Bangalore District Court
Lahari Recording Company vs Filmfare Magazine on 26 September, 2022
KABC010187822014
Form
No.9
(Civil)
Title
Sheet
for PRESENT: SRI PADMA PRASAD
Judgme
B.A.(Law) LL.B.,
XVIII Additional City Civil Judge.
Dated this the 26 th day of September 2022
PLAINTIFF: LAHARI RECORDING COMPANY
PRIVATE LIMITED
A company incorporated under the
Companies Act, 1956 having its
Registered Office at No.61, Gowri
Chambers, 5th Main Road,
Chamarajpet, Bangalore-560 018,
Karnataka, Represented by its
Managing Director,
Mr. G. Manoharan.
[By Smt/ Sri LI/ PKM, Advocate]
/v e r s u s/
DEFENDANTS: 1. Filmfare Magazine,
Times of India Building,
4th Floor, Dr. D.N.Road, Fort,
Mumbai-400001, represented
by its CHAIRMAN AND
MANAGING DIRECTOR.
2. Times Group,
Times of India Building,
2 O.S._6695_2014_Judgment_.doc
4th Floor, Dr. D N Road, Fort,
Mumbai-400001, represented
by its CHAIRMAN AND
MANAGING DIRECTOR.
3. Idea Cellular Private Ltd.,
No. 75, Civil Station,
Richmond Road,
Bangalore-560 025.
D1 & D2 - By Sri P.M. Advocate
D3 to D5- Deleted
D6 - By Sri L.S.P., Advocate
Date of institution of the : 01/09/2014
suit
Nature of the suit : For INJUNCTION.
Date of commencement of : 24/01/2017
recording of the evidence
Date on which the : 26/09/2022
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
16 - 25
(PADMA PRASAD)
XVIII ACCJ: B'LURU.
This is a suit for permanent injunction.
2. The plaintiff's case in nutshell is that, it has
presently engaged inter alia in the production,
marketing, distribution and sale of sound recordings.
The plaintiff's firm is a reputed label and a leader in
3 O.S._6695_2014_Judgment_.doc
the South Indian Music Industry and is the owner of
innumerable, valuable copyrights in musical works
created in the South Indian Film Industry. The
plaintiff's list of copyrights includes the copyright of
all music of two popular movies namely 'Race
Gurram' and 'Thalapathy'.
The second defendant is a company carrying on
the business in print and electronic media having
wide base of publication in India via newspaper,
magazines and a popular news channel. The first
defendant company is a subsidiary company of the
second defendant. On January 24, 1995, the plaintiff
entered into a deed of assignment with M/s Empire
Recording Company, a proprietary concern, which is
engaged inter alia in producing sound recordings
consisting of compilation of film songs, devotional
songs, suprabatha folk songs, love songs, children's
songs etc., produced by others for the purpose of
manufacturing audio cassettes, records etc., and
trading in such sound recordings.
4 O.S._6695_2014_Judgment_.doc
By virtue of the said deed of assignment, the
plaintiff has acquired the copyrights in sound
recordings, compilation of sounds and musics in
respect of the schedule in the assignment. The
plaintiff claims that anybody making use of the songs
of plaintiff has to obtain permission/ license from the
plaintiff and shall pay royalty or fees to the plaintiff.
The specific case made out by the plaintiff that the
second defendant arranged, organised and managed a
stage and awards show title as 61st Filmfare Award at
Chennai. The first defendant is the owner of a
publication of filmfare that arranged and organised
the event. During the stage show, the first defendant
has played a songs down down, cinema choopistha
mava and rakkamma kaiya thattu from the movies
'Race Gurram' and Dalapathy and danced by
Shruthi Hasan and another actress. The said event
witnesses by large audience in the venue and millions
of people in TV screens. The plaintiff claims that the
action of the defendants is unatuhroised and illegal
that amounts to infringement of plaintiff's copyright in
5 O.S._6695_2014_Judgment_.doc
the songs of movies as per Section 51 of the Copyright
Act. The plaintiff further claimed that the defendants
are legally obliged to pay the requisite license fee, as
the defendants have not obtained the license and not
paid the requisite fee, they are liable to compensate
the plaintiff adequately. The defendants used the
movie with the deliberate intention and ulterior
motives and neglected to obtain the license for public
performance.
The plaintiff further claimed that the defendants
caused heavy loss to the plaintiff and thereby prayed
for the reliefs claimed in the suit.
3. The defendant no.1 and 2 together filed the
written statement. The defendants claimed that the
plaintiff filed this suit with the intention of defaming
and defrauding the defendant no.1 and 2 i.e.,
Worlwide Media Pvt. Ltd., who is the owners of
filmfare magazine. The defendant also claimed that
they are organising and conducting the annual
filmfare awards (earlier organised and conducted by
its associate company, Bennett Coleman and co. Ltd.,)
6 O.S._6695_2014_Judgment_.doc
and it is the largest media services conglomerate in
the country enjoying unstinted patronage from
millions of loyal readers across the globe more than
776 years. Further case of the defendant is that, the
defendant has obtained necessary license and
permissions as required for the purpose of conducting
the event 61st Filmfare Awards. The defendants
specifically claimed that they have obtained the
necessary license including the licenses for the public
performance from the Phonographic Performance Ltd.,
(hereafter referred as PPL) and Indian Performing
Rights Society Ltd., (hereinafter referred as IPRSL)
which are the only copyrighted societies in India for
musical and performing works and they have granted
the licenses and IPRSL received Rs.4,41,000/- and
PPL received Rs.2,64,871/- as a fees while granting
license/ permission to the defendants to perform the
program by using the film songs claimed by the
plaintiff. It is also claimed by the defendant that the
aforesaid IPRSL and PPL is collecting the fees and
distributing the same to the concerned having a
7 O.S._6695_2014_Judgment_.doc
copyright. IPRSL is the only National Copyright
Society in the country that has permitted to
commence and carry on the words or any action
intended to be sung, spoken and performed with
music. The defendant further claimed that when the
defendant conducted its film fare award south edition,
2012, the plaintiff filed a writ petition no. 6623/2013
and the Hon'ble High Court of Karnataka refused the
relief claimed by the plaintiff with the direction to
furnish the details in respect of the modalities and the
functions of IPRSL and PPL but the plaintiff failed to
produce the same till this date. The defendants totally
denied the plaint averments and prayed for the
dismissal of the suit.
6. The defendant no.6 has not filed any
written statement denying the plaint averments. The
defendant no.6 claimed that it entered into a
sponsorship agreement at Mumbai with Worldwide
Media Pvt. Ltd., as a titles sponsor. As such, it has not
committed any acts or omissions related to the
plaintiff's copyrights of 'Race Gurram' and
8 O.S._6695_2014_Judgment_.doc
Thalapathy. The defendant also claimed that suit is
bad for non-joinder of necessary parties. No cause of
action for the suit, and among other grounds prayed
for dismissal of suit.
4. On the basis of above pleading the court
framed following issues:
(1) Whether the plaintiff proves that they
are th copy right owners of in musical
works created in the south Indian film
industry which includes all music of
two popular movies namely Race
Gurram & Thalapathy?
(2) Whether the plaintiffs prove that the
defendants infringed the plaintiff's well
established copy right by playing &
broadcasting the songs of above
movies in 61st Filmfare Awards 2014
at Chennai?
(3) Whether the plaintiff is entitled for a
decree of permanent injunction as
prayed?
(4) Whether the plaintiff is entitled for a
decree of mandatory injunction as
prayed?
(5) Whether the plaintiff is entitled for a
decree of declaration as prayed?
(6) What order or decree?
5. Plaintiff in order to prove its case, examined
its Authorized representative and Managing Director
9 O.S._6695_2014_Judgment_.doc
as PW.1 and got marked documents as per Ex.P1 to
Ex.P16(a). On behalf of the defendants, DWs. 1 to 3
are examined and got marked Ex.D1 to Ex.D20.
6. Heard the arguments and perused entire
records of the case. The learned counsel for the
defendant no.1 and 2 has filed written arguments as
well as citation reported in 2021 SCC Online Mad
6266.
7. My findings on the above issues are as
under:
Issue No. 1) ............In the affirmative;
Issue No. 2) ............In the negative;
Issue No. 3) ............In the negative;
Issue No. 4) ............In the negative;
Issue No. 5) ............In the negative;
Issue No. 6) ............As per final order for
the following:
8. ISSUE NO.1: This issue is regarding the
proving of the fact that plaintiff is the copyright owner
of the musical works created in South Indian Film
10 O.S._6695_2014_Judgment_.doc
Industry that includes all music of two popular movies
namely Race Gurram and Thalapathy. The case
made out by the plaintiff is that, the plaintiff company
is engaged in the production, marketing, distribution
and sale of sound recordings and it is the reputed
firm and leader in the South Indian Music Industries
having copyrights over the several music works. The
plaintiff further claimed that on 24/1/1995 it has
acquired the copyrights of M/s Empire Recording
Company as per deed of assignment and also it had
copyright over the music of two popular movies
namely Race Gurram and Thalapathy. In order to
prove the said fact, the plaintiff examined its
Managing Director as PW.1 and also got marked
documents. Ex.P1 is the Memorandum of Association
that shows the establishment of plaintiff. Ex.P2 is the
deed of assignment executed by Empire Recording
Company in favour of the plaintiff. Ex.P12 is the deed
of assignment in respect of the film Race Gurram
and the plaintiff has paid Rs.25,00,000/-. Similarly
Ex.P13 is the deed of assignment in respect of the
11 O.S._6695_2014_Judgment_.doc
copyright of Thalapathy. The said two documents
sufficiently shows that the plaintiff is the copyright
holder / owner of all musics of two popular movies
namely Race Gurram and Thalapathy. It is relevant
to note that the copyright ownership of plaintiff over
all the musics of said two movies Race Gurram and
Thalapathy is not in dispute. The oral evidence as
well as admission of defendant clearly proves that
plaintiff is the absolute copyright owner of all musical
works of two popular movies Race Gurram and
Thalapathy. Accordingly, this issue is answered in
affirmative.
9. ISSUE NO.2: This issue is based on the
claim of plaintiff that the defendants in the event of
61st Film Fare Awards 2014 conducted at Chennai
infringed the plaintiff's well established copyright by
playing and broadcasting of the songs of Race
Gurram and Thalapathy namely down down, cinema
choopista mava, and rakkama kaiya tattu, and that
has been danced by actress Shruthi Hasan.
Accordingly, claimed the infringement of copyrights.
12 O.S._6695_2014_Judgment_.doc
10. It is relevant to note that as per the
discussion on Issue No.1, it is clear that the plaintiff
is the copyright owner of music works of two movies
Race Gurram and Thalapathy. The defendants
nowhere disputed the organising of 61 st Filmfare
Award 2014 at Chennai as claimed by the plaintiff.
The defendants also not disputed the use of three
songs namely down down, cinema choopista mava,
and rakkamma kaiya thattu to the dance performed
by Shruthi Hasan and another actress is not in
dispute. The specific defence of the defendant no.1
and 2 who are organised the event that they have
obtained necessary license / permission from the
copyright society by paying huge fees, as such they
have not infringed any copyrights as claimed by the
plaintiff. In view of these facts, the facts to be
considered in this case is that, whether the defendant
by infringing the copyright of plaintiff has used the
musics claimed by the plaintiff in their program or
they have performed the dance program to the music
of plaintiff's with due license / permission.
13 O.S._6695_2014_Judgment_.doc
11. It is the definite case of the plaintiff is that,
the plaintiff being the copyright owner of the musics of
Race Gurram and Thalapathy, the defendant ought
to have obtained license or permission from the
plaintiff to use the songs from the said movies to stage
the public program at 61st Filmfare Award 2014.
12. The claim of the plaintiff is based on
Section 33 of the Copyrights Act, that reads as -
"(1) No person or association of persons
shall, after coming into force of the Copyright
(Amendment) Act, 1994 commence or , carry on
the business of issuing or granting licenses in
respect of any work in which copyright subsists
or in respect of any other rights conferred by this
Act except under or in accordance with the
registration granted under sub-section (3).
PROVIDED that an owner of copyright
shall, in his individual capacity, continue to
have the right to grant licences in respect of his
own works consistent with his obligation as a
member of the registered copyright society.
PROVIDED FURTHER that the business of
issuing or granting licence in respect of literary,
14 O.S._6695_2014_Judgment_.doc
dramatic musical and artistic works
incorporated in a cinematograph films or sound
recordings shall be carried out only through a
copyright society duly registered under this Act.
PROVIDED ALSO that a performing rights
society functioning in accordance with the
provisions of section 33 on the date immediately
before the coming into force of the Copyright
(Amendment) Act, 1994 shall be deemed to be a
copyright society for the purposes of this
Chapter and every such society shall get itself
registered within a period of one year from the
date of commencement of the Copyright
(Amendment) Act, 1994."
13. Therefore, the basis for the plaintiff's claim
is the first proviso and as per the said proviso, owner
of the Copyright can grant license in respect of his
own work consistent with his obligations as a member
of registered Copyright society. Therefore, the said
proviso as well as sub-section (1) makes it clear that it
is the Copyright society has to issue the license. In the
case on hand, it is clear that the defendants have not
obtained any license from the plaintiff to use the
15 O.S._6695_2014_Judgment_.doc
music work of plaintiff in the stage program
conducted by defendant.
14. The specific defence of the defendant is that
it has obtained the license from the Copyright society
and performed the dance to the Copyright music of
plaintiff. In support of its contention, the defendant
claimed that in India Phonography Performance Ltd.,
(PPL) and Indian Performing Right Society Ltd.,
(IPRSL) are the Copyright Societies that grants the
permission or license to use the music work or sound
recording works of music. It is relevant to note that
the defendant has not disputed the existence of
aforesaid two societies. Therefore, it can be safely
inferred that PPL and IPRSL are the two Copyright
Societies in India and as per the provisions of
Copyright Act, they are entitled to issue license and
permissions regarding to the use of music and sound
recording in the public function.
15. The defendants in order to prove that they
have obtained the license to use the music, examined
16 O.S._6695_2014_Judgment_.doc
3 witnesses as Dws. 1 to 3 and also got marked
documents at Ex.D1 to Ex.D22. DW.1 is the
representative of Worldwide Media Private Ltd., stated
in consonance with defence taken in the written
statement. DW.2 is the Deputy General Manager of
IPRSL and he has also stated about the issuance of
permissions after receiving the fees / royalty to the
Copyrights works.
16. Ex.D3, Ex.D5, Ex.D6, Ex.D7 are the
documents produced by the defendants for having
been paid royalty (license fee) for public performance
of musical works to be performed in the 61 st Filmfare
Award 2014 as scheduled. Therefore, prima facie the
defendants proved that the plaintiff has obtained a
license/ permission to use the public performance of
musical works from the Copyright Society. Under
such circumstance, it is for the plaintiff to show that
they have not received any license fee for their
Copyright works.
17 O.S._6695_2014_Judgment_.doc
17. It is the specific case of the defendant that
the ps is also the member of IPRSL. When the plaintiff
is the member of IPRSL, there is no necessity for the
defendant to obtain license from the plaintiff and
license/ permission obtained by the Copyright Society
/ IPRSL to use the Copyrighted music for the public
performance.
18. The aforesaid provision of law also makes it
clear that obtaining of license in respect of any work
in which Copyright subsists from the Copyright
society is sufficient. This is also evident from the
second proviso to section 33 (1) wherein it is stated
that only Copyright society duly registered under this
Act is authorised to issue the license.
19. As stated earlier, the plaintiff not denied
that it is not the member of IPRSL. In this context, it
is relevant to note the two letters written by the
plaintiff to IPRSL marked at Ex.D14 and Ex.D15. The
subject matter of the said two letters written by
plaintiff to the Chief Executive Officer - Rakhes Nigam
18 O.S._6695_2014_Judgment_.doc
of IPRS reads as "Requesting withdrawal of rights
in relation to the works owned by LAHARI
RECORDING COMPANY." The second paragraph of
Ex.D15 shows that plaintiff is the member of IPRS
vide a membership no.1788986. The said contention
in the Ex.D14 and Ex.D15 clearly shows that this
plaintiff is the member of IPRS which is a Copyright
society. This plaintiff being a member of the Copyright
society any license issued by the Copyright society is
certainly binding on the plaintiff. It is relevant to note
that in the said letters at Ex.D14 and Ex.D15, the
defendant at para 3 specifically stated that the
plaintiff is intended to withdraw from IPRS, all rights
and permissions, including existing and future rights
in all works, the Copyright in which vest or is
controlled by the plaintiff except the right to issue or
grant license on behalf of the plaintiff for limited
purpose of exploitation of plaintiff's work through live
performances and by way of ground events and to
consider the Ex.D15 is a two months advance notice
of plaintiff's intention to terminate / withdraw from
19 O.S._6695_2014_Judgment_.doc
the membership of IPRS as stipulated in Article 7(e) of
the Articles of Association of IPRS.
20. It is also relevant to note the clause no.4 of
the Ex.D15 wherein it is stated that "The right to
issue license (s), receive / collect and / or
administer royalty in respect of any / all works
owned or controlled by us shall herein after vest
exclusively with us and / our assignee (s) for all
intents and purpose, other than for the limited
purpose of exploitation of works through live
performance and by way of ground events as
stated above which shall continue to vest with
IPRS on our behalf." Even as per this clause, the
IPRS is continued to issue license to the public
performance of plaintiff's copyrighted music or sound
recordings vest with the IPRS till 25/9/2014. If the
contents of Ex.D15 is accepted, it is a 2 months
advance notice, and if that is accepted the IPRS has
the authority to issue license / permission regarding
the coyrighted works of plaintiff till 25/11/2014.
20 O.S._6695_2014_Judgment_.doc
21. The event claimed in the plaint is
performed on 12/7/2014. The letter at Ex.D14 and
Ex.D15 has been written by the plaintiff to the Chief
Executive Officer of IPRS is dated 25/9/2014 i.e., 2½
months subsequent to the event dated 12/7/2014.
Therefore, when the event conducted by the defendant
as on 12/7/2014, this plaintiff is the member of the
Copyright Society, IPRS. Admittedly, the plaintiff as
per Ex.D14 and Ex.D15 has withdrawn the rights in
relation to its work as on 25/9/2014 that has been
accepted by the IPRS vide a letter dated 7/10/2014.
As per Ex.D3 to Ex.D7, the defendant has paid the
license fees to the Phonographic Performance ltd., as
well as IPRS. IPRS has issued the receipts at Ex.D3
and Ex.D5 respectively for having been received
Rs. 3,08,700/-, Rs. 4,41,000/- respectively towards
the royalty (license fees) from the defendants. These
receipts are not in dispute. Hence, it is clear that the
defendants have obtained the license / permission to
use the music works in their event 61 st Filmfare
Awards.
21 O.S._6695_2014_Judgment_.doc
22. It is not the case of plaintiff that the IPRS
society or PPL has not paid the royalty for them for
using their music works. It is also not the case of the
plaintiff that inspite of informing the said IPRS and
PPL about the use of their music work in the 61 st
Filmfare Award, the said societies refused to pay the
royalty to the plaintiff for its Copyright and music
works. Therefore, viewed from any angle the material
placed before the court sufficiently shows that the
defendants have obtained the permission to use the
Copyrighted music from the respective Copyright
societies by paying required fees.
23. The parties have also produced documents
regarding the ownership of respective parties and as
there is no dispute regarding those documents and
the documents are admitted documents, they have
not been discussed in this Judgment.
24. As discussed earlier, it is clear that when
the event happened on 12/7/2014, this plaintiff is the
member of IPRS and the defendants have obtained the
22 O.S._6695_2014_Judgment_.doc
license from the IPRS to use the coyrighted musical
and sound recordings in their event. Hence, it cannot
be said that the defendants have infringed the
plaintiff's Copyrights works. Accordingly, this court is
of the humble opinion that the plaintiff has failed to
prove that the defendants have infringed the
Copyright music works of plaintiff from its moviee
Race Gurram and Thalapathy. Accordingly, this
issue is answered in negative.
25. ISSUE NO.3 TO 5: These three issues are
regarding the reliefs claimed by the plaintiff i.e., for
permanent injunction, mandatory injunction and
declaration. In view of the finding on Issue No.2 that
the plaintiff failed to prove the infringement of
Copyright by the defendants, certainly the plaintiff is
entitled for the reliefs claimed in the suit. Accordingly,
these three issues are answered in negative.
26. ISSUE NO.6: In view of my finding on the
above issues, I proceed to pass the following:
23 O.S._6695_2014_Judgment_.doc
The suit of the plaintiff is hereby
dismissed.
No order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 26 th day of September 2022.] [PADMA PRASAD] XVIII Additional City Civil Judge.
BENGALURU.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 G. Manohar
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 R.J.Prakashan
DW.2 Ms. Sheetal D. Madnani Raisinghani
DW.3 Waseemuddin K.F.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Memorandum of Association. Ex.P2 One CD of Filmfare Vijay Awards. Ex.P3 Office copy of the legal notice. 24 O.S._6695_2014_Judgment_.doc Ex.P4 Postal receipts.
Ex.P5 to 5 Postal acknowledgements Ex.P9 Ex.P10 and 2 Audio CDs Ex.P11 Ex.P12 One Deed of Assignment dated 3/1/2014 in respect of the film 'Resu Gurram'.
Ex.P13 Copy of the agreement dated 23/4/1991 along with plaint.
Ex.P14 Interest downloaded copy of Annual Report of IPRS for the yer 2017-18.
Ex.P14(a) and Relevant pages of Ex.P14 Ex.P14(b) Ex.P15 Downloaded copy of Certificate of Registration dated 8/6/2018.
Ex.P16 Computer downloaded copy of certificate of registration of IPRS.
Ex.P16(a) Certificate u/s 65 B of Evidence Act.
4. List of the documents marked for the defendants:
Ex.D1 Board resolution dated 23/5/2012.
25 O.S._6695_2014_Judgment_.doc Ex.D2 Receipt for payment of license fee to IPRS Ltd., Ex.D3 Tax invoice receipt issued by IPRS Ltd., Ex.D4 NOC issued by IPRS Ltd., Ex.D5 Royalty fee receipt.
Ex.D6 Certificate dated 2/7/2014 issued by Phonographic Performance Ltd., Ex.D7 Invoice issued.
Ex.D8 Original agreement for shooting and telecasting dated 8/7/2014.
Ex.D9 Original agreement dated 9/7/2014.
Ex.D10 Original NOC issued by phonographic performance limited dated 11/7/2014.
Ex.D11 Public Performance Invoic license dated 7/7/2014.
Ex.D12 Tax invoice cum receipt dated 24/1/2014.
Ex.D13 Film Fare awards CD.
Ex.D14 Letters dated 25/9/2014 received and from plaintiff.
Ex.D15 Ex.D16 Letter dated 7/10/2014 issued by the IPRSL.
26 O.S._6695_2014_Judgment_.doc Ex.D17 List of members as on September 2014.
Ex.D18 Office copy of the letter written to IPR dated 3/3/2020.
Ex.D19 Copy of the postal receipts for having been sent Ex.D16.
Ex.D20 Email dated 19/02/2020.
Ex.D21 Downloaded Annual Report for the year 2014-15.
Ex.D22 Sec. 65B certificate in respect of Ex.D16 to Ex.D20.
[PADMA PRASAD] XVIII Additional City Civil Judge.
BENGALURU.
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
No order as to costs. Draw decree accordingly.
[PADMA PRASAD] XVIII Additional City Civil Judge.
BENGALURU.
2 O.S._6695_2014_Judgment_.doc 8 2 O.S._6695_2014_Judgment_.doc 9