Copyright

The Sholay saga continues- this time on 3D production


imagesThe Bombay High Court on the 1st of April, 2013 refused to grant a stay on the 3-D production of Sholay. (Shouvik’s post on this can be found here.) An appeal to this order was filed by Ramesh Sippy and the appeal was dismissed by the two judge bench of the Bombay High Court. Ramesh Sippy’s claim was that he was owner of the rights in Sholay and therefore, SMEPL’s (Sholay Media and Entertainment Private Limited) license to PIPL and Gada of certain rights in Sholay for a 3D production was an infringement of his copyright. It is importance at this stage to contextualise the creation of SMEPL for better clarity.

The film Sholay was financed by a partnership firm known as M/s Sippy Films constituted in 1965. Ramesh Sippy was a partner in this firm. A few months before Sholay’s release, he retired from this partnership firm. The firm was reconstituted several times between 1976 and 1997. In 1997, the company Sippy Films Pvt Ltd. (SFPL) became a partner of the firm. At that point in time, the other partners were Vijay Sippy and Mohini Sippy, the appellant’s (Ramesh Sippy) brother and mother respectively. The very next day, Mohini Sippy retired from the firm. Within a year,  Vijay Sippy passed away and the partnership firm stood dissolved. SMEPL was incorporated two years later in 2000. Within days of its incorporation, a gift deed was executed on behalf of SFPL gifting the copyright and all other rights in Sholay to SMEPL.  Ramesh Sippy has challenged this Deed of Gift as well in this appeal.

The appellant’s claim is on the ground that while the partnership firm provided the finance for it, it was not the author of the same. He stated that the authorship vests in him alone as he had taken the responsibility and initiative for making the film. He states as irrelevant the fact that he is not credited as producer anywhere. He also marks as irrelevant the fact that he retired from the partnership firm pre-release as by the time of his retirement, the film was complete and he had copyrights in the film as an unpublished work under S. 13(2) (ii), Copyright Act, as a published work after the release of the film under S. 13(2)(i), Copyright Act and an Author’s Special Right under S.57. The appellant also claimed innocence of the Gift Deed by which all rights in Sholay were granted to SMEPL or of any assertion that the copyrights of Sholay vested in anyone but him prior to November, 2012. According to the appellant, only the distribution rights of the film was vested in the Respondents.

The respondents urged that there was no factual basis for the appellant’s claims of authorship and ownership of copyright. They state that on facts, the work and the creative genius of Sholay was a result of G.P. Sippy, the appellant’s father and not the appellant. The appellant was hired as the director of the film and paid remuneration for the same as with all the other films he directed. Therefore, the ownership of copyright and the authorship of Sholay did not belong to the appellant as per the respondents. Moreover, G.P. Sippy had transferred his rights to the partnership firm which in turn had gifted it to SMEPL. Therefore, the respondents claimed that the rights in Sholay were vested in SMEPL and not the appellant.

The Court first analysed the factual matrix surrounding this issue to determine in whom the authorship and ownership of copyright was vested in.  The Court noted that over the years, the appellant had never asserted any rights in Sholay. He had never objected to SMEPL’s assertions in as many as six separate legal proceedings that it was the owner of the copyrights of Sholay. On the contrary, in the dispute against Ram Gopal Verma in 2006, the appellant had supported SMEPL’s claims in the media. Moreover, SMEPL had issued two public notices asserting exclusive ownership of copyrights and all other rights in films including Sholay. It had entered into assignment and licensing agreements with respect to the TV broadcasting and other rights of Sholay. The Court noted that the appellant could not have been unaware of Sholay’s continuous viewing availability on different media, especially as Sholay hass been broadcast over 50 times on television.The appellant had not raised objections in the last forty years to any of these. In this factual context, the Court held that it was difficult to accept the appellant’s contention that he was unaware of SMEPL’s assertions of copyright ownership till he filed the suit to stay the production of the 3-D version of Sholay in the Delhi High Court.

In fact, when the appellant was interview regarding this 3-D production by a National News Daily, he responded that while he was unaware of any efforts to do so, he would convey his best wishes to whoever was on this endeavour. This the Court noted as evidence of two things, first, the appellant was aware of a 3-D production of Sholay before the said suit was filed in the Delhi High Court and secondly, at that point in time, the appellant neither had an objection to the 3-D version nor did he claim that such a move would violate “his copyright or any other right in the film.”  Moreover, the Court agreed with the decision of the Single Judge that the authorship of a work comes into existence only when the work is complete. The film Sholay was completed only post the retirement of the appellant from the partnership firm. Therefore, the Court held that the appellant could not make out a prima facie case of copyright infringement in the instant case. The appellant was also unable to show that he would suffer irretrievable harm or injury if the relief of stay was not granted. Moreover, the balance of convenience was also in the favour of the respondent as the relief if granted would cause substantial detriment to SMEPL and the other respondents and not to the appellant. Thus, the Court upheld the Single Judge’s order and ruled in favour of the respondents.

For our posts on the various Sholay litigation over the years, see my post, on the recent controversy regarding Ajit Sippy’s assignment of rights in Sholay , the suit against Greenpeace, the dispute with Universal, the controversy surrounding the Ram Gopal Verma sequel, and our take on the Vodafone dispute can be found here and here.

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L. Gopika Murthy

Gopika is a fourth year student at National Law School of India University, Bangalore. She was formerly the Chief Editor of the Indian Journal of Law and Technology. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

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