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A.M. Gopalan, Rep. by Power Agent V.C. Praveen v/s Eros International Media Limited, Mumbai

    C.S. No. 739 of 2018 & A. No. 8478 of 2018
    Decided On, 19 August 2021
    At, High Court of Judicature at Madras
    For the Plaintiff: M/s. Chandini Pradeep, Arun C. Mohan, Advocates. For the Defendant: Jayesh Dolia for M/s. Aiyar & Dolia, Advocates.

Judgment Text
(Prayer: Plaint under Order IV Rule 1 of Original Side Rules and Order VII Rule 1 of CPC read with Sections 51, 55 and 62 of the Copyrights Act, 1957 and the Copyright (Amendment) Act, 2012, praying for the following:

a. A permanent injunction restraining the defendant their directors, successors, servants, agents, employees, programmers, subordinates, assigns, representatives, distributors, stockists, dealers and all other persons claiming through or under them or howsoever otherwise, from directly or indirectly in any manner from committing acts of passing off and enabling others to pass off the plaintiff’s title with respect to the movie “Kayamkulam Kochunni” by displaying such works on the defendant’s website or other social media platforms, or from in any manner or other social media platforms, or from in any manner claiming that the impugned movie originates from them, or in any other manner whatsoever;

b. A permanent injunction restraining the defendants, jointly and severally, their directors, successors, servants, agents, employees, programmers, subordinates, assigns, representatives, distributors, stockists, dealers and all other persons claiming through or under them or howsoever otherwise from directly or indirectly in any manner copying, reproducing, adapting, putting up for public display, or in any manner infringing the plaintiff’s copyrighted work in the promotional material, trailers, or music videos, clips, or any portion or the entirety of the movie “Kayakulam Kochunni”or in any other manner whatsoever;

c. A preliminary decree to be passed in favour of the plaintiff directing the defendants to render account of profits made by use of the plaintiff’s copyrighted work with respect to the movie “Kayamkulam Kochunni”or and a final decree be passed in favour of the plaintiff’s for the amount of profits thus found to have been made by the defendants, after the latter have rendered accounts;

d. The defendant be ordered to pay to the plaintiff a sum of Rs. 5,00,00,000/- (Rupees Five Crores) as damages for the wrongful and illegal activities amounting to the unauthorised use and infringement of the plaintiff’s copyrighted works with respect to the movie “Kayamkulam Kochunni”;

e. The Defendant be ordered to pay to the Plaintiff’s a sum of Rs. 2,00,00,000/- (Rupees Two Crores only) being the amount spent on marketing the film with Defendant’s banner;

f. for costs.)

1. The suit for permanent injunction alleging infringement of copyright and passing off, in respect of movie “Kayakulam Kochunni” (Malayalam). Consequential relief to render accounts and pay damages.

2. The plaint averment are: The plaintiff during the Month of August 2017, started production of a Malayalam movie titled “Kayakulam Kochunni” on an estimated budget of Rs. 50 crores. The defendant during the month of July 2018 sought the distribution right of the movie. After initial negotiation, a contract was circulated by the defendant whereby the defendant would obtain the theatrical exploitation right for a minimum guarantee amount of Rs. 17 crores plus GST. In addition, the defendant was to pay an additional Rs 3 crores to the plaintiff for the digital, audio and airborne rights. In pursuant to the said agreement and to get a head start on promoting the film, the plaintiff obliged the defendant’s request to allow for music videos and trailers to be posted on the defendant’s website. In addition, the plaintiff also allowed the defendant to use their banner “EROS”on all the trailers and promotional materials.

3. 10 days prior to the proposed date of movie release, the defendant sought for reworking the existing agreement and severely undercut the consideration payable to the plaintiff. It became apparent after exchange of emails, that the defendant would no longer honor the agreement between the parties and hence, notice to cease and desist letter dated 25/08/2018 was sent to the defendant. The defendant replied on 21/09/2018 blatantly denying any consensus between them in respect of theatrical distribution rights and digital audio and airborne right of the said movie.

4. The plaintiff’s copyrighted content appeared on the defendant’s website only becausethere was an agreement to that effect. The reply of the defendant that there was no consensus about the copyright is ludicrous statement. After exploiting the copyright of the plaintiff in their website and promoting their presence in the Malayalam movie field, the defendant is trying to strong arm the plaintiff into submitting to an conconscionable contract with the defendant. As a result, the plaintiff is forced to spend on reworking the existing music videos, trailers and promotional materials so as to delete the defendant’s banner “EROS”.

5. On receipt of the suit summons, the defendant had entered appearance, in the interim injunction application filed counter and this court on 31.01.2019 disposed the interim injunction application recording the statement of the defendant that they have deactivated the songs concerned from the platform in question, disposed the applications.

6. Thereafter, the defendant filed the written statement with 19 days delay. The delay was condoned and the written statement was taken on file vide order dated 12.06.2019.

7. In the written statement, the maintainability of the suit challenged. Pointing out absence of written agreement and want of consensus ad idem between the parties, the suit was sought to be dismissed. Further, referring a written agreement dated 07.07.2015 by Divo Private Limited with EROS Digital FZ LLC, it was contended by the defendant the suit is bad for non joinder of necessary party.

8. Based on the facts controvert in the pleading of the parties, issues were framed and the suit was fixed for examination of witnesses before the Additional Master II for recording evidence. The plaintiff was asked to file his proof affidavit in lieu of chief examination on or before 31.07.2019. The examination of witnesses on either side was supposed to commence on 05.08.2019 and completed by 20.09.2019. The late date for filing written arguments was fixed as 30.09.2019.

9. Since the plaintiff failed to complete the examination of witness as per the case management schedule, this Court refixed the case management hearing on cost of Rs.5000/- vide order dated 16.10.2019. Accordingly, case management hearing was rescheduled for completion of recording evidence by 20.11.2019. Then again, P.W.1 examination itself could not be completed within the time fixed. Cross of P.W.1 was partially done and the case was reverted back to the Court by Master for refixation of case management hearing. Accordingly, on 07.01.2020, this Court extended the time for examination of witnesses and directed the parties to complete the examination of witnesses on either side and list the matter before the Court on 24.02.2020. Thereafter also, the plaintiff has not shown any interest to bring his witness for examination.

10. On 24.02.2020, when the matter was listed, this Court passed the following order:

“Despite extension of time for completing the examination of witness, the parties could not adhere the time frame. Hence, they seek for re-fixation of the time schedule.

2. Taking note of the reason given by the learned counsels, the case management hearing is fixed as below:-

Continuation of PW-1 cross shall commence on 10.03.2020 and get completed by 20.03.2020.

3. The learned counsel appearing for the defendant states that he has one witness for examination.

4. Proof affidavit of the said witness shall be filed in the Registry on or before 24.03.2020 after serving copy to the learned counsel appearing for the plaintiff.

5. Examination of DW1 witness shall commence on 30.03.2020 and get completed by 08.04.2020.

6. Post the matter before this Court for argument on 15.04.2020.”

11. From the notes of the Additional Master, this Court finds that on 10.03.2020, plaintiff’s witness was not present. Hence, adjourned to 19.03.2020. On that day, the plaintiff counsel not present and therefore, further adjourned to 20.03.2021. On that day, due to covid notification, the plaintiff counsel as well as defendant counsel were not present. The Master on 01.02.2021, listed the case and ordered the matter to be posted before this Court.

12. Accordingly the suit was listed on 28.07.2021. After hearing the counsels and on the request of the plaintiff, this Court posted the matter today (19.08.2021) for fixing fresh case management hearing. It is unfortunate, the plaintiff could not assist the Court by furnishing the date on which witness could be present. It is represented that the case management hearing was filed in the Registry today morning. When sufficient time was granted to inform the Court about the convenience of the witness to come and depose, no attempt made to proceed with the examination of witness.

13. The suit was instituted as a commercial dispute for claims of copyright infringement and passing off. The Commercial Courts Act, 2015 enacted to adjudicate commercial disputes expeditiously had fixed specific time limits for each stage of proceedings under this Act. While so, the plaintiff having resorted to file the suit before the commercial division of this court had miserably failed to adhere the time schedule and had breached it all stages. The examination of witnesses which was supposed to be completed by 20.09.2019 even after three extensions (of which one on payment of costs) did not proceed any further after cross examination of PW”1 partly on witness 29.01.2020. The declaration of covid-19 notification on 19.03.2020 cannot be an excuse to delay the trial even after the lock-down substantially relaxed. Courts are functioning on hybrid mode without any inconvenience or impediment to the litigants. Therefore, in view of non compliance of the case schedule management fixed and re-fixed on more than two occasions, court eschew the oral evidence so far recorded. Proceed with the merit of the suit based on pleadings.

14. The suit under the Copyright Act is filed alleging breach of the agreed terms. Admittedly, no written contract entered between the parties. Only the email exchanged between them are relied to infer the Terms of Agreement. Along with the plaint, 11 documents were filed. Pending suit three more documents were permitted to file subject to proof and relevancy. None of these documents indicates there was a concluded contract between the parties in respect of exploitation of the copyright in any manner whatsoever for a specific consideration. In the plaint, it is a specifically stated by plaintiff that pending finalising finer details of the agreement, they were in consensus with respect to the compensation relating to the theatrical exploitation rights along with the digital audio and airborne rights. Whereas in the written statement, the above said averment is categorically denied. According to the defendant, no consensus arrived between the parties regarding the terms and conditions. When there is no agreement or contract, no legal obligation to perform can be imposed on the defendant.

15. Contracts in respect of exploitation of copyright is a complex matter. It involves intangible right which is divisible both vertically (theatrical, satellite, video, etc) and horizontally (music, picture, languages, story, area etc) unless the finer details gets concluded, the negotiations towards the final agreement cannot b

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e deemed to a concluded contract. Precisely for the said reason, the law under section 19(1) of the Copyright Act say, “No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent”. In the instant case, no fact or circumstances is available to infer an equitable assignment. 16. The email correspondences between the parties are purely in the nature of negotiation. It only indicates that the parties were engaged in dialogue to arrive at a conclusion. Since the negotiation has broken, the copyright holder has come to the court for injunction relief and other consequential relief. As far as the injunction relief is concern, pending suit it is recorded in the interlocutory proceedings that the defendant has withdrawn the objectionable content from their website. 17. Any adjudication for other relief sought in the suit, the content of the documents are necessarily to be proved through its author or person conversant and competent to speak about it. The plaintiff in this case has failed to marshal the witness within the time given to prove the fact asserted in these emails. 18. Hence suit is dismissed with costs of Rs 5000/- payable to the defendant. The connected application is closed.