In an order dated 10th October, a Division Bench of the Bombay High Court rejected Shemaroo’s application for an injunction restraining the release of the film ‘Tamanchey’. Shemaroo Entertainment Ltd. had earlier filed an application before a Single Judge Bench of the Bombay HC asking for an injunction to restrain the release of Suryaveer Singh Bhullar’s ‘Tamanchey’ on the ground that the film incorporated a video clipping of the popular song ‘Pyar Mein Dil Pe Maar De Goli’, the copyright over which was claimed by Shemaroo. The Single Judge Bench had rejected Shemaroo’s application for injunction.
According to Shemaroo, the song was from a movie ‘Mahaan’ (1983) starring Amitabh Bachchan and Zeenat Aman; the 1983 film had been produced by M/S Satya Chitra International which had assigned, transferred and sold all the negative rights including copyright in the film to M/S S.S. Communications. By an agreement dated 1st March, 2007, S.S. Communications had assigned the aforementioned rights in favour of Shemaroo. Shemaroo thus claimed to be the absolute owner of copyright in the film ‘Mahaan’.
The appellant contended that the respondents in the given case (the co-producers of Tamanchey) had incorporated the original song in one of the songs in Tamanchey, which Shemaroo claims is an infringement of its copyright.
The producers of Tamanchey did not dispute that they had incorporated the song in their film, but contended that they were within their right to do so, by virtue of an agreement (dated 17th April, 2014) between them and Universal Music India Private Limited (the 4th respondent in this case). Universal in turn claimed that it was authorized to create such a right in favour of the other respondents by virtue of an agreement dated 24th March, 1981, entered into between S.S. Communications and Universal.
The main issue before the Court was the interpretation of the 1981 Agreement. This is because Shemaroo contended that Universal had a right merely to make records from the original recording whereas Universal claimed that the 1981 Agreement had transferred to it the copyright in the film’s songs.
The Single Judge Bench of the Bombay HC held that Universal had been transferred the copyright in the film’s songs and accordingly rejected the plaintiff-appellant’s application. Shemaroo appealed before the Division Bench.
- Interpretation of ‘record’-
A pertinent clause in the impugned agreement was clause 1(b) which dealt with the interpretation of ‘record’:
“record” includes any disc, tape perforated roll and all other devices (now or hereafter known) in which sounds and/ or visual images are embodied for reproduction therefrom by any means whatsoever, including electrical, mechanical or magnetic means, or by devices commonly known as audiovisual devices, with the exception of cinematograph films, of any gauge, as used in movie theatres. This implied that the respondents did not have the right to use the song in any cinematographic film.
The Bombay HC emphasized on the exception given in the clause, pointing out that this was instrumental in deciding the scope of the agreement; cl. (1) (b) assigned to the respondent the ‘right to make records’.
The appellant’s counsel contended that cl. (1) (b) referred only to ‘material upon which sounds can be recorded’ and did not create a right to record visual images. The Court held that even if one were to reject this argument i.e. the respondents were allowed to reproduce even visual images, the exception under cl. (1) (b) excludes the device of cinematographic films used in movie theatres.
- ‘Adequacy of consideration’-
The Court noted that clause 7 of the agreement which dealt with payment of royalties did not mention any royalty for reproduction in cinematographic works. To this, the respondents contended that adequacy of consideration is not relevant and that a contract is not void on the ground that the consideration is inadequate. The Bombay HC observed that although a contract is not void on the ground of inadequate consideration, ‘insufficiency of consideration’ is a relevant factor in all contracts. Accordingly, the Court held that inadequacy of consideration in respect of reproduction of the recordings in cinematographic works was a relevant factor in the instant case.
The Bombay HC also referred to a case which had been relied on by the Single Judge. One such case was Rupali P. Shah v. Adani Wilmer Ltd. [2012 52 PTC 305]. The Division Bench held that this case could be distinguished from the instant case on the ground that in the former case, the ownership of the cinematographic plate (i.e. the physical property of the original recording) had been expressly transferred by the producer, and that the mere control of the physical property does not necessarily imply transfer of proprietary rights in respect of the original recordings.
On the basis of the above reasoning, the Court was of the opinion that Universal did not have the right to permit performances of the recording (as it had purportedly claimed in the present case), however, the Court denied ad-interim injunction to Shemaroo on the ground that this was an attempt to stall the release of the movie at the last minute and would cause irreparable harm and injury to the respondents, if allowed.
The Court was of the opinion that the appellant, in all likelihood, would have known of the respondent’s film and its incorporation of the song as early as April; therefore, the suit for injunction should have been brought much earlier. Accordingly, the Court rejected the appeal.
[Universal Music India Pvt. Ltd. was represented by Krishnamurthy & Co.]