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Infringement Dispute: Shemaroo v/s Super Cassettes Industries

Shemaroo Entertainment Ltd. v/s Super Cassettes Industries Pvt.Ltd.
2023 SCC Bom1148, Order dated 5-6-2023.
Order by: Justice Manish Pitale
Order dated :5-6-2023

The case is related in a copyright dispute involving two media industry, shemaroo and super cassettes.In the present case shemaroo entertainment sued super cassettes industries pvt ltd for allegedly publishing audio visuals of songs from 24 films without seeking permission from shemaroo.single judge bench of the Bombay high court refused to grant a temprorary injunction to shemaroo on the basis of title of the assignment deed and failure in making out of a prima facie case in favour of shemaroo. here i am going to discuss the case and reasons of the judgement, my analysis regarding upon this case, here I am also going to discuss the submissions which are done by both parties and critics that I found from this case.

Fact Of The Case
In this case, Shemaroo Entertainment Company is the plaintiff, while SCIPL( super cassettes industries ), B4U Broadband (India) Pvt. Ltd., and Google are the defendants numbered 1, 2, and 3, respectively. The suit is filed by the plaintiff claiming copyright in 24 cinematographic films( suit films) In this case The plaintiff claims to be the absolute owner of the copyright and also claiming that they have acquiring sole, exclusive and absolute ownership of all the vested copyrights and negative rights in the said films, particularly the audio-visual songs.

The plaintiff has claimed such absolute copyright on the basis of agreements executed in its favour by various entities. Plaintiff entered into this assignment deeds with the producers and owners of the suit films between 2004-2016.

Plaintiff granted a temporary and non-exclusive licence to Defendant No 2 for one year during 2014-15 for use of some of the content of the suit films. the defendant No.2 illegally exploited the works of the plaintiff even after expiry of the said license period then the plaintiff send cease and desist notice to defendant 2 and they send reply to plaintiff that that under a licence agreement by a third party, the said defendant had acquired satellite broadcasting rights in the songs in one of the suit films.

The Defendant No 2 came up with claims of having entered into licence and assignment agreement with third parties. Amongst the third parties, one was Defendant No 1, who communicated to the Plaintiff that it has acquired exclusive copyrights in audio-visuals of the songs of the suit films from the respective producers.

Plaintiff filed this suit for Plaintiff concerns the alleged unauthorised publication of audio-visuals from twenty-four films (referred to as suit films) by SCIPL. Shemaroo asserts that SCIPL did not acquire the necessary authorization before making these songs available to the public. The Plaintiff filed this complaint as a result of the Defendant's inability to reach an amicable resolution and their failure to respond to the Plaintiff's cease and desist letter.

Issues of the case:
  • Whether temporary injunction can be granted to the plaintiff against defendant no. 1 based on the plaintiff's submissions and averments?
  • Whether the defendant has substantiated its claims of owning the copyright of audio-visuals of the songs and whether such action of the defendant amounts to infringement of copyright or not?
Judgement Of The Case
Coram : Manish Pitale, J
Reserved On : 1 St March, 2023
Pronounced On : 5 Th June, 2023

The Bombay high court presided over by single judge Court, finds that the plaintiff has not been able to make out a case for grant of temporary injunction as prayed. Accordingly, the application is dismissed.

Ratio Decidendi
The Bombay high couirt presided over by single judge court, refused to grant a temprory injunction to plaintiff and supported defendant no 1 contention. the reasons which was stated by court was it is necessary to make out a strong prima facie case as regards to copyright in respect of the suit films. In order to make out a strong prima facie case, the plaintiff is expected to file all relevant documents with the plaint,which indicates the source of assertion of such rights on the part of plaintiff. the plaintiff has not filed link documents along with the plaint. The plaintiff has simply filed copies of documents that were executed in its favour by the alleged last assignee of the copyrights in the said 9 suit films.

So it was not accepted by court by the time defendant no 1 produced the documents of rest of the 15 films. The court also emphasized the delay by plaintiff an action against the defendant,as the notice was issued to defendant in 2019 and present suit was filed in 2022, defendant was using the audio visuals of songs of suit films since 2012.

The court observed that defendant no 1 had provided evidence of long term exploitation of the audio visuals of the songs in the film.None of the owners or producers had raised any objection against defendant Bombay high court came to this judgement by referring various precedent cases so the court supported defendant no 1 reliance on K. Bose Babu v.Gowri Production 1 and held that a strong prima facie case needs to be put up by the Plaintiff in order to obtain a temporary injunction. Plaintiff didn't produce the link documents on the excuse that the documents were voluminous and could be produced at the request of the court subsequent to filing of the plaint, relying on Order XI of CPC.

Legal Reasoning
Section 51 in the copyright act,1957: Infringement of copyright.
When copyright infringed - copyright in a work shall be deemed to be infringed.
  1. When any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act´┐Ż(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.
Chapter 1,section 2 (m) in the copyright act 1957:
Infringing copy means:
  1. in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;
  2. in relation to a cinematographic film, copy of the film made on any medium by any means;
  3. in relation to sound recording, any other recording embodying the same sound recording, made by any means;
  4. in relation to a programme or performance in which such a broadcast reproduction right or a performers right subsists under the provisions of this act, the sound recording or a cinematographic film of such programme or performance;
  5. if such reproduction, copy or sound recording is made or imported in a contravention of the provisions of this act.

Section 3 of the Copyright Act 1957:
The expression "publication" contained in publication means making a work available to the public by issue of copies or by communicating the work to the public.

Section 2(q) in the Copyright Act 1957:
The expression "performance" under Section 2(q) in relation to performers right means any visual or acoustic presentation made live by one or more

Section 18 of Copyright Act:
  1. Assignment of copyright:
    • The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and their generally or subject to limitations and either the whole term of the copyright or any part thereof.
    • Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.
  2. Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.
  3. In this section, the expression "assignee" as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.
Section 55 in the Copyright Act 1957;
Civil remedies for infringement of copyright:
  1. Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right: Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable.
  2. Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that to the author or the publisher, as the case may be, appears on copies of the work published, or, in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be.
  3. The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the discretion of the court.
Section 13 in the Copyright Act 1957;
Works in which copyright subsists:
  1. Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say:
    1. original literary, dramatic, musical and artistic works;
    2. cinematograph films; and
    3. sound recording.
  2. Copyright shall not subsist
    1. in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
    2. in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
  3. The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the sound recording is made.
  4. In the case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
Related Case Laws
Midas Hygiene Industries P. Ltd.... vs Sudhir Bhatia And Ors.
In the context of delay in approaching the Court, the only contention raised on behalf of the plaintiff was based on the judgment of the Supreme Court in the case of Midas Hygiene Vs. Sudhir Bhatia and Others (supra), wherein it was held that when an infringement of a copyright is made out, normally injunction must follow:
  • But in the above case it given that in cases of infringement either of Trade Mark or of Copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases.
  • The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest.
  • But in our case the plaintiff has failed to make out a prima facie case of infringement, based on interpretation of the assignment deeds executed in favour of defendant No.1.
Zee Entertainment Enterprises... vs Ameya Vinod Khopkar 11
In this case talk about the plaintiff (De Dhakka" )and defendant ( De Dhakka-2) interpretation on the assignment that defendant argue that plaintiff was presuming that copyright in respect of title of the original movie created rights in respect of a sequel. The defendants argued tat no right had been created in favour of the plaintiff in the assignment or by presumption either in respect of title or in respect of production of a sequel. plaintiff arguing they had absolute right, sole and exclusive right but it was said that de dhakka 2 was entirely based on different story line and different concept.In our case also plaintiff arguing that defendant had only audio rights but defendant arguing they had audio visual rights.

Critical Analysis
My analysis on the present case is defendant submitted that Order XI of the Code of Civil Procedure, 1908 (CPC) applicable to the Commercial Courts, was misplaced in the present case. But Order XI of CPC, as applicable to Commercial Courts, would also show that this Court was not completely denuded of its power to permit production of such link documents, if necessary, at the relevant stage. In any case, it was submitted that Charter High Courts, like this Court, had power in equity while considering the question of grant of interim injunction and that the statutory provision of Order XI of the CPC, as applicable to Commercial Courts, could not, in any manner, limit such power of this Court.

But as per this plaintiff have to produce documents before the court but plaintiff not produced such documents of 9 suit films for the reason that documents are voluminous and Insofar as the remaining 15 suit films are concerned, much has been argued on the interpretation of the assignment deeds executed in favour of defendant No.1 by the original producers/owners of the films. So here plaintiff is not substantiated.

According to my analysis, actually this case is so much related to contract, cpc. Ipr related laws are not much included in the present case. And here what I found that in copyright act there is no nothing says about any audio rights coming under copyright act. but here the case is related to audio rights. under section 13 of copyright act it subsist work under the act it contains original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. Here nothing says about audio rights or audio visual of songs. and under the section, Copyright shall not subsist:
  1. in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
  2. in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
  3. The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the sound recording is made.
Here in the present case plaintiff is shemaroo entertainment as per there contention plaintiff got exclusive ownership from producers and owners of suit films. But actually in the case plaintiff is claiming there rights were infringed by defendant through exploiting audio visual rights but this audio visual rights or audio rights are not specified in copyright act.In the copyright act,perfomer has the right to make sound or visual recording,or perfomer also has the right to produce the sound or visual recording.

The copyright owner of a film will only own copyright in the moving images and sounds of the film. They will not necessarily own copyright in the underlying works included in the film such as the musical soundtrack or score or the screenplay. Copyright in the underlying works will generally be owned by their creators unless there is an agreement assigning or transferring copyright. But here actually plaintiff claiming on the audio visuals of songs.

In my view, audio visual of songs rights is specifically mention in the act. if it was related to sound recording then it may come under this act. based on the audio rights in a particular song music and the lyricist are two distinct intellectual works. the music composer cannot have any right over the lyrics and vice versa. Hence it is the producer who has the rights over the song used in the cinematographic film.

And composer has the right to claim copyright over the music of the song by this, the present case is not have a valid issue because plaintiff is an shemaroo entertainment have an right over the entire film bu not have any special right on song or audio rights so this case or fact or judgement may not admissible.

In this case judgement given by court in favour of defendant no 1 on the basis of produced documents on proper time and assignment deed. but initially court argues the reference to the 'said work ' in assignment deed according to the fact said work was film issue related to audio rights so the fact of the case and judgement has no connection.

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