SHUMITA DEB Vs. SAREGAMA INDIA LIMITED

JUDGEMENT

(1.) The plaintiff in O.S.6676/2017 on the file of XVIII Additional City Civil Judge, Bengaluru, has filed these two appeals aggrieved by the order dated 25.06.2018 dismissing her applications -I.A.Nos.1 and 2 filed under Order XXXIX Rules 1 and 2 CPC. These two appeals are disposed of by common order. The necessary facts for disposal of these appeals are as follows : -

(2.) The plaintiff's suit is for permanent injunction to restrain the defendants or anybody claiming under them from manufacturing, circulating, distributing, disseminating or selling by way of remixes, adaptations, cover versions or any other manner, infringing or violating the copyrights over the compositions and songs of late Manna Dey. The plaintiff is the daughter of a legendary singer of yesteryears Sri Prabodh Chandra Dey, popularly known as Manna Dey. The plaintiff has stated that she received training from her father and had rendered joint performances with him. In the year 2000, Sri Manna Dey moved to Bengaluru. On 26.08.2013, Manna Dey executed a Power of Attorney in favour of the plaintiff. Sri Manna Dey authorized the plaintiff to manage his business like to receive royalty, to protect his proprietary rights, to take legal action for any violation, for safeguarding his interest and to release newspaper advertisement and other information to the media to safeguard his interest and generally do all other acts such are necessary. After demise of Manna Dey, defendant no.1 released a music album C.D.No. CDNF143737 titled "Hoyto Tomari Jonno" containing 14 songs of late Manna Dey and sung by Smt. Swagatalakshmi. These songs were embedded in the first defendant's new music player "Saregama Caravan" which was launched during May 2017. The songs are distortion of the original songs of late Manna Dey. This amounted to infringing the copyrights of Manna Dey. These songs were released in the cover versions. In fact during the year 1992 the first defendant released one cover song of Manna Dey and this was opposed by him. The first defendant illegally and clandestinely represented that it is the copyright holder of Manna Dey and therefore engaged Smt. Swagatalakshmi to sing his songs. The first and second defendants manufactured, reproduced, released and distributed the songs of Manna Dey in the infringed C.D without any permission from the plaintiff, the legal heir of Manna Dey. Therefore, according to the plaintiff, the acts of the defendants amounted to infringing the copyrights of Sri Manna Dey. In the suit filed by her, she filed two applications for temporary injunction to restrain the defendants from manufacturing, circulating, distributing, disseminating or selling by way of remixes, adaptations or copy versions, infringing or violating the copyrights over the compositions and songs of Manna Dey. The plaintiff stated that pending disposal of the suit if an order of temporary injunction is not granted, her interest will be very much affected on account of infringement of the copyrights of Manna Dey by the defendants.

(3.) The first defendant has stated that it was formerly known as 'Gramophone Company of India Limited' which was popular by the name 'HMV' (His Master's Voice) and that it is the successor in interest of the said Company. The first respondent has denied that the plaintiff has any right to assert copyright of her father in respect of the 14 songs. Out of 14 songs, the songs at sl.nos.3 and 5 were composed by Late Manna Dey. In respect of other songs Sri Manna Dey was not either lyricist or composer, but he was only a singer of those songs and therefore he was not covered under the definition of the term 'author' under the Copyright Act, 1957. It has also contended that the songs at sl.nos.4, 6, 7 and 9 were part of cinematograph films and therefore the producers of those films were the first owners of all the works. The producers of these cinematograph films assigned their interest in favour of the first respondent. In so far as the songs at sl.nos. 3 and 5 are concerned, it is contended by the first respondent that the lyricists of those songs are Mr.Bankim Ghosh and Pulak Banerjee and those songs were produced by it. The lyricists were the first owners and that they assigned their interest in favour of first respondent. Though Late Manna Dey was the composer of the songs, he assigned his interest to the first respondent by executing two agreements on 06.05.1957 and 17.11.1965. Therefore, the first respondent has contended that it has the absolute discretion to manufacture, reproduce, sell, use, etc., of all or any of the titles recorded pursuant to the agreements. The first respondent was paying royalty to Sri Manna Dey and the same has been acknowledged by him in the General Power of Attorney produced by the plaintiff. The first respondent has stated that the plaintiff has concealed the actual facts and misrepresented before the court that Manna Dey was the author and owner of the 14 songs. The intention of the plaintiff is to make unlawful and unjust gains. She cannot claim any authorship or ownership over the said songs. The first respondent has not infringed the plaintiff's copyright, question of infringement does not arise in these circumstances. Therefore, the plaintiff has not made out prima facie case; balance of convenience and relative hardship do not lie in her favour and that she cannot claim temporary injunction.