w w w . L a w y e r S e r v i c e s . i n



Ganga Rudraiah, Represented by Power of Attorney Holder, Sridevi Gopalakrishna & Another v/s The Cinema Resource Centre, Represented by its Trustee, Sruti Harihara Subramaniam & Another


Company & Directors' Information:- U. P. POWER CORPORATION LIMITED [Active] CIN = U32201UP1999SGC024928

Company & Directors' Information:- D B POWER LIMITED [Active] CIN = U40109MP2006PLC019008

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Amalgamated] CIN = U40101WB2003PLC097340

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- S. E. POWER LIMITED [Active] CIN = L40106GJ2010PLC091880

Company & Directors' Information:- E O S POWER INDIA PRIVATE LIMITED [Active] CIN = U32109MH1985PTC037094

Company & Directors' Information:- D C POWER LIMITED [Strike Off] CIN = U40109TG1996PLC025996

Company & Directors' Information:- POWER CORPORATION OF INDIA LIMITED [Amalgamated] CIN = U50101WB1997PLC084060

Company & Directors' Information:- RESOURCE POWER PRIVATE LIMITED [Active] CIN = U40102HR2009PTC039422

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- POWER CENTRE PRIVATE LIMITED [Active] CIN = U31909TN1972PTC006137

Company & Directors' Information:- GANGA CORPORATION PRIVATE LIMITED [Active] CIN = U65921UP1954PTC076243

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- D-CINEMA INDIA PRIVATE LIMITED [Active] CIN = U74999TN2020PTC137840

Company & Directors' Information:- POWER AND POWER PVT LTD [Active] CIN = U31300AS1989PTC003282

Company & Directors' Information:- CINEMA COMPANY INDIA PRIVATE LIMITED [Strike Off] CIN = U74999MH2014PTC255501

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- S B S POWER PRIVATE LIMITED [Strike Off] CIN = U40100AP2012PTC083965

Company & Directors' Information:- B & G POWER LIMITED [Active] CIN = U40105PB2010PLC033765

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- U S POWER PRIVATE LIMITED [Under Process of Striking Off] CIN = U40103MH2009PTC189364

Company & Directors' Information:- K P M POWER PRIVATE LIMITED [Strike Off] CIN = U40102KA2008PTC046804

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- S K POWER INDIA PRIVATE LIMITED [Strike Off] CIN = U31101KA2006PTC039172

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- T C POWER PRIVATE LIMITED [Strike Off] CIN = U40101PB2009PTC033405

Company & Directors' Information:- H. & T. POWER PRIVATE LIMITED [Active] CIN = U40106MH2016PTC287646

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- A C R POWER PRIVATE LIMITED [Strike Off] CIN = U74900UP2010PTC040987

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- A. R. POWER PRIVATE LIMITED [Strike Off] CIN = U74999DL2007PTC161616

Company & Directors' Information:- CINEMA LIMITED [Dissolved] CIN = U99999MH1954PLC009319

    Civil Suit No. 674 of 2017

    Decided On, 13 July 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

    For the Plaintiffs: R. Sathishkumar, Advocate. For the Defendants: N.L. Rajah, Senior Counsel, E. Jayasankar, Advocate.



Judgment Text

(Prayer: Civil Suit has been filed under Order IV, Rule 1 of O.S.Rules read with Order VII, Rule 1 of C.P.C., read with Section 51, 55 of the Copyrights, 1957 praying to grant a judgment and decree: (a)Declare that the plaintiffs are the lawful owners of the copyright of the photographs of the film 'Aval appadithan' now held by the defendants 1 and 2; (b)Grant a permanent injunction restraining the 1st and 2nd defendants, their men, servants, agents or any other person acting under their instructions or on their behalf from in any manner infringing and/or enabling the infringement of the copyrgith in the photographs of the film 'Aval appadithan' specifically by reproducing, issuing copies, communicating to the public, selling or offering for sale, renting or offering for rent displaying in any mode and means whatsoever; (c) Mandatory injunction against the 1st and 2nd Defendants by directing them to deliver up and surrender to the plaintiffs, the originals of the photographs of the film 'Aval appadithan' without retaining any copy in any form whatsoever; (d) Direct the 1st and 2nd Defendants to deliver up and surrender to the plaintiffs, for the purpose of destruction all other copies and republications of the said photographs of the film 'Aval Appadithan', including copies maintained on electronic databases, including on CD's, pen drives, hard drives, blue ray discs and microfilms; and (e) Costs of the suit.)(The case has been heard through Video Conferencing)1. The epicentre of the dispute in this suit is the photographs of the Tamil feature film, “Aval Appadithan (mts; mg;gojhd;)” released in theatres on the Deepavali day of the year 1978.2. The film “Aval Appadithan (mts; mg;gojhd;)” was produced and directed by Late Mr.Rudraiah. The film was critically acclaimed for its story–line and cinematography. It bagged the state award for cinematography. The album containing photographs taken during the course of making the said movie is presently in possession of the first defendant “The Cinema Resource Centre”, a trust established in the year 2009. The second defendant is one of the Trustees of the first defendant. Since 2004, the second defendant with an intention to establish an Archives on film is involved in collecting film related materials. According to the defendants, the suit photographs came to their hands during the year 2007, when they purchased sacks of photographs of various films from a dealer in 'Moore Market' (A place at Chennai named after the then President of Corporation of Madras. It was built in the year 1900 to house the hawkers. Particularly, the place is popular for curios including antiques, art, books and pets. In this market, one could buy rare and second hand materials. On 30th May 1985, the building went on fire and got gutted. The traders of Moore Market were rehabilitated in a new building constructed nearby place called 'Lilly Pond'. Still people call it by the old name 'Moore Market').3. The first plaintiff is the daughter of Mr.Rudraiah. From an interview of the second defendant published in the year 2014, the first plaintiff came to know about the photo album of the film ‘Aval Appadithan’ is in possession of the first defendant trust, hence, she met the second defendant on 1st December, 2014 and requested the second defendant to give back the photo album to use the same in the website on the work of her father Rudraiah. The second defendant refused to return the album. However, she was ready to give credit for donating the same to the first defendant trust.4. Aggrieved by the refusal to part away the photographs, the present suit is filed against the defendants. Initially, the daughter of Rudraiah was the sole plaintiff and the his son was arrayed as the third defendant. Later he was transposed as second plaintiff. The plaintiffs claim that Rudraiah as the Producer and Director of the Movie ‘Aval Appadithan’ is the copyright owner of the photographs. He did not assign the rights to any person nor did he relinquished his right over the said photopgraphs. The album was stolen from Rudraiah and the second defendant is holding the album. They are not the legal owners of the siad album. The plaintiffs claim that the defendants are in law obliged to return the photographs to the them, being the legal heirs of the late Rudraiah.5. The following relief prayed in the plaint:-(a) Declare that the plaintiffs are the lawful owners of the copyright of the photographs of the film 'Aval appadithan' now held by the defendants 1 and 2;(b) Grant a permanent injunction restraining the 1st and 2nd defendants, their men, servants, agents or any other person acting under their instructions or on their behalf from in any manner infringing and/or enabling the infringement of the copyrgith in the photographs of the film 'aval appadithan' specifically by reproducing, issuing copies, communicating to the public, selling or offering for sale, renting or offering for rent displaying in any mode and means whatsoever;(c) Mandatory injunction against the 1st and 2nd Defendants by directing them to deliver up and surrender to the plaintiffs, the originals of the photographs of the film 'Aval appadithan' without retaining any copy in any form whatsoever;(d) Direct the 1st and 2nd Defendants to deliver up and surrender to the plaintifs, for the purpose of destruction all other copies and republications of the said photographs of the film 'Aval Appadithan', including copies maintained on electronic databases, including on CD's, pen drives, hard drives, blue ray discs and microfilms;(e) Costs of the suit6. Contrarily, the defendants claim that the plaintiffs have no right to claim ownership over the photographs. The first owner of the photos is the photographers, who took the photos and not the producer of the film. After legally acquiring the photographs for consideration, the defendants have spend lot of money to restore the photographs. The photo album is not part of the estate of late Rudraiah. The album was created by the defendants within the knowledge of Rudraiah. The photographs were purchased for consideration from a scrap dealer. It is not a stolen property as alleged by the plaintiffs. The defendant Trust is a non-profitable charitable trust created for the purpose of restoring and preserving the antique material related to Indian Cinema. Lot of money and time is spent to preserve, digitize, catalogue and research into these photographs. The defendants are ready to share the digitized images to the plaintiffs without any watermark. The allegations of copyright infringement and dishonest misappropriation is denied.7. Based on the pleadings, the following issues were framed:-“(1) Whether the plaintiff's father is the owner of the copyright in the photographs from the movie, “Aval Appadithan” and consequently to the plaintiffs are the owners of the copyrights in the photographs from the movie Aval Appadithan?(2) Whether the defendants' have committed copyright infringement by publishing, using, displaying the photographs from the movie, Aval Appadithan?(3) Whether the defendants claim that they created the album is correct and if so, whether the right of the plaintiffs or their father, can be defeated?(4) Whether the plaintiffs are entitled to the reliefs claimed for?(5) To what other reliefs?”8. The issues as framed above, was recasted as below:-“(1) Whether the plaintiffs' father Mr.Rudraiah is the owner of the copyright of the photographs of the movie “Aval Appadithan”?2) whether the suit subject photo Album form part of the estate of late Mr.Rudraiah for the plaintiffs to seek declaration of ownership of the copyright over the photographs album of the movie “Aval Appadithan”?(3) Whether the defendants' have committed any infringement of copy right by publishing, using, displaying the photographs of the movie, “Aval Appadithan”?(4) Whether the defendants possession of the suit subject Album is a lawful possession and if so, whether the possessionary right of the defendants will defeat the copyright vest with the owner of the copyright?(5) Whether the plaintiffs are entitled to the relief of injunction claimed for?(6) To what other reliefs?”9. On behalf of the plaintiffs, their mother Mrs.Sridevi Gopalakrishna as PW-1 and on behalf of the defendants, the second defendant as DW-1 were examined. 19 documents on the side of the plaintiffs were marked as Ex.P-1 to Ex.P-19. No document filed by the defendants.10. Issue No.1:The plaintiffs are the children of Late Mr. Rudraiah. In the plaint, it is stated that, Mr.Rudraiah directed and produced the film “Aval Appadithan”. As part of making the cinematograph film, he commissioned the work of taking photographs. The photographs were taken according to his directions and the photographers were remunerated for the said jobs. The suit photographs constitute ' Artistic Work' as defined in Section 2(c)(i) of the Copyright Act, 1957. By virtue of Sections 13, 14 and 17 of the said Act, the late father of the plaintiffs, as a Producer of the film becomes the author and owner of the copyright in the said photographs. Being the legal heirs of the producer, all rights that flow to the producer under Section 14 of the Act, vest with the plaintiffs. The late father of the plaintiffs, is the first owner of the copyright in the said photographs by virtue of Section 22 of the said Act, the right over the said photographs is still valid and subsisting. While the pre-production photo album of the other movies produced by Mr.Rudraiah are available, the photo album of ‘Aval Appadithan’ alone found missing and despite attempts to find the photographs of ‘Aval Appadithan’, the plaintiffs could not find the same and presumed that it might have been stolen or misappropriated at some point of time during the life time of their late father either from the colour labs or from the possession of their late father.11. In the written statement filed by the second defendant on her behalf and on behalf of the first defendant Trust, the above averments found in the plaint are denied. The averment that the photographers engaged for taking photographs were paid and therefore, the father of the plaintiffs is the owner of the copyright, is not admitted and called upon to strict proof. The photographs were purchased by the second defendant for consideration from a scrap dealer and she has spent lot of hard work, time and money to restore the photographs, which they have legally acquired. The question of copyright over the photographs, which are in possession of the defendants does not arise since the album is the creation of the defendants and the late father of the plaintiffs was well aware of it.12. The plaint averment specifically qualify their claim of copyright over the photographs as an “artistic work”, taken while making the cinematograph film ‘Aval Appadithan’. It is not their case that the photographs form part of the cinematograph film. As per the plaint averment, the copyright they claim falls within the meaning of Section 14 (c) of the Act and not under Section 14(d) of the Act. In other words, the plaintiffs are aware of the fact that their late father probably have no copyright over the cinematograph film. Therefore they have not pleaded that the photographs over which they claim copyright forms part of the cinematograph film. The defendants also does not plead otherwise. They admit that they are photographs shot during the production of the film.Reading of Section 14 (c) and Section 14 (d) of the Act will make clear that the copyright over the photograph taken during the making of the film is distinct and different from the copyright over the photograph which form part of the cinematograph film. Also, Section 2(c) of the Act, which defines the word ‘artistic work’ and Section 2(s) of the Act, which defines the word ‘photograph', without any ambiguity leads to the conclusion that the origin of the photograph is material fact to decide whether the suit by the plaintiffs seeking copyright over the 'artistic work' is tenable.13. To put it in other words, in the instant case, there is overlapping of moveable property right and intellectual property right, though the material upon which the parties claim ownership is one and the same. The overlapping could be understood on reading the relevant provisions under the Copyright Act, which are extracted below:-Section 2(c):“artistic work” means-(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;(ii) an [work of architecture]; and(iii) any other work of artistic craftsmanship.Section 2(s): “photograph' includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film;Section 14: Meaning of copyrightFor the purpose 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(a) ......(b) ......(c) in the case of an artistic work-(i) to reproduce the work in any material form including-(A) the storing of it in any medium by electronic or other means;(B) depiction in three-dimensions of a two-dimensional work;(C) depiction in two-dimensions of a three-dimensional work;(ii) to communicate the work to the public;(iii) to issue copies of the work to the public not being copies already in circulation;(iv) to include the work in any cinematograph film;(v) to make any adaptation of the work;(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);(d) in the case of a cinematograph film:-(i) to make a copy of the film, including-(A) a photograph of any image forming part thereof; or(B) 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 film;(ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;(iii) to communicate the film to the public.14. In the case of an photograph taken as 'artistic work' or a cinematograph film made for valuable consideration at the instance of a person, such person shall, , in the absence of any contract to the contrary, be the first owner of the copyright therein. (Section 17(a) and (b) of the CopyRight Act).15. It is pleaded by the plaintiffs that Mr.Nallusamy and Mr.N.Gnanasekharan, took the suit photographs for which they were remunerated by the late father of the plaintiffs.16. The learned counsel appearing for the defendants primarily attacks the case of the plaintiffs on the ground that no documentary proof filed to show that the photographs were taken during the production of the film Aval Appadithan. No documents filed to prove that Mr.Rudraiah is the producer of the said film. Infact, PW-1 in the cross examination admits that the film 'Aval Appadithan' was produced by Kumar Arts, a proprietory concern. (Late Mr.Rudraiah was the proprietory of the Kumar Arts). To substantiate this plea, the plaintiffs ought to have produced evidence. Having failed to produce the evidence to show the ownership of copyright over the film 'Aval Appadithan', the plaintiffs are to be non-suited. Further, it is contended by the defendants that admittedly, the photographs were taken by Mr.Nallusamy and Mr.N.Gnanasekharan. Unless the plaintiffs have evidence to show that the photographers were remunerated for their work, as per section 17 of the Act, the photographers are the first owners. Having failed to examine the photographers and failed to produce the evidence to show that they were made for valuable consideration at the instance of Late. Rudraiah, the ownership of the copyright over these photographs shall only presume to be with the photographers. The photographers being the first owner of the copyright, they are necessary parties to the proceedings as per Section 61of the Copy Right Act. Therefore non impleading the first owner, the necessary party disentiles the plaintiffs to maintain the suit.17. Relying upon the judgment of this Court rendered in Sri Lalgudi G.Jayaraman and others v. Cleveland Cultural Alliance rep.by its President Mrs. Uma Ganesh and another reported in (2008)4 LW 511, the learned Senior Advocate for the defendants pleaded that in relation to photographs, the person taking the photograph is the author and he shall also be the owner of the work if he was not paid to take the photograph Payment of valuable consideration alone will create copyright in favour of the person making payment.18. In the above said judgment, the Court has held as below:-“24. It is clear from the language of Section 17 that as a matter of general rule, the author of a work, is the first owner of the copyright therein. It is only the exceptions to the general rule, which are spelt out in clauses (a) to (e) under the proviso to Section 17. Clause (a) of the proviso to Section 17 deals with literary, dramatic or artistic work. Clause (b) deals with photographs, paintings, portraits, engravings and cinematograph films. Clause (c) deals with a work to which clauses (a) and (b) will not apply. These clauses (a), (b) and (c) make persons other than the authors, as the first owners of the copyrights, under certain circumstances.25. Under Clause (a) of the proviso to Section 17, the proprietor of a Newspaper, magazine or periodical would become the first owner of the copyright in a literary, dramatic or artistic work, if it was made by the author "in the course of his employment under a contract of service or apprenticeship".26. Under Clause (b) of the proviso to Section 17, a person at whose instance a photograph is taken, or a painting or portrait is drawn or an engraving or a cinematographic film is made, "for valuable consideration", becomes the first owner of the copyright therein.”19. The word "author" is defined under Section 2(d) as follows:-"Author" means, - (i) in relation to a literary or dramatic work, the author of work; (ii) in relation to a musical work, the composer; (iii)in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work, which is computer-generated, the person who causes the work to be created"20. In case of immovable property, the person without title but in continuous and peaceful possession, can claim adverse possession. Likewise in case of moveable property, the finder of lost goods as a bailee, can claim lien over the moveable for the expenses incurred to preserve the property. Whereas, for an intangible property like intellectual property there is no law which gives right or protection to the person, who is not owner or assignee or licensee of the copyright to possess and exploit the material, which carry copyright, unless protected under Section 52 of the Act or clear evidence of abandonement to public at large.21. It is the admitted case of the defendants that they are not the copyright holder nor the licensee. Their claim, the photographs were made into album by 2nd defendant, after restoring it, hence, she has become the owner of it. Further, her possession of the album was known to Late Rudraiah during his life time, but he did not claim it and himself acquiesced in the matter.22. As far as Copyright Act is concerned, during the term of the Copyright, the right can either be assigned under Section 18 or interest in the Copyright be granted by a license under Section 30 or relinquish the right under Section 21. All these mode of transfer shall only be in writting and not otherwise. Acquiesce of Copyright as a defence is not a fact for presumption. The defendants strongly rely upon Ex.P-11, the copy of the email dated 07/12/2014 sent by the first plaintiff to the first defendant to prove that the first plaintiff had appreciated the work done by the first defendant for digitizing and preserving the photographs. Having acknowledged the possession, without any murmur, the plaintiffs cannot lay a suit after three years from the date of its first publication ie 16/01/2013 (Ex P-6).23. This argument, in fact counter productive. The defendants admitting the fact that Late Rudraiah is the producer of the film 'Aval Appadithan' and had taken the defence of acquiesence. This shifts the burden of proof on the defendants to prove the same. In the written statement it is stated that the 2nd defendant came in possession of the photographs in the year 2007. She came to know in the year 2010 about the movie “Aval Appadithan”, which was directed by Late Rudraiah. The second defendant (DW-1), in her cross examination, had deposed that around 2012-2013, they confirmed these photographs pertains to the movie “Aval Appadithan”. She also admits that she wanted to contact Mr.Rudraiah during his life time, but could not contact him because many people informed her that Rudraiah was reclusive.24. These admissions clearly prove that, the defendants were aware of the fact that the photographs, which are in their possession, relates to the film “Aval Appadithan” and the movie was produced and directed by Mr.Rudraiah.25. The reading of Section 17 of the Copyright Act and the interpretations given by various Courts in respect of first owner of the photographs, wherever there is contract to the contrary, the first owner will be the person, who is entitled for the ownership, as per the said contract. Otherwise, the person, who engaged the photographer, is the firsr owner. The Clauses (a) and (b) to the proviso of Section 17 of the Copyright Act, makes clear that for photograph taken by a freelancer, the author and first owner will be the photographer. As far as photographs, which are taken in the course of employment or for valuable consideration, the person employed or the person, who paid the consideration, shall be the first owner, unless there is any contract to contrary. Therefore, under law, the employee who engage the photographer, is to be considered as the first owner in the absence of any contrary agreement.26. In Lalgudi Jayaraman case cited supra, it is held that, as seen from Clause (b) of the proviso to Section 17 of the Copyright Act, the payment of valuable consideration, by itself creates a copyright in favour of the person making payment, if the work in question is a photograph or painting or, portrait or engraving or cinematograph film. If the work in relation to which a copy-right is claimed, falls under the category of photograph or painting or portrait or engraving or cinematograph film, there is no necessity for the person claiming copyright to prove that the author was under a contract of service and that the work was made in the course of his employment. It is enough, if such person proves that the work was produced for valuable consideration.27. The defence of acquiesence amounts to admission of the copyright vesting with Rudraiah. Thus, the fact, Rudraiah the producer of the film engaged the service of photographers are facts admitted, which requires no formal proof, unless the Court in its discretion, requires proof of the said fact otherwise than by such admissions. (Section 58 of the Indian Evidence Act). The payment of valuable consideration is matter for persumption under law, in the absence of contract to contrary.28. Further, in circumstances when the legal and beneficial title get seperated, the Courts had recognised, equitable title to copyright with the beneficial title holder, where the contract is silent on the transfer of legal right, but if the intention of the parties, express or implied, indicates the party, who is entitled to the copyright. As it is observed by Copinger and Skone James in their commentaries on Copyright, “It must always be borne in mind that, even if the legal title to the copyright does not vest in the employer as first owner under these rules, it will often be a term of the contract of the author's engagement that the “employer” should own the copyright.” (Ref: Copinger and Skone James on Copyright, Fifteenth Edition, Vol.1, page 217)29. In the instant case, the plaintiffs claim that the photographs were taken during the making of the film and the photographers were paid for their artistic work. The defendants deny the said averment. Neither the plaintiffs nor the defendants have let any evidence regarding the origin of the photographs i.e, whether it was part of the cinematography film or taken during the making of the film. Also, no evidence to prove or disprove the payment of remuneration. But then, in the absence of any other rival claim over the copyright in the said artistic work, it is to be held that the plaintiffs have established the copyright in the photographs vest with the producer who engaged the photographers. The right of the producer shall prevail over the defendants, who admits that she does not claim any copyright and she purchased only the photographs from a scrap dealer for valuable consideration. Therefore, the Issue No.1 is answered in affirmative.30. Issue No.2:The defendants plead that the suit subject photo album cannot for part of the estate of late Mr. Rudraiah.'Estate' as defined in P.Ramanatha Aiyar, Concise Law Dictionary, 'The estate of a deceased person is a bundle of rights, powers, inumities and liabilitities which survive him'.31. The photo album, which is the subject matter of the suit in the material form carries two distinct characters and rights. One, as an object in physical form, it is tangible and it has to be treated as moveable or corporeal property. Another, as an 'artistic work' whether or not it possesses artistic quality, the copyright inbuild to the photo is intangible and it has to be treated as incorporeal property or the intellectual property. The photo album, which is the subject matter of this suit, is a combination of corporeal and incorporeal right is the death man's right falling within the meaning 'estate' and heritable.32. The above said conclusion of this Court is well fortified by Section 20 of the Copyright Act, which deals with transmission of copyright in manuscript by testmentary disposition. Through this Section, the Act recognises bequeath of copyright by testament. The copyright in a manuscript of a literary, dramatic or musical work or to an artistic work and the work not published before the death of the author is transmissable. As a corollary, in the absence of any testament, the copyright as estate is heritable by the legal heirs applying law of succession.33. Under Issue No.1, this Court has held that in the absence of contra evidence, the Late Rudraiah is the first owner of the copyright in respect of the suit album consisting of production photographs of the film “Aval Appadithan”. It is an artistic work, the copyright in it is transmissable. The copyright over the said album is for a term of 60 years following the year the photographs published. ( Section 22 r/w 25 of the Copyright Act).34. The defendants case is, the photo album came to public domain on 16/01/2013. Even assuming that the photographs were published at the time of film release i.e in the year 1978, the limiation of 60 years, if reckoned from 1979, it could be safely held that, the copyright over the artistic work vested on the first owner Late Rudraiah had passed on to the plaintiffs, who are his legal heirs as per (Ex.P-3 and Ex.P-4) and they are legally entitled to enforce the right vested on them till the expiry of the term. Accordingly, the Issue No.2 is answered as under.35. The photo album consitutes corporeal and incorporeal rights falling within the meaning of 'estate' of Late Rudraiah. Therefore, the plaintiffs are entitled to inherit the said estate and for the declaration of ownership of the copyright over the photographs album of the movie “Aval Appadithan”36. Issue Nos.3 and 4:According to the defendants, being drived by the spirit to educate people on many unknown facts in film history relating to South Indian cinemas started collecting film related materials since 2004. During the year 2007, the second defendant purchased sacks of photographs of various films and actors from one of the dealers at Moore Market. With the help of interns, they got the photographs digitized and gave a catalogue number for identification and the photographs were put into acid free plastic sheet in the order of catalogue number and slowly over a period of time an archive album of “Aval Appadithan” was created. The first defendant trust, “The Cinema Resource Centre “TCRC is a the Charitable Trust established in the year 2009 for the purpose of preserving the films memorabilia. It is run without pofit motive, with the object to create awareness about the unknown facts in South Indian Cinema.37. The learned Senior Counsel for the defendants emphasised that, the second defendant purchased the photographs for a price from the scrap dealer and spent lot of hard work, time and money for its restoration. The first defendant trust is a charitable trust function as a repository of old cinema of South India. The archive album of the film “Aval Appadithan” is the property of the defendants and they are in lawful possession as owners of it. The plaintiffs are not the owners of the album. The reasonable offer made by the defendants to acknowledge the right of Rudraiah family cannot be construed as admission of title. In fact, the photographs were retrieved, restored and well preserved by the defendants. Posting the photographs in the respondents website will ensure greater recognition, visibility to Late Rudraiah's outstanding creativity. Contrarily, the plaintiffs, who lost animus over the photographs for years, had knowledge about the photographs as early as in the year 2013, but the suit filed only in the year 2017 to make gain from the defendants, who run the charitable trust, without any commercial exploitation of the photographs. Any event, the defendants have not infringed anyone's copyright and they are protected by the doctrine of fair use under Section 52 of the Copyright Act.38. As discussed in the earlier part of this judgment, the album containing photographs of the film “Aval Appadithan” clads both the character of photograph stand alone and photograph of a cinematograph film. If it is photograph stand alone it will fall within the definition of 'artistic work' (whether the said work possess any artistic quality or not). Otherwise, if it is a photograph taken out from a cinematograph film and form part of the film, then, it will fall within the inclusive definition of cinematograph film.39. The parties have pegged their case, that the photgraphs were taken while making the film and they are not part of the film. There is no dispute over the origin of the photographs. Also, defendants does not possess any assignment of copyright or license to exhibit the photographs in public is a fact admitted. The defendants case is that those photographs were purchased from a trader in the year 2007. Restored its originality and made it public in the year. The album, which is collection of photographs, is a property which does not trace to the plaintiffs in any manner.40. The movie “Aval Appadithan” was released in the year 1978. The defendant in the written statement claims that the album containing photographs of the film “Aval Appadithan” was made public in the year 2013, when article about the activities of the first defendant Trust was published archiving the photographs of “Aval Appadithan”. The producer of the film Mr.Rudraiah died on 08/11/2014 (Ex.P-5). It is an admitted fact that the plaintiffs soon after the death of Late Rudraiah had contacted the defendants over phone on 1st December, 2014 and dropped into the defendant's office to see the album on coming to know about it. Since then the plaintiffs are in the pursuit of getting the possession of the photographs. The exchange of e-mails and notices, which are marked as Ex.P-11 to Ex.P-19 speaks volume about the attempts of the plaintiffs to retrive the possession of the photographs from the defendants.41. Therefore, the argument put forth by the learned counsel for the defendants that the suit is not maintainable on the ground of acquisence or latches does not carry merit.42. Ex.P-7 is the photocopy of the first defendant's website. They introduce themselves as “a not-for-profit public archive of Indian cinema designed to enable research on the audio-visual cultural artifacts produced by Indian films, especially those made in the regional languages of South India. We seek to promote film culture, from a historical, educational, and artistic perspective.”43. In their website, the defendants informs that over 8000 movie posters, 5000 lobby cards (used for promotion of films in movie halls), 3000 song books 300 Long Playing records, 700 pieces of literatures on cinema and 25000 photographs (shot during production of films) are available for public viewing. The suit subject 'artistic work' is part of 25000 photographs made available for public viewing. Therefore, without any doubt, it is to be held that the defendants through its website, communicate the 'artistic work' in dispute for the public viewing. Though the defendants plead that they are not-for-profit trust and they don't permit for profitable use of their website, this submission is far from convincing. In the digital era, the conventional method of infringment has become redunctant. Copying, duplicating, encryption and decryption of information/work are easy through internet and also difficult to trace the purpetrators, who infringe the copyright.44. It is also equally difficult to accept the plea of fair user, since by making the photographs for public viewing through internet it enables profitable exploitation and does not confine to private study or research or promotion of education. The statutory limitation on copyright under Section 52 of the Copyright Act, which permits use of others copyright for specific purpose and specified circumstances, without infringment, is not a shield for these defendants who had made unrestricted public view of the plaintiffs artistic work opening the gate for piracy.45. It is to be noted that the defendants are concious of the fact that they are not the holder of the copyright, therefore, in their website, they have posted disclaimer stating, “we do not own copyright over any of the images in our archieve. The copyright continue to be the property of the respective copyright holders. If you are a copyright holder and you find that one of your properties has been used here and if you wish for the same to be taken down, please write to us at tcrc.india@ gmail.com.”46. The defendants who are in possession of the photographs say they obtained from a unknown vendor. Their vendor's right to sell the copyright over the photos are not substantiated by the defendants. When a person is in possession of a chattel or thing, which is wrongly delivered to him or falls into his hand through unknown source, where its ownership vest with someother unknow person, the possessor of the material has to be treated as finder of goods.

Please Login To View The Full Judgment!

As already discussed, the photographs are not only a tangible movable property, but inbuild with intangible intellectual property. The ownership of the copyright is now traced. The defendants are deemed to be sub-bailee. (a person to whom the actual possession of goods is transferred by someone, who is not himself the owner of goods, but has a right to possession of them as bailee of the owner-Halsbury's Law of England Vol 4, 5th edn., Bailment and Pledge, para 110 ).47. Section 71 of the Indian Contract say, the responsiblity of the finder of goods is same as that of a bailee. Till now, the defendants are enjoying the benefit of the goods and also had spent time and money to restore, digitize and preserve the photographs. The combined reading of Sections 70, 71, 159 of the Indian Contract Act mandates the defendants to restore the photographs to the plaintiffs.48. To sum up, from the date of physical possession of the photographs till the date of claim made by the plaintiffs for repossession of the photographs, the status of the defendants qua the photographs is finder of goods and a sub-bailee. As long as the photographs used only for the purpose restricted under Section 52 of the Copyright Act, the act of the defendants will not amount to infringment.(Issue No. 3) The possessory right of the photographs and the copyright of artistic work are different. However, the overlapping of these two rights inbuild and inseperable makes the owner of the copyright difficult to exploit the right without the physical possession of the original artistic work. So long, the defendants were in possession of the photographs as sub-bailee. They are legally bound to restore the possession of the original photographs back to the plaintiffs. ( Issue No. 4)49. Isssue No 5:While considering the application for interim injunction pending final disposal of the suit, after hearing both sides, this Court, vide its order dated 17/01/2018 permitted the defendants to host the photographs with rider/disclaimer, which reads as follows:-“the photographs of the movie AVAL APPADITHAN has been claimed by Ganga Rudraiah for herself and on behalf of Dileepan Ligaiah as the legal heirs of the producer Shri.C.Rudraiah and the continued exhibition of the pictures pertaining to the movie is subject to the result of the suit filed by them against “The Cinema Resource Centre” now pending before the Hon'ble High Court of Madras. Further, it is advised that the photographs shall not be downloaded from this website by any person for any purpose what so ever.”50. On considering the nature of the right claimed and proved, the display of the suit photographs in the defendants website so far was not a improper or illegal act. The defendants were exploiting it as gratitutous bailee. On establishing their title and right over the photographs, the plaintiffs are entitled to deny permission for it exhibitions or display by others. Therefore, the defendants can no more display the photographs without license from the owner of the copyright.51. On cummulative assessment of the law, facts and evidence, this Civil Suit is partly allowed.a) The plaintiffs are delared as lawful owners of the copyright of the production photographs of the film ' Aval Appadithan'.b) The defendants 1and 2 are directed to deliver the original photographs of the film “Aval Appadithan” to the plaintiffs within 30 days from the receipt of the judgment copy.c) The defendants are directed to delete from the web site and destroy on their own the copies of the photographs maintained by them in physical or electronic form.d) The defendants are restrained from communicating/ publishing the 'artistic work' namely the production photographs of the film 'Aval Appadithan' in any manner or mode.e) The plaintiffs shall have no other right or claim against the defendants, except to receive the production photographs of the film 'Aval Appadithan'.e) No order as to costs.
O R