Judgment :- Pending suit for a declaration that they are the joint owners of the entire copyright in the work titled "JAYA JAYA DEVI", a dance ballet and for a permanent injunction restraining the defendants from in any manner staging the said dance ballet in a manner infringing their copyrights, the plaintiffs have come up with the application O.A.No.1370 of 2007, seeking an interim order of injunction restraining the respondents from in any manner staging the dance ballet and infringing their copyrights. Along with the suit, the plaintiffs have also filed an application in A.NO.8120 of 2007 under Order II Rule 2 CPC, seeking leave to omit to sue for damages on the same cause of action. 2. On 20.12.2007, an exparte interim order of injunction was granted in O.A.No.1370 of 2007 by this Court. In A.No.8120 of 2007, this Court ordered notice. After service of notice, the respondents have entered appearance and have come up with the application A.No.35 of 2008 for vacating the interim order of injunction. 3. I have heard Mr.Arvind P.Datar learned Senior Counsel for the plaintiffs and Mr.P.S.Raman, learned Senior Counsel for the defendants. 4. The case of the plaintiffsis that the first plaintiff as a renowned Carnatic musician, the second plaintiff as a popular writer and the third plaintiff as a renowned Bharathanatyam dancer and choreographer, joined together and produced a dance ballet titled JAYA JAYA DEVI" in the year 1994 and performed the ballet in several centres in the United States of America. According to the plaintiffs, they own the entire copyrights over the said ballet and that they also staged the ballet in several places in India. According to the plaintiffs, the first defendant sought assignment of the copyright, but no agreement could be reached. 5. It is the further case of the plaintiffs that the first defendant, through its then Vice President, staked a claim over the copyrights of the dance ballet, as early as in 1994 through a letter dated 212. 1994, but the claim was retracted by the then President of the first defendant, by a letter dated 04.01.1995. Again on 012. 1998, a claim was made on the basis of an agreement, but no such agreement was produced, when demanded by the plaintiffs through counsel. 6. 1994, but the claim was retracted by the then President of the first defendant, by a letter dated 04.01.1995. Again on 012. 1998, a claim was made on the basis of an agreement, but no such agreement was produced, when demanded by the plaintiffs through counsel. 6. In the website of the first defendant, which was brought to the notice of the plaintiffs, in the first week of December 2007, the first defendants plans to stage a revival of the dance ballet were publicized. Therefore, the plaintiffs have come up with the present suit. 7. In the affidavit filed in support of the vacate injunction application, the defendants claim that the first defendant is a non profit organisation, founded in the State of Ohio, USA, in the year 1991. One Mr. R. Balasubramanian was its President at that time. His wife Mrs. Gomathi was its Treasurer and Mrs. Uma Ganesan, (the present President and the deponent to the affidavit in support of the vacate injunction application) was its Vice President at that time. An affiliated organization with the same name as the first defendant, was started in Chennai in 1999 with Mrs. Uma Ganesan as its Managing Trustee. .8. It is the case of the defendants that the entire idea for the dance ballet was conceived by Mrs. Uma Ganesan and that she approached the first plaintiff for composing music for the ballet. According to the defendants, an arrangement was reached between the first plaintiff and Mrs. Uma Ganesan, in pursuance of which, the ballet was produced and premiered in Cleveland in U.S.A., on 3rd April 1994. 9. It is the further case of the defendants that the first plaintiff was engaged under a contract of service by the first defendant for the production and that therefore by virtue of Section 17(c) of the Copyrights Act, 1957, the copyrights vested in the first defendant. According to the defendants, payments were made for the services rendered by the first and third plaintiffs and that the first defendant had no relationship with the second plaintiff, who appears to have been engaged by the first and third plaintiffs. 10. The defendants claim that the letter dated 04.01.1995 purportedly written by R. Balasubramanian, the then President of the first defendant, now relied upon by the plain-tiffs, came to light only now. 10. The defendants claim that the letter dated 04.01.1995 purportedly written by R. Balasubramanian, the then President of the first defendant, now relied upon by the plain-tiffs, came to light only now. According to the defendants, the letter of R. Balasubramanian was a product of his deep sense of obligation to the third plaintiff. The defendants plead that both Mr. Balasubramanian and his wife went out of the first defendant within six months from the date of issue of the letter relied upon by the plaintiffs. 11. In any event, the defendants claim that the publication made by them recently in their website, was for the revival of the dance ballet with the second defendant as its new choreographer. Though it is based upon the original theme, it will be with a different set of dancers and musicians with variations even in the music. Therefore, according to the defendants, the plaintiffs are not entitled to injunct them, even before the concept takes a final shape. 12. In short, the defendants claim that the plaintiffs have no prima-facie case, since the ballet was the production of the first defendant. According to the defendants they have paid the plaintiffs for their services and they have also spent huge amounts in staging the performances. The first defendant claims to be a non profit organisation, which is interested only in the promotion of music and arts. Therefore, the balance of convenience, according to the defendants, is not in favour of the grant of an injunction in favour of the plaintiffs. .13. The plaintiffs have filed certain documents, the details and contents of which, are as follows:- i) A letter dated 212. 1994 written by an advocate of Chennai, not by way of a legal notice, but essentially by way of a letter written in his capacity as the cousin of Mrs.Uma Ganesan, is filed as plaint document No.1. In the said letter, it was claimed that the first defendant had invested US $ 100,000/- for the production of the dance ballet and that the first defendant was the producer, on whom, all the rights of the ballet vested. It was also claimed in the said letter that at the request of the first plaintiff, limited permission was given to the first plaintiff for its presentation in Madras, and an agreement dated 25.08.1994 was drafted. It was also claimed in the said letter that at the request of the first plaintiff, limited permission was given to the first plaintiff for its presentation in Madras, and an agreement dated 25.08.1994 was drafted. The said agreement was not signed by the plaintiffs and the first plaintiff performed the ballet at the Music Academy in January 1995. Therefore the letter conveyed a message, to the first plaintiff that his action amounted to infringement of the copyright of the first defendant and that the first plaintiff could resolve the issue by talking to Mrs.Uma Ganesan. ii) A fax message dated 04.01.2005 sent by Mr. R. Balasubramanian to the first plaintiff is filed as plaint document No.2. In the said message, the President of the first defendant congratulated the first plaintiff for the grand success of the Madras production of the ballet "JAYA JAYA DEVI". It was made clear in the concluding portion of the said letter that the contents of the letter dated 212. 1994 written on behalf of Mrs. Uma Ganesan, did not reflect the official position of the first defendant and that the President of the Association did not authorise such correspondence. Nevertheless, the fax message also contained an indication of their official position in the following words: "CCA will appreciate your discretion and judicial decisions in furthering JAYA JAYA DEVI production activities outside the North American Continent with appropriate credit and advance information to CCA" iii) A notice dated 012. 1998 issued by a Law firm by name KOLKER & RAMAMURTI, Washington, addressed to the first plaintiff, is filed as plaint document No.3. In the said notice, it was claimed that by virtue of an agreement, the first plaintiff was obliged to obtain the first defendants written permission before mounting any production of JAYA JAYA DEVI and that the first defendant would expect royalties for future presentation and compensation for all past performances. iv) A legal reply dated 12.01.1999 sent on behalf of the first plaintiff, in response to the first defendants legal notice, is filed as document No.4. In the said letter, the first plaintiffs counsel requested the first defendants counsel to send a copy of the agreement referred to in their notice. But the correspondence between the first plaintiff and the first defendant, ceased with this letter. In the said letter, the first plaintiffs counsel requested the first defendants counsel to send a copy of the agreement referred to in their notice. But the correspondence between the first plaintiff and the first defendant, ceased with this letter. v) The publication made by the first defendant about the revival of the programme is filed as plaint document No.5 and the Newspaper re-ports about the programmes staged by the plaintiffs in India are filed as plaint document No.6. 14. The defendants have filed a set of documents, the details and contents of which, are as follows:- i) A receipt dated 06.04.1994 signed by the first plaintiff is filed as document No.1. It reads as follows:- "Received $ 1400 from the Cleveland Cultural Alliance as honorarium for composing the operatic ballet JAYA JAYA DEVI". ii) Two printed receipts dated 02.06.1994, both signed by the third plaintiff, are filed as document No.2 series. The first receipt is for payment of US $ 450 for "research books and research time". The second receipt is for payment of US $ 1350 towards "participation in JAYA JAYA DEVI (choreography of JAYA JAYA DEVI)". iii) The extract from the speeches purportedly made by first plaintiff at the premiere of the ballet on 3rd April 1994, is filed as document No.3. iv) The brochure issued by the first defendant at the time of staging the premiere on 3rd April 1994 is filed as document No.4. v) The reviews written in English Newspapers when the premiere was staged in USA, are filed as document No.5 series. vi) Two receipts dated 04.08.1994 signed by the third plaintiff towards reimbursement of the expenses and the Insurance coverage, at the time of their visit in 1994, are filed as document No.6 series. 15. A careful perusal of all the documents filed by the plaintiffs and all the documents filed by the defendants, establish three essential and fundamental facts, namely, a) that the first defendant engaged the plaintiffs for creating and composing an operatic ballet by name "JAYA JAYA DEVI" way back in the year 1994. b) that the first defendant paid a honorarium and also reimbursed the expenses incurred by the plaintiffs for travelling and in staging the performances and c) that both parties did not reduce into writing, the terms and conditions subject to which, they came together for the production of the ballet. .16. b) that the first defendant paid a honorarium and also reimbursed the expenses incurred by the plaintiffs for travelling and in staging the performances and c) that both parties did not reduce into writing, the terms and conditions subject to which, they came together for the production of the ballet. .16. That the music for the ballet was composed by the first plaintiff and the choreography was done by the third plaintiff are admitted by the first defendant. Though the second plaintiffs role as the script writer is not admitted by the first defendant, the first defendant has filed a receipt signed by the third plaintiff towards purchase of research books and the research time. The brochure dated 03.04.1994 filed by the first defendant as document No.4 itself contains the name of the second plaintiff, as the person responsible for "research". 117. Therefore, it is clear that the plaintiffs are the artists who created the ballet and that the first defendant paid an honorarium and reimbursed the expenses for the creation. But, there was no written agreement between the parties, to spell out their mutual rights and obligations. The letter dated 212. 1994, issued on behalf of Mrs. Uma Ganesan (the then Vice President and present President of the first defendant), filed as plaint document No.1, contains an averment that an agreement dated 25.08.1994 was drawn up, but was not signed and sent back by the first plaintiff. The legal notice dated 012. 1998 issued by the first defendant through the Law Firm KOLKER & RAMAMURTI, filed as plaint document No.3 contains a reference to an agreement. But neither the date of the agreement nor the terms aid conditions stipulated in the agreement are spelt out, in the said legal notice. When a legal reply dated 12.01.1999 filed as plaint document No.4) was issued by the first plaintiff, requesting for a copy of the agreement referred to in the plaint document No.3, there was no response from the first defendant. 118. Therefore, it is clear that there was no written contract between the parties. The document No.1 filed by the first defendant, is only a receipt dated 06.04.1994 signed by the first plaintiff for having received a honorarium of US $ 1400 for composing the ballet. It is also not a contract, since it does not throw any light upon the mutual rights and obligations between the parties. 119. The document No.1 filed by the first defendant, is only a receipt dated 06.04.1994 signed by the first plaintiff for having received a honorarium of US $ 1400 for composing the ballet. It is also not a contract, since it does not throw any light upon the mutual rights and obligations between the parties. 119. Even if a contract between parties is not reduced into writing, it is possible to find out the mutual rights and obligations of the contracting parties, if there was atleast an exchange of correspondence indicating a meeting of minds between the parties. But in the present case, it appears to be impossible to undertake such a venture. For two parties to demonstrate the existence of an agreement enforceable by law, either oral or written, the circumstances as revealed by the correspondence between them, should indicate atleast the bottom line, namely, consensus ad idem. In Rickmers Verwaltung Gimb H. vs. Indian Oil Corporation Ltd., (AIR 1999 SC.504), the Supreme Court held as follows:- "11. The submission of Mr. Nariman, that an agreement, even if not signed by the parties, can be spelt out from correspondence exchanged between the parties admits of no doubt. In fact, various judgments cited by him at the Bar unmistakably support this assertion. The question, however is, can any agreement be spelt out from the correspondence between the parties in the instant case. 12. In this connection, the cardinal principle to remember is that it is the duty of the Court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them but the Court is not empowered to create a contract for the parties, by going outside the clear language used in the correspondence, except in so far as there are some appropriate implications of law to be drawn. Unless from the correspondence it can unequivocally and clearly emerge that the par-ties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence.........................” 20. That there was no consensus ad idem between the plaintiffs 1 and 3 on the one hand and first defendant on the other hand, is borne out by the correspondence. That there was no consensus ad idem between the plaintiffs 1 and 3 on the one hand and first defendant on the other hand, is borne out by the correspondence. While plaint document No.1 shows that Mrs.Uma Ganesan, as the Vice President of the first defendant made a claim way back on 212. 1994 that the first defendant was the producer of the ballet and that all the rights in the ballet vested only with the first defendant, the plaint document No.2, which is a fax message dated 04.01.1995, shows that even between the President R. Balasubramanian and the Vice President Mrs.Uma Ganesan of the first defendant Association, there was no identity of mind about the rights of the first defendant. At the same time, plaint document No.2 also contains a message to the first plaintiff that it is upto the first plaintiffs discretion in furthering the production "outside North American Continent with appropriate credit and advance information to CCA" 21. While plaint document Nos. 1 and 3 show an assertion by the first defendant, of their exclusive rights over the ballet, plaint document No.2 shows a dilution of such an assertion from no less a person than the President of the first defendant himself. Thus, on the one hand, we have the first defendant asserting its rights in the first instance and diluting it later. On the other hand, we have the first plaintiff who has consistently adopted a stance, from day one, that the plaintiffs are the owners of the copyrights over the ballet. Therefore, the conclusion that there was no identity of minds between the plaintiffs and the first defendant about their mutual rights and obligations over the production in question, is inescapable. 22. Consent is defined under Section 13 of the Contract Act in the following words:-"Two or more persons are said to consent when they agree upon the same thing in the same sense" By virtue of Section 10 of the Contract Act, agreements become contracts, only if they are made by the free consent of parties. There is no contract, sans consent. 23. There is no contract, sans consent. 23. Keeping in mind, the above fundamental principles of the Law of Contracts, if the rival contentions are analysed, it is seen that according to the first defendant, the plaintiffs were under a contract of service with the first defendant, for the production of the ballet and that therefore, the copyright in the production vested in the first defendant by virtue of Section 17(c) of the Copyright Act, 1957. Section 17(c) reads as follows:- "Sec.17 First owner of copyright : - Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that – .(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work insofar as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work; .(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration, at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; .(c) in the case of a work made in the course of the authors employment under a contract of service or apprenticeship, to which clause(a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;" 24. It is clear from the language of Section 17 that as a matter of general rule, the author of a work, is the first owner of the copyright therein. It is only the exceptions to the general rule, which are spelt out in clauses (a) to (e) under the proviso to Section 17. It is clear from the language of Section 17 that as a matter of general rule, the author of a work, is the first owner of the copyright therein. It is only the exceptions to the general rule, which are spelt out in clauses (a) to (e) under the proviso to Section 17. Clause (a) of the proviso to Section 17 deals with literary, dramatic or artistic work. Clause (b) deals with photographs, paintings, portraits, engravings and cinematograph films. Clause (c) deals with a work to which clauses (a) and (b) will not apply. These clauses (a), (b) and (c) make persons other than the authors, as the first owners of the copyrights, under certain circumstances. 25. Under Clause (a) of the proviso to Section 17, the proprietor of a Newspaper, magazine or periodical would become the first owner of the copyright in a literary, dramatic or artistic work, if it was made by the author "in the course of his employment under a contract of service or apprenticeship". 26. Under Clause (b) of the proviso to Section 17, a person at whose instance a photograph is taken, or a painting or portrait is drawn or an engraving or a cinematographic film is made, "for valuable consideration", becomes the first owner of the copyright therein. 27. Under Clause (c) of the proviso to Section 17, an employer becomes the first owner of the copyright, in a work to which clauses (a) and (b) does not apply, if the work was made "in the course of his employment under a contract of service or apprenticeship". 28. In the light of the provisions of Section 17, if the case on hand is analysed, it is seen that the work in respect of which rival claims for copyrights are made, does not fall under the category of a "literary work" as defined in Section 2(o) or an "artistic work" as defined under Section 2(c) or a photograph as defined under Section 2(s), or a painting or portrait not defined under the Act or an en-graving as defined under Section 2(i) or a cinematograph as defined under Section 2(f) of the Act. 29. The work in respect of which the present claim has arisen, is an operatic ballet and hence it would perhaps come within the meaning of the expression "dramatic work" defined under section 2(h) of the Act. 29. The work in respect of which the present claim has arisen, is an operatic ballet and hence it would perhaps come within the meaning of the expression "dramatic work" defined under section 2(h) of the Act. The said definition is as follows:- "dramatic work" includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film" 30. If the operatic ballet which is the subject matter of dispute is a "dramatic work", then the case will fall under clause (a) of the proviso to Section 17. If it does not, it will fall under clause (c) of the proviso to Section 17. In either of the two cases, the condition precedent which would enable a person other than the author, to claim copyrights, is that the author should have produced the work in question "in the course of his employment under a contract of service or apprenticeship". Such transfer of ownership of the copyrights from the author to his employer under these clauses (a) to (c) of the proviso to Section 17 is also not always automatic, but subject only to the absence of a contract to the contrary. 31. Thus, the scheme of Section 17 of the Act, operates at three levels. It recognises in the first instance, that the author of a work shall be the first owner of the copyright. It confers, at the second level, copyrights upon an employer, under whom the author was under a contract of service or apprenticeship and produced the work in the course of his employment. But such conferment of rights upon the employer, is also made subject to the absence of a contract to the contrary, at the third level. 32. Coming to the case on hand, the defendants admit that atleast the plaintiffs 1 and 3 are the authors of the ballet. But such conferment of rights upon the employer, is also made subject to the absence of a contract to the contrary, at the third level. 32. Coming to the case on hand, the defendants admit that atleast the plaintiffs 1 and 3 are the authors of the ballet. The word "author" is defined under Section 2(d) as follows:- "(d) "author" means, - (i) in relation to a literary or dramatic work, the author of work; (ii) in relation to a musical work, the composer; (iii)in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created" The first defendant described themselves as "producers", even in the brochures issued by them. The word "producer" is defined under Section 2(uu) as follows:- "producer" in relation to a cinematograph film or sound re-cording, means a person who takes the initiative and responsibility for making the work;" 33. As seen from Clause (b) of the proviso to Section 17, the payment of valuable consideration, by itself creates a copyright in favour of the person making payment, if the work in question is a photograph or painting or, portrait or engraving or cinematograph film. If the work in relation to which a copy-right is claimed, falls under the category of photograph or painting or portrait or engraving or cinematograph film, there is no necessity for the person claiming copyright to prove that the author was under a contract of service and that the work was made in the course of his employment. It is enough if such person proves that the work was produced for valuable consideration. 34. But unfortunately for the first defendant, the ballet in dispute, does not fall under any of the categories enumerated in clause (b) of the proviso to Section 17. It will fall either under the category of dramatic work as de-fined under Section 2(h) and covered by clause (a) of the proviso to Section 17 or under the category of a work not covered by clauses (a) or (b) and hence covered by the residuary clause (c). It will fall either under the category of dramatic work as de-fined under Section 2(h) and covered by clause (a) of the proviso to Section 17 or under the category of a work not covered by clauses (a) or (b) and hence covered by the residuary clause (c). As observed earlier, a person other than the author, claiming copyright by virtue of the operation of clause (a) or (c) of the proviso to Section 17, will necessarily have to establish - a) that the author of the work was under a contract of service or apprenticeship with him; b) that the work was made in the course of his employment; and c) that there was no agreement to the contrary. 35. In the case on hand, the plaintiffs have come to Court, as the authors of the ballet JAYA JAYA DEVI. That the plaintiffs are the authors of the said work, is admitted by the first defendant, atleast insofar as the plaintiffs 1 and 3 are concerned. Therefore, the plaintiffs are protected, prima-facie, by the general rule under Section 17, that the author of a work shall be the first owner of the copy-right therein. 36. Once it is admitted that the plaintiffs are the authors of the work in question and consequently the owners of the copyrights therein by virtue of the operation of the general rule in section 17, the burden of proof shifts to the defendants to show that the case falls under any of the clauses under the proviso to Section 17, so as to enable them to claim copyrights, as persons who have employed the authors. Therefore, the first defendant is obliged to establish (a) that the plaintiffs were under a contract of service and (b) that the work was made in the course of employment. 37. But, unfortunately, the first defendant has not been able to establish, atleast prima-facie that the plaintiffs were under a contract of service with them and that the ballet was created in the course of the employment of the plaintiffs with the first defendant. All the documents produced by the first defendant merely show (a) that payments were made to the plaintiffs either as honorarium or as reimbursement of expenses and (b) that the first defendant projected itself to be the producer. All the documents produced by the first defendant merely show (a) that payments were made to the plaintiffs either as honorarium or as reimbursement of expenses and (b) that the first defendant projected itself to be the producer. The establishment of these two facts, is not adequate either to prove a contract of service or the creation of the work in the course of employment. 38. As observed in the preceding paragraphs, there is no written agreement between the parties. In fact, the documents disclose that there was no consensus ad idem between the parties. Every attempt made by the first defendant to claim ownership of copyright from the year 1994, met with resistance from the plaintiffs. The first attempt made by the first defendant in 1994 (through plaint document No.1) proved abortive, since the President of the society retracted and distanced himself from the claim. The next attempt made in December 1998 by way of a legal notice, also got silenced when a legal reply was sent demanding a copy of the alleged agreement. After 1998, till the institution of the suit, (in 2007) the first defendant never asserted their rights. This shows that the parties never had an identity of minds about the nature of the contract that they had negotiated in 1994 at the time of production, though they went ahead with the performance. In the absence of an identity of minds, there was no contract at all. When there was no contract at all, there could not have been either a contract of service or even a contract for services. 39. Once it is found that the first defendant failed miserably to prove that there was any kind of a contract between them and the plaintiffs (much less a contract of service), the proviso to Section 17 does not come into operation. If the proviso does not come into operation, the author of the work would continue to be the owner of the copyright. 40. Mr. Arvind P. Datar, learned senior counsel for the plaintiffs contended that the distinction between a contract of service and a contract for services, as recognised in Labour Law, can be imported into the law relating to copyrights also. The learned senior counsel also relied upon the decisions of the Kerala, Calcutta and Bombay High Courts in the following decisions:- 1) Thankappan (P.K.) vs. Vidhyarambham Press and Book Depot and Ors. The learned senior counsel also relied upon the decisions of the Kerala, Calcutta and Bombay High Courts in the following decisions:- 1) Thankappan (P.K.) vs. Vidhyarambham Press and Book Depot and Ors. ((1969) I LLJ 323 Kerala) 2) Gee Pee Films Pvt. Ltd., vs. Pratik Chowdhury and Ors. MANU/W.B./0335/2001 3) Zee Entertainment Enterprises Ltd., vs. Gajendra Singh and Others (2007 (109) Bom.L.R. 2072) But, I do not think that it is necessary to undertake a journey into the question whether there was a contract of service or a contract for services between the plaintiffs and the first defendant. This is in view of my finding that the correspondence between the parties does not disclose any identity of minds between them, so as to show the existence of a contract. It is only if the existence of a contract is established that the question as to whether it is a contract of service or a contract for services, has to be gone into. Therefore, the said question is only of academic interest. 41. Mr. P.S. Raman, learned senior counsel for the defendants contended that even a mere agreement to assign, operates as an equitable assignment of the copyright as and when the work comes into existence. In support of his contention, Mr. P.S. Raman, relied upon a passage from the book on Copyrights (III Edition) authored by Mr. P. Narayan. But, the author has made it clear, even in the pas-sage relied upon by the learned Senior Counsel that "although writing is not necessary for creation of an equitable title, it is essential for assignment of the right". But in the present case, there was no agreement in writing. .42. Even the opinion expressed by the author of the book that where an assignment of a copyright is invalid, the assignee gets equitable title to the copyright (extract from Copinger and Skone James), will not go to the rescue of the defendants, since there was neither an agreement to assign nor an assignment. 43. Mr. P.S. Raman, the learned Senior Counsel then relied upon another passage from the same book relating to "Commissioned Works". The passage reads as follows:-"Commissioned Works: An author may create a work at the instance of another person for valuable consideration. 43. Mr. P.S. Raman, the learned Senior Counsel then relied upon another passage from the same book relating to "Commissioned Works". The passage reads as follows:-"Commissioned Works: An author may create a work at the instance of another person for valuable consideration. Examples are a person writing a report on a subject for a company, a composer composing a song for a film company, or a photographer taking a photo at the instance of another person or a painter drawing a portrait at the request of another person, all for valuable consideration. In such cases, in the absence of any agreement to the contrary, the person at whose instance the work is made is the owner of the copyright in the work. Equitable right in commissioned work: Where a person accepts a commission to design certain drawings for another person the equitable rights in the copyright passes from the designer to the person who has commissioned the work. Even if the equitable title in the copyright work did not pass to the person who commissioned the work there is an implied licence for him to use the drawings. The passing of equitable title in copyright or the grant of an implied licence to use a copyright work does not mean that an author had waived his moral rights under the Act". But, the above passage is of no use to the first defendant. A commissioned work is what is covered by Clause (b) of the proviso to Section 17. The said clause deals with a photo-graph or a painting or a portrait or an engraving or a cinematographic film. But the case on hand is a ballet, which can at the most come within the meaning of the expression "dramatic work as defined under Section 2(h). Therefore, it is covered by Clause (a) and not by Clause (b) of the proviso to Section 17. Even if it is not covered by Clause (a), it would be covered by Clause (c). The payment of "valuable consideration" is not the sine qua non under Clause (a) or (c), but the creation of the work "in the course of employment under a contract of service or apprenticeship" is the sine qua non under Clauses (a) and (c). There-fore, the reference to the passage on the law relating to commissioned work is of no use to the defendants. .44. There-fore, the reference to the passage on the law relating to commissioned work is of no use to the defendants. .44. In fine, I hold that the plaintiffs, who are admittedly the authors of the operatic ballet titled JAYA JAYA DEVI, have a prima-facie case to show that they are the owners of the copyrights therein, in terms of Section 17 of the Copyright Act, 1957. The first defendant could not establish the existence of any contract much less a contract of service with the plaintiffs. The first defendant could not also establish that the work was produced in .the course of the employment of the plaintiffs with them. The payment of honorarium and the payment towards reimbursement of expenses, established by the documents filed on the side of the defendants, are not adequate to establish either a contract of service or a course of employment. There is nothing on record to show that the proviso to section 17 came into operation, so as to confer copy-rights on the first defendant. Since the burden of proof to show that the proviso to section 17 came into operation, is on the first defendant and since the first defendant could not discharge the burden, the prima facie case established by the plaintiffs cannot be dislodged. 45. Coming to the question of balance of convenience, it is seen from Section 55 of the Copyright Act, 1957, that the owner of the copyright is entitled to all such remedies by way of injunction, damages and accounts. The plaintiffs claim that they propose to tour America in a few months from now for staging the ballet. The plaintiffs have also staged the ballet in various places in India in the past fourteen years. The first defendant has made clear their intentions to stage performances with a different theme. The plaint document No.5 discloses the intention of the first defendant to stage a premiere in India in late August early September 2008 and the intention to tour North America from mid September. If the first defendant proceeds with the proposal for staging of the performances, the copyrights that the plaintiffs have over the ballet in question, will get infringed. There-fore, the balance of convenience is in favor of the plaintiffs. 46. If the first defendant proceeds with the proposal for staging of the performances, the copyrights that the plaintiffs have over the ballet in question, will get infringed. There-fore, the balance of convenience is in favor of the plaintiffs. 46. If injunction is granted and the plaintiffs ultimately fail in the suit, it would only be a question of compensating the first defendant, for the lack of opportunities. But the first defendant claims to be a non profit organisation and hence such compensation would only be in relation to their loss of reputation. In any case, the first defendant has made an attempt to revive the ballet after a gap of fourteen years (the first performance was in 1994 and the revival is proposed in 2008). Therefore the grant of injunction will only postpone the revival by a few more years. 47. On the contrary, if injunction is refused and the plaintiffs ultimately succeed in the suit, they cannot be adequately compensated. The first plaintiff is admittedly now 78 years of age. Therefore, compensation in terms of money, at a distant future, would only provide him, cosmetic justice, if he is able to see through the end of the litigation. 48. Coming to the contention that the first defendant proposes to come up with a different version of the ballet and that therefore, there cannot be an injunction, it is seen from the plaint document No.5 a brochure issued by the first defendant that what is contemplated by them is only a revival and not a new programme. The first defendant has stated clearly in the said brochure that the proposed” operatic ballet is based on the original music composed by the first plaintiff”. An old stuff in anew container, cannot give immunity to the first defendant. Therefore, I hold that the plaintiffs are entitled to an order of interim injunction as prayed for. Hence, O.A.No.1370 of 2007 is allowed. The application for vacating the injunction in A.No.35 of 2008 is dismissed. The interim injunction originally granted on 20.12.2007 is made absolute. The application A. No.8120 of 2007 filed under Order II Rule 2 CPC is also allowed. No costs.