Guest post: Multiple litigations regarding ‘Thank you’ movie

Suchita Saigal has sent us this very interesting post on the various disputes surrounding the recent Bollywood movie ‘Thank You’.

Is movie mein action hain, drama hain, suspense hain aur emotion hain … Maybe not! The Thank You movie reviews won’t inspire me to make a weekend plan to watch it and I don’t think I will be missing much since all the drama seems to be taking place outside the cinema halls.

In this post, I will examine various controversies surrounding the movie. The first set of controversies relates to the use of the 80s number Pyar Do Pyar Lo in the movie and the second set of controversies relate to the title of the movie. The last section of this post will briefly consider at the novel way (?) adopted by UTV to fight piracy.

The producers of Thank You are facing copyright infringement suits in the Delhi and Bombay High Courts for the use of the song Pyar Do Pyar Lo in the movie. The case in the Bombay High Court has been filed by Feroze Khan Films (FKF), the producers of the original movie Jaanbaaz which featured this song. FKF had sought an interim injunction from the High Court to restrain UTV from using the song in the film on the basis that UTV has not sought license. In order dated 7 April 2011, the Bombay High Court refused to grant relief on the basis that FKF was too late to raise copyright infringement claims over the song. Justice DY Chandrachud observed that, “there has been a gross and unexplained delay by Feroze Khan Films in filing the suit. Interim injunction cannot be given at this stage…. and the producers have already spent Rs 60 crore on the making of the film.”

As for the arguments in the case, it is reported that UTV is arguing that it purchased the rights of the song from Music India (one of the defendants in the case), the company to which FKF had assigned music rights of the movie Jaanbaaz. FKF disagrees and is contending that the assigned music rights of Jaanbaaz to Music India Limited only for a period of two years and after two years, title reverted to FKF. While declining the interim injunction Justice DY Chandrachud noted that, the agreement between FKF and Music India dated 11 December 1984 and supporting documentation produced before the court did not, in any manner, restrict the assignment granted to Music India. More specifically, there was no evidence to support FKF’s two year claim. The High Court has asked UTV Productions to file a reply to FKF’s allegations by April 28. For our readers interested in following this case, please note that the suit number for the case is SL 946 of 2011 and details of the parties involved are:

(i) FK Films Ltd. – Plainitff

(ii) Polydor of India Ltd. – Defendant No.1

(iii) Music India Ltd. – Defendant No. 2

(iv) Universal Music India Ltd. – Defendant No. 3

(v) UTV Motion Pictures – Defendant No. 4

The case in the Delhi High Court (Suit No. 850/2011) has been filed by Bollywood music composer Anandji Virji Shah. On 6 April 2011, Justice Sunil Gaur declined to grant an interim injunction in favour of Anandji Virji Shah to restrain the producers of Thank You from releasing the movie. Anandji’s claims copyright infringement. It isn’t clear how his claim ties in with the claim made by FKF as owners of copyright in the song before the Bombay High Court. Note that, the defendants, contesting Anandji’s locus to file the case, produced a License Agreement dated 13 August 2010 pursuant to which defendant no. 7 is the sole and exclusive owner of the copyright in the song (including the underlying musical work). In light of these circumstances and the lack of clarity surrounding the ownership of the song, the High Court cited the decision of the Apex Court in Indian Performing Rights Society Limited v. Eastern India Motion Pictures Association and Ors. (AIR 1977 SC 1443) to state the proposition that, “…since, the plaintiffs had composed the music for the song for valuable consideration at the instance of the producer of the film, so the film producer became the first owner of the copy right therein and no copyright subsisted in the plaintiffs.” The Court concluded that since the issue of title to the song and the rights vested therein could only be settled after the defendants were heard, a prima facie case had not been made out and hence an injunction could not be granted.

This isn’t the only controversy surrounding the movie. It is reported that Pooja Bhatt’s Fisheye Network had also filed a suit in the Bombay High Court seeking a stay on the release of the movie. Her case being that Fisheye had registered the title Thank You with the Association of Motion Picture and TV Programming Producers (AMPTPP) in 2005 and when an attempt was made by UTV, (producers of Thank You) to register the same title, Fisheye had complained to AMPTPP.

UTV contended that it registered the title with Indian Motion Picture Producers Association (IMPPA) in 2008, and when the dispute arose, it was settled by both the associations agreeing that the title is with UTV.

Hearing the dispute, Justice DY Chandrachud refused to grant an interim injunction on the basis that, “Fisheye was aware since May 2005 that UTV was using the title Thank You. Prima facie there is no copyright as such in a title, hence the court would not be inclined to give interim injunction at this stage. The movie is slated for release this weekend and the producers have already spent Rs 60 crore on the making of the film.”

The court however kept the suit pending and has directed UTV to file reply by June 7.

The interesting bit is the treatment of the trade practice of registering movie titles with various associations. In case of Thank You Justice DY Chandrachud held that, “there wasn’t any statutory basis for the trade practice which forms a foundation for this suit.” In another case, High Definition Television (P) Ltd. v. Association of Motion Pictures and T.V. Programme Producers and Others (Suit No 668 of 2011), involving an application for interim injunction on similar lines, Justice DY Chandrachud does account for the rules of the Association of Motion Pictures and the process of registration of movie titles. He recognizes that the rules allow the association to allot a registered title to new third party in the event that the original applicant has failed to use the title for a period of three years post registration and does not have a satisfactory explanation for his failure. The contested title in this case was Mausam.

Hence, given that there is no copyright in movie titles and trademarks can subsist in limited circumstances, would registration of movie titles with various associations establish property rights in the same?

Kanungo Media (P) Ltd. v. RGV Film Factory, 2007 (34) PTC 591 (Del)) and Sholay Media & Entertainment v. Parag M Sanghavi & Ors., CS (OS) No. 1892 of 2006 are the 2 cases which explain Indian law on property rights in film titles. As our readers would be aware, Shwetasree Majumder had written a very interesting post on the Sholay saga and trademark rights in film titles and Shamnad has written a very detailed post on the Kanungo case. To quote from Shamnad’s post, in Kanungo, the Delhi High Court observed that, “film titles fall into two categories: titles of series of film and titles of single copyrighted works. Protection is certain as regards titles of series of film, and such titles enjoy standard trademark protection. However, the court found that in order to extend this protection to the title of a single copyrighted work, it must be proven that such title has acquired a wide reputation among the public and the industry – that is, has acquired secondary meaning. Therefore, in order to obtain an injunction the onus is on the plaintiff to establish that its film title has acquired secondary meaning.”

Novel way to fight piracy This post seems to be unending. However, I promise this is the last section!

The Delhi High Court granted an order in favour of UTV Software Communications Limited wherein it restrained cable operators nationwide from distributing, telecasting and broadcasting the movie Thank You and/or otherwise infringing the copyright. Further, the SHO/superintendent of concerned police stations have also been directed to render assistance to UTV for the purpose of enforcement of the order. It is reported that the order restricts 1,600 known cable operators and unknown persons also from telecasting the film. This exercise seems pretty pointless. Copyright infringement is illegal and I fail to understand an order which tells individuals not to commit illegal acts.. really? I must be missing something..