Calcutta High Court (Appellete Side)
Maddock Films Private Limited vs Shiboprasad Mukherjee & Ors on 17 July, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
17.07.2017
srm
F.M.A.T. No.750 of 2017
(CAN 6335 of 2017)
Maddock Films Private Limited
Versus
Shiboprasad Mukherjee & Ors.
Mr. S.K. Kapoor, ld. Sr. Advocate
Mr. Phiroz Edulji, ld. Advocate
Mr. R. Bhattacharya, ld. Advocate
Mr. Neel Mason, ld. Advocate
Mr. Sayan Roychowdhury, ld. Advocate
Mr. Ankit Relan, ld. Advocate
Mr. Uday Singh Chopra, ld. Advocate
...for the Appellant.
Mr. Ratnanko Banerjee, ld. Sr. Advocate
Mr. Sanjib Kumar Mal, ld. Advocate
Mr. Debnath Ghosh, ld. Advocate
Mr. Soumya Roychowdhury, ld. Advocate
Mr. Atanu Roychowdhury, ld. Advocate
Mr. Dibnath Dey, ld. Advocate
Mr. Pushan Majumdar, ld. Advocate
...for the Plaintiffs/Respondent Nos.1 & 2.
This appeal is directed against an ad interim order of injunction dated June 29, 2017 passed by the learned District Judge, South 24-Parganas, Alipore in connection with a petition filed under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure in Title Suit bearing No.8 of 2017. By virtue of the order impugned, the defendant/appellant has been restrained from releasing the film "Hindi Medium" in any other format or electronic form 2 including CDs, DVDs, Television/Internet or extraterrestrial rights till July 28, 2017. The date for service return and appearance of the above application for injunction is fixed on July 28, 2017.
According to the plaintiffs/respondents, the plaintiffs produced a Bengali Film "Ramdhanu" which was released in the year 2014. According to plaintiffs/respondents, the above film had a unique story line, strong characterization, plot and situation and had given a distinct identity. The above film was exhibited worldwide and the works were protected under national and international laws, treaties and conventions including the International Copyright Order, 1991, the Home Convention and Universal Copyright Convention.
According to the plaintiffs/respondents, the appellant was the producer of one Hindi cinema "Hindi Medium". It was alleged by the plaintiffs/respondents that the purported story line and screenplay of the said film were exactly similar to the story line of "Ramdhanu". It was further alleged by them that the film "Hindi Medium" was a massive adaptation and substantial re-production of the story line of "Ramdhanu" and in many cases the screenshots were also similar.
After considering the submissions made before the learned Court below by the plaintiffs/respondents as also after prima facie perusal of 3 annexures B, C, D and E to the plaint, the learned Court below passed the impugned order. The learned Court below was of the prima facie opinion that the screenshots and posting in print and electronic media were almost similar and barring the concluding parts of the two films, the other story line of both the films were prima facie found similar.
It is submitted by Mr. S.K. Kapoor, learned Senior Advocate appearing on behalf of the appellant/defendants that there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts. It is submitted by him that, according to the settled principles of law, violation of the copyright is confined in the form, manner and arrangement and expression of the idea by the author of the copyrighted work. It is further submitted by him, that, according to the settled principles of law, one of the surest and safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets and unmistakable impression that the subsequent works appears to be a copy of the original.
It is submitted by Mr. Kapoor that the plaintiffs/respondents approached the Court after 40 days of release of the film "Hindi Medium". 4 It is submitted by him, that global right of the above film has already been given and only the satellite rights are about to be launched.
It is also submitted by Mr. Kapoor that the learned Court below passed the ex parte ad interim order of injunction for the period mentioned hereinabove after considering the annexures B, C, D and E which do not contain either the full story or entire screenshots of the film "Hindi Medium" and as a result, the aforesaid materials were not adequate to form even a prima facie opinion. According to Mr. Kapoor, annexures B, C, D and E were the materials containing either newspaper cuttings or summary of two stories relating to aforesaid two films or a few screenshots which were also not adequate to form even prima facie opinion in support of granting ad interim order of injunction for the period mentioned hereinabove.
It is finally submitted by Mr. Kapoor that though Order XXXIX, Rules 1 and 2 provides for disposal of an injunction petition within 30 days, the next date has not been fixed by the learned Court below in accordance with that provision.
Reliance is placed by Mr. Kapoor on the decisions of (1) R.G. Anand vs. M/s. Delux Films & Ors. reported in (1978) 4 SCC 118, (2) Barbara Taylor Bradford & Anr. vs. Sahara Media Entertainment Ltd. & Ors. reported in (2004) 1 CHN 448, (3) an unreported decision dated March 21, 2017 in the 5 matter of Dashrath B. Rathod & Ors. vs. Fox Star Studios India Pvt. Ltd. & Ors. in re: Suit (L) No.196 of 2017, (4) Laxmi Raj Shetty & Anr. vs. State of Tamil Nadu reported in (1998) 2 SCC 319 in support of his above submissions.
On the other hand, it is submitted by Mr. Ratnanko Banerjee, learned Senior Advocate appearing on behalf of the plaintiffs/respondents that the film "Hindi Medium" was released on May 19, 2017. Before releasing of the aforesaid film there were newspaper cuttings, other reports from the journalists. The respondents had been waiting till releasing of the film to ascertain as to whether it was a case of copying of expression of idea of their film "Ramdhanu" after viewing the film. It is submitted by Mr. Banerjee that due to intervention of summer holidays of Court appropriate steps could not be taken by the respondents. After reopening of the Court, he added, that the summer holidays of the Court were followed by cease work of the learned Advocates for a further week. It is submitted by Mr. Banerjee that, according to the settled principles of law, delay does not defeat the respondents to seek relief in the matter.
It is further submitted by Mr. Banerjee that apart from annexures B, C and D containing the newspaper cuttings those comparative of study of stories involved in the aforesaid two films. Annexure E contained similarity 6 in respect of a number of plots apart from similarity in central theme. According to him, after prima facie consideration of the aforesaid similarity as also the statements made in paragraph 24 of the suit, the learned Court below arrived at prima facie opinion at the very initial stages to pass the ex parte ad interim order of injunction for a limited period.
It is further submitted by Mr. Banerjee that releasing of the above film in any other format or electronic including CDs, DVDs, Television/Internet or extraterrestrial rights involves further loss on the part of the respondents.
Drawing our attention towards the provisions of Section 55 of the Copyright Act, 1957, it is submitted by Mr. Banerjee that apart from the damages, accounts, etc., and other remedies by way of injunction is a relief which may be granted after final hearing of the suit. As a result, the granting of ad interim order of injunction for a limited period was the appropriate relief which was granted to them at the very initial stage by the learned Court below to protect the respondents from loss which might occur consequent upon releasing the above film in any other format or electronic form.
Reliance is placed by Mr. Banerjee on the decisions of (1) Midas Hygiene Industries (P) Ltd. & Anr. vs. Sudhir Bhatia & Ors. reported in 7 (2004) 3 SCC 90, (2) Shree Venkatesh Films Pvt. Ltd. vs. Vipul Amrutlal Shah reported in (2010) 1 CHN 818 (DB), (3) Twentieth Century for Film Corporation vs. Sohail Maklai Entertainment Pvt. Ltd. & Anr. reported in 2010(44) PTC 647(Bom.) and (4) Jyoti Kapoor & Anr. vs. Kunal Kohli & Ors. reported in 2015(63) PTC 347 (Bom.) in support of his submissions.
We have heard the learned Counsel appearing for the respective parties and we have considered the facts and circumstances of this appeal.
It is not in dispute that the learned Court below while passing the ad interim order of injunction took into consideration the admitted fact of releasing of the film "Hindi Medium" 40 days before moving of the above injunction petition. As a result the learned Court below was not inclined to restrain the appellant/defendants from exhibiting the film "Hindi Medium". However, the learned Court below restrained the appellant from releasing the above film in any other format or electronic form including CDs, DVDs, Television/Internet or extraterrestrial rights in order to protect the respondents/opposite parties from incurring further losses.
We find substance in the submissions made by Mr. Banerjee with regard to the provisions of Section 55 of the Copyright Act, 1957 that apart from the release, damages, accounts and otherwise, injunction is also a remedy so far as the deserving plaintiffs are concerned. Therefore, without 8 expressing our opinion on merit it can be said that after forming a prima facie opinion at a very initial stage upon consideration of the materials mentioned hereinabove, the granting of ex parte ad interim order of injunction for a limited period by the learned Court below cannot be said to be unjustified. Interference of the appellate Court with the discretionary power of the learned Court below is not usually warranted at this stage so far as the formation of prima facie opinion with regard to arguable case of the plaintiffs/respondents is concerned.
Taking into consideration the settled principles of law as decided by the Hon'ble Supreme Court in the matter of R.G. Anand (supra), we find that the copyright is confined to the form, manner and arrangement and expression of the idea and one of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. The learned Court below is to arrive at a conclusion in the matter in view of the above settled principles of law while disposing of the application of the respondents/opposite parties filed under Order XXXIX Rules 1 and 2 finally. Further, reading or viewing has 9 not been observed by the Hon'ble Supreme Court as the only resort to arrive at a prima facie conclusion.
Neither the above decision nor the decision of Barbara Taylor Bradford (supra), in our opinion, lays down an absolute proposition for bringing two films as only resort to arrive at a prima facie conclusion at the very initial stage to pass an ad interim order of injunction for a limited period pending hearing of the application under Order XXXIX Rules 1 and
2. In view of the above settled principles of law while considering the materials which were before the learned Court below, we find that apart from annexures B, C and D containing newspaper cuttings, etc. annexure E contained not only the story line, plot similarity of central theme, male lead, female lead but also plot similarity in respect of 1, 2, 3, 4, 5, 6 and 7 screenshots plays.
That apart from the statements made in paragraph 24 of the plaint following similarities were mentioned:
"24. A broad identity in the two films are as under : -
a) Both the films show that father is a business man with little education and speaks in coarse vernacular.
b) Both the films show that the mother is obsessed about her child's future and is more educated than the father and more sophisticated in her diction.
c) Both the films show that the couple were denied of their child's admission in a good and reputed English Medium School.10
d) The approach to the Notice Board where names of successful candidates is also the same in both the films.
e) A neighbour is behaving rudely with the mother.
f) The father in both the films speaks bad English.
g) The mother is worried about child's future in an attempt to get her child admitted in an English Medium School.
h) Father offers bribe.
i) Special teacher is engaged in an attempt to help the child for being admitted in school.
j) A middleman is involved who takes money to secure admission in the school.
k) The screenplay of the interview of the child as shown in both the films is the same."
After further consideration of the question of balance of convenience and/or inconvenience as also irreparable loss and/or injury, we are not inclined to interfere with the order impugned taking into consideration of the provisions of Section 55 of the Copyright Act, 1957, as discussed hereinabove.
So far as the time limit of 30 days, as prescribed in order XXXIX of the CPC, to hear out the injunction petition is concerned, we are of the opinion that the same is a procedural law and substantial compliance of the aforesaid provision is enough.
Taking into consideration the aforesaid facts and circumstances, we are of the opinion that this is not the appropriate stage to interfere with the impugned ad interim order of injunction passed by the learned Court below. However, we are of the opinion that the early disposal of the above 11 injunction petition is required considering the urgency involved in the matter.
So far as the applicability of the decisions of R.G. Anand (supra) and Barbara Taylor Bradford (supra) are concerned, we have already discussed the same hereinabove.
So far as the unreported decision of Dasharath B. Rathod (supra) and Laxmi Raj Shetty (supra) are concerned, we are of the view that in view of the distinguishable facts and circumstances those decisions do not help the appellant.
In view of the observations and discussions made hereinabove, we are not inclined to interfere with the impugned order so far as the ad interim order of injunction is concerned.
However, the learned Court below is directed to take up the above injunction petition for final hearing on and from July 24, 2017, preponing the date of hearing which has been fixed by the order impugned, after exchange of affidavits, if any, within July 21, 2017. The learned Court below is further directed not to grant unnecessary adjournments to either of the parties and to dispose of the above injunction petition expeditiously and preferably within July 28, 2017 in accordance with law after giving opportunity of hearing to the parties.
12
We further make it clear that we have not expressed our opinion with regard to merits of the case and all points are kept open for decision of the learned Court below.
This application is, thus, disposed of.
There will be, however, no order as to costs.
Since nothing remains to be decided in the appeal, the same is treated as on day's list and disposed of accordingly.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. ) (Md. Mumtaz Khan, J.)