DAILY CALENDAR SUPPLYING BUREAU SIVAKASI Vs. UNITED CONCERN

JUDGEMENT

(1.) THIS appeal is filed under the Letters Patent against the judgment of Kunhamed kutti J. , in Civil Suit No 84 of 1958, by the first defendant. The suit was filed by the plaintiff seeking certain reliefs consequent upon the alleged infringement of copyright under Section 62 of the Copyright Act (Act XIV of 1957 ). The plaintiff, a firm called the United Concern represented by its partner, S. Muthuswami, alleged that in the year 1947, it had contacted one T. M. Subramaniam, an artist, P. W 2 in the case, and got him to execute an oil painting of Lord Subramania in the posture of Kumaraguruparan. After getting this picture painted, the plaintiff acquired from the artist, all the rights in the picture for valuable consideration. Then in 1948, the plaintiff got the painting printed by the off-set process with the help of the well-known firm Associated Printers in Madras and copies of the picture thus printed were widely sold. There were reprints in 1933 and again in 1956. One of the copies of the print thus made is M. O. 12. According to the plaintiff, in 1958, the first defendant, the Daily Calender Supplying Bureau, Sivakasi, represented by its proprietor K. Karunaiyanantham, copied the plaintiff's picture as per M. O. 2 with slight changes here and there. The picture was printed and also sold with the result that the sale of the plaintiff's picture went down considerably. The plaintiff has registered its picture with the Registrar of Trade Marks, and obtained a copyright certificate from the Delhi Office of the Registrar. On these allegations, the plaintiff sought for the following reliefs, namely, (i) an injunction restraining defendants 1 and 2 or their agents and servants from copying. reproducing and multiplying the plaintiff's picture; (ii) damages in a sum of rupees one thousand; (iii) account; and (iv) cancellation and withdrawal of all the publications and advertisements made by the defendants of the picture.

(2.) THE first defendant, the main contesting defendant, in its written statement urged that the picture of Lord Subramania in the posture of Kumaraguruparan reproduced only such characteristic as were described in the Agamas, that consequently the plaintiff's picture was not an original artistic work and that the plaintiff could get no protection under the Copyright Act. The first defendant is carrying on the business among others of printing and supplying calendars for over five years. In the course of that business, be engaged an artist Ravi by name and got him to draw the picture of Kumaraguruparan adopting the ideas commonly prevalent among the Hindus and in conformity with the conception well-known to all votaries of Lord Subramania. There are in circulation several other pictures of the deity in the aforesaid postures, besides that of the defendants. It was not true that the defendants copied from the plaintiff's picture. In fact, the differences between the plaintiff's picture and the defendant's picture were so material in nature, that no one was likely to be deceived into buying the defendant's picture as if it was the plaintiff's. There was a further plea that the high Court of Madras had not jurisdiction to try the suit, because the defendants resided outside the territorial jurisdiction of the High Court, and also because no part of the cause of action had arisen within the limits of the jurisdiction of this court.

(3.) THE learned Judge held on the last mentioned point that the High Court has jurisdiction, because the plaintiff, who had complained of the infringement, resided and carried on his business within the local limits of the original jurisdiction of the high Court. The learned Judge found that the plaintiff was the owner of the picture m. O. 1, that the had copyright in that picture, that the defendant's picture M. O. 2 was a substantial reproduction of the plaintiff's picture and that, therefore, there was an infringement of the plaintiff's copyright. The learned Judge gave to the plaintiff reliefs of injection, and damage in a sum of rupees one thousand but did not grant the other reliefs, holding them to be unnecessary.