Interlude Technologies vs Popular Entertainment Network Ltd. and Others

Manmohan Singh, J.—The Plaintiff has filed a suit for permanent injunction restraining infringement of copyright, passing off, unfair competition, rendition of accounts, delivery up and damages.

CASE OF THE PLAINTIFF

The Plaintiff firm M/s Interlude Technologies was established in 1998 and is engaged in the business of production, manufacturing and publishing animated Cinematograph films on CD ROM and Video CD, licensing and distribution of films like, Animated Nursery Rhymes, Animated Mythological Stories, Classical Stories, Edutainment titles etc. The Plaintiff has produced and distributed various animation films including Lord Shiva, Ramayan, Shree Ganesha, Jai Hanuman, Shri Krishna, First Step to English, Little Angels Rhymes, My favourite Nursery Rhymes and Alphabets & Counting.

The processes involved in development and manufacturing of animated videos CDs are explained through following points:

(a) The first step is to write a script for the given subject. Scripts comprises of narrations and dialogues of various characters. The script is then edited and finalized.

(b) The finalized script is then given shape in the S/W process flow chart form of wherein everything is explained in detail. The software development is done as per the S/W process flow chart.

(c) The story board comprising of voice over, narrations and dialogue delivery is then sent to Plaintiff in house digital sound studios wherein professional voice artist and mimicry artist record voices and narration for the given background sound/music and special effects is inserted according to the storyboard.

(d) When the story board is ready for the development team, who first of all identify all the characters used in the story boards and start drawing the characters in every angle, once all the characters are drawn they are given movement through various animation tools simultaneously voice/music is synchronized according to story board.

(e) Once everything is animated as per the story board, final video is rendered and then it is edited by the editor who check for mistakes/discrepancies, if any.

(f) It is rectified for any mistakes/discrepancies and again the final video is rendered and a final Master CD is written/burnt.

According to the Plaintiff, the Plaintiff and his team has created and produced the animated film ''Ramayana'' with their original hard work and under the copyright law, the said ''Ramayana'' animated film is a protected intellectual property and in particular is original literary works u/s 2(0) and Section 13(1)(a) of the Copyright Act 1957.

With a view to serve and take an active role in the entertainment sector, the Plaintiff Interlude Technologies has set up animation studio in the year 2001. The Plaintiff is a premium animation and visual effects production studio and has its own animation production to product distribution spread all over India. With substantial investments in high end infrastructure and highly skilled creative and productive talents, the Plaintiff has built up the capacity to deliver products and services of world class quality.

The Plaintiff is specialized in development and manufacturing quality educational and entertaining animated video CDs. Animated videos have various categories namely Animated Nursery Rhymes, Classical Indian & Foreign Stories, Indian Mythological Stories, Interactive learning modules for kids and youngsters.

The Plaintiff is the only company in India with Multi language titles on CD ROM, VCD and have highest No. of animation titles in India. The Plaintiff is exporting its titles worldwide. The Plaintiff is the only company which has all in house set up from pre production, production till distribution. The Plaintiff supply to all major retail chains namely planet M, Music World, Crossword, Ebony, Big Bazar to name a few. The Plaintiff''s animation is made on original software.

The Plaintiff develop the idea of making animated mythological film on ''Ramayana'' and in the year 2004, he started the idea making scripts and then thereafter making the animated film through various process and procedures as narrated above.

The Plaintiff made Ramayana animated film with voice over in 7 different languages i.e. English, Hindi, Tamil, Telugu, Kannada, Marathi and Gujarathi and the Plaintiff developed the script as well as animated movie with its team including Amit Sharma (Proprietor of Plaintiff), Producer and project head, Mr. Sarfaraz Ahmad, Script Writer/Audio &. Music Director, and Narration, Participants and background music by Anil Thapar, Divya, Sunil Lohia, Dilip Gupta, Neetu Tiwari, Charu Gupta, Rajesh Saxena, Anil Saxena, A.M. Raza, Shijat Hussain, and Huma. The whole work of animated film titled ''Ramayana'' is controlled and funded by the Plaintiff. The said Ramayana animated movie has been made on the basis of originality, novelty and hard work of the Plaintiff. The animation has been done by a the Plaintiff in a very artistic manner frame by frame by artistic craftsmanship and the said artistic craftsmanship also include the literary work, musical work, the visual recording and sound recording by process so as to make a complete animated film.

The Plaintiff have the original source code of animated film ''Ramayana'' which is the original literary and cinematographic work of the Plaintiff and the said original source code along with the scripts and whole animated character are being enclosed with the plaint which demonstrates the hard work of the Plaintiff.

The Defendant No. 1 is company named Popular Entertainment Network Limited who has infringed the copyright of the Plaintiff and has been trading, selling and displaying the copyright work of the Plaintiff, Defendant No. 2 and 3 are the Directors of Defendant No. 1 and responsible and liable for day to day business and daily affairs of the Defendant No. 1 company and falsely claimed themselves to be the producer of animation movie titled ''Ramayana'' of the Plaintiff. Defendants No. 5 and 6 are falsely claiming to be the director of the animation movie ''Ramayana'' of the Plaintiff. It is pertinent to state that Defendant No. 6 was associated with the Plaintiff company and used to frequently visit the Plaintiff company, he in collusion and conspiracy with all the Defendants have stolen the original work of the Plaintiff and has infringed the copyright of the Plaintiff.

The Plaintiff has invested hard earned money by developing the animated movie ''Ramayana'' for last three years in the following manner. The approx. cost of the project is Rs. 21,98,000/- .

TOTAL EXPENSES INCURRED

S. No.

Description

Units

Rs. per unit

Total Rs.

1.

Total Frames

30790

60.02

1848000

2.

Musics & va

50000

3.

Establishment

75000

3

225000

4.

Misc

25000

3

75000

Total

Rs. 21,98,000

DETAILED WORKING

S. No.

Years

Working days per year

No. of persons

Total working days

1.

2005

240

9

2160

2.

2006

240

7

1680

3.

2007

130

6

780

Total

4620

Per day frames/person

6.664502165

Avg. Salary

8000

Per day Salary

500

Costing Per Frame

60.01948685

The Plaintiff demonstrated the process of animation for making the film in the following manner which is being demonstrated through a process of flow chart and the same process has been used for manufacturing and developing animated film Ramayana which is the original, artistic, literary, animated work including sound and video recording so as to make a final product.

SCRIPT

VO RECORDING

DIGITAL RECORDING STUDIO

ANIMATION S/W DEVELOPMENT

SOFTWARE LAB

S/W RENDERING

MACHINE WITH HIGH GRAPHICS CARD

TESTING & QUALTIY CONTROL

MACHINE WITH TESTING & QUALITY CONTROL S/W

FINAL MASTER CD

PACKAGE DESIGNING

DESIGNING STUDIO

CD DUPLICATION

CD REPUBLICATION UNIT

PACKAGING

PACKAGING UNIT

FINAL PRODUCT

As per Plaintiff, it came across on an advertisement on Zee TV as well as on ETC Network of Plaintiff Ramayana on Television by the third party i.e. Defendants No. 1 to 3. The Defendants are displaying and advertising the original a work of the Plaintiff on the television and have thereby causing huge monetary loss and damages to the Plaintiff. The said original Ramayana animated film have been stolen by the Defendants and the said animation is being displayed and advertised by the Defendants without any license being granted by the Plaintiff and also the Defendants are offering to the public for purchase of their infringed pirated video CD of Ramayana animated film, originally made by the Plaintiff. The Defendants have copied exactly program by program, frame by frame, animation detail by animation detail, snapshot by snapshot and structure by structure, the entire original literary, artistic works of the Animation film ''Ramayana'' of the Plaintiff.

A perusal of the said infringed video CDs being displayed on Zee TV and ETC Network will clearly show that the characters shown on the television of Defendant No. 7 and 8 by Defendants No. 1 to 6 are exactly the similar and same animated characters of the Plaintiff which clearly demonstrates that the Defendants have infringed the copyright of the Plaintiff and have committed a criminal offence also. The Plaintiff has not given any license to the Defendant so as to show the movie to the public or to advertise on television. The Defendants have stolen the original work of the Plaintiff titled ''Ramayana'' animated movie and illegally, unauthorisedly, malafidely, fraudulently, dishonestly showing to the public thereby infringing the copyright of the Plaintiff.

The aforesaid infringed and pirated video CDs of the Defendants which contain the infringed copies of the Plaintiffs original literary, artistic works of animated movie Ramayana, are being manufactured, sold and offered for sale in Delhi/New Delhi and all over India in fraudulent manner.

The Defendants No. 1 to 8 have been working in collusion with each other. The Defendants acting with a common intention in infringing theo copyright of the Plaintiff by unauthorisedly using the video CDs, of the Plaintiff has instead inserted all the mythological animated characters of the Plaintiff i.e. Ram, Laxman, Sita, Hanuman, Ravan, Bharat, Dashrath, Kakayi, Sumitra, Koshlya, Vishvamitra, Sugrive, Bhivishan, Jatayu, Manthra, Meghnath, Marich, Jambant, Kumbhkaran, Tadka, Sup Ranakha. In doing the same, the Defendant have infringed the Plaintiff''s copyright. The Defendant continue to openly infringe the copyright of the Plaintiff by offering for sale of their pirated CDs.

CASE OF THE DEFENDANT

It is alleged by the Defendants in the Written Statement that the Defendant is in possession of documentary evidence to prove and substantiate that the Defendant No. 5 is the owner of animated film ''Ramayana'' being developed, created and manufactured with its own original idea and novelty. The process of developing and creating the idea as first started by the Defendant No. 5 in the last quarter of 2004 and thereafter he wrote script of animated film Ramayana and after finalizing the script for the first time, the characters were developed in the computer after creating a file, namely, ''ramayana_01'' in the computer on 10.02.2005. The file folder namely Ramayana_02 was also created on 10.02.05 itself Ramayana 03, 04, 05, O6 and 07 were created on 16.03.05, 16.05.05, 18.07.05, 30.09.05 and 15.02 06 respectively.

The characters of animated film Ramayana were finally developed on 15.02.06 and respective colors were also given to various characters. Thereafter the composition of characters was started and finalized in the month of October, 2000 and in the mean time while the composing was going on, the voiceover recording as well as lip-sing was done in the month of August, 2006.

After going through the said procedure, the film was sent for final editing and color corrections and the same was completed in the month of February, 2007.

Therefore, the animated film Ramayana was completed in all respect in the month of February 2007 and thereafter the Defendant No. 5 started looking for distributors where he was encountered with the problem in selling his film for want of copyright certificate issued by copyright office Govt, of India and also of Censor Certificate issued by Central Board of Film Certificate.

Accordingly the Defendant No. 5 applied for registration of copyright in respect of his 2D Animated film ''Ramayana'' on 05.04.07 with the copyright office Govt. of India and before the Central Board of Film Certification (CBFC) on 15.05.07. The Certificate of copyright was issued by the Copyright office on 19.06.07 and the certificate by CBFC was issued on 11.10.07.

The script of the said animated film Ramayana was written by the Defendant No. 5 himself who is the producer of the said film as well. The direction of the said film was under the direction-ship of Defendant No. 5 and 6. The voice over recording was done at ''Sanyojan Studio'' situated at Chitranjan Park, New Delhi.

The Defendant No. 5 has made the said film only in Hindi Language however the Defendant No. 1 after entering into the agreement with Defendant No. 5 has made the Said film with voiceover in seven different languages. It is therefore, submitted that the subject and idea of making animated film Ramayana is solely and originally of the Defendant No. 5 developed and finalized by the Defendant No. 5 with his own money and hard work.

The Defendant No. 5 is the owner of artistic and literary work involved in making the said film Ramayana with his artistic craftsman ship and includes literary work, musical work, visual recording and sound recording. The Defendant No. 5 though is the real owner of original idea of making film Ramayana but has followed a Comics called ''Ram ki Kahani'' for developing the theme only and has not copied the artistic literary or other work of Plaintiff or of anyone else.

The Defendant No. 5 has reasons to believe that it is the Plaintiff who has stolen the original work of Defendant No. 5 and after copying the artistic work of Defendant No. 5 has approached this Court with malafide intentions and ulterior a motives in order to exert undue pressure with dishonest intentions to squeeze money from the Defendants Nos. 3-5.

It is denied that the Plaintiff developed the idea of making animated film on Ramayana in the year 2004 and started the idea of making script of the animation in question as alleged.

The allegation of the Plaintiff to the effect that they started developing the idea and making script in 2004 proves to be false.

The Plaintiff has filed few assignment deeds thereby assigning rights of various artist in its favour however mere perusal of these documents would candidly show and prove that these documents are not only false but fabricated documents, having been manufactured in order to play fraud upon this Court, and thus to obtain favorable orders.

The Plaintiff though have claimed that they made payment of consideration to the artist who executed assignment deed however, the factum of making all payments in cash further shows that these documents have been created malafidely and dishonestly soon before the filing of the above captioned suit. The falsity of these documents further transpires that none of the documents is witnesseth by any witness. Even the signature of alleged authorized signatory of assignee is different on assignment deed. The mere fact of making payment in cash to all artist even when the payment to Mr. S.S. Bhandarkar allegedly was to the tune of Rs 76,800/- transpires the falsity of claim of Plaintiff.

In the case of Harman Picture N.V. v. Osborne, (1967) 1 WLR 723, it was held that similarities of incidents and eustachian undoubtedly afforded prima facie evidence of copy and in the absence of any explanation by the Defendant regarding the sources, the Plaintiff''s must successes. In this connection Golf, J observed as follows:

But I have read the whole of the script very carefully and compared it with the book and I find many similarities of detail there also.... Again it is prime facie not without significance that apart from the burial of Captain Nolan the play ends with the very to end her description of the battle... As Sir Clark points out, some of these might well be accounted for as being similar to other events already in the script, and in any event abridgement was necessary, but that may not be a complete answer.

In the case of Mohendra Chundra Nath Ghosh and Others Vs. Emperor, the Court while defining copy shield held that it is a copy which is so near to original as to suggest original to the mind of spectator and observed as follows:

But the question is whether the offending pictures are copies of substantial portions of the copyright picture.... The figures may have been reduced in the offending pictures and slight modifications may have been introduced, or the clothes and colours may have been different, but there can be no doubt whatsoever that the main figures have an identical pose. These are not, in my opinion, confidences due to the pictures being produced to represent common stock ideas.

Having considered two works involved in this case not hypocritically and with meticulous scrutiny but by the observations and impressions of the average viewer, I find that striking similarities in two works cannot in the light of the material placed on record be said to constitute mere chance. I fell that the only inference that can be drawn from the material available on record is unlawful copyright of the Plaintiffs'' original work. In view of the foregoing discussion, I have no hesitation in holding that the Plaintiff''s have established that there has been infringement of their copyright.

u/s 13 of the Copyright Act, 1957 the copyright exists only in the original work. In the case of Camalin Private Limited v. National Pencil Industries, 96 (2002) DLT 8 (DB) : 2002 (24) PTC 349 (Del) (DB), it was held in para 10 as under:

Copyright subsists only in an original literary work. But it is not necessary that the work should be the expression of the original or inventive thought, for Copyright Act are not concerned with the originality of ideas, but With the expression of thought, and in the case of literary work, with the expression of thought in print or writing. Originality for the purpose of copyright law relates to the expression of thought, but such expression need not be original or novel. The essential requirement is that the work must not be copied from Another work but must originate from the author....

In the present case, as mentioned by the Plaintiff in the plaint that the Plaintiff developed the idea of making animated mythological film on ''Ramayana'' in the year 2004. The Plaintiff has also filed the assignment deed dated 2nd February, 2005 between the Plaintiff and Mr. Sarfaraj Ahmed who has assigned copyrights in the voice over, music and sound recording against consideration. The bill dated 4th January, 2005 is also filed by the Plaintiff.

The Plaintiff has similarly filed another assignment dated 17th June, 2006, 20th May, 2006 and 5th June, 2006 in respect of purchasing various rights for making the animated film ''Ramayana''.

On the other hand, although the Defendant has raised the defence that Defendant No. 5 has created the work on this animated film ''Ramayana'' in the year 2005 however, no cogent evidence in this regard has been filed. The Defendant has filed the copyright registration bearing CL No. 1103/2007 in respect of registration of the work. In column No. 9 of the registration certificate, it is mentioned that the work in question was first time published in the year 2007 which is apparently subsequent to work created by the Plaintiff in the year 2005. Therefore, the registration is immaterial. The copyright registration is always granted on the basis of declaration made by the party before the copyright office, hence, registration referred by the Defendant has no substance.

The application for registration of copyright was filed on 5th April, 2007 and the certificate was issued on 19th June, 2007. Similarly, the Defendant has filed the agreement dated 18th October, 2007 for purchasing the right from Mr. Gunjar Kalra. The certificate from Central Board of Film Certification filed by the Defendant is also dated 11th October, 2007.

All these documents filed by the Defendant do not prove prima facie that the Defendants have developed and made the animated film ''Ramayana'' in the year 2005 or prior to the Plaintiff.

In the absence of filing of these cogent evidence, it is difficult to hold that work of the Defendant is prior to the work of the Plaintiff. In view thereof, at this stage, prima facie, I am of the opinion that the Defendant is not entitled for any relief claimed in their application under Order XXXIX Rule 4 CPC being IA No. 13661/2007. The ex parte ad interim injunction granted on 29th November, 2007 is made absolute. Consequently, the Defendant''s application under Order XXXIX Rule 4 CPC is dismissed. No order as to cost. List the main suit before Joint Registrar on 27th July, 2009 for completion of pleadings and documents.