K.R. Venugopala Sarma vs Sangu Ganesan

Somasundaram, J.—These two appeals arise out of the acquittal of the respondents in two cirminal cases, which were filed by the appellant

u/s 63 of the Copyright Act (hereinafter referred to as the Act), for infringement of certain copyrights which he had in a picture of Tiruvalluvar.

The complaint of the appellant was as below: He had drawn a picture of Saint Tiruvalluvar, from his own imagination on the basis of his intensive

study of Thirukkural for over thirty years. He had registered this picture under the Copyright Act. He had also published in the papers that he had

the copyright of the portrait of Thiruvalluvar as published in the several dailies. Sangu Ganesan. the respondent in C. A 913 of 1969 who is the

proprietor of Srimagal Company, had printed pictures of Thiruvalluvar and used it for the calenders. He had fixed the price of thousand calendars

at Rs. 1330. These pictures were similar to the picture the appellant had drawn and registered. Khanna and Ashok (father and son) who figured as

respondents 1 and 2 in C. A.914 of 1969, are dealers in pictures and calendars at No. 111 Devaraja Mudali St. Madras. The first respondent

approached the appellant and suggested to him the desirability of printing small size pictures of Thiruvalluvar. The appellant told him that he had no

power to alter either the size or the price as fixed by the Govt. He did not give any permission to him or to any one to print any picture of

Thiruvalluvar as suggested by him. While so. both the respondents printed and published pictures of Thiruvalluvar, to be used for calendars. They

had left some space lower down in these pictures, for the printing of calendar proper. The pictures thus printed and published were exactly like the

picture which the appellant had drawn and registered and in which he had a copyright. With these allegations, he filed two complaints separately

one against (1) Sangu Ganesan and (2) another against the respondents in C. A. 914 of 1969, u/s 63 of the Act, When questioned, Sangu

Ganesan denied the infringement of the copyright attributed to him. The first respondent in C. A. 914 of 1969 stated that he had nothing to do with

the case. The second respondent, his son. added that he had purchased these pictures from certain dealers at Sivakasi. On a comparison of the

pictures said to have been drawn by the appellant with the other pictures complained of by him. the learned Magistrate arrived at the conclusion

that they were neither identical nor similar. With this finding, he acquitted all the respondents. These acquittals are now challenged by the appellant

in these two appeals.

u/s 63 of the Copyright Act, 1957, any person who knowingly infringes or abets the infringement of (a) the copyright in a work, or (b) any other

right conferred by this Act, shall be punishable with imprisonment which may extend to one year, or with fine, or with both. Sub-section (1) of

Section 1.4 states:

For the purposes of this Act, ''copyright'' means the exclusive right, by virtue of, and subject to the provisions of, this Act:

(a) ... (b) in the case of an artistic work, to do or otherwise the doing of any of the following acts, namely:

(i) to reproduce the work in any material form:

(ii) to publish the work:

(iii) to include the work in any cinematograph film:

(iv) to make any adaptation of the work:

(v) to do in relation to an adaptation of the work any of the acts specified in relation to the work in Clauses (i) to (iii); ...

Artistic work"" as defined in Clause (c) of Section 2 means, (i) a painting, a sculpture, a drawing including a diagram, map, chart or plan as

engraying or a photograph, whether or not any such work possesses artistic quality, (ii) an architectural work of art; and (iii) any other work of

artistic craftsmanship. Section 51 of the Act deals with the infringement of copyright. Sub-clause (i) of Clause (a) of Section 51 of the Act states

that 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, does anything, the exclusive right to do

which is by this Act conferred upon the owner of the copyright, he commits an infringement of the copyright which that person has. Under Clause

(b)_, when any person (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes

either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright or (iii) by way of trade exhibits in public, or

(iv) imports except for the private and domestic use of the importer into India, any infringing copies of the work, he commits an infringement of the

copyright. Sangu Ganesan, according to the appellant, had printed and was selling, in different forms, coloured imitations of the portrait of

Thiruvalluvar drawn by the appellant. The respondents in C. A. No. 914 of 1969 had sold some pictures of Thiruvalluvar exactly resembling the

picture in which the appellant had the copyright.

u/s 14 (1)(b)(i), for the infringement of a copyright, there should be a reproduction of an artistic work in a material tangible form. The Indian

Copyright Act (Act III of 1914) referred to colourable imitation of the original work. In the new Act, we do not have these words. The question,

therefore, solely depends upon the interpretation of the expression ''reproduction in material form'' used in Section 14 (1) of the Act. The word

''reproduction'' is a word of ordinary popular usage. The Shorter Oxford English Dictionary refers to the progressive evolution of its meaning thus:

The action of process of bringing again before the mind in the same form; the action or process of repeating in a copy; a copy or a counter-part; a

copy of a picture or other work of art by means of engraving or some other process; a representation in some form or by some means of the

essential features of a thing"". ""Reproduction for the purposes of infringement of a copyright"" means reproduction of the work itself or a substantial

part of it. What is essential is to see whether there is a reproduction of a substantial part of the picture. There can be no test to decide what a

substantial part of a picture is. Lord Herschel LC in Hanfstaengl v. Baines and Co., 1895 AC 20 observes

It depends really on the effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it or at least of its

design.

As pointed out in C. Cunniah and Co. and Others Vs. Balraj and Co. and Another, : C. Cunniah and Co. and Others Vs. Balraj and Co. and

Another,

One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction.

There might be and there will be obvious differences deliberately introduced to avoid a possible charge of infringement. If the court, on a

comparison of the appellant''s picture with the infringing picture comes to the conclusion that the latter picture was consciously copied from the

work of the former, that will be sufficient to hold that the copyright is infringed. As observed by Lord Atkinson in Emerson v. Davies, 1848-3

Story U. S. Rep. 768, the true question is whether the same plan, arrangement and combination of materials have been used before for the same

purpose or for any other purpose. The matter is put effectively by Copinger in his Law of Copyright, at page 148, thus :

For example, assume two cases in which advertising posters resemble the plaintiff''s original and that, in the one case in which the resemblance is

less close, it is provided aliunde that the defendant''s artist had the plaintiff''s work in front of him and slavishly imitated certain specific features of

the design, but in the other, though the general appearance is closer the artist is able to establish that, though he made use of the plaintiff''s basic

idea, his execution was quite independent, it is submitted that the former and not the latter would be an infringement.

Kekewich, J. in Hanfsataengl v. W. H. Smith and Sons, 1905-1 Ch 519, defines the copy thus:

A copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it.

Applying this test, the degree of resemblance between the two pictures, which is to be judged by the eye. must be such that the person looking at

the respondents'' pictures must get the suggestion that it is the appellant''s picture. In this sense, the points of resemblance and dissimilarity in the

picture assume some importance in finding out whether taken as a whole the respondents'' pictures produce the impression in the mind of any

observer, which amounts to a suggestion of the appellant''s picture. One picture can be said to be a copy of another picture only if a substantial

part of the former picture finds place in the reproduction. As pointed out in Associated Publishers (Madras) Ltd. Vs. K. Bashyam alias ''Arya'' and

Another,

In order to constitute infringement there should be direct or indirect use of those features of the plaintiff in which copyright subsists. It is unusual for

an infringement to consist of an exact reproduction of the whole of the plaintiff''s work. Consequently it is difficult to be precise as to the amount of

copying or degree of resemblance necessary to constitute infringement. The conclusion must depend, in the words of Lord Her-schell ''really on the

effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it or at least of its design.

Thus, it is well-settled that an infringement could only come into existence where the impugned picture was taken from the picture of the

complainant. In deciding this question, there need not be an exact reproduction to support the inference that the picture of the respondents was

taken from the complainant''s picture. Indeed, every intelligent copying must introduce a few changes. Shortly stated, the effect which produces

upon the mind by a study of the two pictures should be to the end that the respondents'' picture is nothing but a copy of the picture of the

complainant.

The peculiar features in the picture drawn by the appellant, as stated by him, are (1) Thalaimudi (design); (2) Thadi (shape and density;)(3)

pattern of using the upper cloth (Angavastram) (4) the holding of the palmyrah leaves (Chuvadi) (5) the holding of the instrument for writing

(Ezhuthani); (6) the portion of the right toe; (7) the Peed-dam, and (8) the facial expression. The appellant as P. W, 1 has sworn that in the

infringing copies of the pictures, the pattern of the Thalaimudi. the position of the upper cloth, the holding of the cudjan leaves and the handling of

the Ezhuthani, are similar, Ex. P-l is the picture in respect of which copyright is claimed. There can be no doubt that this work is an artistic work

coming within the definition in Clause (c) of Section 2 of the Act, Exs. P.5 and P.6 are the impugned pictures in C. A, 913 of 1969 and Ex. P.4 is

the infringing picture in C. A. 914 of 1969. There is striking similarity between the two pictures, especially in the facial expression, the piercing

look, the method of wearing the Angavasthram and the holding of the Ezhuthani. The general impression left in my mind on looking at all the

pictures is that the infringing pictures reproduce in substantial part the special features of the picture Ex. P.I in respect of which the appellant claims

a copyright. As I have already pointed out, in every intelligent copy there must be a few changes and there are such changes in Exs. P.5, P.6 and

P.4, and that too. not in the picture proper, but in the background and in the Peedam.

It was next contended that in view of Clause (t) of Section 52 (1) of the Act, which states that the making or publishing of a painting, drawing,

engraving or photograph of a sculpture, or other artistic work falling under Sub-clause (iii) of Clause (c) of Section 2, if such work is permanently

situate in a public place or any premises to which the public has access, will not constitute an infringement of copyright. The statue of Thiruvalluvar

is installed in the public road opposite to the Sanskrit College in Mylapore. This the appellant admits. The contention advanced by the respondents

proceeds on a misapprehension. We have for example statues installed permanently in public squares or streets. We have in. the Marina at Madras

a statue known as Triumph of Labour'' by the sculptor Roy Choudhury. It is an artistic work installed permanently in a place where the public have

access. The artist or the person to whom he transferred the sculpture cannot claim that photographs of the sculpture or painting of it will constitute

an infringement of his copyright. We have the instance of the original painting of Mona Lisa by Leonarde da Vinci installed in the Louvre Museum

at Paris. It is open to any member of the public with the permission of the Museum authorities to make a reproduction of this painting and publish

it. It is to exempt such cases from the scope of infringement of copyright that Section 52 (1) is enacted. But. what happened in this case is that the

artist or the owner while keeping the original painting in his own custody has for commercial purposes printed a large number of copies of it and

sold them to the public and probably has also given some free copies to temples for installation. That will not tantamount to his installing his original

work in a public place on the analogy of a sculpture kept in a public square, or a Dainting hung up in a portrait gallery. Therefore, this objection

appears to us to be groundless vide: The Daily Calendar Supplying Bureau, Sivakasi Vs. The United Concern, . Thus, in both the cases, there is an

infringement of the copyright of the photograph Ex. P.I. The respondents have committed an offence punishable u/s 63 of the Copyright Act and

they are accordingly convicted.

Each of the accused in these cases is sentenced to pay a fine of Rs. 100, in default to suffer simple imprisonment for two months. Time for

payment of fine, one month. Out of the fines, if collected. Rupees 75 shall be paid to the appellant in C. A. No. 913 of 1969 and Rs. 150 shall be

paid to the appellant in C. A. No. 914 of 1969.

The appeals are allowed.