Copyright

Saregama alleges Copyright Infringement by Dirty Picture Song prior to Satellite Release of Movie



(Image taken from here)
Many readers would undoubtedly already be familiar with the recent histrionic abilities of the Bollywood actress Vidya Balan in the widely-acclaimed movie ‘Dirty Picture’. On April 22, 2012, the movie is due to have its satellite launch, following which it will be aired in television channels across the country. It is at this stage that a recent petition has been filed seeking an injunction from broadcasting the film itself or at any rate the song therein titled “Ooh La La Ooh La La”. The matter, titled Saregama India Ltd vs Balaji Telefilms Ltd. & Ors was heard before Justice I.P. Mukerji at the Calcutta High Court on 18 April, 2012.

The petitioner alleged that the said song, which has attained considerable popularity till date since the music of the film had been released on television on 21st October, 2011 (and the film itself was released in theatres on 2nd December, 2011), contains the lyric and tune “Ooh La La Ooh La La”, which stands in violation of the petitioner’s copyright in the song “Ui Amma Ui Amma”, from an old hindi film ‘Mawali’, having Mr. Bappi Lahiri as its music composer.

During the hearing of this matter, both the songs were played on a laptop for the judge’s benefit and he found quite a strong similarity between the tunes. However, the defendant argued that such a small part of the old song spanning a few seconds has virtually no content in lyric or music and hence there is no copyright of any person in it. Therefore, the allegedly offending part of the song “Ooh La La Ooh La La” cannot be deemed to be a copy of that part of the old song.

The petitioner relied on a deed of assignment of copyright to strengthen his case. However, the defendant contested the validity of the said deed, arguing that there was no specific duration of the assignment mentioned in the deed [As per Section 19(5) of the Copyright Act, 1957, if the period of assignment is not stated it shall be deemed to be five years from the Deed of Assignment]. The petitioner countered the argument by saying that S. 19(5) was introduced in the 1957 Act at a much later point of time after the assignment. The Court found that the deed appeared prima facie to be an unconditional and absolute assignment and before the amendment and hence rejected the defendant’s challenge regarding the deed’s validity.

An important issue was why the petitioner delayed so long before bringing this infringement suit, which, according to the defendant, resulted in loss of plaintiff’s right to get an ad interim order of injunction. To support this claim, the petitioner relied on the twin cases of Mr. Ajay Monga vs. Red Chillies Entertainment Pvt. Ltd. [Bombay High Court, 6th August, 2008] and Nariman Pictures and Ors. Vs. Baba Arts Ltd. And Ors. [Bombay High Court, 22nd December, 2011]. The Court in the present matter held that there existed substantial similarity between the two tunes and their overall impact, despite the difference in words. It was also held that the petitioner, in the light of Ram Sampath vs. Rajesh Roshan & Ors [2009(40) PTC 78(Bom.)] made a prima facie case of infringement, by arguing that even a small part of the song is capable of copyright protection. However, the Court made two important observations regarding this.

Regarding the question of inordinate delay by the plaintiff, the Court considered the case of Medas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors. [(2004) 3 SCC 90], which stated that if infringement is established then injunction must follow as a matter of course. However, the two aforementioned Bombay High Court judgments went on to posit that when the balance of convenience is altered by reason of delay, then the above principle of automatic grant of injunction may not be applicable. Given that considerable money has already been spent in buying the broadcasting rights and that the film is scheduled to be telecast on 22nd April, 2012, grant of an injunction at this stage, according to the defendant, would cause irreparable damage to be suffered. Considering such a situation, the Court refrained from issuing such injunction, in the light of the balance of convenience argument.

The Court also considered petitioner’s letter dated 7th February, 2012, wherein it had informed the defendant of such infringement, but expressed willingness to grant license for consideration. It was the Court’s opinion that the petitioner had not lost the right of exploitation of the copyright by sale of the license to the defendant and given that it had been deprived of such right by the defendant’s subsequent actions, it is entitled to compensation from the defendant. The defendant was thus permitted to carry on the telecast of the movie as scheduled, but was also directed to deposit a sum of Rs. 2 Crores (the estimated amount for which the petitioner might have issued license to the defendant) with the Registrar, Original Side within 25th April, 2012, to the credit of the suit.

It thus seems good news for the public who will still be able to enjoy the movie from April 22 onwards without any cuts/deletion, although perhaps the time has come to question the tactics employed by certain people to file infringement suits just prior to a movie’s release/satellite launch, knowing well that the producers/distributors will be hamstrung by the fear of suffering ruinous financial losses in case an interim injunction is awarded.

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Shouvik Kumar Guha

Shouvik Kumar Guha

Shouvik is at present employed as a Research Associate and a Teaching Assistant at The W.B. National University of Juridical Sciences, Kolkata. He has obtained his B.A. LL.B. (Hons.) degree from NUJS itself and is also currently pursuing his LL.M. degree from the same university. From his very year at law school, he had been attracted towards the discipline of Intellectual Property and that interest has been kindled further in course of time. The interface between IP and other disciplines such as Economics, Anti-trust Law, Human Rights, World Trade Law and the technological developments relating thereto, has especially caught his attention since then. He’s authored several papers on issues relating to IP and other legal disciplines for journals, books, magazines and conferences in national as well as international levels. He is also currently co-heading an organization called Lexbiosis, which is an endeavor meant to facilitate the collaboration between the legal industry and academia.

2 comments.

  1. AvatarDeepaloke

    Appeal was heard today by a bench comprising Justice(s) Kalyan J. Sengupta and Ashim Kr. Mondol. No copyright infringement seems to be their conclusion! Great argument by Kapur, will send order across as soon as I get it.

    Reply
  2. AvatarAnonymous

    You have rightly raised the question when you say “perhaps the time has come to question the tactics employed by certain people to file infringement suits just prior to a movie’s release/satellite launch, knowing well that the producers/distributors will be hamstrung by the fear of suffering ruinous financial losses in case an interim injunction is awarded”.
    In fact the courts should also look into this aspect of the matter which is very serious. I am reminded of a judgment of the Hon’ble Delhi High Court in the case of B.L.& Co versus Pfizer wherein the ex parte ad interim injunction order granted by single judge was challenged in DB without even fling the written statement or reply to the interim injunction application to make out the case that this was not the case of an ex parte interim injunction particularly on account of delay.
    I am putting up the situation where the court grants the ex parte interim injunction order, appoints a Local Commissioner for raiding the premises of the defendant(s) who are from out side Delhi and permitting the plaintiff to comply with the provisions of Order 39 Rule 3 within a week or 10 days (as per the provisions of Order 39 Rule 3 the complete set of papers as filed in the court are to be served to the defendant within one working day and to file an affidavit that the same has been done with the proof to be file din court), the commission is execute by the Local Commissioner after the period of two weeks of the grant of the ex parte injunction and thereafter the provisions of order 39 rule 3 are complied with. The plaintiff seeks and gets the extension of complying with the provisions of Order 39 Rule 3. The question arises, was it at all a case of ex parte interim injunction? This is not the isolated case. The same judge and the same counsel do it again and again in Patiala House Court. The court even issues the order of appointment of Local Commissioner without even filing a formal application there for.

    Reply

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