GEORGE JACOB, PRINTER & PUBLISHER Vs. NANDAKUMAR MOODADI

JUDGEMENT

(1.) The legal conundrums under the Copyright Act, 1957 (in short 'the Act') raised in this petition filed under S.482 CrPC are as follows:

(2.) Relevant facts are thus:

(3.) Complainant is a freelance professional photographer. He claimed to have earned national as well as international reputation as a photographer. Complainant is the author of a photograph of Sri. M. T. Vasudevan Nair, a renowned malayalam litterateur. Complainant had taken a photograph of Sri. M. T. Vasudevan Nair in the year 1996. Complainant used his intellectual skill in photography to make the photograph a unique artistic work. Accused are persons connected with "Bashaposhini", a publication under the aegis of Malayala Manorama. Complainant came to know that in the cover page of Bashaposhini, printed and published by the accused, published during the month of October, 2008, the photograph of Sri. M. T. Vasudevan Nair taken by the petitioner appeared. It was published without obtaining complainant's consent, permission or license. In fact in the year 2004, the complainant had delivered a copy of the said photograph of Sri. M. T. Vasudevan Nair to the authorised representative of Malayala Manorama for incorporating it in the interactive encyclopedia entitled as 'MT CD Rom' on Sri. M. T. Vasudevan Nair. At the time of delivering the copy of the photograph, there was an assurance to the complainant from the side of the accused that the photograph will not be used for any purpose, other than the CD Rom. Annexure - R1(a) is the letter issued by the Editor, by which Malayala Manorama agreed to the complainant that they will use the photograph for incorporating in the respective section in the M.T. - CD Rom and further agreed that they will not use the photograph for any other purpose. According to the complainant, this undertaking made through Annexure - R1(a) was violated by the accused, thereby infringing his copyright. The complainant caused to issue Annexure - R1(b) lawyer notice dated 08/11/2008 setting out the facts. The accused through their lawyer issued a reply notice (Annexure - R1(c)). Annexure - R1(d) would show that an amount of Rs.1,500/- was sent by the accused to the complainant as remuneration for the photo published on the cover page of Bashaposhini. Annexure - R1(f) reply was sent by the lawyer of the complainant to the accused stating that he was not prepared to receive any amount as remuneration for the photograph and there was no settlement of issues as stated in the lawyer notice. Finally, the complaint was filed.