Delhi District Court
Sh. Sanjay Kumar Gupta vs Sony Pictures Networks India Pvt. Ltd on 13 July, 2018
Digitally
signed by
ANIL ANIL ANTIL
Date:
ANTIL 2018.07.18
14:09:36
+0530
IN THE COURT OF ANIL ANTIL,
ADDITIONAL DISTRICT JUDGE 05 SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
TM No. 97/17
1. Sh. Sanjay Kumar Gupta,
Plot No. 239,2nd Floor
Sector 5, Vaishali,
Ghaziabad201010.
2. Sh. Manoj Kumar Joshi,
Flat No. 40B,
Gharjiya Society Abhay KhandIII
Module V, Indirapuram,
Ghaziabad201010. .......Plaintiffs
Versus
1. Sony Pictures Networks India Pvt. Ltd.
Sony Pictures Networks India Pvt. Ltd.
3Rd floor, Interface Blg. No. 7
Off Malad Link Road, Malad (W)
Mumbai 400064
Email: rajkumar.bidawatka @ Setindia. Com
2. 2waytraffic N. V.
Middenweg 1,
1217 HS Hilversum
Netherlandsi
TM No. 97/17
Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 1 of 27
Email: spe_hostmaster@spe. Sony.com
3. Sony Pictures Entertainment Inc.
10202 West Washington Blvd.,
Jimmy Stewart Building,
Culver City
California90232, USA
Email: spe_hostmaster@spe. Sony.com
4. Big Synergy Media Limited,
4, Zamrudpur Community Centre,
3rd Floor, Kailash Colony Extension
New Delhi110048
Email: ashishs@bigsynergy. Tv
5. Reliance Jio Infocomm Limited
Jio Care
C124, Okhla PhaseI,
Okhla Industrial Area,
New Delhi110020
Email:jyoti.jain @ril. com ...........Defendants
Date of Institution of suit : 06.10.2017
Date reserved for orders : 21.05.2018
Date for pronouncement of Judgment : 13.07.2018
Decision : SUIT DISMISSED
TM No. 97/17
Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 2 of 27
SUIT FOR PERMANENT INJUCTION RESTRAINING INFRINGMENT OF
COPYRIGHT, BREACH OF CONFIDENTIALTY AND FOR RENDITION OF
ACCOUNTS OF PROFITS.
JUDGMENT
1. The present suit is jointly filed by the plaintiffs for permanent injunction restraining infringement of copyright, breach of confidentiality and for rendition of accounts of profits.
2. The facts in brief are that the plaintiffs are freelance concept maker and they developed several concepts including 'Jeeto Unlimited' which is in issue in the present suit. The said concept 'Jeeto Unlimited' was duly registered before the Registrar of Copyright vide registration no. L45361/2013 dt. 04.01.2013. The concept note of the said copyright in brief are that the home audience/viewers get to play alongwith the contestant simultaneously by giving a chance to the home viewers to answer the same questions by use of phone and depending upon the value of the question, the award were to be given to the home viewers.
3. The plaintiffs alleged that they presented this concept to the authorized representatives of the defendant no. 1 i.e. Sony Pictures Networks India Private Limited which runs a popular game show 'Kaun Banega Crorepati' (hereinafter named 'KBC') and defendant no.4 i.e. Big Synergy Media Limited which is a duly registered production company which is the producer of the abovenamed game show KBC. The defendant no.2 i.e. 2waytraffic N.V. is a company based in Netherlands which provides interactive television formats, TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 3 of 27 mobile content as well as mobile interactive advertising and online entertainment.
4. Defendant no.3 i.e. Sony Pictures Entertainment Inc. is a company based in California, USA which is the parent company of defendant no. 1 and 2 providing motion pictures and television production, acquisition and distribution services worldwide.
5. And Defendant no.5 i.e. Reliance Jio Infocomm Limited is provider of telecommunication services in India and sponsor of the segment 'Jio KBC Play AlongDarshak Banenge Khilaadi' on KBC season 9.
6. Defendant no.1 has filed written statement denying all pleas, allegations, contentions and averments made in the plaint.
7. In the WS filed on behalf of the defendant no.1, preliminary submissions and objections were raised. It is submitted that plaint is liable to be rejected for nonjoinder of necessary and proper parties. It is submitted that Ms. Tasneem Thingna who is no longer working with the defendant no.1 is a necessary and proper party to the suit and therefore, no relief can be granted to the plaintiffs and the plaint is liable to be rejected in limine.
8. It is further submitted that the instant suit suffers from the non joinder of 'Reliance Jio Messaging Services Private Ltd' and mis joinder of defendant no.5 as a party as 'Reliance Jio Messaging Services Private Limited' is the entity responsible for operating and managing the Jio Chat App and is a proper and necessary party who should have been made a party to the suit.
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 4 of 279. It is further submitted that the court has no jurisdiction to try and entertain the present suit as neither the plaintiffs nor the defendants reside or carry on business within the territorial jurisdiction of the court.
10. It is further submitted that the plaint is not supported with affidavit of plaintiff nos.1 and 2 at the time of filing of suit. It is further submitted that the show is recorded in front of a live audience, and then broadcast to the general public, larger audience, subsequently. It is further submitted that the defendant's show 'Jio KBC Play Along' is substantially different from the plaintiffs work, "Jeeto Unlimited". It is submitted that the allegations of breach of confidence made by the Plaintiffs against the defendants are false and misplaced. It is further submitted that they have not received any concept note send with the email dated 24.12.2010.
11. On merits, it is denied that the defendants infringed the copyrights of the plaintiff's in their work 'Jeeto Unlimited'. It is further denied that the defendants has breached confidentiality and misused the concept "Jeeto Unlimited". It is denied that the plaintiff's concept note Jeeto Unlimited was found to be novel and original and hence conferred copyright registration. It is further denied that Jeeto Unlimited is an original literary work.
12. Written Statement has been filed on behalf of defendant no.4 denying all pleas, allegations, contentions and averments made in the plaint. The objections, similar to as taken by D1, qua nonjoinder of TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 5 of 27 Ms. Tasneem Thingna as necessary and proper parties; nonjoinder of 'Reliance Jio Messaging Services Private Limited' and misjoiner of defendant no.5 as a party; and that this court has no jurisdiction to try and entertain the present suit as neither the plaintiffs nor the defendants reside or carry on business within the territorial jurisdiction of this court. On merits too the claim of the plaintiffs is denied by taking the identical pleas as taken that by D1.
13. On 24.10.2017, defendant no.5 has filed reply to the application under Order XXXIX Rules 1 and 2 CPC. On 18.11.2017, it has been submitted on behalf of defendant no.5 that their reply to the application under Order XXXIX Rules 1 and 2 CPC may also be treated as written statement on behalf of defendant no.5.
14. It is further submitted that the plaintiffs have been unable to make out a prima facie case, and the balance of inconvenience, contrary to the claims made by the plaintiffs, lies in favour of defendants. It is further submitted that the present court has no jurisdiction to try and entertain the present suit.
15. On merits, it is submitted that the defendant no.5 has not infringed any alleged copyright of the plaintiffs, nor has it committed any alleged breach of confidentiality by misusing the "Jeeto Unlimited"
concept of the plaintiffs. It is further denied that plaintiffs holds any copyright registration in the concept noted title Jeeto Unlimited. It is denied that the defendant no.5 has used any concept of the plaintiffs to introduce "Jio KBC Play Along".TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 6 of 27
16. Replication, denying the contentions of W.S and reiterating the facts and submissions as mentioned in the plaint,was filed by the plaintiff.
17. From the pleadings of the parties, following issues were framed vide order dated 12.12.2017:
1. Whether the present court lacks the territorial jurisdiction to entertain the present suit? OPD
2. Whether the suit is liable to be dismissed for non joinder / mis joinder of the necessary parties? OPD
3. Whether the suit fails for improper verification of pleadings as required in terms of Order VI Rule 15 CPC and for non filing of affidavit by plaintiff no.2?OPD.
4 Whether the copyrights claimed by the plaintiff in the concept of "Jeeto Unlimited" is an original work for the purpose of the Copyright Act, 1957?
OPP 5 Whether the plaintiffs entitled to a decree for infringement of his copyright work in terms of prayer clause (a) of the plaint? OPP.
6 Whether the plaintiff prove their case of breach of confidence in terms of the prayer clause (b) of the suit? OPP 7 Whether the plaintiff is entitled to rendition of accounts / profits in terms of prayer clause (c) of the suit? If so, to what effect? OPP 8 Relief? Any other.
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 7 of 27Evidence:
18. Thereafter, the matter was fixed for plaintiff evidence. On 09.01.2018 plaintiff no. 1 himself examined as PW1 and tendered his evidence and proved documents exhibited as Ex. PW1/1 to Ex. PW 1/44. Plaintiff closed his evidence and matter was fixed for DE.
19. In the defence evidence, Sh. Ajay Bhalwankar, Chief Creative Director, Central Content Organization, Channel Sony Entertainment Television, is examined as DW1 and tendered his evidence and proved document exhibited as Ex. DW1/1.
20. Sh. Prathamesh Ramesh Mestry, posted as Deputy General Manager Legal, at defendant no. 4 company is examined as DW2 and tendered his evidence and proved documents already on record filed with WS of defendant no. 4 as annexure A & Annexure B as exhibited as Ex. DW 4/1 to Ex. DW4/3.
21. Sh. Amogh Dusad, posted as Senior Vice President and Head Insights and Programming Strategy, Sony Entertainment Television Channel at defendant no. 1 is examined as DW3 and tendered his evidence and proved document, i.e. Authority letter, exhibited along with evidence by way of affidavit of DW1 as DW1/1. Thereafter, on submissions of Ld. Counsel for defendant, DE stands closed.
22. I have considered the submissions of plaintiff and gone through the evidence on record led the parties.
23. My findings on the issues are as under: TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 8 of 27 W.R.T. ISSUE NO. 1
24. The defendant no. 1 has challenged the territorial jurisdiction of this Court on the ground that neither the plaintiffs nor the defendants reside or carry on business within the territorial jurisdictional limits of this Court. The plaintiffs have argued that defendant no. 4 and 5 have offices within the territorial jurisdiction of this Court. The plaintiff further maintained that since the TV show KBC was telecasted within the jurisdiction of this Court and also the home audience were residing within the jurisdiction of this Court and hence the cause of action as per section 20 of the Code has arisen within the jurisdiction of the Court.
25. This Court is conscience of the provisions of section 62 of the Copyrights Act, 1957 as well as Section 20 of the Code of Civil Procedure, 1908. The plaintiff under the Copyright Act can choose to file the suit where he resides or carries on his business. But in addition to that , Section 20 of the CPC allows the plaintiff to also file a suit where the cause of action arose. The defendant no.4 who are the main producers of the show have not denied that the existence of their office within the jurisdiction of the suit. The defendant no.1 however have objected to the jurisdiction, but the same is liable to be rejected in terms of sec20 clause (c) since the infringement as alleged by the plaintiffs have occurred within the jurisdiction. The relevant para is quoted hereunder for ready reference:
"The cause of action has also arisen within the jurisdiction of this Hon'ble Court as Defendants' TV show KBC is being telecasted within the TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 9 of 27 jurisdiction of this Hon'ble Court. The home audience/viewers who are playing Jio KBC Play AlongDarshak Banega Khiladi" are residing within the jurisdiction of this Hon'ble Court".
This fact has remained uncontroverted by the defendants in the crossexamination of PW1, as well as in the testimonies of defendant witnesses.
26. In light thereof, it can not be said the suit is liable to be dismissed for lack of territorial jurisdiction. This Court thus has territorial jurisdiction to try and adjudicate the present suit and the issue no.1 is decided against the defendants.
W.R.T. ISSUE NO. 227. The onus to prove the said issue was on the defendant, who have argued that Ms. Tasneem Thingna was a necessary party to the suit and for her nonjoinder the suit is liable to be dismissed. However, from the pleading it is clear that no relief is sought against Ms. Thingna. The plaintiffs have at numerous occasions in their pleadings have called in question the conduct of Ms. Thingna. As per them Ms. Thingna arranged for the meetings between the plaintiffs and the defendant no.1 and she is alleged to have access to the concept note of the plaintiff's copyright work 'Jeeto Unlimited'. The Plaintiffs however have made no claim against her. She was an employee of the Defendants and not acting in her individual/personal capacity. Thus , she is neither a necessary nor a proer party to the present suit. Taking note of the nature of controversy involved here, at best, she would TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 10 of 27 have been the material witness in the present suit, but certainly not a party.
28. The issue is thus decided against the defendant and in favour of the plaintiff.
W.R.T. ISSUE NO. 329. The defendants have also pleaded dismissal of the suit for improper verification of pleadings and nonfiling of affidavit by the plaintiffs. The onus to prove the said issue was on the defendants. The defendants have pleaded that there is no affidavit that the plaintiff no.2 has agreed to institute the suit and also that plaintiff no.1 is not authorised to depose the facts which are within the knowledge of plaintiff no.2. The plaintiffs on the other hand have maintained that Order VI Rule 15 of the Code allows the pleadings to be verified by any of the plaintiff. The plaintiff no.1 further has sworn an affidavit verifying the pleading on behalf of the plaintiffs and during the deposition, a letter of authority on behalf of the plaintiff no.2 was placed on record.
30. After perusal of the case file, this Court is of the view that the defendant shall fail in this issue. The Code, 1908 under Order VI Rule 15 provides that the pleadings can verified by any one of the parties to the suit. Further, the person verifying the pleadings shall furnish the affidavit in support of his pleadings. The Code thus authorizes any one party to verify the pleadings to the satisfaction of the Court. The contention that the plaintiff no.1 cannot depose the facts which are in TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 11 of 27 the knowledge of the plaintiff no.2 does not hold ground. The objection to any such deposition can be taken in the examination and the Evidence Act, 1872 as a cardinal principle of law disallows 'hearsay evidence'. The above said objections can be taken care of by the rule of evidence and on this ground the suit is not liable to be rejected.
31. This issue is thus decided against the defendant and in favour of the plaintiff.
W.R.T. ISSUE NO. 4 & 532. These issues taken up together as there are common grounds of discussions. It is the case of the plaintiff that in order to enhance constant engagement with home audience, the Plaintiffs conceived an idea the preamble of which is set out in Para 8 of the plaint. PW1,the plaintiff, deposed in line to the averments of the plaint,same are not repeated here for the sake of brevity. The concept note "JEETO UNLIMITED" registered in favour of plaintiffs was Ex.PW1/1.The essential component pegged therein are as under - The home audience/ viewers get to play alongwith the contestant simultaneously;
The home viewers play alongwith the contestants which is posted to the contestants;
The home viewers play along with the contestants using their phone;
The home viewers need to watch the TC Shows to play the game;
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 12 of 27 The home viewers are awarded depending upon the value of the question when answered.
33. The defendant no.1 on the other hand, have argued that the registration of a work under the Copyrights Act, 1957 does not automatically lend to the copyrightable nature, validity and enforcement of copyright in the work. The registration is primafacie evidence of particulars of the work being entered into the Register of Copyright, however, Section 48A does not impart any additional right to the registrant. As per the Act, it is the duty of the plaintiff to establish that the registered work is of a copyrightable nature and the subsequent work is an infringement of the registered work.
34. The defendant no.1 attacked the copyrightable nature of the concept of plaintiff's idea by alleging that specific elements of the original Kaun Banega Crorepati show, such as 'Lifelines', 'Quit Amount', 'Assured Amount' and naming a feature as 'Fastest Response Time' as a play on words of KBC's feature known as 'Fastest Finger First'. The defendant no.1 further argued that home audience participation in a T.V. Show is not an original/ unique technology, when in the era of landlines/ handsets, T.V. Shows invited the public to call and answer questions popped on the television screen and narrated by the host, in order to win prizes, etc. The format was not just limited to game shows. It is further argued that since the season 2 of the KBC the show has itself involved home audience participation feature called 'Ghar Baitho Jeeto Jackpot',and that thereafter every season of KBC had TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 13 of 27 included a segment wherein home audiences actively participated directly during telecast of the programme in some form or other.
35. This Court agrees to the contention of the defendant that 'home audience engagement' is not a novel concept and their can be no copyright over the said concept. The participation of home audience via telephones, landlines, etc. is an old concept and has been in use in various areas. The plaintiff cannot claim the said idea to be an original work. In fact, plaintiff himself in his plaint has pleaded, in para 8 and 11, that the participation of home audience in TV quiz show have been limited, which itself establishes that the home audience engagement in TV quiz show is not a novel concept and has been in vogue since fixed landlines and telephone days. The plaintiffs cannot claim copyright on the idea or the concept of 'home audience participation' which has been part of many TV programms, radio shows, etc even before the plaintiffs filed for copyright.
36. The Hon'ble Apex Court in R.G. Anand v. M/s. Delux Films & Ors.; (1978) 4 SCC 118 vide its para 46 held that where the same idea is developed in a different manner, it is manifest that the source being common, similarities are bound to occur. The Court in such circumstances is duty bound to determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. Further the Court held that the safest test to determine whether or not there has been a violation of copyright is to see if the spectator or viewer after having TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 14 of 27 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.
37. Quote: Para 46 of the R.G. Anand (supra) reads as under: " The relevant law relating to copyright may be stated as follows:
1) There can be no copyright in an idea, principle, subjectmatter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
2) Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 15 of 27
3) The surest and safest test to determine whether or not there has been a violation of copyuright 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 unmistable impression that the subsequent work appears to be a copy of the original.
4) Where the them is the same but is presented and treated, differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5) Where, however, apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidential no infringement of the copyright comes into existence.
6) As a violation of copyright amounts to an act of priacy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law.
7) Where however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 16 of 27 state play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved."
38. Counsel for the plaintiff argues to give an impression that the concept of direct engagement of audience on a TV reality show or for that matter, any kind of live participation on television is the brainchild of the plaintiff's. It was claimed that they rare originators of the said original concept and idea and the basic script; the game show is based, conceived, conceptualized and written on the concept of home viewers engagement which is the essence of the 'JEETO UNLIMITED', which I must state is apparently incorrect.
39. In the crossexamination also PW1 himself admits that the concept of audience engagement or viewer has been used earlier in the television programmes but with rider that "not similar to Jeeto Unlimited".
40. In the defendant evidence also not much contradiction has come on record to belie the case of the defendants, as putforth. DW TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 17 of 27 3 deposed to say that engagement of home viewers in the programme is on different footing and aspects. That Jeeto Unilimited is not a unique or novel concept. Defendant has also been able to establish the participation of the live audiences in such idea or concept as mentioned by the plaintiff, the entire arguments of the plaintiffs are the idea of false estimate of law.
41. Objections to that part of testimony of defendant witnesses were taken by the ld. Counsel for the plaintiff by urging that the same can not be read in evidence as the defendant s have failed to prove it terms of sec65 B of Evidence Act, no certificate was filed.
42. Firstly, as discussed above, there is no denial of direct engagement of audiences in the programmes by the plaintiff in his pleadings; specific admission in cross of PW1 qua such participation is also established.
43. Secondly, I must state that the court is not a slumber wood analyzing the facts oblivious to its surroundings and happenings. I think judicial note can be taken of the fact that the concept of audience engagement for a viewer has been in vogue since long in the enterainment industry. And it would not be incorrect to say presently almost each and every show, whether on T.V or otherwise, be it entertainment, be it reality show, game show, be it advertisement and marketing show, and significantly daily news programme, and chat show, uses the concept of direct engagement of audiences. Implying thereby that the said idea or concept over which exclusivity is claimed by the plaintiffs is very much prevalent TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 18 of 27 in market.Direct engagement of Home viewers /audience cannot be said to be a new concept/idea so as to be fall within the definition of Unique or novel or original. It is not an idea coined for the first time. It is too common an idea/concept to gain monopoly over it by any individual.
44. Copyright, if any, can only be claimed by the plaintiff in the precise concept note of 'Jeeto Unlimited' as explained and expressed in Ex.Pw1/1, wherein the preamble does not fit condition of novelty as there is nothing new inhome audience participation in TV quiz shows. The concept note featuring 'how,the manner ,the way the game is to be played' and 'how the prize money shall be distributed' however can be a subject matter of registration for copyright. That too, let me say , the skeleton, the form of the game of the plaintiffs appears to have been copied from the basic concept of the KBC game show.
45. It is also fallacy to contend that the defendants have copied the most substantial and fundamental aspect of the plaintiff copyright work. In fact, I would say that the very aspect of home engagement is not the fundamental and substantial aspect of the work of plaintiff. It is the form, the manner, the way and how, the game is played which predominates the work of the plaintiffs. And interesting thing to note is that plaintiff himself is admitting (para 3 of his affidavit) the fact of direct/live engagement and associations of the audience along with the telecast. So I fail to comprehend how can the plaintiffs herein claim exclusively over the live TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 19 of 27 participations of the home viewers/audience which from their own admission is very much prevalent in the industry. The contradiction in what is averred and what is convassed and potrayed before the court is thus apparent therefrom.
46. The copyright is on the whole of the concept as expressed and not just in one element dehors of the entire work. Plaintiffs can not cull out one feature of their work and claim monopoly or exclusivity over IT dehors the entire copyright work.
47. And that I am further in agreement that the contentions of the defendant no.1 that the manner in which the 'Jio KBC Play Along Darshak Banenge Khilaadi' is different from 'Jeeto Unlimited'. The defendant no.1 is para 18 of the written statement have stated five point of differentiation which are material.
48. In the present case, since both the concept involve home audience engagement, similarities as to mode of communication is bound to happen via fixed telephone, mobile smartphones, internet or presently in vogue computer designed mobile software commonly known as 'app'. Since the two concept notes relates to TV Quiz, similarities are bound to occur in the questions asked to the home audience, which may or may not be same as that asked to the contestant. The rewards for correct answer will also be limited in terms of monetary benefits or something which could be expressed in monetary terms. The two game shows however as averred by the defendant no.1 differs in ways as stated in para 18 of the written statement.
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 20 of 2749. The KBC show selects home audience on the basis of 'Fastest Finger Test', whereas the plaintiff's concept selects individuals on lottery system. The former then allows an individual game to the home audience, the game of the latter on the other hand is dependent on the contestant on the TV. The KBC show keeps the contestant's and home audience's game separate which can be run with a prerecorded event, whereas the 'Jeeto Unlimited' provides for a live show whereby the home audience plays simultaneously with the contestant. The rewards system is also remarkably different, wherein the KBC Show the home audience earns points for each answer and they earn points throughout the season which can later be converted into awards, the plaintiff's rewards is only money value which is shared by the home contestant from the prize money of the contestant on the show. The prize money in for the plaintiff concept's home audience is dependent on the help sought by the contestant of the show, on the other hand, the KBC show allows the home audience to earn their own points irrespective of the game of the contestant on the show.
50. From the above discussion, this court is of the considered view that the 'Jio KBC Play Along - Darshak Banenge Khilaadi' has fundamental and substantial difference from the 'Jeeto Unlimited'. The former cannot be termed as copyright infringement of the latter. Therefore the question of use of the plaintiff's work as a "spring board" does not arise at all.
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 21 of 2751. Analysing the facts of the case, in back drop of the principles of law highlighted above, I have no hesitation to say that the plaintiff has failed to establish that the concept of direct engagement of home viewers/audiences is a novel/unique concept. Thus, the issue nos. 4 & 5 stand decided against the plaintiffs and in favour of the defendants.
W.R.T. ISSUE NO. 652. Now, coming to the question of breach of confidence : PW 1/plaintiff deposed that the concept note which was duly registered as 'Jeeto Unlimited' was discussed with Ms. Priya as representative of Defendant No.1 over the telephone and as discussed the said concept note was sent through mail to Ms. Priya and Mr. Ajay Bhalwankar on December, 24, 2010. The plaintiff further alleged that the said concept note was even discussed with Ms. Tasneem Thingna of Turner Broadcasting System on February 23, 2012 at Mumbai who later switched to Defendant no.1 company. It is through these communications that the plaintiffs claim that their concept note was shared with the Defendant No.1.
53. The Plaintiffs also alleged that the said concept note was discussed in a meeting with the defendant no.1 in Mumbai in which representative of Defendant no.1 were present and also present were the two plaintiffs and Ms. Gunjan Kawatra (friend of plaintiff). The plaintiffs alleged that before this meeting they were asked to sign consent letter which out of compulsion they had to sign.
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 22 of 2754. The plaintiffs have extensively in their plaint alleged the role of Ms. Tasneem Thingna who was for a brief period employed with defendant no.1. Ms. Thingna as per the averments of the plaintiff had seen the concept note of 'Jeeto Unlimited' when she was employed with Turner Broadcasting System. Later in a meeting with Ms. Thingna on behalf of defendant no.1, the plaintiffs were asked to present the concept note of 'Jeeto Unlimited'. The DW1 in his cross examination also acceded that Ms. Thingna was indeed employed with the defendant no.1 for a brief period and at present she was stated to be employed with Zee Entertainment Enterprises Pvt. Ltd. which is a rival company to the defendant no.1.
55. DW1 deposed to say that the Tasneem Thingna has never worked on the segment "KBC" and that he also worked on "KBC" show for approximtely 6 months in 2011 and thereafter in the year 201415 season 8 "KBC" as a programming head. The exhibits PW 1/2, PW1/3, PW1/5, PW1/20 to PW1/39 allegedly sent to the DW1 does not prove by itself that the concept and the idea was shared and discussed with him at all. Merely sending the mail on the official email ID does not in any way prove the meeting of minds qua the contents thereof. Besides that crossexamination of the defendant witnesses is premised mostly on opinions rather than on facts of the case. He also denied the suggestion that he along with Tasneem Thingna has knowledge of "Jeeto Unlimited" and that it was misused by launching "Jio KBC play along".
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 23 of 2756. During crossexamination, the DW1 stated that being in a competitive company, Ms. Thingna might depose against the defendant no.1. The defendant no.1 even pleaded nonjoinder of Ms. Thingna as a party to the present case as a ground for dismissal of the suit. In the instant case, though, as discussed earlier, Ms. Thingna is neither a necessary or a proper party, but since her role was pivotal to be brought before in the case, she ought to have been examined by the plaintiffs. Importantly, for unknown reasons, the plaintiffs did not examine the plaintiff no.2, nor Ms. Gunjan Kawatra who was a friend of the plaintiffs, allegedly present in the meeting dated 24.02.2012. And no document is produced to show that PW1 presented the concept "Jeeto Unlimited" to Ms. Thingna at the meeting of 24.02.2012.
57. The plaintiffs argued that the defendant no.1 ought to have produced her as a witness to clear their stand. This Court however is of an opposite view. The burden to prove the copyright infringement and the present case is on the plaintiff, the examination of Ms. Thingna was pivotal to prove the factum of the meeting and consequent discussion of the 'JEETO unlimited'.
58. The plaintiffs have twice alleged that he was made to sign the consent letter when he met the officials of defendant no.1 and 4. The Plaintiffs in their own pleadings under Para 13 of the Plaint have stated the effects of signing a consent letter that 'a consent letter in the television industry allegedly releases the media houses from any liability in case they broadcast content that is similar to the concept TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 24 of 27 note that is being presented before them'. Despite knowing the consequences of the consent letter, the plaintiff claimed to have been rendered helpless for signing the consent letter twice. Yet, the plaintiff failed to produce the contents of consent letter alongwith his plaint. And not to say no effort was ever made by the plaintiff to call for the production of said consent letters from the defendants,if it were in their custody.
59. The plaintiff during his cross examination denied having placed on record any such consent letter in the suit. This futher casts a shadow of doubt on whether any meeting took place between the plaintiffs and defendant nos 1 and 4 regarding the concept note 'Jeeto Unlimited'. The emails Ex. PW1/26 to Ex. PW1/35, the plaintiffs did raise a question about their other concept 'The Perfect Match', but the present concept 'Jeeto Unlimited' was not indicated and discussed. The copy of the mails shared between the parties do point out that the some meetings did happen about the concept of 'The Perfect Match', and infact the plaintiffs themselves pleaded that the meetings never conceptualised finally.
60. Further, this issue has its reasoning discussed in earlier issues. As reasoned above, the plaintiff have failed to produce on record the two consent letters and have failed to prove that the concept note of 'Jeeto Unlimited' was ever discussed between the plaintiffs and the defendant no.1 and 4. The plaintiff failed to bring home their case which could show that the concept of 'Jeeto Unlimited' was discussed in confidence with the defendant no.1 and 4. The plaintiffs TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 25 of 27 to prove this issue ought to have produced the consent letters which could have proved the meetings or the persons present in the meetings.
61. The defendants have categorically denied that any meeting ever took place, and in the light of the above, Ms. Tahseem Thingna ought to have been examined or Ms. Gunjan Kawatra who as stated by the plaintiff was present in the meeting. The plaintiffs have miserably failed to prove that the concept 'Jeeto Unlimited' was deliberated upon in the meetings held between the plaintiffs and the defendant no.1 and 4.
62. Even if it is assumed that the concept note of 'Jeeto Unlimited' was discussed by the plaintiffs with the defendants, as already discussed the concept of 'Jio KBC Play Along - Darshak Banenge Khilaadi' is markedly different from how the 'Jeeto Unlimited' is to be played. This Court is of the view that the defendant no.1 and 4 are not in any breach of confidence. The issue is thus decided against the plaintiff and in favour of the defendants.
W.R.T. ISSUE NO. 7 & 863. The issue need not be dealt with in details, since from the reasoning adduced in issue no. 4, 5 and 6, the very case of plaintiff is not made out which could show that the defendant no.1 or 4 used the concept of the plaintiffs. Neither the defendant nos. 1 and 4 are not in breach of confidence towards the plaintiffs, nor any liability can be fastened on the defendants towards the plaintiffs.
TM No. 97/17 Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 26 of 27Relief
64. Having decided issue nos. 4 to 8 against the plaintiff and in favour of the defendants. The present suit is liable to be dismissed with no order as to cost.
65. Decree sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (ANIL ANTIL)
TODAY ON 13.07.2018 ADJ05/SED(SE)
SAKET COURT, NEW DELHI
TM No. 97/17
Sh. Sanjay Kumar Gupta & Anr. Vs. Sony Pictures Networks India Pvt. Ltd. & Ors. Page 27 of 27
i