, so far as that part is concerned, which is a material part of the suit film the impugned film showing the cause of Emergency is a copy of subst a n tial part of the suit film. In fact the Plaintiff's evidence in his examination- in- chief itself shows that the suit film is the only cinematograph work showing the Bihar Movement. The Bihar Movement is shown in the impugned film. It may be only a small part of the impugned film. But that part is entirely copied from the suit film. A material part of the suit film so copied is a subst a n tial part of the whole. It would be incorrect to accept the Defenda nt's contention that because the stills and shots of the Bihar Movement shown in the impugned film extend only to 86 seconds of the suit film, it would not be a subst a n ti al reprod uction of the whole work containing the copyright in favour of the Plaintiff.::: Downloaded on - 09/06/2013 14:28:58 ::: 41
63. Conseque ntly Halsbury's Laws of England, Fourth Editio n 20 0 6 Volume 9(2) has explained the concept of reprod uction of the copyright work in paragrap h 316 at page 209 of the aforesaid volume. It is explained thus :-
" 31 6. Reproduc ti o n : ... In order to cons ti t u t e 'reproducti o n' there must be sufficien t objective similarity betwee n the two works and also some causal conn e c t i o n between them; the exist e n c e of both thes e elem e n t s is a questio n of fact, the first being an objective issue and the second a subjective one. Subcon s ci o u s copying may consti t u t e an infringem e n t of copyrigh t if familiarity with the work alleged to be copied is shown."
64. In this case there is more than sufficient similarity between the Bihar Movement shown in the suit film and the Bihar Movement shown in the impugned film. In fact though the Bihar Movement is the main and fundame nt al part of the suit film and only shown as a cause of the Declaration of Emergency in the impugned film, the shots / stills /i m ages of the suit film shown in the impugned film is nothing but an identical reproduction to show the same event / i ncident. It is not even the case of Defenda nt No.4 that he took the shots / stills /i m ages from elsewhere, the incident being a historical event. The source is, therefore, none other than the suit film. The Plaintiff has clearly shown the very shots and stills of suit film being unlawfully used as part of the Defenda n t's work ::: Downloaded on - 09/06/2013 14:28:58 ::: 42 appropriating Plaintiff's labour, skill and art without his permission.
65. The precise position of cinematograp h film as a subject amenable to copyright under Section 2(f) of the Copyright Act, 195 7 is considered in T. R Srinivasa Iyengar's The Copyright Act Sixth Edition at page 188 thus :-
" A cinem a t ograph film is protec t ed , where the arrangem e n t or acting, forming a combination of inciden t s represe n t ed , give the work an original charact er. Where it is an original work, it is entitl ed to copyright, even though made from an earlier work entitled to copyright, if the author has given to his work an original charact er. Copyright in the film exist s in it as a series of photographs" .
The infringement of the copyright in the series of photograp h s of Plaintiff by Defendan t No.4 from the archives of Defenda nt s 1 to 3 is clear and complete.
66. The infringement is appare nt from the reproduction of the Plaintiff's stills / s h ot s / i m a ges as quoted by Halsbury's Law of England in the paragrap h relating to reproduction above. The proper approach is to identify the reprod uced work and then to see whether it is the subst a n tial part of the Plaintiff's work. In paragrap h 321 at page 214 of the aforesaid volume of ::: Downloaded on - 09/06/2013 14:28:58 ::: 43 Halsbury's Laws of England, the learned Authority shows what is subst a n tial part of the Plaintiff's work ..... " Quantity is not the only consideration " .
67. Copyright Act by Iyengar in the aforesaid volume at page 502 shows the " principle applicable where Defenda nt's work is partly an infringement and partly innocent" . Again the Author states that what is material is the quality of the respective parts and not their quantity.
68. Putting quality above quantity would therefore, lead this Court to conclude that for depiction of the Bihar Movement in the impugned film, which was shown to be the main cause leading to the Declaration of Emergency is a subst a n tial part of the suit film copied by Defenda nt No.4. The whole of the said material is copied from the suit film. The ultimate test is as contained in the judgment of Lord Eversh ed in the case of Ladbroke (supra) at page 473 thus:-
"It will, therefore, depend not merely on the physical amoun t of the reproducti o n but on the substa ntial significan c e of that which is taken."
Hence, Lord Hodson in his opinion at page 475 referring to the case of Cramp & Sons Ltd. Vs. Frank Smyth s o n Ltd. 19 4 4 2 All E.R 97 held thus :-
::: Downloaded on - 09/06/2013 14:28:58 ::: 44"Whether enough work, labour and skill is involved, and what its value is, must always be a question of degree".
69. In the case of Cherian P.Jos ep h Vs. Prabhakaran Nair A.I.R . 19 6 7 Kerala 234 the Kerala High Court has laid down how subst a n ti al use of the original thought or information expressed is to be decided. The Court is required to compare the two works to underst a n d whether or not the subst a n tial part of the original work is copied. In that case certain books were alleged to be translations of the complaina n t's books. was held that the expression of thought and information in It some concrete form is protected. It is, therefore, held that if the Defenda nt has made unlawful use of the form in which the thought or information is expressed, he would be liable for infringement of copyright, but not, if he has taken the essential idea, however original, and expressed it in his own form or words.
70. Mr. Rajgur u also argued that as held in the case of Frederick B. Chatterton and Benjami n Webster Vs. Josep Arnold Cave much would depend upon the effect produced upon the mind by the copied work. He contends that upon viewing the film the Court would see that the basic themes of both the films are different and therefore, even if the Plaintiff's theme is taken and reproduced as a part of the impugned film, ::: Downloaded on - 09/06/2013 14:28:58 ::: 45 which is not the main theme of the film, it would not fall within the mischief of the infringement of copyright, but would be mainly by way of backgroun d otherwise incidental to the principal matters. This argume nt ignores the fact that the principal matter of the impugned film is the Declaration of Emergency. Hence, the cause that led to the Declaration of Emergency is not merely incident al to the film. It is not merely in the backgrou n d; of course it cannot be shown throughou t the length of the film.
71. Even in the case of Ladbroke (supra) at page 469 it is held that reproduction would tanta mo u n t to copying not if the person alleged to be copying produces a subst a n ti al result by independen t work without copying. It would, of course, not include " pure copying " or " copying per se " .
72. Mr.Rajguru has also sought to show differen c e s in the impugned film. Though there are differences, which are contained essentially in a number of interviews with the number of persons who are stated to have played some part in the Emergency, there are no differences in the treat ment of the theme of the Bihar Movement in the film. That essential aspect has been shown at 6 to 7 places by several shots, all taken from the suit film complete with the defects that were in the suit film.
::: Downloaded on - 09/06/2013 14:28:58 ::: 4673. Mr. Rajguru relied upon the case of R.G. Anand Vs. M/s. Delux Films (197 8) 4 SCC 118 = A.I.R . 197 8 SC 161 3 in which the law relating to copyright was essentially enunciated as:
i) The copyright is confined to the form, manner and arra ngeme nt and expression of the idea.
ii) Similarities are required to be a funda me n t al or subst a n tial aspect of the mode of expression.
iii)A literal imitation with some variations of the copyright work would amou nt to violation.
iv)A copy must be a subst a n tial or material part of the work.
v) It must lead to an unmist ak a ble impression that it is sought to be copied from the original.
vi)The dissimilarities in the copies must also be considered.
vii)If the co- incidences in the work are clearly incidental there would be no infringement.
In that case the Court viewed the play and the film which was alleged to be copied therefrom. Violation of copyright was not seen. It was held that there was no colourable imitation. Several dis- similarities in the two works were noted. It was ::: Downloaded on - 09/06/2013 14:28:58 ::: 47 held that the effect of the dis -similarities was that they far outweighed the effect of similarities. The similarities were trivial and not subst a n tial. The treatme nt of the film was different from the play. Considering the case of Frederick (supra) it was held that the alleged copy did not come so near to the original as to give the person seeing a film the idea created by the original play.
74. Quoting from Ball on the Law of copyright and Literary Property page 364 igit was observed that the similarities were " too trivial " to amou nt to appropriation of copyright material.
The aut hor was quoted thus :-
"But sinc e there was no substan tial identit y betwee n the respec tiv e works in the scen e s , inciden t s , or treat m e n t of the com m o n the m e , the court held that the plaintiff's copyright s were not infringed by the defenda nt's photoplays ."
75. Paragrap h 18 of the case of R.G. Anand shows reference to the American jurispr u de nce with regard to infringement of copyright. It inter alia show at page 130:
" Infringem e n t exist s when a study of two writings indicat e s plainly that the defendant's work is a transparen t rephrasing to produce esse n t ially the story of the other writing, but where there is no textual copying and there are differenc e s in literary style, the fact that there is a samen e s s in the tricks ::: Downloaded on - 09/06/2013 14:28:58 ::: 48 of spinni ng out the yarn so as to sustain the reader's suspen s e , and similarities of the same general nature in a narrative of a long, complicat e d search for a lost article of fabulous value, does not indicat e infringem e n t ."
In this case there is more than a " transp ar e n t rephra si ng "
of the shots in the suit film. There is merely " textual copying "
with no differences in literary style, editing etc.
76. A further test considered in the case of ig R.G. Anand (supra) is from the case of Frederick (supra) which has been taken from the case of West Vs. Francis (182 2) 5B & Adl.
73 7 , 734: 10 6 ER 136 1 :
"A copy is that which come s so near to the original as to give to every person seeing it the idea by the original ..."
"A copy is that which come s so near to the original as to sugges t that original to the mind of every person seeing it".
77. The Plaintiff's evidence shows that he received a telephone call from his cousin that the impugned film was being telecast on DD by Defendan t s 1 to 3. The very fact that the Plaintiff received such telephonic message shows that immediately upon seeing a small part of the film his cousin deemed it fit to telephone the Plaintiff to see what was telecast. Hence, even if the copied material extended to a mere 86 seconds comprised ::: Downloaded on - 09/06/2013 14:28:58 ::: 49 of several shots in at least 6 or 7 parts, the very first viewing by a person known to the Plaintiff gave him a feeling and idea that that copy is just like the Plaintiff's original. In other words it brought to his memory the idea created by the original. Therefore, it suggested the original to his mind. It is of importa nce to note that the suit film was telecast by DD in 1977 though thereafter admittedly it has not been re- telecast. A quarter of a century after, when the impugned film was telecast the Plaintiff immediately received a telephonic message to view it. ig Hence, even if it was not verbatim the Plaintiff's film the impression that it created was profound.
Even discou nting the Plaintiff's further evidence about several persons who viewed the film and questioned him about his ideology or the fact that he has sold himself, the mere fact about how the Plaintiff learnt about the impugned film's telecast shows the impression it created that it was from his film or identical to his film.
78. After considering a num ber of judgment s on whether copying is trifling or subst a n tial, the overall impact has been taken as the test of subst a n tial copying. The test which is laid down in Anand's case upon considering the case of Twentie t h Century Fox Film Corporation Vs. Stone sifer (185 2) 14 0 F 2d 57 9 is :-
"The two works involved in this appeal should be ::: Downloaded on - 09/06/2013 14:28:58 ::: 50 considered and test ed, not hypercriti cally or with meticul o u s scrutin y, but by the observation s and impressi o n s of the average reasonable reader and specta t or..."
79. Conseque ntly it is held in paragrap h 45 of the judgment that where two writers write on the same subject, similarities were bound to occur because the central idea of both are the same, but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. The illustration s of words of Shakespeare which have been oft repeated and cited are apt. The treatme nt of the subject dealt with by Shakespeare would not tanta mo u n t to breach, if it is treated additionally or differently. Hence what Mr. Rajguru would call a historical record in which there can be no copyright would be as has been held in paragrap h 45 thus:-
"45. Thus, the position appears to be that an idea, principle, them e , or subject matter or historical or legendary facts being com m o n property canno t be the subject matt er of copyright of a particular person."
80. It is, therefore, incorrect to state that copying shots of the historical part of the Bihar Movement would not tanta mo u n t to breach because the Bihar Movement is a part of history. Indeed the Bihar Movement could be shown additionally or ::: Downloaded on - 09/06/2013 14:28:58 ::: 51 differently by Defendant No.4 in the impugned film though it was shown by the Plaintiff in the suit film, but it had to be shown additionally or differently.
The Supreme Court considered that both the play and the film which they viewed had the same theme of provincialism and the prejudice of persons belonging to one State against those of the others. However, the treatme nt was different. They have laid down 18 points of similarities and 6 points of differences. ig They have considered that the copied version does not only show provincialism, but also under the same theme showed evils of the Society like the dowry system. They have also showed different illustrations for the treatme nt of the same theme. Watching the film would not lead one to the conclusion that it was copied from the play and hence, it was held that the Defendant s cannot be held guilty of piracy.
In this case, there is no difference in projecting the Plaintiff's shots / s t ills / i m ages in the impugned film. In this case the Plaintiff's subject was the Bihar Movement. That subject has not been dealt with as a common subject known to many and represented in many ways through the years. The stills / s h o t s / i m ages from the suit film are taken verbatim by Defenda nt No.4 in the impugned film. The Defendant No.4 has not himself shot the film showing the railway shot, the ::: Downloaded on - 09/06/2013 14:28:58 ::: 52 river shot etc. additionally with his own characters in his film.
The Defenda nt No. 4 has, therefore, simplicitor " copied " . Defenda nt s 1 to 3 have allowed and actually aided such copying by making the archives material open and available to Defenda nt No.4 for such copying. The Plaintiff's copyright therein is absolute. Copying by the Defendan t s tanta mo u n t s to infringement by all of them. Hence, issue No.4 is answered in the Affirmativ e .
ISSUE NO.5 :Re: Assignment / Licence of the suit film:-
81. The Defendant s 1 to 3 claim that the suit film was assigned to them by the Plaintiff and hence have become owners thereof. Under Section 18(1) of the Act the owner of a work may assign the copyright to any person. Such assignme nt may be of the whole or part of the work, either generally or subject to limitations and either for the whole term of the copyright or any part thereof.
Under Section 18(2) of the Act, upon such assignme n t, the assignee is treated as the owner of the Copyright to the exten t of the assign m e n t .
Under Section 19(1) of the Act the assignme nt has to be in writing and signed by the assignor.
::: Downloaded on - 09/06/2013 14:28:58 ::: 5382. It is for the Defenda nt s who have alleged an assignmen t of the suit film by the Plaintiff to show the written contract of assignme nt, including its terms and limitations. The Defenda nt s have produced no such contract. The Defenda nt s have relied upon certain hand- book / m a n u a l which allows them to destroy records after 5 years. Hence the assignme nt in writing, which is mand atorily required, is not shown.
83. The Plaintiff contends that Defenda nt s 1 to 3 were given the telecast rights of the suit film in 1977. The consideration for such rights is shown to be Rs.500 / - in the plaint as well as in the affidavit of evidence of the Plaintiff. The Plaintiff has later come upon and fairly produced the original letter dated 27 th September 1977 of one Manohar Pingale, the then Producer -in -charge of Doordars h a n , Bombay addressed to the Plaintiff with a copy to the Directorate General of Doordars h a n , Delhi bearing No.12825. The Defenda nt s contend that the assignment is shown in the said letter. The letter shows enclosed therewith the royalty contract of the Plaintiff for the suit film. It shows that the payment of Rs.500 / - per telecast has to be made to the Plaintiff under instr uction s to his office. The letter is marked Exhibit- B in evidence. It is relied upon by the Defenda nt s to show what they call an assignmen t of the Plaintiff's copyright.
::: Downloaded on - 09/06/2013 14:28:58 ::: 5484. The letter further shows the specific terms of the contract between the parties thus :-
" You will observe that the Producer Shri Patwardhan has desired to scratch off some of the clause s in the royalty contract about which your Kendra may take decision and act accordingly. For your information he has imposed similar conditio n s at the time of telecas t from our Kendra, to which he (should be read as "we") had agreed. This film is to be shown in full with no atte mp t either at abridgme n t , use of excerpts is to be made.
The receipt may kindly be acknowledged."
(bracket supplied due to typographical error)
85. The Plaintiff contends that that was a licence to telecast the suit film. Under Section 30 of the Copyright Act, the owner of the copyright may grant any interest in his right by licence in writing and signed by him. The aforesaid provision of Section 19, relating to assignmen t s of copyrights applies also to a licencee under Section 30A of the Act.
86. Hence the interest or right in the suit film which the Plaintiff had was permitted (licenced) by the Plaintiff to be used by Defenda nt s 1 to 3 to telecast the suit film as per his contract in writing. The written contract is not produced even by the Plaintiff. However, the terms of the contract can be deciphered from the admitted letter of the officer of ::: Downloaded on - 09/06/2013 14:28:58 ::: 55 Defenda nt s 1 to 3 in evidence.
87. The production of the aforesaid letter impliedly shows the execution of the written contract of assignme n t / licence between the Plaintiff and Defenda nt s 1 to 3 as mentioned therein. The second paragraph of the letter extracted above shows the terms in writing which bind both the parties. Hence, it is seen that Defenda nt s 1 to 3 had acquired a telecast rights of the Plaintiff's film for a fee of Rs.500 / - per telecast subject to the conditions imposed by the Plaintiff and agreed by Defendan t s 1 to 3 for showing the film in full with no attempt either abridgment or by use of excerpts.
88. The Plaintiff has not sought to take back the copy of the film from Defenda nt s 1 to 3 after it was admittedly first telecast in 1977. Hence, it contin ued with the Defenda nt s 1 to 3 in their Archives. It could have been telecast again by Defenda nt s 1 to 3. That, of course, would have been upon the same terms, conditions and limitations reflected in the letter Exhibit- B .
89. It can be seen that what was assigned / licenced was the right to telecast the suit film in its entirety only upon the royalty of Rs.500 / - per telecast.
::: Downloaded on - 09/06/2013 14:28:58 ::: 5690. However, it is sought to be contended by the Defenda n t s that they could use the suit film as that wished since they became the full owners of the copyright in the suit film.
91. Mr.Rajgur u relied upon the case of Messager Vs. British Broadcas ti ng Company Ltd. 192 9 AC 151 (House of Lords) in that behalf. The case refers to the distinction between the licence and an assignme nt and the effect of infringement of copyright thereupo n. However, that was the case of an agreement between a Composer and an Opera. The licence was granted to the Opera to represent the play of the Composer in U.K, U.S etc. Copyright was to remain with the Composer and royalty was paid by the Opera. The Opera was assigned the rights in the play. The agreement was held to be an assignmen t and not mere licence. Hence, the Opera was held entitled to the rights of an owner of the copyright under the assignmen t. That position in law cannot be disputed.
92. However, whatever could be assigned is subject to the agreement of the Assignor. It would be to the extent of assignme nt and limited by conditions in the assignmen t. In the case of Frisby Vs. British Broadcasti ng Corporation, 19 6 7 (2) AER 10 6 it has been held that the licencee of a dramatic work can make alterations in the work except in so far as the licence expressly or impliedly excludes such right.
::: Downloaded on - 09/06/2013 14:28:58 ::: 57In that case the BBC was to televise the play of the Plaintiff who held copyright. The agreement between the Plaintiff and BBC provided that the BBC would not make struct ur al alterations of script without prior consent of the author, the Plaintiff. BBC claimed the right to delete or excise two words from one line of the play. The author objected and applied for an injunction against the BBC from televising the play with the alteration by deletion of those two words. The agreement provided that the work should be acceptable "as it stand s". The Plaintiff's evidence showed that the line from which the two words were sought to be deleted was of absolute and basic importa nce and that he was not interested in writing the play at all, if he could not have that line in the production televised. When the play was vetted it was confirmed to be " O.K. " . No exception was taken to any line in the script. It was " accepted subject to any necessary minor revisions " . It was later realised that as the said line was explicit, it would offend a majority of the T.V. viewers who are family persons.
It was held that there was only a licence of the play and the copyright was to remain with the Plaintiff. The agreement did not vest the copyright. It was, therefore, to be considered what right the licencee would have to alter the work of the author. The following paragrap h was quoted from the case of Copinger and Skon e James on Copyright (10 th Edn.), page 25 8 thus:
::: Downloaded on - 09/06/2013 14:28:58 ::: 58"Difficultie s some t i m e s arise by reason of alteratio n s made in the matt er com m u n i c a t e d by correspo nd e n t s and others to newspapers. It is nece s s ary to consider two cases . Where the author has assign ed his copyright to the newspap er his only cause of action is for the injury to his reputation or possibly maliciou s falseh ood . Where, however, he has only granted a licen c e to publish, it may be a term of the licenc e express or implied that no alteratio n shall be made. If such term is a condition preceden t to the licenc e a publicati on with alteratio n s would give rise to an action for infringem e n t of copyrigh t, but if not, there would merely be a right of action for breach of contract.
Apart from
ig special contract, contributors
newspapers will probably be taken to have accep t ed to the ordinary custo m that editors may make alteratio n s in unsign ed articles, but the court will readily imply a term that no substan tial alteration may be made to a signed article without the author's conse n t ."
93. The right to alter assu me s significance upon the difference between getting assignme nt of the copyright, in which case the assignee becomes the absolute owner of the copyright, and only getting a licence to televise the work. Quoting from the case of Josep h Vs. National Magazine Co. Ltd. 195 8 (3) A.E.R. 52 at page 114 it is held that the most importa nt aspect is whether the copyright has vested in the assignee. The question of the " right to alter " is also considered from the judgment in the case of Joseph thus :-
"If a publisher be the absolut e owner of the ::: Downloaded on - 09/06/2013 14:28:58 ::: 59 copyright, he is entitled , withou t the cons en t of the author, to publish succe s s i v e edition s of the work with additio n s and correcti on s and, in bringing out new editio n s , may make such omissio n s and other chang es in the original as will not injure the reputatio n of the author. Whereas, in the case of a licen c e, the licen c e may expres sly or by implicatio n only exten d to publication in unaltered form, so that the publisher, if he publish e s in an altered form, may com mi t an infringe m e n t ."
Hence, it is concluded that the licence may expressly or impliedly require publication in an unaltered form and no subst a n tial alterations could be made.
On the facts of the case it was held that there was nothing in the contract to preclude the BBC to make alterations though it was observed that there is a prima- facie right of a licencee to make alterations only as granted in the agreement. Hence, it was observed that as per the agreement between the parties no alterations could be made in so far as excluded expressly or by necessa ry implication.
The distinction between an assignme nt and a licence is essentially demonstr a ted in the case of an absolute assignme nt on the one hand and a licence on the other. But Section 18 of the Copyright Act contemplates an assignme nt wholly or in part. The relevant part of Section 18 runs thus:
::: Downloaded on - 09/06/2013 14:28:58 ::: 60" 18. Assign m e n t of copyright - (1) The owner of the copyright in an existi ng work or the prospec ti v e owner of the copyright in a future work may assign to any person the copyrigh t eith er wholly or partially and eith er generally or subject to limitatio n s and either for the whole term of the copyright or any part thereof.
(2) Where the assign e e of a copyrigh t becom e s entitl ed to any right compris ed in the copyright, the assigne e as respec t s the rights so assigned, and the assignor as respec t s the rights not assign ed, shall be treated for the purposes of this Act as the owner of copyrigh t and the provision s of this Act shall have effect accordingly".
if an assignme nt is wholly and generally made of copyright in a work, the assignee as the absolute owner would be entitled to alter the work. If the assignmen t is made either partially or subject to limitations, the assignee would be taken to be an owner only so far as the Copyright is assigned to him in respect of the right so assigned; the owner would continue to be the owner in respect of all the rights not assigned.
94. In this case the only right granted by the Plaintiff to Defenda nt s 1 to 3 is the right to telecast the suit film upon payment of royalty for each telecast. Further, it is specifically subject to the limitation as regards the right to abridge the ::: Downloaded on - 09/06/2013 14:28:59 ::: 61 film or use any excerpts therefrom.
95. Conseque ntly even if the grant of telecast rights are taken to be an assignme n t of the copyright of the Plaintiff in the suit film, it would be only to the extent of the telecast rights, Defenda nt s 1 to 3 would be taken to be the owners of the suit film only so long as they telecast the suit film upon payment of the agreed royalty per telecast. The Plaintiff would not be able to restrain Defenda nt s 1 to 3 to telecast his film.
96. Yet the Plaintiff would continue to have the owners hip right in the suit film so far as it relates to the abridgment or use of excerpts. As such owner, only he can abridge the suit film or use any part thereof separately as excerpts.
97. Such partial assignme nt of copyright, as contemplated under Section 18 of the Act, is not much different from a licence completed under Section 30 of the Act. The relevant part of Section 30 runs thus:
"30. Licen ce s by owners of copyright. - The owner of the copyrigh t in any existi ng work or the prospec t i v e owner of the copyright in any future work may grant any interes t in the right by licen c e in writing signed by him or by his duly authoris ed agent:::: Downloaded on - 09/06/2013 14:28:59 ::: 62
98. It, therefore, contemplates only an interest in the copyright being granted. Under Section 30A the provisions of Section 19 and 19A of the Act are applicable even to licences.
Section 30A runs thus:
30A. Application of section s 19 and 19A. - The provision s of secti on s 19 and 19A shall, with any nece s sary adaptation s and modificati o n s , apply in relatio n to a licen c e under secti on 30 as they apply in relatio n to assign m e n t of copyright in a work."
Hence such a licence is analogus to a partial assignment or an assignmen t with the stipulated limitations.
99. In this case the letter of the Defenda nt s' Project Manager itself shows the exclusion of the right to " alter " by not allowing the telecast at the agreed rate by the DD either by abridgment or by use of excerpts. The assignme nt / licence to the DD was, therefore, not conditional. There was, therefore, partial assignme n t / licence to the DD. DD could, therefore, not be the full owner of the copyright in the suit film. It was therefore, only licencee or part assignee of the suit film to telecast it without abridgement or use of exerts and wholly as produced by the Plaintiff at the rate of Rs.500 / - per telecast.
100. It has been contended by Mr. Rajguru that the Plaintiff has not made out a case in the plaint that the Defenda nt s 1 to ::: Downloaded on - 09/06/2013 14:28:59 ::: 63 3 were licenced the suit film only upon conditions. That aspect has been stated in the further affidavit of examination- in- chief, hence, he contend s that there is a variance between pleadings and proof. The contention is incorrect. The pleadings must show only the case of the Plaintiff. The evidence with regard to that case need not form a part of the pleadings. The Plaintiff's case is the case of copyright in the suit film. The Plaintiff has claimed that the Defendant s 1 to 3 have pirated and plagiarised the suit film by allowing Defenda nt No.4 ig to take excerpts therefrom by way of stills / s h o t s / i m a ge s and use it in his own production showing the Declaration of Emergency, but with a different slant so as to defame the Plaintiff whose work is given a place in the impugned film. Upon such a case the Plaintiff has produced the evidence to show the licence created in favour of the Defenda nt s 1 to 3 upon the conditions mentioned therein, the letter Exhibit- B showing impliedly the contract between the parties. The Defendant's contention that upon payment of Rs.500 / - the Defendan t s became the assignees of the copyright and acquired the telecast rights in perpet uity is not shown by a written assignmen t. The Defenda nt s have not produced the assignme nt, which could be only in writing. The Defenda nt s only rely upon the letter Exhibit- B produced by the Plaintiff in his evidence to assert ownership rights. The amou nt of consideration is shown to be per telecast in the ::: Downloaded on - 09/06/2013 14:28:59 ::: 64 letter Exhibit- B . The defenda nt s have not produced any assignme nt in writing with a one time consideration to constitute an assignme nt of the Plaintiff's copyright as a whole and without limitations.
101. Hence, Issue No.5 is answered in the affirmative subject to the addition of the words " per telecast " and subject to the limitations imposed by the Plaintiff as set out in paragrap h 2 of the letter dated 27 th September 1977 by the then Producer Incharge of the Doordars h a n, Bombay Exhibit- B in evidence.
ISSUE NO.6 : Re: Distortion and mutilation of the suit film :-
102. The assignme nt / l icence to telecast the suit film was granted under the conditions specifically imposed by the Plaintiff as recited by the then Producer -in -charge of Defenda nt s 1 to 3 themselves. Defenda nt s 1 to 3 cannot abridge the film or only use excerpts of the film. Defenda nt s 1 to 3 could only telecast the film in its entirety.
103. Admittedly a part of the film consisting of at least 86 seconds has been copied and reproduced by way of a part of the footage of the suit film containing several stills / s h o t s / i m a ge s. These shots have been incorporated into the impugned film by the Defenda n t No.4, who produced the ::: Downloaded on - 09/06/2013 14:28:59 ::: 65 impugned film on behalf of Defenda nt s 1 to 3. The parts of the suit film are shown as an importa nt incident of the theme of the impugned film being the reason which led to the Declaration of Emergency but carrying a completely contrary and different message. The Plaintiff's soundt rack is not used upon the images and frames of his shots. A different soundt r ack is used. The Plaintiff, therefore, contends that the Defenda nt s have distorted and mutilated the suit film.
104. The Plaintiff has not separately claimed damages for such distortion and mutilation under Section 57(1)(b) of the Copyright Act. Defenda nt s 1 to 3 have admittedly allowed their employee and represent a tive Defenda nt No.4 to have access to the copy of the suit film and use several stills / s h o t s / i m a ge s of the suit film in the impugned film.
105. It is the Plaintiff's case that his ideology is secular and democratic. The idea expressed in the suit film by him is a democratic idea showing the revolt of student s' in Bihar in what is known as the Bihar Movement led by Jay Prakas Narayan, a Freedom fighter and Revolutionery. The shots of the suit film have been produced in the impugned film by the method of "cut, copy and paste" in a film which shows numero u s charactors having a completely different ideology i.e., the ideology publicly called "Hindutva" ideology which the ::: Downloaded on - 09/06/2013 14:28:59 ::: 66 Plaintiff states that he abhors.
106. The admitted fact of taking only a few shots and stills of the film and admittedly using them as a part of the impugned film shows the breach of conditions of the Plaintiff specifically agreed upon by Defendan t s 1 to 3. Such breach has caused distortion and mutilation of the suit film.
107. Mr.Sebastian on behalf of the Plaintiff drew my attention to the case of Amar Nath Sehgal Vs. Union of India decided by the Delhi High Court on 21 st February 200 5 in this regard. The case relates to a bronze wire mural designed and sculpted by the renowned Sculptor, the Plaintiff in that Suit, placed in a strategic position in the prestigious "Vigyan Bhavan" in Delhi, and holding a place of pride in the Country.
It was an imposing sculpt u re extending from the staircase up to the lifts span ni ng 140 ft. x 40 ft. on one of the walls of the "Vigyan Bhavan".
108. The mural was pulled down and consigned to the store room after some years. Upon the Plaintiff's complaint of such callous, shabby treatme nt of the cultural heritage of the Country, it was observed that the integrity of the mural was damaged.
::: Downloaded on - 09/06/2013 14:28:59 ::: 67In paragrap h 28 the right to aut hor s hip in a work was held to include a right to object to distortion, mutilation or modification of the work as being prejudicial to the honour or reputation of the author. Upon that premise the Plaintiff's right to claim damages under Section 57 of the Copyright Act came to be considered. This was despite the fact that the Plaintiff was paid the price of the mural and hence, the copyright in the mural vested in the Defenda nt s, who claimed to be the owners of the mural with the conseque n t right to consign it to the storeroom.
ig The Plaintiff was granted damages of Rs.5 lakhs for violation of the Plaintiff's moral right of integrity.
109. This case is much the same. The Plaintiff has by his own labour, skill, art and knowledge produced the suit film. The defenda nt s claim that they acquired the telecast rights of the film. The telecast rights have been specifically granted subject to the conditions of non- abridgment and non user of excerpts and to telecast the film in full. Though the Defenda n t s 1 to 3 may claim to be owners upon the acquisition of telecast rights / licence to telecast the film, they are subject to the limitations set out by the Plaintiff as stated above, in the letter of their own Producer - in -charge. The Defenda nt s have breached the conditions. The Defenda nt s 1 to 3 have themselves or through their represent a tive, Defenda nt No.4 ::: Downloaded on - 09/06/2013 14:28:59 ::: 68 allowed the user of parts of the suit film in what the Plaintiff considers bad compa ny. Even otherwise, the user of the part of the suit film, being contrary to the written agreement between the parties, would tanta mo u n t to distortion and mutilation of the suit film.
110. The suit film remained in the DDK archives after its first telecast in 1977. The Plaintiff allowed it to be in the custody of Defenda nt s 1 to 3 as the assignmen t / licence was for telecasting the film upon royalty of Rs.500 / -
ig for telecast.
While the suit film remained in the Defenda n t s archives it could be used as research material and for dissemina tion of information contained therein. However, it was misused by copying the parts thereof and telecasting the same as a part of impugned film. The Plaintiff's evidence shows that he learnt of the stills / s h o t s / i m a ges of the suit film being incorporated into the impugned film from his cousin who telephoned the Plaintiff as soon as he realised the said act and while the impugned film was being telecast. The Plaintiff immediately switched on his television and saw the film. The Plaintiff then obtained its copy. The fact that the impugned film has been telecast in on 25 th Ju ne 2003 has not been disputed. The Defenda nt s did not even inform the Plaintiff of parts of his film being used in the impugned film.
::: Downloaded on - 09/06/2013 14:28:59 ::: 69111. The distortion and mutilation is, therefore, made out. The total lack of reference to the Plaintiff shows breach of trust. Hence, Issue No.6 is answered in the Affirmative .
ISSUE NO.7 :-
112. It is the case of the Plaintiff that excerpts of his film by shots / s t ills / i m ages incorporated in the impugned film at 6 or 7 different places by the Defendant No.4 are the various interviews of political persons who are having a diametrically different ideology than that of the Plaintiff.
ig The Plaintiff
contend s that the overall effect of the production of the
impugned film has defamed the Plaintiff and lowered his image of a secular democratic person in the eyes of his relatives, friends and acquaint a n ce s and resulted in defamation.
113. The Defenda nt s have denied defamation. The Defendant s contend that the shots / s tills / i m ages of the suit film are incorporated in a part of the impugned film showing the cause of the Declaration of Emergency. That has nothing to do with the interviews of the persons interviewed. Besides the interviews do not speak about the Plaintiff's film or ideology. The film does not project the ideology of "Hindutva" but shows the heroic roles played by the interviewed persons at the time of the Emergency declared 28 years prior to the making or ::: Downloaded on - 09/06/2013 14:28:59 ::: 70 telecasting of the film. P.W.2 who stated that she was scandalised at seeing the Plaintiff's shots, seen by her 28 years ago on DD once, has also fairly conceded in her evidence that several interviewees had also opposed and criticized the imposition of Emergency and were detained during Emergency. Besides, Defendant No.4 who produced and directed the impugned film did not even know the Plaintiff and had no intention to malign the Plaintiff, tarnish his image, damage his reput ation or lower his stat us amongst his peers and otherwise. He claims that the impugned film does none of these. No intention of malice has been imputed upon him.
Defamation is contended merely upon placing the Plaintiff's shots / s t ills / i m ages amongst the wrong people at the wrong place.
114. Viewing both the films at one sitting the Court observed that the stills / s h o t s / i m a ge s of the suit film had nothing to do with whatever any of the interviewees had to say about their role in the Emergency. The truism reflected in the suit film's shots / s t ills / i m ages was not challenged. No interviewee has stated that he played a part in any of those shots. The Plaintiff's shots, copied as they were from the suit film, were in black and white. They were shown only to show the Bihar Movement and nothing else. They showed the student s' agitation led by Jay Prakas h Narayan. That aspect was not ::: Downloaded on - 09/06/2013 14:28:59 ::: 71 disputed anywhere in the impugned film. The message and information exhibited in that aspect was not misrepresen ted anywhere in the impugned film.
115. The further exception that the Plaintiff has taken is that an interview of the Plaintiff with Jaya Prakas h Narayan has been shown. That interview lasts for, but a couple of seconds in the impugned film. The Plaintiff's frontal face is not shown in that shot. It is Jaya Prakas h Narayan, who has been interviewed, who alone is sought to be shown in the impugned film. Only a part of the side and back of the Plaintiff is shown in that shot. The Plaintiff was 28 years younger at the time the suit film was telecast. The Plaintiff had greyed since the making of the suit film. The Court was shown the said shot more than once. Both the Plaintiff as well as Defenda nt No.4 commented upon the shot. Defendant No.4 contended that the Plaintiff looked completely different in that shot. He was almost unrecognizable at the time of the telecast of the impugned film. Aside from the Plaintiff's close friends and relatives, no others can decipher or recognize the Plaintiff as such. This common se n se argume nt has much subst a nce.
Besides, the Plaintiff is shown with none other than Jaya Prakas h Narayan whose ideology of secularism and democracy the Plaintiff holds dear. The Plaintiff has not been shown with or even amongst the other political persons whose ::: Downloaded on - 09/06/2013 14:28:59 ::: 72 ideology the Plaintiff abhors. The Plaintiff has imputed an innue ndo constituting defamation.
116. Cases of the kind need be considered. The first of the cases is the case of H.K.Hales M.P. Vs. H.Smiles & Ors. A.I.R . 19 3 7 Rangoon 105. It relates to an innue ndo upon a defamation. It has been held that words must be taken in their natur al sense and if the words are susceptible to a number of good interpret ations the only bad ones cannot be seized by the Court ig to give a defamatory sense to the docume nt. That was the case of the Plaintiff complaining of a libel action against the Producer of a Newspaper in Burma. The Plaintiff carried on his busines s. The Plaintiff had prosecuted his employee under the I.P.C. The case was dismissed as false and malicious. The employee prosecuted the Plaintiff under Section 195(1)(a) of the Cr.P.C . The case was reported in the papers. The report was shown to be accur ate. Since the Plaintiff was a reput able person in the House of Common s in the U.K, an inquiry was to be conducted. The employee informed the Viceroy in writing that, if the Plaintiff having wealth and position went unp u ni s h e d, hundreds of citizens would suffer as he had. This was also reported in the newspaper s. An innue n do was alleged in the plaint that the Defenda nt was guilty of filing a malicious and false charge upon his employee because of his ::: Downloaded on - 09/06/2013 14:28:59 ::: 73 wealth and position. The newspaper, which was sued, published an apology. A point of determina tion was whether the stateme nt was capable of bearing the meaning defamatory of the Plaintiff and whether surrou n di ng circumst a nce s carried an innue ndo which was defamatory to the Plaintiff. The two innue ndos were that the Plaintiff prosecuted his employee maliciously and that he secured a favourable decision because of his use of wealth and position. Adopting the test applied in the case of Stubbs Ltd. Vs. Russel 191 3 A C 38 6 at page 10 7 it was observed that the test is whether some people would put a particular meaning upon the words however strained or unlikely the constr uction may be. Such interpretations would vary infinitely. It may be strained or sinister interpretation and thus essentially unjust and may show a wrong which had never been committed. It was not suggested in that case that the Plaintiff had made use of his wealth and position and hence it was observed that it was not easy to follow what dishonest use he could put his position to.
It was observed that that may be to corrupt the Calcutta High Court (which was the relevant High Court having jurisdiction in the litigation). It was observed that apart from its absur dity, the article in its natu r al sense does not bear such a meaning. Either of these suggestions was observed to be scandalous of the Court, but not libellous of the Plaintiff. It was held that there are more meanings than one to which ::: Downloaded on - 09/06/2013 14:28:59 ::: 74 those words could be put, some unsou n d and others harmful and hence it was held that it was not permissible to single out and accept the injurious inference in preference to the harmless one.
117. It was further held that for the purpose of detecting the innue ndo the defamatory material must be read as a whole. The two innue ndos in that case were that the Plaintiff was going unp u ni s h e d by abusing his wealth and position. Read as a whole, with the eye of an ordinary reason able man, it was held that no reasona ble man would read the stateme nt to mean that the Plaintiff ought to be punished. No malice was found in the stateme nt reported in the newspapers. Besides no evidence of loss of business was given by the Plaintiff. The evidence of a busines s associate showed that there was no stoppage of business relations hip between the parties after the alleged defamation. It was held that the Plaintiff cannot profit from the allegation of defamation.
118. In this case also the interview with the Plaintiff is capable of more than one meaning. It would in fact show the Plaintiff in good light. The Plaintiff was seen in the company of as great as a man as Jay Prakas h Narayan whom the Plaintiff holds in high esteem. Merely because his shots were intersperced in the film, they were not intermingled with the ::: Downloaded on - 09/06/2013 14:28:59 ::: 75 ideology of the interviewees. The innuen do sought to be suggested by the Plaintiff cannot be accepted.
119. Other judgment s to the same effect are relied upon by Mr. Rajguru Board of Directors Y.M.C.A . Allahabad Vs. R.H.Niblett (S) A.I.R. 195 7 Allahabad 219 ; Habib Bhai Vs. Pyarelal & Ors. A.I.R 196 4 Madhya Pradesh 62 go the same way. In the case of Sadasiba Panda Vs. Bansidhar Sahu A.I.R 19 6 2 Orissa 115 relied upon by Mr. Sabestian, which are cases where the Plaintiffs were called Goondas or where the stateme nt s sought to disparage and injure to the Plaintiffs are not applicable cases.
120. Mr.Sebastian relied upon the case of Indian Express Newspapers (Bombay) Pvt. Ltd. Vs. Dr. Jagmohan Mundhara A.I.R . 198 5 Bombay 229, in which an article appeared about the theme of trafficking in women in a newspaper. It came to be taken up as a theme in a film which carried the name of the trafficked character shown in the film and the interview of the filmmaker was published in a magazine. Even another character bore the name of the Editor of the Newspaper. The events in the film were based upon the article in the Newspaper " bodily lifted " with twists and distortions directed against the Editor. Hence though it was concluded that there was no infringement of copyright, it ::: Downloaded on - 09/06/2013 14:28:59 ::: 76 was held to be defamatory of the Plaintiff as the readers and viewers would know that the Plaintiff alone was meant and pointed to, though there may be no appare nt intention to defame and may even know that the pointer is untr u e. It was observed that the innue ndo was unmistak a bly directed against the Plaintiff Newspaper and the journalist who wrote the article was also identified as was the trafficked woman. Hence it was held that the Plaintiff was defamed and suffered injury. In this case the pointer to the Plaintiff by his shot interviewing Jay ig Prakas h Narayan, indeciphera ble and unrecognisable to many after 28 years, cannot be taken to be meant to defame in the absence of any intent whatsoever.
121. Besides, the Plaintiff has not shown the actual damage caused to his reputation except for putting him in bad company. The mere affidavit of P.W.2 showing that she was scandalised seeing the Plaintiff in the film with other persons of a different ideology does not show such damage to the reputation of the Plaintiff as would lower his stat u s. Besides, she has admitted that she had seen the suit film only once in 1977 on DD. Her photograp hic memory cannot be too outstretched to impute motives upon the Plaintiff as contended by him. What has been projected in the impugned film is admittedly correct. The only exception taken by the Plaintiff is by inclusion of his shots / s t ills / i m ages / f r a m e s in the impugned film. Inclusion of several shots / s t ills / i m ages in ::: Downloaded on - 09/06/2013 14:28:59 ::: 77 black and white and showing the Plaintiff with Jay Prakas Narayan cannot constitute defamation.
122. The Plaintiff has, therefore, not succeeded in showing that the infringement of his copyright, by utilising some shots and stills of the suit film in the impugned film, damaged his reputation as would tanta mo u n t to defamation. Issue No.7 is, therefore, answered in the Negative .
ISSUE NO.8 :-
123. The Plaintiff's suit is for damages, injunction, apology and for further reliefs required by the circumst a nce s and nat ure of this case. The damages claimed are on two counts:
i) Violating of the Plaintiff's copyright in the suit film.
ii) For tarnishing the Plaintiff's image in public estimation.
The violation of the Plaintiff's copyright which is implicit in the suit film, is shown. The tarnishing of the Plaintiff's image has not been seen upon an objective analysis of the two films viewed by the Court. Copyright is a proprietory right. Its infringement is account a ble without proof of damage. The shots / s t ills / i m ages used in the impugned film having been seen to be copied from the suit film entitles the Plaintiff to damages upon the infringement being seen per se.
::: Downloaded on - 09/06/2013 14:28:59 ::: 78124. The basis of the law of damages for the infringement of copyright can be best extracted from Halsbury's Laws of England, Fourth Edition 200 6 Volume 9(2) in paragrap 419 at page 291 runs thus:-
"41 9. Damages for infringem e n t . In a claim for infringem e n t of copyright it is not nece s s ary to give proof of actual damage; the damages are at large but, as with any other tort, are restrict ed to thos e which flow directly and naturally from the tortiou s act".
125. In the case of Exchange Telegraph Company Limited Vs. Gregory & Co. (189 6) 1 Q.B.14 7 (CA) it was held that the infringement of copyright does not require proof of damage and that where the right of property has been attacked no evidence of damage is necessa ry. Lord Esher M.R compared the damages for such infringement to a case of trespa s s to land or assa ult where the Plaintiff has received no real hurt. Damages in such cases are granted to the Plaintiff though it cannot be meas u re d or established. It is held in that case that it is not necessary to give proof of specific damages and it is enough to shew that the act complaint of was done on in a way as to be likely to damage the Plaintiff.
In that case there was a contract between the Plaintiff's Firm and the Committee of the London Stock Exchange for ::: Downloaded on - 09/06/2013 14:28:59 ::: 79 trans mis sion of valuable information as to the prices of stocks and shares which was collected from time to time each day and supplied to the Plaintiffs upon payment. The Plaintiff printed the information on tapes and sheets of letterpress in its office. The Plaintiff had the sole right of obtaining the quotations. The information was collected by a member of the stock excha nge appointed and paid for by the Plaintiff. The information obtained by that person was supplied to a telegraphic operator who by a Morse electric machine trans mitted it to the Plaintiff's office.
ig The Plaintiff's office trans mitted to its subscribers who can print the information again upon payment to the Plaintiff. The contract between the stock excha nge and the Plaintiff as well as the Plaintiff and the subscriber was not to sell and comm u nicate the information to non- subscribers. The information which came to the Plaintiff's office from the stock exchange and which was trans mitted to the subscribers was printed and made into a newspaper and sold by the Plaintiff. The newspaper was registered as copyright.
The Defenda nt was the Plaintiff's subscriber. He was removed as such subscriber. He obtained the compa ny's details from one of the subscribers and pasted it up on boards and other places in his office as soon as it arrived by the trans mitting machine.
::: Downloaded on - 09/06/2013 14:28:59 ::: 80The Plaintiff sued for injunction. It was contended that the copyright in the newspaper or book subsisted as soon as it was published and circulation of the copies was an infringement. It was contended that the Plaintiff had property in its work which entitled it to prevent its publication by others.
It was observed that the Defenda nt knew that the Plaintiff had the contractig with their subscribers and that the information is very valuable. He got that information from one of the Plaintiff's subscribers surreptitiously. It was held that the information was something which could be sold and was hence the Plaintiff's property and the Defenda nt, with intention, invaded the right of property of the Plaintiff. Hence, it was observed that the injury to the Plaintiff can be imputed without actual comput a tion of damage upon invasion of the Plaintiff's common law right. By a una ni mo u s decision the injunction granted by the trial Court was confirmed and the Appeal was dismissed.
126. The Plaintiff claims damages of Rs.31 lakhs by way of exemplary damages for the hurt caused to the Plaintiff by the deceiving behaviour of the Defenda nt s in allowing the suit film copy in the archives of Defenda nt s 1 to 3 to be unlawfully ::: Downloaded on - 09/06/2013 14:28:59 ::: 81 used and appropriated by way of several shots / s tills / i m ages by Defenda nt No.4 and using those shots / s t ills / i m a ges in his own film amongst persons of completely different ideology causing infringement of his copyright and defamation.
127. In the case of Williams Vs. Settle 196 0 W.L.R 107 2 (CA) exemplary damages have been granted when the infringement of copyright resulted in scand alous conduct of the Defenda nt. That was a case where the Defenda nt was commissioned, as ig a professional photograp her to take photograp h of the Plaintiff's wedding. The copyright in the photograp h s vested in the Plaintiff. 2 years later when the Plaintiff's wife was expecting a child, her father was murdered, in circum st a n ce s which attracted publicity. The Defenda nt without authority sold certain photograp h s to a press showing a wedding group which came to be published prominently in two National newspapers. The conduct of the Defendan t was deprecated. The conduct of the newspapers was expressed to be vulgar and offensive. It was observed, relying upon Sedwick on damages, 9 th Edition (1913) page 347 that actions of tort in which gross fraud, wantones s, malice or oppression appears, the Jury may impose exemplary, punitive or vindictive damages upon the "wounded feeling" and "injured pride" of the Plaintiff .... This was essentially to make a distinction between the willful and an innocent wrong doer. In ::: Downloaded on - 09/06/2013 14:28:59 ::: 82 that case it was observed that the Defenda nt's act of handing over the photograp h s was after "knowing the use to which they were going to be put". It was observed at page 1082 thus:-
" It is a flagrant infringe m e n t which calls for heavy damages, becaus e this was a scandalou s matter...."
" It was a flagrant infringe m e n t of the right of the plaintiff, and it was scandalou s condu ct and in total disregard not only of the legal rights of the plaintiff regarding copyright but of his feelings and his sens e of family dignity and pride. It was an intrusion into his life, deeper and graver than an intrusion into a man's property".
128. This is not a case of flagrant and offensive conduct of Defenda nt No.4. Defendant No.4 was an innocent researcher.
He did not mean or intend defaming the Plaintiff. He did not know the ideology of the Plaintiff. He did not also know the sensitivity with which the Plaintiff displays his company or comrades. He was to produce a film on the subject of Emergency, but with a different theme. This film showed, rightly or wrongly, artistically or otherwise, the political figures of the time when the film was made. Even if it was made by way of propagand a, as contended by the Plaintiff, it had no intent to cause harm, hurt or disrepute to the Plaintiff or to any other who chose to belong to a different genre. No such ::: Downloaded on - 09/06/2013 14:28:59 ::: 83 intent can be imputed upon Defenda nt No.4.
129. He, of course, must be imputed the knowledge that the Producer of the film would have copyright. Taking shots / s t ills / i m ages from the film would per se tanta mo u n t to infringement of copyright. He can also be imputed the knowledge of who is the owner of the copyright since the credits of the suit film show inter alia the Producer, Director, Photograp her, Script Writer etc., to be the Plaintiff. He, of course, did not care to take the permission of the Plaintiff or to make payment to the Plaintiff to obtain a permission or licence to use any shots or stills which he presu m a bly did not find elsewhere. Yet he did not pervert the Plaintiff's film by fraud, wantonne s s, malice or knowing that it would be used in an offensive man ner or in a manner which the Plaintiff might consider scandalous. The distinction required to be made as enumera ted in the judgment in the Williams Vs. Settle 196 0 W.L.R 10 7 2 (CA) (supra) would show that Defenda nt No.4 was a wrong doer, though an innocent wrong doer and not a willful wrong doer. Hence, exemplary damages to the extent claimed by the Plaintiff cannot be granted in this case even if the infringement would tanta mo u n t to defamation, which it does not.
130. The extent of damages would depend upon the facts and ::: Downloaded on - 09/06/2013 14:28:59 ::: 84 circumst a n ce s of the case. Both the suit film as well as the impugned film are not commercial films. They are not made with the solitary or the prime aim and motive to profit therefrom. Both the Plaintiff as well as Defendant No.4 are artists and have produced their work for their respective cause or occasion. It would, therefore, not be proper and correct to arithmetically calculate the value of the Plaintiff's copyright in the suit film upon his earnings therefrom for determining the extent of damages payable.
131. Similarly, the monetary consideration under the assignme nt / lice nce of the suit film to Defendan t s 1 to 3 or in the C.D, DVD or other electronic equipment s used by the Plaintiff to obtain consideration for viewing from different target audiences shown to be Rs.700 / - to Rs.1200 / - per copy is not the right meas ure of damages for infringement of the Plaintiff's copyright. Mr. Rajguru contended that the damages would be Rs.500 / - as the Defenda nt s acquired the telecast rights of the suit film at that consideration. Even under the Defenda nt's own letter Exhibit- B the consideration fixed was at Rs.500 / - per telecast. It is not shown or known how many such telecats were made. Defenda nt s 1 to 3 could have made as many as they desired, though the Plaintiff has not been paid or informed of any such telecasts. Damages cannot be arithmetically calculated by multiplication of the number of ::: Downloaded on - 09/06/2013 14:28:59 ::: 85 telecasts made or which could have been made during the years when the suit film remained in the archives of Defenda nt s 1 to 3.
132. It is seen that the Plaintiff has been the only film maker and photograp her who has cinematograp hically capt ured the Bihar Movement. Aside from stray questions with regard to 2 other films, no material is produced to that end. Neither party has shown any other shots and stills or even press photograp h s or any ig other material showing mass scale production and publicity of the Bihar Movement. No clippings of newspapers have also been produced to show any shots of the Movement. So far as the theme of Bihar Movement is concerned, which is one of the causes of the Declaration of Emergency the subst a n tial part of the Plaintiff's skill, labour and art has been appropriated and abrogated by Defenda nt No.4 callously though not willfully. The Plaintiff must be held entitled to subst a n tial damages upon such infringement of Copyright.
133. The Plaintiff is a talented artist. He is a film maker of repute. The plaint as well as the examination- in- chief of the Plaintiff shows that he has made at least 5 meaningful films, several of which were directed by this Court to be telecast by the defenda n t s in their un- abridged form. He is a recipient of ::: Downloaded on - 09/06/2013 14:28:59 ::: 86 several National and International awards. The Plaintiff's work has been published in print (though that is not the part of the record of this Suit). The production, editing, photography of the suit film aside from being a work of art is seen to be the only such work of art on a historical topic which is both informative and educative and reflecting character and constitution al ideology worth emulating in the Plaintiff's name rather than plagiarising it.
134. The evidence of Defendant No.4 has shown that he works, albeit as an artist, but as an employee of Defenda n t s 1 to 3.
He is not an independe n t artist. His work is vetted and controlled by his Superiors. He is guided by the policies of Defenda nt s 1 to 3. The work of the impugned film was also supervised and controlled by Defendant s 1 to 3. He is, therefore, not solely responsible and liable for his acts including the acts which constitute infringement of the Plaintiff's copyright. Defendant No.4 has personally copied the shots / s t ills / i m ages from the suit film. Those were provided by Defenda nt s 1 to 3 from their archives. All the Defenda nt s must be held liable and responsible in damages for the infringement of the Plaintiff's copyright.
135. Since no defamation of the Plaintiff is seen by the shots / s t ills / i m ages of the suit film being incorporated in the ::: Downloaded on - 09/06/2013 14:28:59 ::: 87 impugned film damages upon defamation alleged by Plaintiff cannot be granted.
136. The relief of injunction from screening and rescreening the impugned film has not been seriously opposed. The Plaintiff objects to the screening of the impugned film containing the shots / s t ills / i m ages of the suit film as that would harm his reputation and social standing. However, since screening the impugned film would constitute infringement of the Plaintiff's copyright injunction in that behalf and to that extent is required to be granted.
137. The apology sought by the Plaintiff for defaming and scandalising him in the impugned film need not be granted as the Plaintiff is not seen to have been defamed.
138. Hence, the following order:-
ORDER
139. The Defendant s shall pay damages for infringement of the Plaintiff's copyright in the suit docume nt a ry film "Waves of Revolutio n" computed at Rs.10 lakhs.
140. The Defendant s shall not screen or re- screen the ::: Downloaded on - 09/06/2013 14:28:59 ::: 88 impugned film "26 th June 197 5" showing any stills / s h o t s / i m a ge s from the suit film "Waives of Revolutio n".
(SMT. ROSHAN DALVI, J.) ::: Downloaded on - 09/06/2013 14:28:59 :::