MADHU v. RAMESAN — 1987 DIGILAW 519 (KER)

Judgment :- 1. Music is the food of love, so said the poet. Discord in the music is distressing: Such a discord arose in this case: between a promising lyricist (Alleppey Madhu), the producer and director of a film enterprise Parambi Pictures (defendants 1 and 2) and the Tharangini Records (defendant No.3). The discord, it may be happily noted, did not destroy the artistic production; for, it arose only after the song was composed, the tune was set, and the music recorded and cassettes released. The film 'All as you Wish' (FAmw in which the songs 'Wind, you got defeated' and 'In the dawn of Medam' have found their way in the sound track, is shortly to be released. 2. That the plaintiff is the lyricist, and had composed the lyric, is admitted. Ordinarily therefore he should have copyright over that work. 3. The two songs were recorded in the Tharangini Studio at Madras. One about the wind was sung by Chithra. The other 'In the dawn of Medam' which has to its credit a literary flavour, was sung in subdued tone and in a recognisably melodious voice of Yesudas. (That, at any rate, is my impression. I bought the cassette and heard the song; the parties did not provide the Court with the music or its rendering, as did the parties before the Supreme Court in Indian Performing Right Society v. E.I.M. Pictures Association, (1977) 2 S.C.C. 820). 4.The 3rd defendant entered into an agreement with the 2nd defendant on 19-4-1987, for the production of the cassette, which among others, contains the two songs in question. The agreement would prima facie indicate a bona fide stand on the part of the 3rd defendant in undertaking the production of the cassettes. 5. The 3rd defendant advertised the release of the cassette on 30-4-1987. On 21-5-1987 the plaintiff caused to send a notice through his lawyer to stop the release of the cassettes and the film, to defendants 1 and 3. The 3rd defendant replied it on 28-5-1987 by Ext.A7 referring to the agreement it had entered into with the 2nd defendant. On 1-6-1987 the plaintiff demanded a copy of the agreement. That was furnished by the 3rd defendant promptly on 1-6-1987. The 3rd defendant replied it on 28-5-1987 by Ext.A7 referring to the agreement it had entered into with the 2nd defendant. On 1-6-1987 the plaintiff demanded a copy of the agreement. That was furnished by the 3rd defendant promptly on 1-6-1987. News items came in the prominent local newspapers about the production of the film 'All as you Wish', stating among others that the plaintiff also contributed the songs for the film. 6. The plaintiff rushed to the court, to stop release of the film. He chose the wrong court. The suit instituted in the Munsiff's Court was found to be not maintainable, as the questions relating to violation of rights under the Copy Right Act, could be decided, under the Act, only by the District Court. He withdrew the plaint from that court. 7. The suit for injunction was presented in the District Court, Alleppey, on 12-6-1987 as O.S. No.1 of 1987. An application for injunction was also filed on the same day. The plaint alleged that no authority or consent had been given by him for the incorporation of his two songs. There was a further complaint about minor variations in the lines of the songs. A decree for injunction restraining the 1st and 2nd respondents-defendants from releasing and exhibiting the scenes of the film and other incidental reliefs was sought for. 8. Objections were filed by the respondents-defendants. 9. The 1st defendant disclaimed connection with the film. He had only permitted the use of the banner 'Parambi Pictures' for the release of the film According to the 2nd defendant, he had engaged and utilised the services of the plaintiff under a contract of service for rendering the lyrics of the two songs. He would have it, that a sum of Rs. 1,500/- was paid to the plaintiff for the services rendered, but that he did not bother to obtain a receipt for the same in view of their friendship. "There was only the relationship of master and servant between the 2nd defendant and plaintiff in the matter of plaintiff's rendering lyrics" was the further contention. The 3rd defendant filed his objections mainly basing its rights to produce the cassettes on the basis of Ext. A9 agreement entered into between it and the 2nd defendant. 10. The Music Director Raveendran, and Chithra and Yesudas who had recorded the music, filed statements Exts.B1 to B3. The 3rd defendant filed his objections mainly basing its rights to produce the cassettes on the basis of Ext. A9 agreement entered into between it and the 2nd defendant. 10. The Music Director Raveendran, and Chithra and Yesudas who had recorded the music, filed statements Exts.B1 to B3. They were mainly intended to refute the allegation that there was departure from the lines of the lyrics as composed by the plaintiff. The presence of the plaintiff at the time of recording was stated therein. All were pained that an allegation of that nature had been brought by the plaintiff. 11. By its order dated 20-6-1987, the court below dismissed the application. The court below found that there was an agreement between the plaintiff and the 2nd defendant, and that with that agreement, his rights got extirpated by force of S.17(b) of the Copyright Act. 12. In the Munsiff's Court the plaintiff had filed a copy of the agreement which he had entered into with the 1st defendant, which suggests that the two songs were to be used in the film. However, while furnishing a copy of that agreement to the defendants, a mistake was committed by counsel. The copy of the agreement which he served on the defendants, contained a crucial mistake. In the space left blank for being filled with the name of the film, the words were filled in the place of. This had obviously a very crucial, and even somewhat fatal, effect on the plaintiff's case. Though no agreement had been produced by the defendants evidencing any bargain in that behalf between the plaintiff and the 2nd defendant, the court below inferred from the copy of the plaint and the (wrong) copy of the agreement as produced in the Munsiff's Court, that there night have been an engagement of the plaintiff by the 2nd defendant. The presence of the plaintiff at the time when the songs were recorded, was found to be a corroborative ground to fortify the conclusion reached by the court below. The expected result was a dismissal of the petition for injunction. 13. The plaintiff then realised the mistake. The presence of the plaintiff at the time when the songs were recorded, was found to be a corroborative ground to fortify the conclusion reached by the court below. The expected result was a dismissal of the petition for injunction. 13. The plaintiff then realised the mistake. A petition for review was filed producing the correct copy of the agreement between the plaintiff and the 1st defendant, which was in relation to a different film The learned judge noted that aspect, but felt that that mistake did not warrant a review of his earlier order. Other reasonings were found to be sufficient to support the view he had taken. 14. The order of the court below is now in challenge before this Court at the instance of the plaintiff. 15. The provisions of the Copyright Act, 1957 (hereinafter referred to as the Act') must govern the rights of the parties. The enactment has been criticised by the highest courts as "fairly complicated because of the involved language in which some of its provisions are couched". Its inadequacies in not recognising the singer had been communicated to the law makers by the aforesaid decision (See (1977)2 S.C.C. 820 supra.) 16. The conflict between the composers and the recording industry started in the west much earlier than such conflicts surfaced in India. Chap.18 of Copinger and Skone James on Copyright, Twelfth Edition, 1980, gives the historical back-ground and the legislative developments. Composers underscored the potentialities of scientific achievements in relation to the mechanical reproduction of musical airs, when they agreed on the eve of the Berne Convention that mechanical reproduction of musical airs would not be an infringement of copyright. Invention of instruments capable of reproducing unlimited number of tunes and even the words of songs, by means of devices like perforated rolls, discs and cylinders brought in its wake a revolution itself in that field. Those devices evidently supplied a public need and met with a ready market. The composers then became perturbed. Legal actions were brought to the courts in many countries. The decision of the courts, it is noted, had been uniformly in favour of the composers in Italy and Belgium. The French courts gave a strict construction to Clause.3 of the Protocol to the Berne Convention and held that the permission to reproduce a musical air did not authorise the reproduction of the words of a song. The decision of the courts, it is noted, had been uniformly in favour of the composers in Italy and Belgium. The French courts gave a strict construction to Clause.3 of the Protocol to the Berne Convention and held that the permission to reproduce a musical air did not authorise the reproduction of the words of a song. In England, the courts took the view that the interchangeable parts of a machine for reproducing sounds were not "copies" of sheets of music and did not therefore infringe the composer's copyright under the Copyright Act, 1842. The view was doubted but was not tested before the House of Lords. (See Boosey v. Whight, (1899)1 Ch. 836 and (1900) 1 Ch. 122). Later attempts of the composers to get rid of the unsavoury effect of the decisions, were unsuccessful. (See Newmark v. The National Phonograph Co. Ltd., (1907) 23 T.L.R.439 and Monckton v. The Gramophone Co. Ltd., (1912) 106 L.T. 84). 17. The American courts followed the English decisions. The industry flourished in the light of the decision, Boosey v. Whight supra. 18. The musical composers met with strong opposition from the manufacturing interests. A Parliamentary Committee was formed in the year 1910. to report to the Houses of Parliament about the advisability of the alteration of British law to comply with the requirements of the Revised Convention of Berne. Copinger refers to the arguments of the manufacturers thus: "On behalf of the manufacturers it was urged that an industry in which much capital was invested, which gave employment to large numbers, and brought good music into the houses of the poor, ought not to be ruined by any alteration of the law, to all of which arguments it was replied that no industry ought to be permitted to flourish upon the methods of the highwayman." Though the manufacturers failed with the Committee, their attempts at lobbies in the House of Commons had some amount of success. The enactment in England of 1911 was the result of these discussions and deliberations. 19. The Copyright Committee of 1952 submitted its recommendations and in its wake was enacted the Copyright Act of 1956. The Indian Copyright Act. 1957 has largely drawn on the provisions of the English enactment with some minor and marginal variations. The enactment in England of 1911 was the result of these discussions and deliberations. 19. The Copyright Committee of 1952 submitted its recommendations and in its wake was enacted the Copyright Act of 1956. The Indian Copyright Act. 1957 has largely drawn on the provisions of the English enactment with some minor and marginal variations. Krishna Iyer, J. in the footnote to the decision (1977) 2 S.C. C. 820 supra, remarked that "our law is intellectual borrowing from British reports." (The non-availability of accumulated funds of information and an expansive exchange of experience, may fully justify such borrowing, when the spending has been for good and productive purposes.) This background of international developments may helpfully furnish an atmosphere for the interpretative exercises in relation to the provision of the Act. 20. The Act recognises a musical work only when the music is notaionally written, printed or graphically reproduced. (The position is different in England). The film industry, with its influence (which sometimes makes itself felt even in areas of other action and activities), its organisational structure, and effectiveness in diverse spheres, has been taken note of, by the scheme of the Act. The growing, importance of the cinematograph film as a powerful media of expression, and the highly complex technical and scientific process and the heavy capital outlay involved in its production, have earned for it from the Parliament a recognition as a separate entity. Special provisions exist in relation to cinematograph films. S.13 (4) preserves the separate copyright in any work even when the film is made in respect of such work or substantial part thereof. This intellectual property does not cut down the copyright of the film when there is a film. That is the effect of S.14 (1) (c). 21. Once the author of a lyric parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires a copyright which gives him the exclusive right of performing the work in public. The author of the lyric who has given such an authorisation to a film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film cannot complain of the infringement of his copyright if the film producer causes the lyric or musical work recorded on the sound track of the film to be heard in public. The composer of a lyric retains the right of performing it in public for profit otherwise than as a part of the cinematograph film. The film producer thus gets a very valuable right as a result of the authorisation of the author of a lyric in the manner indicated in the Act. A protectable copyright comes to vest in the cinematography film on its completion. 22. Under S.17, when a film producer commissions a lyricist for valuable consideration for the purpose of making his cinematograph film or composing the lyric therefor, the film producer acquires the first copyright therein; and no copyright subsists in the author of the lyric unless there is contract to the contrary between the composer of the lyric on the one hand and the producer of the film on the other. Similar is the situation if the author of the lyric is employed under a contract of service or apprenticeship to compose the work. The rights of an author of a lyric can be defeated by the producer of a film in the manner laid down in the provisos to S.17 (b) and (c) of the Act. 23. Ordinarily, the film producer will have to establish by cogent evidence that he has commissioned the author of a lyric for valuable consideration for composing the lyric incorporated in the film. The evidence must be satisfactory in relation to the various details, such as the lyrics required, the terms and conditions of the commissioning, and the nature and mode of payment of the consideration.Written contracts would admittedly be desirable. In the absence of such contracts, the burden is heavy on the film producer to establish every ingredient of the agreement of commissioning of the author of the lyric. These observations will apply with equal force to the engagement of a lyricist or the apprenticeship to which such lyricist is admitted. 24. In the absence of such contracts, the burden is heavy on the film producer to establish every ingredient of the agreement of commissioning of the author of the lyric. These observations will apply with equal force to the engagement of a lyricist or the apprenticeship to which such lyricist is admitted. 24. It is profitable to bear in mind in this context the distinction made between a contract of service and a contract for services. The choreographer Massine, who undertook to 'give his full and exclusive services' to the director of the Russian ballet at Covent Garden and to compose and arrange suitable dances and ballets, was held to be under a contract of service. (See Massine v. de Basil (1936-45) MCC 223-)1938) 82 Sol. Jo. 173). The mere fact that an employee under a contract of service produces a copyright work for the employer does not mean that the copyright belongs to the employer. The work must have been made in the course of employment. The employee may well provide services outside his contract in addition to those within it. The agreement must precede the making of work. An illustrative case of an agreement for valuable consideration is Christopher Bede Studios Ltd. v. United Portraits Ltd., (1958) NZLR 250 These aspects have to be borne in mind while dealing with a commissioning engagement or apprenticeship of the author of a lyric. 25. It is now too early a stage to discuss these matters as regards the suit. Prima facie, the contention of the 2nd defendant about the engagement of the plaintiff under a contract, is not supported by any documentary evidence. Whether there was an anterior friendship strong enough as to persuade the parties not to have record in relation to the terms of engagement, or the nature and payment of consideration therefor, and the relevant details, would depend upon the existence of cogent and satisfactory evidence in that behalf. The 2nd defendant will have to sustain a heavy onus to substantiate his plea about an oral engagement, abut the payment of Rs. 1, 500/- in full and final settlement of all the rights of the plaintiff over the two lyrics, and other connected matters. 26. If the 2nd defendant fails in this behalf, it will have effect and impact on the rights of the 3rd defendant, which has necessarily to rely on the contract Ext. A9. 1, 500/- in full and final settlement of all the rights of the plaintiff over the two lyrics, and other connected matters. 26. If the 2nd defendant fails in this behalf, it will have effect and impact on the rights of the 3rd defendant, which has necessarily to rely on the contract Ext. A9. If the 2nd defendant did not have any transferable right, it would follow, that the 3rd defendant would have none, although, having regard to the circumstances, they had acted bona fide. 27. Many questions will have to be posed and analysed before a satisfactory answer could be obtained in relation to the essence of the transaction between the parties. Counsel for the plaintiff repudiated strongly the statement in Exts. B1 to B3 about the presence of the plaintiff at the time of recording. The issue will have necessarily to be elucidated by evidence on either side. It may be prima facie difficult to assume that the author of Ext. B3, Shri. Jesudas, would make an untrue statement merely for the sake of avoiding some financial or other liability. It may also be prima facie difficult to visualise the situation where the author of the lyric, would walk straight into the studio, and pour out the words of the lyric, particularly when they are intended for incorporation in the sound track of a film. Much of intellectual activity has necessarily to precede the composition. The story of the film, the basic theme and ethos underlying it, the scene in which the song is set, the personality of the character in the film who is to sing the song, the emotions in the mind of that character attempted to be conveyed to the viewer or listener as the case may be, have all to be accommodated even before the basic frame of the lyric is conceived of. And then, like in all artistic productions, the true inspiration and moment of artistic expression may have to arrive, before the lines of the lyrics could come out. Sometimes they come like a cascade; sometimes even the most versatile poet may wander long for a little word. "The mind must conspire with mind" -as Burke would put it. The letters Exts. B1 to B3 could not ordinarily be understood as conveying an idea that the lyricist instantaneously and spontaneously gave to the musicians, the lines in the lyrics. Sometimes they come like a cascade; sometimes even the most versatile poet may wander long for a little word. "The mind must conspire with mind" -as Burke would put it. The letters Exts. B1 to B3 could not ordinarily be understood as conveying an idea that the lyricist instantaneously and spontaneously gave to the musicians, the lines in the lyrics. It has also to be noted that the letters were written in the background of an allegation of a deviation from the lyrics as had been originally composed by him. The musicians were naturally eager to clarify that there was no such digression from the lines of the author, and that an accusation to that effect was a painful affair. Exts. B1 to B3 may not prima facie, by themselves, be sufficient to project back an agreement of commissioning or engagement. (There was no case that the plaintiff was working as an apprentice.) 28. In the light of the above discussion, the prima facie conclusion reached by the court below would not appear to be sustainable. The plaintiff, no doubt, contributed to the confusion in the mind of the court below by his own careless handling of his case in the Munsiff's court, committing jurisdictional and clerical mistakes in a hurried performance. The effect the wrong copy of the agreement had in the mind of the court, had been indicated in the review order, though the ultimate conclusion was stuck to by that court in the light of materials like Exts. B1 to B3. This prima facie finding, did not reckon properly the requirements of law in relation to the establishment of the ingredients of the provisos to S.17 (b) and (c). The finding is therefore liable to be set aside. I do so. 29. It is unnecessary and perhaps undesirable to express a finding on the existing materials at the present stage, particularly in the light of the discussions at the Bar about the safeguards necessary for the vindication of the rights of all the parties to the suit. I would assume that on the existing materials the 2nd defendant has not made out a prima facie case of commissioning for valuable consideration or otherwise engaging, the plaintiff, for the composition of the lyrics. 30. The film is now ready for release. Obviously, substantial investments have gone in for the production of the film. I would assume that on the existing materials the 2nd defendant has not made out a prima facie case of commissioning for valuable consideration or otherwise engaging, the plaintiff, for the composition of the lyrics. 30. The film is now ready for release. Obviously, substantial investments have gone in for the production of the film. Only two songs of the plaintiff have been incorporated in the sound track. To enforce a blackout of those portions from the film may make a shoddy work of the entire organisational activities of the various artists. That should be, to the extent possible, avoided. The cassettes have been already released. These extraordinary circumstances would justify the denial of the relief of an interim injunction to the plaintiff. The plaintiff could be compensated in terms of money in case an invasion of his rights is ultimately established. Having regard to the existing circumstances, I would therefore decline to interdict the release of the film or the sale of the cassettes. 31. A sufficient safeguard would be to direct the 2nd respondent to deposit a sum of Rs. 5,000/- (a figure tentatively fixed on an adhoc basis) in the court below, to be a security for a possible payment of damages which the plaintiff would be entitled to in the event of his success in the suit. I direct that the film shall be released only after the deposit of the sum in the court below. The appeal is allowed to the above extent. 32. It would be unfortunate, if the artist, the lyricist, the music director, the musicians and the producer, have to spend their time in a wasteful litigation, to the detriment of their energy, their resources and their finance. The litigational fight will be particularly tragic in relation to the artists involved, the lyricist and the musicians. A lyricist should, in essence be a poet. And a poet, according to Shelley, "ought personally be the happiest, the best, the unrest and the most illustrious of men". (See Shelly's Defence of Poetry). He may also breed the words of a connoisseur of music and a judge of the Supreme Court: "The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the raga, the bhava, the laya and the sublime or exciting singing. (See Shelly's Defence of Poetry). He may also breed the words of a connoisseur of music and a judge of the Supreme Court: "The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the raga, the bhava, the laya and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal." (See Krishna Iyer J. in Indian Performing Right Society v. E. I. M. Pictures Association, (1977) 2 S. C. C. 820). The lyricist would always do better to be in a happy and congenial company of an affectionate musician. Kerala is noted for such happy combinations, which have produced film music surcharged with literary content and enchanting musical melody, as in the case of Vayalar Ramavarma (now no more) and the well known music director Devarajan. The plaintiff is still having a future of his own as a lyricist. Co-operation, and not confrontation, is the virtue in the rarefied areas of Art. Co-operation with other artists established and reputed in their own spheres, would further his own interests while promoting literature and culture. I trust all will sincerely endeavour to. by pass the pangs of possible misunderstanding and move on to the Highway of co-operation. 33. Heard melodies of Madhu-Chithra-Yesudas combine, may be sweet; but who would not say, as did poet Keats, unheard melodies could be sweeter ?