Raj Video Vision vs K. Mohanakrishnan and Another

S. Thangaraj, J.—Suit for declaration and injunction.

The main averments found in the plaint are as follows:

The plaintiff Raj Video Vision a registered partnership firm is carrying on business in the exhibition, exploitation and distribution of motion pictures

in all dimensions for commercial and non-commercial exhibition in the entire world. The 1st defendant is the producer of Tamil talkie picture titled

''Pasamalar'' in Black and White. The 1st defendant offered the plaintiff the assignment of limited copyright in the exhibition, exploitation and

distribution of Tamil talkie picture ''Pasamalar'' video rights for Indian territory and T.V. Rights for Sri Lanka for perpetual period. Accordingly, an

agreement of assignment was entered into between the plaintiff and the 1st defendant at Madras on 6-1-1988. The consideration was duly paid

well at the time of executing the agreement. The 1st defendant confirmed to the plaintiff that they are entitled to enter into lease agreement and that

they have not assigned the Indian Video lease rights and Sri Lankan T.V. Rights to any other third party. As per the agreement dated 6-1-1988,

the plaintiff is entitled to exploit the picture without any interference. The plaintiff has received a letter dated 10-3-89 from the 2nd defendant

claiming that they hold the entire copyright of the Tamil talkie picture ''Pasamalar'' and that they have not so far granted the Video rights of the

picture to anybody. The letter contains no particulars and it is very vague. The 1st defendant, who is the producer, is entitled to assign the rights.

The plaintiff has lawfully acquired the limited copyright and the 2nd defendant has no manner of right to claim the copyright in the said picture. The

plaintiff filed this suit for protection of the rights given u/s 55 of the Copyright Act for a declaration of the right as per the agreement dated 6-1-

1988 and also for an injunction restraining the defendants from interfering with the plaintiffs copyright in the Tamil talkie picture ''Pasamalar''.

The main averments found in the written statement are as follows:

(a) The 1st defendant could not have offered any of the rights to the plaintiff inasmuch as the 1st defendant themselves were not the owners of the

said rights as on date of the alleged agreement dated 6-1-1988. One Mohamed Azam and others acquired the entire absolute and prepetual world

Negative Rights of the Tamil talkie picture titled ''Pasamalar'' and the right to dub or re-make the picture in all languages except the rights for Hindi

language and the rights to produce the picture straight, based on the said story in all other versions and dimensions except in Hindi and of the

exploitation thereof and also exploiting the Tamil version in North India subject to the transactions effected by the producer M/s. Rajamani Pictures

under the agreement dated 21-7-1961. The 2nd defendant thereafter acquired the sole and exclusive right of exhibition, exploitation and

distribution of Tamil talkie (Black and White) Picture ''Pasamalar'' for the entire world subject to distribution or lease agreement already in force

and as set out in Schedule ''A'' of the said agreement for a consideration of Rs. 1,00,000/- from Mohamed Azam representing himself and such

tenants-in-common under the agreement dated 22-4-1966 for a period of 15 years. Mohamed Azam and others have notified A.V.M. Laboratory

Service, where the negatives were preserved, that the 2nd defendant is the owner of the negatives. They also transferred the negatives in favour of

the 2nd defendant. Subsequently, on 22-5-1966 M/s. Mohamed Azam and Company and the tenants-in-common entered into an agreement with

the 2nd defendant by which Mohamed Azam and Company has assigned the said right in favour of the 2nd defendant perpetually. By virtue of the

said agreement, the 2nd defendant became the sole and absolute owner of the Copyright and also owner of the negatives of the said picture

''Pasamalar'' which are lying in the A.V.M. Laboratory. The 2nd defendant has been enjoying the copyright of the said picture such as making the

copies of the film, exhibiting the film and also commercialising the film by broadcast such as telecasting and also the video rights of the said picture.

The 2nd defendant has got the picture recensored on 20-5-71 and 22-7-81 and obtained necessary censor certificates. The 2nd defendant also

commercialised the film by telecasting the songs and also the picture through television without any hindrance whatsoever. The 2nd defendant has

also published in the Tamil Daily ''Dina Thanthi'' issue dated 7-1-1984 and 17-6-1985 that they are the owners of the negative rights and video

rights of the picture ''Pasamalar'', The plaintiff has relied upon the agreement dated 6-1-88 and on the dale of the said agreement, the 1st defendant

had no right over the said picture ''Pasamalar'' since the rights were assigned in favour of M/s. Mohamed Azam and Company. As the plaintiff has

no right over the said picture consequently the suit has to be dismissed.

The following issues were framed on 24-12-1992.

(1) Whether the plaintiff is entitled to declaration and injunction as prayed for?

(2) Whether the plaintiff has acquired video and television right in respect of the Tamil Picture titled as ''Pasamalar''?

(3) To what relief?

Issue Nos. 1 and 2:

M/s. Rajamani Pictures, a partnership firm constituted by (1) K. Mohan and (2) M.R. Santhanam carrying on film production business at No. 5,

Shanmuga Mudali Street, Royapettah, Madras-14 produced a Tamil talkie picture titled ''Pasamalar'' on 1-7-1961. They assigned the perpetual

ownership of the World Negative Rights of he picture ''Pasamalar'' to one M/s. Azam and Company, Madras-24. The firm M/s. Azam and

Company was dissolved on 30-9-1964. Subsequently the said Mohamed Azam and other tenants in-common leased out ""the sole and exclusive

rights of distribution, exhibition and exploitation of the picture ''Pasamalar'' in Tamil for the entire areas of the world"" to the 2nd defendant M/s.

Sembi Traders and thereby the 2nd defendant alleged to have got exclusive tights over the said picture. The original right was given for 15 years

and it was contended that subsequently a perpetual right was granted in favour of the 2nd defendant, there is no document to substantiate the

same. On the contrary there is only a letter dated 22-5-1966 written by the 2nd defendant to M/s. Azam & Company, Madras seeking the

perpetual right from 21-4-1981. The 2nd defendant to has relied on Exs.D.3 and D.5 issued by the Central Board of Film Censors on 20-5-1971

and 22-7-1981 respectively. In those two certificates the 2nd defendant firm shown as the applicant and the producer is shown as Rajamani

Pictures, Madras. It is a printed form and even then the fact remains that the 2nd defendant had applied for the censor''s certificate and obtained

the same. It was argued on the side of the plaintiff that the 2nd defendant was shown only as the applicant and the producer was shown as

Rajamani Pictures, Madras. Since M/s. Rajamani Pictures, Madras have produced the film, there cannot be any change in the name of the

producer though subsequently one or more persons may acquire the right over the film. However, the fact remains that the producers represented

by the 1st defendant as owners have assigned their rights to M/s. Azam & Company from whom the 2nd defendant has obtained the lease hold

rights. The 2nd defendant has marked Ex.D.4 the Certificate issued by the Doordarshan Kendra for telecasting the said picture on 25-9-1997 at

7:00 p.m. Ex.D.8 is the covering letter sent to the 2nd defendant for having telecasted the film in Doordarshan. Ex.D.6 is the agreement entered

into between the 2nd defendant and M/s. Mini Film Distributors regarding the said film for it''s distribution in Sri Lanka. Ex.D.7 is the Certificate

issued by A.V.M. Laboratories which would show that 2nd defendant is the Negative Right Holder. Basing reliance on these documents, the 2nd

defendant claimed right over the picture ''Pasamalar'' and issued a notice Ex.D.9 to the plaintiff which had given the cause of action to the plaintiff

to file the subject suit.

As a rule of law, the plaintiff should stand or fall on the merits of their case. However, in the instant case, the notice issued by the 2nd defendant

has made the plaintiff to file the suit. The case of the 2nd defendant has been stated at the beginning on the ground of better appreciation and on the

ground of shifting the burden on the 2nd defendant.

The case of the plaintiff is that they obtained right over the film from the 1st defendant by way of an agreement Ex. P.1, dated 6-1-1988. The

lease hold agreement shows that the plaintiff have acquired the ""Indian Territory Video Rights for exploitation, exhibition, distribution, printing,

transferring master cassettes, lending manufacturing cassettes, etc., for the picture titled ''PASAMALAR'' Black & While, Tamil"" and ""T.V. Rights

in Sri Lanka"". The plaintiff have contended that on the basis of the said agreement Ex. P.1 they have been dealing with the film ''Pasamalar'' in India

and the limited T.V. Rights in Sri Lanka. The 2nd defendant have contended that after assigning the sole and exclusive rights of distribution,

exhibition and exploitation of the picture ''Pasamalar'' in Tamil for the entire areas of the world, the 1st defendant producer has no right to lease out

the said right in favour of the plaintiff and therefore the claim made by the plaintiff on the basis of Ex. P.1 is not maintainable.

Ex. D.1 was executed by Mohamed Azam in favour of the 2nd defendant on the basis of the agreement dated 21-7-1961 executed by the

producer of the film and M/s. Rajamani pictures in which the 1st defendant was one of the partners and an assignor in the said agreement. The 1st

defendant has not denied the said assignment made in favour of M/s. Azam and Company. The 1st defendant remained ex parte in the suit which

means that he has no objection for the prayer made by the plaintiff in the suit. This should be the natural presumption as well as the legal result.

Since the 1st defendant remained ex parte, the suit has to be decreed as prayed for by the plaintiff in respect of the 1st defendant. Therefore the

1st defendant has admitted the assignment in favour of M/s. Azam and Company from whom the 2nd defendant have derived the rights over the

film and also the assignment made in favour of the plaintiff on Ex. P.1 dated 6-1-1988. Therefore, the 1st defendant, who represents M/s.

Rajamani Pictures, the producer of the film has admitted both the assignments.

The suit has been filed u/s 55 of the Copyright Act, 1957 claiming civil remedy for the infringement of copyright. In a cinematograph film the

author is the producer. This has been clearly defined in Section 2(d)(v) of the Copyright Act, 1957. Section 2(f) defines ''Cinematograph film''. As

per Section 13(1) of the Copyright Act, 1957, ''copyright'' subsists in cinematograph film. In order to constitute infringement of copyright two

elements must be present. First, there must be sufficient objective similarity between the infringing work and the copyright work. Secondly, the

copyright work must be the source from which the infringing work is derived, but, it need not be the direct source. However, in the present suit,

were are not very much concerned with the infringement of the copyright of the producer of the film. Earlier, on 21-7-1961 the producers have

assigned and granted the entire absolute and perpetual World Negative Rights of the picture and the rights to dub or re-make the, same in the

language except the right for Hindi version and of the exploitation thereof and also exploiting Tamil version in North India subject to all the

transactions effected by the Assignors already as per agreement entered into by them and specified in the schedule. Even in the original agreement

the right to dub or remake the film in Hindi language has not been given to the assignees which means the assignors have kept certain rights with

them. Two views can be taken by going through the earlier agreement but both parties have failed to mark the same as an exhibit on their sides, for

the reasons best known to them.

One of the arguments which can be made herein is that the original assignors viz. the producers, have not kept the video rights with them and

therefore it is presumed that the said right was not reserved by the producers. The obvious reason is that in the year 1961 neither the assignors nor

the assignees could have dreamt of telecasting or video rights for exploitation or exhibition or distribution or printing transferring master cassettes,

etc. However, the conclusion which can be arrived at is that when the producers themselves were not aware of their future rights accrued due to

scientific advancements, it cannot be said they had already transferred the rights not in existence by way of assignments. The assignments cannot be

made on rights not in existence and therefore it can be safely decided that the video rights of the film were not given to the assignees M/s. Azam

and Company and the assignee in turn an assignors could not have assigned the video rights to the 2nd defendant herein.

Further the present Sub-section (d) of Section 14 says-

(d) in the case of a cinematograph film,-

(i) to make a copy of the film, including a photograph of any image forming part thereof;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier

occasions;

(iii) to communicate the film to the public;

Section 2(d)(v) defines-

(iii) in relation to a cinematograph film or sound-recording, the producer.

Section 14(d) read with the definition 2(d)(v) shows that the author of the cinematograph film is the producer, who has all the rights over the film, if

the said rights are not transferred legally.

In Raj Video Vision, Registered Partnership Firm, Rep. by its Partners v. Sun TV (1994) 2 LW 158 while dealing with the distribution, exhibition

and exploitation of the film on satellite, it was held that the satellite right was not contemplated at the time of agreement, cannot be claimed by the

applicant now. The said view taken by the learned Judge of this Court has to be affirmed in the present case wherein the question regarding video

rights was canvassed.

The term Video Cassette Recorder is not defined in Copyright Act, 1957. u/s 2(6) of the Tamil Nadu Exhibition of Films on T.V. Screen

through Video Cassette Recorders (Regulation) Act, 1984, and ""Video Cassette Recorder"" is defined as meaning a cinematograph for the purpose

of giving cinematograph exhibition of films recorded on Video Cassette Tape.

This Court in the earlier decisions in (1) Entertaining Enterprises v. State AIR 1984 Mad 78, (2) Tulsidas v. Vasanthakumari (1991) 1 LW 220

and (3) Cine India v. Muthu Enterprises (1992) 1 LW 74 - confirmed that Video films are deemed to be work produced by a process analogous

to cinematograph. We have to accept the view taken in those decisions to the extent that video films are deemed to be work produced by a

process analogous to cinematograph and it should not be stretched further to convey any other meaning.

In Rathna Movies v. Muthu Enterprises (1991) 2 LW 581 at page 586 this Court held-

It is well established principle of case laws that both the video and television are cinematograph and that both jointly and severally become the

apparatus for representation of movie pictures or series of pictures, and that the video is an appliance capable of, use for the reception of sign,

signals, images and sounds. When a Video Cassette Recorder is used for playing pre recorded cassettes of movies on the television screen it is

certainly used as art apparatus for the representation of moving pictures or series of pictures and comes within the definition of cinematograph as

defined under the Cinematograph Act.

The above decision has to be affirmed for the proposition that both video and television are cinematograph. However, while the main question

arises in the instant case is as to whether the authors who are the producers herein, have got a right to assign the video rights to the plaintiff after

assigning the entire Negative Rights to M/s. Azam & Company from whom the defendants have derived their rights on the film ''Pasamalar''.

Section 14(1)(d)(ii) gives a right to the producer to sell or give on hire, or offer for sale or hire, any copy of the film regardless of whether such

copy has been sold or given on hire on earlier occasions.

This Section clothes ample power on the producer to sell or give on hire any copy of the film even it has been sold or given, on hire on earlier

occasions. However, that the subsequent sale or the right to give on hire is based on the lawful right conferred on the producer.

The later decision of this Court in Raj Video Vision, Registered Partnership Firm Rep. by its Partners v. Sun T.V. (1994) 2 LW 158, while

considering the satellite right which was not contemplated in the year 1986, it was held ""what was not contemplated at the time of agreement

cannot be claimed by the applicants now"". While considering this view taken by the learned Judge which is more appropriate to the present case

and if that view is taken for consideration in the instant case, in the year 1961 when the Negative Right was given to M/s. Azam and Company

neither party could have dreamt of the later scientific advancements of video, satellite, etc., could not have assigned or granted those rights.

A mere reading of Ex. D. 1 and other documents marked on the side of the defendants, would go to show that all the rights in the negative has

been given to the assignees by the assignors and the defendants have derived their rights from the earlier assignees. As already stated any right

given under any assignment should be specified and, definite. As per the provisions of this Act though the rights were assigned earlier, the producer

continued to be the author of the copyright of the film. Even Exs. D.3 and D.5 clearly show the name of the producer as Rajamani Pictures,

Madras and the 2nd defendant are shown as the applicants. So, as per Section 14(1)(d)(ii) of the Copyright Act, the producer as the original

owner, had the said right on the date of assignment in favour of the plaintiff. The 2nd defendant cannot claim a right which was not contemplated at

the time of original assignment in the year 1961.

In these circumstances for the above reasons the plaintiff has acquired video and T.V. rights in respect of Tamil talkie picture titled ''Pasamalar''

and the prayer of the plaintiff for declaration and injunction has to be granted. Accordingly, issue Nos. 1 and 2 are decided in favour of the plaintiff.

Issue No. 3:

The suit is decreed as prayed for with costs.