Meenambalam Santosh and Deepa Santosh v Sunish S. Anand

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **FAO.No. 125 of 2018** **AGAINST THE ORDER DATED 30.5.2018 IN IA 1742/2018 IN OS 5/2018 ON THE FILES OF COURT OF THE ADDITIONAL DISTRICT JUDGE-IV, THIRUVANANTHAPURAM** ## **APPELLANTS/COUNTER PETITIONERS/DEFENDANTS** **1 MEENAMBALAM SANTHOSH AGED 53, S/O.SADANANDAN, (HEALTH INSPECTOR), POST BOX NO.6, PAPPANAMCODE P.O., THIRUVANANTHAPURAM-695018.** **2 DEEPA SANTHOSH, AGED 50, POST BOX NO.6, PAPPANAMCODE P.O., THIRUVANANTHAPURAM-695018.** **BY ADVS.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH SMT.P.S.ANJU** ## **RESPONDENT/PETITIONER/PLAINTIFF:** **SUNISH S. ANAND AGED 43, S/O.SADANANDAN, PROPRIETOR, M/S.BENSUN CREATIONS, T.C.16/681, NEAR HEERA HERITAGE, KOCHAR ROAD, JAGATHY, THYCAUD P.O., THIRUVANANTHAPURAM-695014, RESIDING AT SUNU VIHAR, 6/197, T.V.CENTRE, KUDAPPANAKUNNU, KALLAYAM P.O., THIRUVANANTHAPURAM-695043.** **R1 BY ADVS. SRI.THIRUMALA P.K.MANI SRI.P.E.SAJAL** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------F.A.O.No.125 of 2018 ---------------------------------------------Dated this the 12[th] day of July, 2018** ## **JUDGMENT** Appellant challenges the order passed by the Additional District Judge-IV, Thiruvananthapuram in I.A.No.1742 of 2018 in O.S.No.5 of 2018. He is aggrieved by an order of temporary injunction passed under Order 39 Rule 1 of the Code of Civil Procedure, 1908 (in short, the Code) restraining the appellants, their agents and assignees from using the sound recording of all musical works, including the background music done by the respondent in the drama 'Kavikulaguru Thunchathu Ezhuthachan', till the disposal of the suit. 2. Heard the learned counsel for the appellants and the respondent. 3. Short facts relevant for disposal of the appeal are as follows: The respondent in his plaint contended that he is the author and owner of the sound recording of all musical works, **2** ## **FAO 125/2018** including the background music of the drama Kavikulaguru Thunchathu Ezhuthachan, which was directed by the 1[st] appellant and being performed by the drama troop 'Aksharakala', owned by the 2[nd] appellant. Virtually, the 2[nd] appellant is the producer of the drama. The respondent contended that he is a sound engineer having 17 years of experience. He owns a recording studio at Thiruvananthapuram. The 1[st] appellant is a well known director of Malayalam dramas. The appellants and the respondent were known to each other for more than 12 years. They had undertaken various recording works in the recording studio of the respondent. While so, in 2017, the appellants approached the respondent with a big project of directing a drama, by name, Kavikulaguru Thunchathu Ezhuthachan and engaged the respondent to have the sound recording of all musical works, including background music for the drama. Plaintiff/respondent said to have arranged famous music directors and playback singers for all types of musical works and background music necessary for the drama at the cost and risk of the plaintiff/respondent. 4. It is further avered in the plaint that by an oral **3** ## **FAO 125/2018** agreement, the appellants had promised the respondent that whatever remuneration payable to the playback singers as well as the music directors arranged by the respondent would be paid by the appellants. It was also promised that drama would be performed all over India and abroad, under the supervision and control of the respondent on specific terms and conditions with respect to sharing of profits between the respondent and appellants. The respondent has enlisted the names of persons with whom he had made arrangements for setting music for the drama. According to the plaint averments, he is entitled to get a total sum of Rs.10,78,000/- from the appellants towards the expenses incurred for recording the musical work. 5. It is submitted that the drama was successfully performed over 100 stages. The respondent asserted that he is the author of the sound recording of all musical works, including background music in the drama. In spite of repeated requests, the appellants did not turn up to pay the remuneration to the respondent. Hence, the respondent caused to issue a lawyer notice demanding money and also mentioning about his right over the sound recording musical works. **4** ## **FAO 125/2018** 6. The contention taken by the appellants in their defence is that the suit is not maintainable as it is bad for non-jointer of necessary parties. Aksharakala is a registered organization and without impleading the said organization, the suit is not maintainable. 7. Drama, titled Kavikulaguru Thunchathu Ezhuthachan, is written by Muhad Vembayam after three years of study and research on the life of the father of Malayalam language Ezhuthachan. The said drama was staged in a scenario, declaring Malayalam as “Language of eminence”. The drama was written and directed free of cost. Celebrated lyricists, music directors and singers co-operated with the drama free of cost on getting inspired with its laudable objective. No remuneration was received by them. Famous persons among the literary and musical field, who had associated with the project, have been enlisted in the written statement. According to the appellants, the respondent has not done any sound recording for the drama. The respondent was engaged only as sound designer for the drama. He is entrusted with the task of producing the sound effect in the open auditorium as that in a closed **5** ## **FAO 125/2018** auditorium. He is not the composer of music, nor the lyricist and not even spend any amount for recording the music for the drama. As a sound recordist/sound designer or as a sound technologist, he cannot claim any copyright. The respondent cannot claim any copyright over the music composition under the Copyright Act, 1987 (in short, the Act). All the averments in the plaint are denied. 8. Learned counsel for the appellants strongly argued that the order passed by the court below is legally incorrect on account of various reasons. According to him, the finding that the respondent, being the person who recorded sound becomes the copyright holder, is a legally incorrect proposition. It is also contended that the essential claim in the suit as well as in the lawyer notice, is for money. It is the contention raised by the learned counsel for the appellants that even as per the plaint averments, the respondent was acting on behalf of the appellants and therefore, they cannot claim any independent right to seek a temporary injunction. 9. Per contra, learned counsel contended that the respondent being a sound engineer has taken initiative and **6** ## **FAO 125/2018** responsibility for recording sound and therefore, he becomes the person entitled to copyright in respect of the sound recording and therefore, he becomes a producer under the Act. 10. Before dealing with rival contentions, I shall deal with the relevant provisions under the Act. Section 2(d)(v) defines the expression “author”. We are only concerned with sound recording. Therefore, Section 2(d)(v) of the Act is extracted hereunder: “author” means, in relation to a cinematograph film or sound recording, the producer. 11. Dramatic work is defined in Section 2(h) of the Act, which reads as follows: “dramatic work” includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film. 12. Musical work is defined in Section 2(p) of the Act on ## the following terms: “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to **7** **FAO 125/2018** be sung, spoken or performed with the music. 13. Producer is defined in Section 2(uu) as follows: “producer”, in relation to a cinematograph film or sound recording, means a person who takes the initiative and responsibility for making the work. 14. It is to be noticed that this definition was inserted by an amendment to the Act as per Act 38 of 1994, which came into force on 10.5.1995. Sound recording is defined in Section 2(xx) of the Act as follows: “Sound recording” means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is the method by which the sounds are produced. 15. Another important provision is Section 13, which deals with the works in which copyright subsists. Section 13(1) of the Act is reproduced for clarity: 13.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, this is to say,- (a) original literary, dramatic, musical and artistic works; **8** ## **FAO 125/2018** - (b) cinematograph films; and - (c) sound recording 16. Section 14 of the Act gives the meaning of the expression 'copyright'. Section 14(e) may be relevant for our purpose since it relates to sound recording. It is quoted hereunder: 14. Meaning of copyright.- For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:- ## XXX XXX XXX - (e) In the case of a sound recording,- (i) to make any other sound recording embodying it including storing of it in any medium by electronic or other means; (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording; (iii) to communicate the sound recording to the public. 17. It is the averment in the plaint, which is opposed by **9** ## **FAO 125/2018** the learned counsel for the appellants as unsupported, that the respondent had arranged music composers and singers for recording music works for the drama. Whether this contention can be sustained or not is a matter to be established at the time of trial. Going by Section 2(uu) of the Act, the expression 'producer' in relation to a sound recording means a person who has taken initiative and responsibility for making the work. As per the plaint averments, he had contacted various musicians, lyricists and composers for arranging the recording of music in his studio. True, there is a monitory claim made by the respondent against the appellants. That ipso facto will not annihilate his right as a copyright holder, if any. At this stage, this Court can only be guided by the recitals in the pleadings. 18. Learned counsel for the appellants contended that music is an integral part of the drama. There cannot be an independent right for the respondent in respect of background music or other music, which forms an inseparable part of the drama. Learned counsel for the respondent, relying on Section 56 of the Act, contended that there is no legal impediment in claiming separate right in respect of a work. Section 56 reads **10** ## **FAO 125/2018** as follows: Protection of separate rights.- Subject to the provisions of this Act, where the several rights comprising the copyright in any work are owned by different persons, the owner of any such right shall, to the extent of that right, be entitled to the remedies provided by this Act and may individually enforce such right by means of any suit, action or other proceeding without making the owner of any other right a party to such suit, action or proceeding. 19. On a plain reading of Section 56 of the Act, it can be seen that there is no bar in protecting separate rights under the Act in respect of any work, as it can be owned by different persons. First document produced along with the plaint is a brochure, which is marked as Annexure-A1 in the counter affidavit filed before this Court. On the last page of Ext.A1, a photograph and description of the respondent can be seen. He has been depicted as a person who is proficient in sound mixing and sound designing. Learned counsel for the appellants contended that these qualities of the respondent will not confer a copyright on him. It may be true that technical know how **11** ## **FAO 125/2018** alone cannot be a basis for copyright, going by the definition in Section 2(uu) of the Act. 20. Learned counsel for the appellants placed reliance on **Indian Performing Right Society v. Eastern Indian Motion** **Pictures Association [1977 (2) SCC 820]** to raise a contention that music forming part of a drama cannot have an independent existence and the respondent cannot claim any separate right over the music. Paragraph 17 is relevant for this purpose. It is quoted hereunder: This takes us to the core of the question, namely, whether the producer of a cinematograph film can defeat the right of the composer of music . . . or lyricist by engaging him. The key to the solution of this question lies in provisos (b) and (c) to Section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. Proviso (b) when a cinematograph film producer commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefor, i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes **12** ## **FAO 125/2018** the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music . . . composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of Section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert relied upon by Mr.Sachin Chaudhary where it was held that the music composed for reward by the plaintiff in pursuance of his engagement to give effect to certain situations in the drama entitled “Lady Andley's Secret”, which was to be put on the stage was not an independent composition but was merely an accessory to and a part and parcel of the drama and the plaintiff did not have any right in the music. 21. It is to be remembered that this decision was rendered by the Supreme Court on 13.2.1974 before the amendment of the Act by Act 38 of 1994, which caused major **13** ## **FAO 125/2018** changes in the definitions. In other words, the definition of the producer in Section 2(uu) of the Act was not interpreted by the Supreme Court in the said decision. 22. Another decision relied on by the learned counsel for the appellants is **Gee Pee Films Pvt. Ltd. v. Pratik Chowdhury [AIR 2002 Calkutta 33]** . That was a case where a suit for injunction was filed by the plaintiff against the defendant with multiple reliefs sought for. In paragraph 23, after considering the rival contentions, learned single Judge made the following observations: In my opinion, the aforesaid observations cannot benefit the plaintiff in any way in view of a totally different definition of 'producer' in Section 2(uu) of the Act. According to the aforesaid provision, in order to be a producer, a person must take initiative as well as responsibility of the recording. I have already indicated that all that have been stated in the application as regards right over sound recording is that plaintiff paid all the expenses of recording including hire charges of studio and remuneration of the musician. Those averments, in my view, will not bring the plaintiff within the purview of “producer” unless in addition to the **14** ## **FAO 125/2018** aforesaid statements, the plaintiff avers that it has also taken responsibility of such recording. The mere statement that a master tape of recording owned by the plaintiff was prepared and retained by the plaintiff was prepared and retained by it does not suggest that it has taken responsibility of such recording. If a person bears all the expenses for recording and keep the master tape thereof, such facts do not imply that he has also taken responsibility of the recording and thus cannot be held to be a producer. The word “responsibility” appearing in Section 2(uu) of the Act, in my view, does not refer to financial responsibility, but means “consequential legal liability” for such recording. 23. Gist of the reasoning is that undertaking financial responsibility alone will not make a person 'producer' under Section 2(uu) of the Act. 24. Refuting these contentions, learned counsel for the respondent contended that apart from incurring expenses, he had arranged persons connected with musical recording and therefore, he fits in the definition of Section 2(uu) of the Act. 25. Even though the finding of court below, that the respondent was said to be a sound recordist having a copyright, **15** ## **FAO 125/2018** can be said to be legally incorrect, the averments in the plaint would show that he has claimed the right of a producer of musical work by virtue of qualifying himself to be a person falling under the definition in the Act. 26. The factual questions raised before this Court cannot be answered without asking the parties to go for a trial. Learned counsel for the appellants contended that on 20.7.2018, the drama has to be staged for getting entry to the State Level Drama Competition. It is therefore requested that the appellants may be permitted to stage the drama on that day. This is refuted by the learned counsel for the respondent contending that then the whole purpose of the suit will be defeated. Apart from the monitory claims, without taking assignment of his copyright under Section 19 of the Act, it cannot be staged even for a single occasion, is the stand taken by the respondent. The ultimate question to be decided at the time of trial is whether the evidence justify the pleadings raised by the respondent to claim copyright over the matter. Prima facie, I find no reason to disagree with the trial Judge. It is submitted by both sides that written statement has been filed in this case and there is no **16** ## **FAO 125/2018** hurdle in proceeding with trial of the case. Having regard to the facts and circumstances in the case, the order passed by the court below is confirmed. But the court below shall make all endeavor to dispose of the case as expeditiously as possible, at any rate, within a period of thirty days from the date of completion of all pre-trial steps. It is made clear that none of the observations in the judgment shall affect the ultimate disposal of the suit and it shall be decided untrammeled by any of the observations contained in this judgment. JV Sd/- **A. HARIPRASAD JUDGE**