Updates : Lawaaris-Housefull Controversy- Cal HC says Saregama has the right to grant license!

Earlier this year, I had covered the interim Order passed by the Cal HC in the Lawaaris-Housefull controversy. Readers may remember that CJ Mohit Shah had opined that since the ramification of interpreting complex questions of law will be on the entire film industry, a detailed hearing can take place only after the vacations and had listed the matter on June 21, 2010. As per the information received from the insiders, the CJ had later released the matter from his list.

Turns out that on October 1, 2010 a Division Bench consisting of Justices Kalyan Jyoti Sengupta and Kanchan Chakraborty passed a Judgment in this matter holding that there is no prima facie infringment of the moral rights of the music directors Kalyanji-Anandji and that all the rights  in the literary, dramatic and musical and artistic work and the soundtrack and recording of the songs vest with Saregama and thus they had the authority to license the same to Nadiadwala Grandsons.A quick search on the Cal HC website reveals that the matter had come up on 28 June (after the CJ had released it from his list) and an adjournment was granted since Mr. Gautam Chakraborty appearing on behalf of Saregama was unable to bring his books due to unavoidable circumstances! Hearings were finally concluded on 22 July. This post will highlight the significant contentions and the observations rendered pertaining to the same. We will be shortly uploading the Judgment on the website but interested readers can go the Cal HC website and punch in APO 253/2010  to retrieve the same.

Before the present Division Bench, the following were the contentions raised by the parties:

Saregama :

1. The deed of assignment between film production house Prakash Mehra Productions and Saregama relating to the right of the soundtrack in the film Laawaris  was not being challenged either by Mehras or by Kalyanji-Anandji and others. The right given to Saregama was in the literary, dramatic and musical works embodied in the producer’s film and all Contract works but no right was given to exploit such literary, dramatic and musical work as embodied in the producer’s film in another film. If the deed was assignment was read carefully, it would reveal that the copyright in respect of literary, dramatic and musical works in respect of the song of Lawaaris was assigned to Saregama absolutely,entitling them to synchronize the song in any manner whatsoever without any restrictions.

 2. There was no question of infringement at all. Copyright is a bundle of rights and therefore the assignment deed gave Saregama the copyright, performance rights, all other rights,titles and interest embodied in the film.

3. Kalyanji-Anandji had absolutely no say in this matter under the law as they were engaged in a contract of service and had composed the songs in the course of their employment for which consideration was paid. There is nothing on record to show that Kalyanji-Anandji received any royalty in respect of the music composed for Lawaaris which establishes that they did not retain any right over the music composed.

1. The 1981 assignment deed transferred all rights to Saregama and the same was done without any limitation and included the right to adaptation as under the Copyright Act. Saregama has the right to exploit the songs in all possible manners including licensing the same for other films. Mehras had not right vested in them after the execution of the 1981 agreement as the agreement clearly stipulated that Mehras had to take the consent of Saregama to exploit the copyright.

2. Mehras were in law, the owner of both literary and musical works as per Section 2(d)(i) and (ii) of the Act and therefore, Kalyanji and Anandji can claim no right.

1. The 1981 assignment does not give Saregama the right to recreate, rerecord or synchronize the musical work, literary work (lyrics) and dramatic works embodied in the film Lawaaris. The words “re-record” or “recreate” or “synchronization” are not even mentioned in agreement dated 18th July 1981. Saregama not having derived any right to recreate or rerecord or synchronize could not have granted any licence in respect

2. The author of lyrics of the song ‘Apni To Jese Tese’ is Prakash Mehra, and director and composer of musical works is Kalyanji and Anandji. The Music Director of the song in the film Housefull  named‘Aap ka Kya Hoga (Dhanno)’ is Shankar Mahadevan, Ehsaan, and Loy Mendonsa. Author of the song is Sameer  and not Prakash Mehra, Kalyanji Anandji  This is therefore a  clear case of infringement of the copyright of the author and producer of the cinematographic film, Prakash Mehra.

3. Non-submission of royalty by Saregama is in the nature of continuing breach and therefore Saregama cannot claim or enforce any right under the 1981 agreement nor can it license or assign. Purusant to the judgment delivered in Gramophone Co. of India Limited v. Shanti Films Corporation (AIR 1997 Cal 63) , Saregama only had the copyright of the soundtrack and could assign only that and nothing else.

Kalyanji-Anandji:

1. Kalyanji-Anandji are the first owners of the copyright in the music as under section 17 of the Copyright Act and they would remain so unless they have assigned it in writing under section 19 of the Act. Mehras have not claimed anywhere that the music was composed under a contract of employment between Kalyanji-Anandji and Mehras. Saregama claiming the copyright over the music is totally absurd as the statements in the plaint have been verified by a person who was not even born at the time when the music was composed.

2. As per the decision in IPRS v. Eastern Indian Motion Pictures Association (1977) 2 SCC 820,  the producer is the owner of copyright in a cinematographic film and the composer remains the owner of the music. The producer cannot encroach upon the composer’s copyright. The alleged assignment of copyrights of music of Kalyanji-Anandji under the 1981 agreement is invalid, void and not binding on Kalyanji-Anandji. In any event, the right conferred on Saregama is only the right on the sound recording and does not include the right to re-record, synchronize or exploit the song recording or the musical works.

3. Kalyanji-Anandji have special rights under section 57 of the Act which have been violated and thus this makes the ground for an order of injunction.

Judgment:

The questions before this Division Bench were therefore to ascertain the status of the 1981 agreement vis-a-vis Saregama and to determine if Kalyanji-Anandji retained the first ownership of copyright in respect of the song ‘Apni toh jese tese’.

The Court noted that as per the agreement executed in 1981, it is clear that Mr.Prakash Mehra had transferred to Saregama, absolutely and beneficially, copyright for making records of all contract works, performing  right and all other rights, title and interest in and to the literary,dramatic and musical works embodied in the producer’s film including all rights of publication, sound and television broadcasting of the said works. Therefore, the rights assigned was not merely confined to sound recording.Copyright of music is a bundle of several rights which includes a copyright of lyrics, music and sound-track.Once the music is impregnanted in the film,the copyright would subsist not only in the music but also the cinematograph film so far the portion of the song and sound recording are concerned.

The Court also noted that the assignment of the rights to Saregama was with respect to all things in future years to come and even to include modern technological medium or method of recreating the sounds either in its original form or by synchronization

The Court further noted that the Mehras were in receipt of royalty pursuant to the royalty agreement for synchronization of songs as recent as February 2010. Mehras were also cognizant of the fact that the song ‘Apni toh jaise tese’  has been allowed to be used by synchronization in Houseful. Mehras never really disputed the 1981 agreement although there was a complete denial of the factum of the existence of such an agreement in an earlier suit filed in Bombay. Accordingly, it is very clear that  Saregama is entitled to grant license to any person and as such no prima facie case of  infringement of copyright can be made.

As far as the status of Kalyanji-Anandji is concerned, the Court held that it is not in dispute that they are indeed the composers of the music of the film Lawaaris as well as the song ‘Apni toh jese tese’ However in the light of the 1981 agreement, it is clear that Mehras lawfully assigned the copyright in the music as well. It is also to be noted that no document was produced either by the heirs of Kalyanji or Anandji or the heirs of Mehra regarding the nature of engagement between Mehras and the music composer. Mehras nowhere stated that the duo retained the right of first ownership and hence prima facie, the conclusion is that the engagement was in the nature of contract of service.

The Court thus set aside the injunction passed by the Trial Judge with the stipulations as given by CJ Shah in the earlier Order. As of now, none of the parties have appealed against this Judgment.