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Madras High Court · body

2012 DIGILAW 2220 (MAD)

. v. .

2012-06-05

R.SUBBIAH

body2012
Judgment : R. Subbiah, J. 1. Original Application No.96 of 2012 is filed by the applicant/plaintiff to pass an order of interim injunction restraining the respondents/defendants and their men from translating the script "Aaranya Kaandam" into any language, making any new cinematograph film that is based on the script "Aaranya Kaandam", incorporating any translated version of the script "Aaranya Kaandam" as part of any new or existing cinematograph film or doing any other act inconsistent with the rights conferred on the applicant/plaintiff under section 14(a) of the Copyright Act, 1957. 2. This Court, by order dated 29.02.2012, granted ad-interim injunction as prayed for. 3. The respondents/defendants in O.A.No.96 of 2012 filed Application No.1888 of 2012 to vacate the order of interim injunction dated 29.02.2012. 4. The parties are hereafter referred to as per their ranking in O.A.No.96 of 2012. The brief facts for disposal of both the applications are as follows: (a) According to the applicant, he is the author of a script titled "Aaranya Kaandam". This script was written in 2006. This script is protected as an original literary work under the Copyright Act and he has been the owner of the literary work and has never at any point assigned his rights in the said literary work to any person. The applicant was on the lookout for producers to convert the script into celluloid but refused to align with any producer who wanted him to assign his right in the literary work to them because it was always his intention to grant only a permissive one-time licence to make the film, and retain all his rights in the script. The applicant approached the respondents/defendants requesting them to launch him as a director in their production company. (b)It is the further case of the applicant that he made clear to the respondents/defendants that his intention is only to grant a permissive one time licence to make the film and retain all his rights in the script. The applicant has also granted one time permissive licence to the respondents to use the script to make a film. The applicant did not receive any royalty and instead he was paid a sum of Rs.5 lakhs as remuneration for his services as a Director of this film. The applicant has also granted one time permissive licence to the respondents to use the script to make a film. The applicant did not receive any royalty and instead he was paid a sum of Rs.5 lakhs as remuneration for his services as a Director of this film. The applicant took all possible efforts to showcase the film and as a result of which, it went on to win the Grand Jury Prize at the New York Film Festival, a first of its kind achievement for a Tamil feature film. But, the respondents were completely lackadaisical in their attitude towards the film and there were virtually no promotional advertisements till days before the theatrical release of this film. Due to strong word of mouth, "Aaranya Kaandam" managed to attract movie goers, but the respondents' actions, or the lack thereof, stopped it from achieving the kind of box office success that a meritorious film like this could have otherwise achieved. Subsequently, the applicant came to know from sources in the industry that the respondents are attempting surreptitiously to release a version of "Aaranya Kaandam" dubbed in Telugu by the first week of March and the translation by the respondents of the script into Telugu for this purpose is completely unauthorised, illegal and a clear infringement of his right under sections 14(a) and 51 of the Copyright Act. The conduct of the respondents is unambiguously illegal unless it can be shown that they have been authorised by the applicant or are the owners of the literary work in the script. Hence, the present suit has been filed to pass an order of permanent injunction against the respondents. (c) The respondents have filed a counter stating that the 1st respondent is a reputed film production company in South India and has produced several Tamil films and the 2nd respondent is the Chief Executive Officer of the 1st respondent. Being aware of the success and potential of the respondents, the applicant, who was ambitiously expecting for a chance to direct a Tamil film, approached them with a script written by the applicant himself. The respondents have always encouraged new/fresh persons who come to them asking chance as an actor, actress, director, etc., and therefore, granted him an audience and asked him to narrate his story. The respondents have always encouraged new/fresh persons who come to them asking chance as an actor, actress, director, etc., and therefore, granted him an audience and asked him to narrate his story. The applicant narrated the story and thereafter, the respondents confirmed to commence the production of the movie titled "Aaranya Kaandam". The applicant insisted that the movie "Aaranya Kaandam" be directed by himself as it would be an opportunity for him to introduce himself to the Tamil Film Industry as a director for the first time, The respondents have also agreed the request of the applicant to direct the move to be produced by the 1st respondent. The production was commenced in the year 2008. The respondents paid a sum of Rs.7 lakhs towards the script and for services of the applicant as a Director to direct the said movie. The cost of production for making the movie "Aaranya Kaandam" was a totalsum of Rs.6,22,28,378/. That apart, the respondents spent a sum of Rs.9,82,618/-for the publicity of the movie before release. The movie was released on 10.06.2011. Despite much publicity, the movie did not draw substantial number of viewers to watch the film in the theatre and the movie did not financially do well in the box office; however, subsequently, the movie won the Grand Jury award for the best film at the prestigious South Asian International Film Festival in New York. In India, the movie won two National Awards for the year 2011-2012 for best editing and for the best first film of a Director. Thereafter, the respondents took steps to dub the movie in Telugu and release the same. Dubbing of movie into other languages does not require a fresh censor certificate and the Censor Board Certificate issued for the original Tamil movie would suffice for the proposed dubbed movie to be released in another language. Taking note of the recent success and having knowledge that the movie would do well if released once again in other languages, the applicant with the sole mala fide intention of extracting more money from the respondents and to cause inconvenience to the respondents, has filed the suit. (d) It is the further case of the respondents that as per section 2(d)(v) of the Copyright Act, the producer is the author of the cinematograph film. (d) It is the further case of the respondents that as per section 2(d)(v) of the Copyright Act, the producer is the author of the cinematograph film. As per the said provision, the 1st respondent, who is the producer of the movie, becomes the owner of the same. Further, it is only the applicant, who approached the respondents to produce his script into a movie and therefore, the applicant cannot now claim that the releasing of the dubbed version of the movie "Aaranya Kaandam" would amount to infringement of his copy right over the movie script. The applicant has not entered into any agreement with the respondents to make/produce the"Aaranya Kaandam" only in Tamil and not dub the same movie into other languages and release it. In the absence of a written agreement, the applicant cannot assume that he had granted to the respondents only the right to make a cinematograph film of the applicant's script in Tamil and not to dub it in any other languages. The right of assignment does not arise here since the respondents are not remaking the movie "Aaranya Kaandam" in another language but are only dubbing the movie "Aaranya Kaandam" into a different language. Moreover, the respondents does not deny that the applicant is the copyright owner of the script "Aaranya Kaandam"; but once the said script has been allowed by the applicant to be made into cinematograph film, especially for a valuable consideration, then the respondents, who are the producers of the said movie, become the copyright owners of the same. As per section 17, the respondents are the first owners of the subject movie and they are having the absolute rights to deal with the movie in any manner whatsoever and in a manner deemed fit by them. Because of the movie being dubbed into another language, it does not mean that the respondents have infringed the copyright of the literary work of the applicant. The respondents are only working to derive the benefit from the copyright possessed by them in their cinematograph film. The respondents have full ownership over the movie and they are entitled to dub the movie into any language. The respondents' act of dubbing the movie will not infringe the applicant's copyright over his script. The respondents are only working to derive the benefit from the copyright possessed by them in their cinematograph film. The respondents have full ownership over the movie and they are entitled to dub the movie into any language. The respondents' act of dubbing the movie will not infringe the applicant's copyright over his script. Though the respondents have invested huge amount of money in producing the movie in Tamil, they did not get any financial benefits as the movie did not do well in the box office. Thus, the respondents stated that the applicant has not made out any prima facie case for getting the interim relief and they prayed to vacate the order of interim injunction dated 29.02.2012. (e) The applicant has filed a rejoinder stating inter alia that it is incorrect to state that the respondents have paid Rs.7 lakhs towards the script and for services of the applicant as a director to direct the said movie. Actually the applicant was paid in his capacity as director and offered Rs.7 lakhs. Rs.5 lakhs was the remuneration as the director and Rs.2 lakhs for the remuneration payable to his assistant directors. No amount of money was paid for the script. It is inherently improbable that any amount would have been paid for this purpose because the copyright in the script was always retained by the applicant. Further it is incorrect to state that dubbing of the film into other languages does not require a fresh censor certificate and this is far from the procedure followed by the Central Board of Film Certificate. It is also incorrect to state that the applicant has initiated the proceedings with the sole objective of extracting more money from them after its recent success. The applicant has enjoyed two different rights as the owner of the copyright in the script. One such right is to make a cinematograph film and the other, to translate the script. The respondents' rights of ownership in the cinematograph film only entitle them to communicate that cinematograph film to the public, but while doing so, they cannot erase the sound recording of that film and replace it with another sound recording which incorporates his script and screenplay as translated into a different language. Thus, he prayed for the dismissal of the application filed for vacating the interim order. 5. Thus, he prayed for the dismissal of the application filed for vacating the interim order. 5. Learned counsel for the respondents/defendants, by inviting the attention of this Court to section 13(1) and 13(4) of the Copyright Act, submitted that as per sections 13 (1)(b) and 13(4), the copyright in a cinematograph film subsists throughout India and the owner of the copyright can utilise his copyright material throughout India. The copyright in a cinematogrph film is independent to any other copyright subsisting in any other work. In this regard, the learned counsel has also invited the attention of this Court to the definition of "producer" as defined under section 2(uu) and submitted that the respondents/ defendants, who took the initiative, invested huge amount of money in producing the subject film. As per section 2(d), the 'author' of the cinematograph film is only the producer of the film. Therefore, the respondents/defendants are the producers of the subject movie and as such, the question of infringing the copyright in script retained by the applicant does not arise. That apart, by inviting the attention of this Court to section 17, the learned counsel submitted that as per section 17(b), the author of the work shall be the first owner of the copyright. Section 2(d) defines, the author of the cinematograph film is the producer of the film. A conjoint reading of sections 2(d) and 17(b) would show that the producer is the first owner of copyright in the absence of any agreement to the contrary. In the instant case, admittedly, no written agreement was entered into between the applicant and the respondents with regard to the assignment of copyright of the cinematograph film. Therefore, as per the provisions of the Copyright Act, the respondents are the owners of the copyright of the cinematograph film and therefore, the dubbing of the film from Tamil to Telugu would not amount to infringement of the copyright in script, as alleged by the applicants. Therefore, as per the provisions of the Copyright Act, the respondents are the owners of the copyright of the cinematograph film and therefore, the dubbing of the film from Tamil to Telugu would not amount to infringement of the copyright in script, as alleged by the applicants. As per section 14(1)(d), "copyright" means the exclusive right, subject to the provisions of the Copyright Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely, in the case of a cinematograph film, (i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public. Therefore, the entire copyright in respect of the cinematograph film is only vested with the producer. Therefore, the applicant cannot say that by dubbing the film into Telugu language, the respondents are infringing the copyright with regard to the script of the film "Aaranya Kaandam". In this regard, the learned counsel relied upon a judgment reported in Indian Performing Right Society Ltd., .vs. Eastern Indian Motion Picture Association and others ( AIR 1977 SC 1443 ) in support of his contention that copyright in case of cinematograph film means among other rights, the right of exhibiting or causing the exhibition in public of the cinematograph film. Thus, the learned counsel submitted that there is no merit in the case of the applicant and as such, the interim order already granted is liable to be vacated. 6. Per contra, the learned counsel for the applicant/ plaintiff submitted that the plaintiff is the first copyright owner of the script titled "Aaranya Kaandam". The act of the defendants from dubbing the film into Telugu in translating the script written by the applicant would amount to infringement of copyright under section 14 read with section 51 of the Copyright Act. Per contra, the learned counsel for the applicant/ plaintiff submitted that the plaintiff is the first copyright owner of the script titled "Aaranya Kaandam". The act of the defendants from dubbing the film into Telugu in translating the script written by the applicant would amount to infringement of copyright under section 14 read with section 51 of the Copyright Act. The learned counsel further submitted that a person can acquire ownership in one of two ways (i) "first ownership" by virtue of being the author of a protected work or a person in whom copyright is vested under the proviso to section 17; or (ii) "acquired ownership", where the copyright holder, although not to the first owner, acquires the copyright through an assignment taken from the first owner. In the instant case, the intention of the applicant is to grant only a permissive one time licence to make the film and retain all his rights in the script. That is why, he has not assigned his rights in the script by an agreement in favour of the respondents. The learned counsel has also relied upon sections 14(1)(a) of the Copyright Act and submitted that the right to translate a work is given to the owner of the copyright in the script but not the owner of the copyright in the cinematograph film. The owner of the copyright in the cinematograph film has the right to exhibit the film as such and he cannot translate the underlying script unless he acquires the copyright by way of assignment. As per section 2(d)(i) of the said Act, the "author" means in relation to a literary or dramatic work, the author of the work. A conjoint reading of sections 2(d) and 14(1)(a) would show that only the author of the literary work, namely, the applicant herein, has a right to translate the film. Further, the learned counsel submitted that the same section 14(1)(d), which deals the right of cinematograph film, does not speak about the translation work. The right of translation was vested only with the author of literary work and not to the producer of the film. The owner of a cinematograph film has the right to communicate the film to the public, but has not been given the right to translate the script. The attempt of the respondents to dub the movie in Telugu involves a translation of the applicant's script. The owner of a cinematograph film has the right to communicate the film to the public, but has not been given the right to translate the script. The attempt of the respondents to dub the movie in Telugu involves a translation of the applicant's script. The bound script contains Tamil words. When the respondents dub the film, each word will be translated to Telugu. This is clearly impermissible because the respondents have not acquired the copyright in the script from the applicant. Further, the definition of cinematograph film in section 2(f) makes clear that the script is not covered within the meaning of cinematograph film, but is treated as a literary work under section 2(o). Therefore, a reading of sections 2(f) and 2(o) would show that the contention of the defendants that they are having a right of entire cinematograph film including script is not correct. 7. With regard to the judgment relied upon by the respondents stated supra, the applicant submitted that the principles laid down in the judgment are only in favour of the applicant because in that judgment it has been observed that only the producer has to communicate the film to the public under section 14(d)(iii). That means, the producer does not have any other right, such as the right to translate the script without the permission of the composer, which is what the respondents seek to do in this case. In fact, this has been observed in the said judgment delivered by the Hon'ble Apex Court. Under such circumstances, the order of interim injunction has to be confirmed. 8. The Court paid its anxious consideration on the submissions made by the learned counsel on either side and perused the materials available on record. 9. it is the case of the applicant that he is the author of the script titled "Aaranya Kaandam", which was written in the year 2006. Subsequently, the said script was converted into celluloid by the respondents. Since the applicant's right in the script is a literary work, he has not assigned the right in script to the respondents and he has granted only permissive one time licence to make the film. But, now the respondents are attempting surreptitiously to release the film "Aaranya Kaandam" dubbed into Telugu. Since the applicant's right in the script is a literary work, he has not assigned the right in script to the respondents and he has granted only permissive one time licence to make the film. But, now the respondents are attempting surreptitiously to release the film "Aaranya Kaandam" dubbed into Telugu. Since his right in script is a literary work as per clause 2(d)(i) of the Copyright Act, the applicant is the author of the literary work and as such, the respondents have no right to translate the script in any other language. In this regard, the learned counsel for the applicant has also invited the attention of this Court to section 14(1)(a) of the Copyright Act, which deals about the copyright in literary work. Per contra, it is the submission of the learned counsel for the respondents/defendants that the 1st respondent is the author of the cinematograph film, as defined under section 2(d)(v). As per section 17 of the Copyright Act, since the 1st respondent company is the author of the cinematograph work, they shall be the first owner of copyright. The learned counsel for the respondents has also relied upon section 2(uu), which defines 'producer' relating to a cinematograph film. As per the said definition, 'Producer' means a person, who takes the initiative and responsibility for making the work to produce the cinematograph film. In the instant case, the respondents had spent huge amount and produced the movie and as such, as a producer and author, as defined under section 2(uu) and 2(d) (v), the 1st respondent is the first owner of copyright as per section 17 of the Copyright Act. Section 13(1) says, copyright shall subsist throughout India. Therefore, the 1st respondent, as the first copyright owner, is entitled to dub the movie and release the film throughout India. Section 14(1)(d) also gives a right to the author of the cinematograph film to make a copy of the film and communicate the same to the public. Therefore, the question of infringing the copyright of literary work, as alleged by the applicant, does not arise in this case. But it is the reply of the learned counsel for the applicant that only the author of the literary work has a right to translate the film and not for the author of the cinematograph film. Therefore, the question of infringing the copyright of literary work, as alleged by the applicant, does not arise in this case. But it is the reply of the learned counsel for the applicant that only the author of the literary work has a right to translate the film and not for the author of the cinematograph film. Section 14(1)(d), which deals about the copyright of the cinematograph film, does not speak about the translation of literary work. Therefore, a combined reading of sections 14(1)(a) and 14(1)(d) would show that so far as the script is concerned, the copyright is vested only with the author of the literary work i.e. the applicant herein. Therefore, the respondents, as producers of the cinematograph film, have only the right to communicate the film to the public and they have no right to translate the script, which would amount to infringement of copyright in literary work. 10. From the submissions made by the learned counsel on either side, it could be understood that the learned counsel for the applicant is relying upon the definition of literary work and meaning of the copyright in respect of literary work, whereas the respondents are totally relying upon the definition of cinematograph and producer of the film and the meaning of copyright of cinematograph in support of their case. Therefore, I am of the opinion that it would be appropriate to extract the relevant provisions. Section 2(d): "Author" means (i) in relation to a literary or dramatic work, the author of the work. Therefore, I am of the opinion that it would be appropriate to extract the relevant provisions. Section 2(d): "Author" means (i) in relation to a literary or dramatic work, the author of the work. Section 14;Meaning of copyright: (1) For the purpose of this Act, "copyright" means the exclusive right, subject to the provisions of this Act to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely,- (a) in the case of a literary, dramatic or musical work, not being a compute programme,- (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies for the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to Ivi); 11. Learned counsel for the respondents relied upon section 2(d)(v), which reads as follows: "author" means in relation to a cinematograph film or sound recording, the producer". Section 2(u)(u) reads as follows: ""producer", in relation to a cinematograph film or sound recording, means a person who takes the initiative and responsibility for making the work". Sections 13(1) reads as follows: 13. Works in which copyright subsists:(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording". Section 14(d) reads as follows: "14. Works in which copyright subsists:(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording". Section 14(d) reads as follows: "14. Meaning of copyright (1) For the purposes of this Act, "copyright" means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely,- (d) in the case of a cinematograph film,- (i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public". 12. A reading of the definition for the "producer" defined in section 2(uu) and the definition of the "author" of cinematograph film as defined under section 2(d)(v) would show that the producer of the film is the author of the film. Likewise, the author of the literary work, as defined under section 2(d)(i) is the author of the work. Now, it is the contention of the learned counsel for the applicant that under section 14(1)(a)(v), only the author of the literary work is having the right to translate the work. Section 14(1)(d) which deals about the copyright of the cinematograph does not whisper anything about the translation work. Therefore, a reading of sections 14(1)(a)(v) and 14(1)(d) would show that the respondents, who are the producers of the cinematograph, are having the right only to communicate the film to the public and they have no right to translate the literary work i.e. the script written by the applicant. But in my considered opinion, a reading of the definition of "cinematograph film" would show that the cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording. But in my considered opinion, a reading of the definition of "cinematograph film" would show that the cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording. Therefore, as the producer and author of the cinematograph film, the respondents are having a right in respect of the cinematograph including the dubbing of the script. Only if the producer of the cinematograph film translates the script separately by carving out the same from the cinematograph film, then only the applicant has a right to invoke the provisions of the Copyright Act. As a producer of cinematograph, the 1st respondent is the first owner of the copyright, as defined under section 17. When he dubbed the movie, the entire copyright in respect of cinematograph including the right in translating the script vested only with the producer. Further, I am of the opinion that a reading of section 17(b) says that in the absence of any agreement to the contrary, the author of the cinematograph is the first owner of the copyright in entirety in respect of the cinematograph. Section 17(b) of the Copyright is extracted hereunder: 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-- .....(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; 13. A careful reading of section 17(b) would show that in the absence of any agreement between the parties, the producer of the film is the copyright owner of cinematograph in entirety. Only if there is an agreement between the parties for retaining particular copyright in the cinematograph such as copyright in script as claimed by the applicant in this case, he can claim a protection under the Copyright Act. In the instant case, there is no agreement between the producer i.e. the respondents and the author of the script, the applicant with regard to the script written by the applicant. In the instant case, there is no agreement between the producer i.e. the respondents and the author of the script, the applicant with regard to the script written by the applicant. Under such circumstances, the applicant is not entitled to get an order of injunction restraining the respondents from dubbing the movie into Telugu. 14. In this regard, a reference could be placed in the judgment reported in Indian Performing Right Society Ltd., .vs. Eastern India Motion Picture Association and others ( AIR 1977 SC 1443 ), wherein it has been held as follows: "16. The interpretation cl.(f) of S.2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with S.14(1)(c)(iii) that the term "cinematograph film" includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is associated with the film. S.13 recognises 'cinematograph film' as a distance and separate class of 'work'' and declares that copyright shall subsist therein throughout India. S.14 which enumerates the rights that subsist in various classes of works mentioned in S.15 provides that copyright in case of literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinematograph film means among other rights, the right of exhibiting or causing the exhibition in public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. ..." 15. A reading of the above would show that copyright in case of cinematograph film includes other rights also. Therefore, I am of the opinion that only in case when a person carves out the script separately from the cinematograph and translates the same, then only the applicant has the right to invoke the provisions of the Copyright Act as against the applicant. Therefore, I am of the opinion that only in case when a person carves out the script separately from the cinematograph and translates the same, then only the applicant has the right to invoke the provisions of the Copyright Act as against the applicant. In the absence of any agreement to the contrary, if the entire film is dubbed, no infirmity could be found in the dubbing of the film since the 1st respondent is the author of the cinematograph film and is the first owner of copyright and as such, the respondents are entitled to dub the movie into any other language. Under such circumstances, I do not find any prima face case in favour of the applicant to grant an order of injunction. For the reasons stated above, A.No.1888 of 2012 is allowed. Consequently, the interim injunction granted in O.A.No.96 of 2012 is vacated.