1. This is an action in copyright infringement and breach of confidentiality. The Plaintiff claims to hold the copyright in a concept note for a proposed television serial called 'Ye Tera Ghar Ye Mera Ghar'. It says that this was disclosed in circumstances of confidentiality to the 1st Defendant, Star India Private Limited. At the time when it was disclosed, or shortly thereafter, Star India said it was not interested in developing this concept. The Plaintiff says that it then took the script to another production house, Zee Entertainment Enterprises Limited ('Zee'). Even as the Plaintiff was working with Zee on the development of a serial based on the Plaintiff’s concept note, the Plaintiff was informed by the Programming Head of Zee saying that a promotional video had appeared on YouTube for a television show entitled 'Zindagi Abhi Baki Hai Mere Ghost' being made by Star India, and that this seemed to be too similar to the Plaintiff’s concept note to merit further work by Zee. According to the Plaintiff, Zee has since abandoned further development under its contract with the Plaintiff.
2. The Defendants very seriously contest the Plaintiff’s right to bring the suit at all. They say it is most doubtful that the Plaintiff has any subsisting copyright in the concept note: those rights seem to be with Zee. There is also reason to doubt, they say, that the Plaintiff’s partner, Nanditaa Kothari, was the author of the work in question. There is also a controversy about the circumstances of confidentiality alleged by the Plaintiff. All this is independent of their case that there was, in fact, nothing unique or special disclosed to Star India, and that the so-called infringing work is an entirely separate work independently conceived and created.
3. I heard Mr. Daver for the Plaintiff, Dr. Tulzapurkar for the 1st Defendant and Mr. Ravi Kadam for the 2nd Defendant at some length on Friday, 11th September 2015. I placed the matter for orders on 15th September 2015. In the time between those dates, even while the judgment was under preparation, Mr. Daver mentioned the matter on 14th September 2015 at 3:00 pm and sought leave to file written submissions. I permitted him to do so, provided they were filed by 3:00 pm on 15th September 2015 and placed the matter for directions at that time, since I did not then know if the Defendants wished to respond to those written submissions. I permitted Mr. Daver and the Plaintiff this indulgence only to leave no room for controversy or complaint that the Plaintiff had not been given the fullest opportunity to put forward its case. Subsequently, Defendants Nos. 1 and 2 have also filed their written submissions. I have not permitted the Plaintiff to file its responses to those; at some point, these endless filings must stop.
4. Having considered all the submissions and the material, I am not persuaded that the Plaintiff has made out a case for the grant of an interim injunction. There is firstly the question of whether or not a prima facie case can be said to have been made out, and then the issues of balance of convenience and irretrievable prejudice. In my view, the Plaintiff fails on all three considerations. For the reasons that follow, I have dismissed the Notice of Motion.
5. The Plaintiff is a limited liability partnership of one Vipul Kothari and his spouse Nanditaa Kothari. The latter is a member of the Film Writers’ Association, Mumbai, but membership of that guild is probably insufficient evidence of her having authored any previous work on her own. The Plaintiff claims to hold the copyright in the literary work, 'Yeh Tera Ghar Yeh Mera Ghar', a concept note prepared for a television serial. The Plaintiff seems to have acquired an assignment of this copyright only very recently, between June and July 2015. This concept note is registered with the Film Writers’ Association. On 21st November 2012, Ms. Kothari applied for a registration of this work in her name under the Copyright Act, 1957 (Plaint, Ex.B, pp. 52-54).
6. In 2012-13, Ms. Kothari worked with Baba Arts Limited ('Baba Arts') as a creative consultant. She seems not to have been a full-time employee, but that matters little. She is described in the Plaint itself as a Creative Consultant/Director. The Plaintiff claims that on 18th June 2013, Ms. Kothari sought a meeting with Star India to pitch certain concepts for TV programs. A meeting was held a few days later on 20th June 2013. Ms. Kothari claims to have disclosed in circumstances of confidence her concept note, and that this meeting was followed by others. She worked on a draft screenplay between 9th July 2013 and 30th August 2013. She asked others to work on the draft screenplay and the PowerPoint presentation. Further work was done in that regard. On 8th November 2013, Ms. Kothari obtained her registration from the Copyright Board under number L-56255/2013. On 11th December 2013, Ms. Kothari was among those who met with the representatives of Star India. At this time, Star India expressed its lack of interest in further developing this work. In early 2014, Ms. Kothari sought to pitch further concepts to Star India. On 19th February 2014, Ms. Kothari approached Zee with the concept note in question. This was carried further by Zee. In September 2014, Ms. Kothari severed ties with Baba Arts. The Plaintiff was constituted on 30th April 2015. On 9th June 2015, Ms. Kothari assigned her copyright to the Plaintiff, of which she and her husband are partners (Motion paperbook, pp. 254-256).The Plaintiff continued discussions with Zee and these culminated in a Development Agreement dated 9th July 2015 between the Plaintiff and Zee, (Plaint, Ex.T, pp. 112-139A)pursuant to which Zee proceeded with the development of the TV serial. On 10th August 2015, Zee’s programming head telephoned the Plaintiff saying that a promotional video had appeared on YouTube for a new serial by Star India that seemed to be very similar to the project being worked on by Zee with the Plaintiff. Zee apparently told the Plaintiff it could not act further on the Development Agreement. On 15th August 2015, the Plaintiff sent a notice to Star India complaining of the infringement (Plaint, Ex. Z, pp. 145-147).Star India responded on 24th August 2015 denying the Plaintiff’s claim (Plaint, Ex. AA, pp. 148-159).The suit was filed on 27th August 2015, and moved for ad-interim reliefs the next day, Friday, 28th August 2015. Star India’s show was scheduled to launch on 31st August 2015. Adinterim reliefs were declined, and directions were issued for the filing of Affidavits. Replies and a Rejoinder having been filed, the Notice of Motion was placed for hearing and final disposal.
7. Mr. Daver says that there is no denial of the fact that on 11th December 2013 there was a meeting with Star India at which the concept note and Power-Point presentation were disclosed to Star India. That Power-Point presentation clearly shows at the foot of each slide that copyright belonged to Ms. Kothari. There is, he says, therefore no question that a disclosure was made to Star India and that this was in circumstances of confidentiality. That has been breached, for while on the one hand declining to act further on the concept note disclosed, Star India has done precisely that. It has taken the concept note and with nothing more than the most minor and irrelevant changes created a work that infringes the Plaintiff’s copyright. Mr. Daver relies on the recent decision of S. C. Gupte J in Beyond Dreams Entertainment Pvt Ltd & Ors. v Zee Entertainment Enterprises Ltd. & Anr., (2015 (62) PTC 241 (Bom)and in particular for its statement of the law on what is known as ‘springboard doctrine’. The Plaintiff’s work, Mr. Daver says, even if not then fully realized certainly had that potential in the form in which it was disclosed, and it forms the kernel of the Defendants’ infringing work.
8. This case differs materially from Beyond Dreams in three critical respects: first, the Defendants question the Plaintiff’s standing or right to bring the suit at all saying that Ms. Kothari is not the author of the literary work; second, the Defendants contend that the Plaintiff’s rights, if any, have been assigned in perpetuity to Zee, and have not since been re-assigned back to the Plaintiff; and third, the Defendants point to certain ‘release forms’ said to have been signed at the relevant time on behalf of Baba Arts. The second and third arguments of course proceed on the basis that copyright did (and does) vest in the Plaintiff. I think it is fair to say that the question of assessing any similarity will arise only if the Plaintiff can successfully meet these three contentions, all of which are in the nature of threshold or in limine defences. I will, therefore, address these three questions first before turning to the fourth defence, which is, naturally, that the works are dissimilar and there is no infringement.
THE CLAIM TO SOLE AUTHORSHIP
9. The Plaintiff says that Ms. Kothari is the sole author and absolute owner of the literary work in question. This is specifically said to include and encompass:
'the concept, story, character sketches, thoughts, expressions, pitch lines, plot, tracks, screenplay, etc., along with a brief outline of three episodes.'
This is the description used by the Plaintiff throughout (Plaint, paragraph 5; Affidavit in Support of the Notice of Motion, paragraph 3, Motion paperbook p. 9; Rejoinder Affidavit, paragraph III, Motion paperbook p. 214; written submissions, paragraph 1).Ms. Kothari is said 'as the original author of' this literary work to have registered it with the Film Writers’ Association on 29th November 2012 in her own name. The Plaintiff itself is an assignee of the copyright claimed by Ms.Kothari under a Deed of Assignment dated 9th June 2015, (Motion paperbook, pp. 254-256)and the Plaintiff claims that till that assignment, Ms. Kothari was the ‘first author’, the ‘absolute owner’ and ‘copyright holder’ of the work in question (Motion paperbook, p. 215 (Affidavit in Rejoinder)..This is of some consequence: the statement is clear and unequivocal, with no ambiguity about it at all, that Ms. Kothari was the author, and the sole author of this work. Neither she nor the Plaintiff suggest that the work, or any part of it, was commissioned under a contract of service or was prepared in the due course of employment by an employee. The Plaintiff’s own documents raise a very significant question mark over this assertion. To the Affidavit in Rejoinder is annexed a copy of an email dated 18th September 2012 from one Harsh Tyagi, apparently a Scriptwriter (Motion paperbook, p. 245.).The email says that Mr. Tyagi sent Ms. Kothari several documents as attachments to his email. These included files titled 'characters of T.docx'; 'Ye Tera Ghar ye Mera Ghar.docx' and 'Tera Ghar Mera Ghar Episodes.docx'. Ms. Kothari seems simply to have forwarded these to her husband, her fellow partner with the Plaintiff, a few days later on 29th September 2012 (Motion paperbook, p. 244).This is apparently the work that was registered with the Film Writers’ Association.
10. Mr. Daver says this is inconsequential. Ms. Kothari applied for copyright registration on 21st November 2012, one that she obtained on 8th November 2013, and, he says, that ends the matter especially in view of Section 48 of the Copyright Act, 1957. That section, with emphasis added, reads:
Section 48 - Register of Copyrights to be prima facie evidence of particulars entered therein
The Register of Copyrights shall be prima facie evidence of the particulars entered thereinand documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof or production of the original.
11. Indeed, Section 48 is Mr. Daver’s answer to my question whether copyright registration is conclusive proof of authorship. I do not think this submission is at all correct. The section plainly says that the Register of Copyrights is prima facie evidence of the particulars entered in it. On its own, this means that there is only a presumption, albeit a strong one, nonetheless rebuttable about the correctness of the entries. That presumption can always be shown to be incorrect. Further, Section 48 is not an acknowledgement of actual authorship being proved, but only of copyright having been applied for and granted. The process involved in copyright registration is, as Dr. Tulzapurkar correctly points out, very different from that required for sealing of patents. Indeed, this is as it must be, for although the Registrar may make such enquiry as he thinks fit under Section 45(2), this enquiry is discretionary. The purpose of Section 48 is not to conclude proof of authorship but, as a matter of evidence and procedure, to allow into evidence certified and sealed copies or extracts without requiring proof or production of the original register. Where, in a given case, there is material to indicate, even prima facie, that the claimant to copyright is not the sole or first author, that presumption is rebutted. The 'first owner' of copyright is the author under Section 17 of the Copyright Act. In the case of a work made in the course of an author’s employment under a contract of service or apprenticeship (and leaving aside cases of newspaper reports, etc., and commissioned artworks and films), subject to a contract to the contrary, the employer is the first owner of that copyright. There is nothing to show that Ms. Kothari employed or commissioned Mr. Tyagi. The Plaintiff only says that she was ‘the sole author’ and ‘absolute owner’ of the copyright, i.e., that she wrote it all herself. At the very least, Mr. Tyagi is very likely, on the Plaintiff’s own showing, a joint author of the work in question within the meaning of Section 2(z) of the Copyright Act. If that be so, then the exploitation of copyright must also be joint, and that includes the joint right to assign the copyright to a third party (Angath Arts Pvt Ltd v Century Communications & Anr., 2008 (4) Mh. L. J. 926).
12. The consequences of this are grave, and I do not think Mr. Daver is in the least justified in describing the 2nd Defendant as something of a doryphore in raising the issue. It undermines the Plaintiff’s title under its 9th June 2015 assignment from Ms. Kothari. If her own sole and absolute ownership and authorship are in doubt, she could not have passed absolute title to the Plaintiff. Had there been some sort of explanation about Mr. Tyagi’s involvement, things might have been very different. What the Plaintiff says in paragraph VII of the Rejoinder is only this (Motion paperbook, pp. 215-216):
VII. ... I say that the Copyright Certificate issued by the Copyright office under Section 48 of the Copyright Act, 1957, wherein it is binds every party to such registration.[sic] Annexed hereto is the extract of the register of copyrights ‘Copyright Certificate’ certified by the Registrar of Copyrights and sealed with the Seal of the Copyright Office as 'Exhibit A' along with a duly certified copy of the said Literary Work of the Plaintiff. Further, on various occasions vid e email s including but not limited to 10th September 2012, 18th September 2012, i.e., prior to Ms. Nandita Kothari’s commencement of work for Baba Arts, Ms. Nandita Kothari after working on the said literary work, discussed the further development on the said literary work with Mr. Vipul Kothari. Annexed hereto and marked as 'Exhibit B and C' are copies of the said e-mails.
13. This raises more questions than it answers. The emails in question are produced by the Plaintiff itself. They are of a time before Ms. Kothari began working with Baba Arts. They show Mr. Tyagi to have worked on the ‘Literary Work’ in question. Mr. Tyagi was therefore not an employee of Baba Arts. Nor was Ms. Kothari. The suggestion in the pleading that Ms. Kothari ‘after working on the said Literary Work discussed’ its further development with Mr. Vipul Kothari of the Plaintiff is at the very least misleading to the extent that it suggests that she alone worked on the material. In paragraph 3(a) of the written submissions, the Plaintiff carefully changes tack ever so slightly. It says:
3(a) ... The Plaintiff has attached two emails dated 10th September, 2012 and 18th September, 2012 and referred to the same vide paragraph VII of the Rejoinder Filed By Plaintiff (Exhibit – B, Pg. 244 and Exhibit – C Pg. 245) which indicates that the partners of the Plaintiff were in discussion with each other and person’s contracted by the said author with regard to the said Literary Work titled ‘Yeh Tera Ghar Yeh Mera Ghar’ on such dates.
Those words 'and persons contracted by the said author' are wholly missing from the Affidavit in Rejoinder. There is nothing whatever to indicate this, and I think it is singularly unfortunate that any such additional misdirection, and it is only that, should be attempted in this manner. If this was so, it should have been clearly stated in the Affidavits: the Plaintiff ought to have said that others were employed, commissioned or ‘contracted’ to work on the material. There is no such statement. On the contrary, as we have seen, there are repeated assertions that it was Ms. Kothari and she alone who developed the whole of the literary work in question. Even more peculiar is the fact that Ms. Kothari applied for registration both with the Film Writers’ Association and the Copyright Board only in November 2012, well after Mr. Tyagi’s involvement with the work.
14. But these already turbid waters are further muddied by what followed. In October 2013, Ms. Kothari was very much with Baba Arts. Her assignment, such as it was, to the Plaintiff was not till 9th June 2015, and the Plaintiff’s assignment in turn to Zee came only a month later on 9th July 2015. On 10th October 2013, there was yet another email exchange between Ms. Kothari, then described as a Creative Director for Baba Arts, and one Nitin Keswani (Plaint, Ex. I, p. 62).In this, Mr. Keswani asked Ms. Kothari to go through the episode and if she ‘liked the plot’ offered to start ‘detailing and writing dialogues’. By then, of course, Ms. Kothari had obtained her copyright registration; but it is not at all clear what precisely she claims to have assigned to the Plaintiff (and the Plaintiff in turn to Zee), and whether she was in fact the sole author of the work so assigned. I mention this because the 9th June 2015 Assignment to the Plaintiff (Motion paperbook, pp. 254-256) says that the work in Schedule I is assigned; and that Schedule (Motion paperbook, p. 256)blandly states only 'Yeh Tera Ghar Yeh Mera Ghar'. This is not qualified to be the work prior to Ms. Kothari’s engagement before Baba Arts, nor can that be deduced from this document. In the paragraphs 15 to 17 of Plaint, the Plaintiff claims that from July 2013, Ms. Kothari ‘requested her friends/acquaintances and also Mr. Nitin Keswani to work on a draft screenplay’ for the first episode. But the screenplay, as we have seen, is specifically included in the Plaintiff’s definition of the ‘literary work’ in question. Again, it is unclear whether Ms. Kothari was moonlighting and on her own commissioning further work on the material from third parties or whether these third parties were under contract to Baba Arts. Either of these two scenarios jeopardises the Plaintiff’s entitlement even further.
THE ASSIGNMENT TO ZEE
15. What is the effect of the Development Agreement dated 9th July 2015 between the Plaintiff and Zee at least as regards the continued vesting of copyright (if any) in the Plaintiff? (Plaint, Ex.T, pp. 112-139A.)Some of the clauses of this Agreement are important and should be noted. In this document, the Plaintiff is described as 'Production House' and Zee Entertainment Enterprises Limited as 'Zee'.
1.2 'Initial Concept' means the initial concept pitched by the broadcaster for a new television series. The Initial Concept along with release form is attached as Schedule 1 to this Agreement.
1.4 "Developed Concept" means the new developed concept which was created as a result of mutual efforts of Zee and Production House and the same is attached as Schedule 2.
1.5 "Development Work" shall mean the work as defined under Clause 2.
1.8 "Zee Elements" means all the assistance provided to the Production House with respect to the Development Work as listed in Schedule 3 and any other material as required by Zee from time to time.
2. Development Work
Zee hereby appoints the Production House to further develop the Developed Concept for the creation of this Series and undertake the relevant Services to complete the development work and provide the deliverables to Zee, in accordance with the terms of this Agreement ("Development Work"). For the avoidance of doubt, the Development Work shall be the sole and exclusive property of Zee including all rights, title and interest not limited to the results and proceeds of the Development Work thereof in perpetuity for the Territory.
5. Assignment of Rights
5.1 The Development Work shall include any other copyrightable works created in connection with the Development Work and in the process of production of the Development Work, any and all parts and portions thereof, constituent elements therein and results and proceeds, tangible and/or intangible, in connection with the Development Work.
5.2 The Production house hereby exclusively, irrevocably and unconditionally grants, assigns, sells, conveys and transfers to Zee solely and absolutely (including without limitation, by way of present grant and assignment of future copyright) all rights, title and interest in and to the results and proceeds of Developed Concept, Services and all constituent elements thereto resulting in whatever stages of completion as may exist from time to time and all elements therein (collectively, "the Works") in perpetuity and in all languages in each country and area and space throughout the universe (collectively, the "Rights") Such Rights in and to the Works shall include, but shall not be limited to all copyrights as vested and to the results and proceeds of Production House's services and all constituent elements thereto including literary works, musical works, dramatic works and/or artistic works as defined in the Copyright Act,1957 (as amended from time to time) as well as copyright statutes or law subsisting in any other parts of the Universe The Production house hereby confirms, represents and warrants that the ownership of the Rights in and to the Works shall vest with Zee, free of all encumbrances with effects from the moment of conceptualization, development or creations of such Works. Production House shall have no rights in or to, or to use, copy or otherwise dealt with, the Works in any manner.
5.8 The Production House hereby further acknowledges and agrees that notwithstanding the provisions of the Indian Copyright Act 1957, and the amendments thereof, all assignments granted or to be procured under this agreement shall not lapse or revert to Production House, even if Zee and/or its Assignees do not exercise any of the rights assigned under this Production House acknowledges and agrees that Zee is not obligated to use the Works or any part thereof or otherwise exploit the Works in any manner whatsoever or continue to do any of the foregoing.
The obligations set out in the clause shall survive the termination of the Agreement.
6. Process of Development Work
6.6 Upon expiry of the Term or failure of the Parties to agree on the terms for production of the Series, the Production House shall have the right to exploit the initial Concept at its discretion after expiry of a period of six (6) months.
10.3 On termination pursuant to this Clause
10.3 or otherwise:
* The Production House shall return all Zee Elements to Zee and agrees to follow Zee's instructions with regard to such return (including location, time of delivery, manner);* All of the rights and benefits assigned to Zee pursuant to this Agreement shall remain vested in Zee.
16. Schedule 1 to this Agreement is important. It includes not only Zee’s standardized release form but also a copy of the concept note in which the Plaintiff (and Ms. Kothari) claim copyright. For now, I will assume that this concept note is the same as the one for which Ms. Kothari obtained copyright registration. Clause 2 says there is an assignment of the 'Development Work' in perpetuity. That clause itself makes it clear that the 'Development Work' is the outcome or result of further work done on or services rendered by the Plaintiff on the 'Developed Concept', as defined in Clause 1.4; and the 'Developed Concept' is not something entirely new or different but is based on and includes the 'Initial Concept'. This is as it must be; and indeed, this is the Plaintiff’s case in paragraph 25 of the Plaint. The 'Developed Concept' and the 'Development Work' are, therefore, evolutions or further iterations of the 'Initial Concept'. All of this is assigned irrevocably and in perpetuity to Zee. Clause 10.3 also says that these rights survive any termination of that Agreement. The Plaintiff’s case is that Zee abandoned the project when it learnt of the Defendant’s show and that immediately on that abandonment by Zee, there was a reversion of the copyright assignment to the Plaintiff. Mr. Daver bases this submission on Clause 6.6 of the Agreement. I do not think this is at all correct. All that Clause 6.6 says is that there will be a sort of ‘cooling off’ period of six months following the expiry of the Agreement or on failure of the parties to agree on the terms of the production. After that period, the Plaintiff was to have ‘the right to exploit the Initial Concept’. This is, at best, a limited right. It is not in any sense a reassignment of the 'Initial Concept'. Given that there is before me nothing to show a formal termination of the Plaintiff’s Agreement with Zee except for a mere pleading, it is impossible to accept that there is, as of the date of the suit, any copyright that though once assigned to Zee has now reverted to, and vests in, the Plaintiff. To maintain this suit, the Plaintiff would need to have in its hands, at a minimum, a formal termination by Zee, and a re-assignment of the copyright in the Initial Concept.
17. A suit such as this one can only be brought by the 'owner of copyright'. This is defined in Section 54 of the Copyright Act, and the civil remedies of such an owner are set out in Section 55. The former says that the owner of a copyright includes an exclusive licensee. That would appear to be Zee, absent any re-assignment to the Plaintiff: even if Ms. Kothari was 'the first owner' of copyright, there is today an exclusive license to Zee. That assignment to Zee, being complete, exclusive and in perpetuity, occludes Ms. Kothari’s rights as the first owner; and, consequently, the Plaintiff’s rights as an assignee from Ms. Kothari, both of which preceded the assignment to Zee.
18. Then there is the question of the marked difference between the literary work in which copyright is claimed, annexed as Exhibit 'A' to the Plaint, (Plaint, pp. 35-51)and the document at Schedule 1 to the Agreement with Zee. The two are materially different in structure, language, composition and presentation. Yet it is the Plaintiff’s case, as indeed it must be, that the two are the same, and what was registered to copyright by Ms. Kothari was the document at Exhibit 'A' and that this work was assigned to the Plaintiff and then by the Plaintiff to Zee. If the two works are different, then the abandonment by Zee furnishes no cause of action to the Plaintiff. If they are supposedly the same, the differences remain unexplained. We know that Mr. Tyagi worked on the material in September 2012. This was before Ms. Kothari obtained her copyright registration on 8th November 2013. It was also before Ms. Kothari even applied for that registration on 21st November 2012 with the Copyright Board and before she registered it with the Film Writers’ Association. There is also now material to indicate that during the interval when Ms. Kothari worked with Baba Arts, yet another person, Mr. Nitin Keswani, too worked on this material; and in paragraph 30 of the Plaint, the Plaintiff says that Ms. Kothari engaged another writer, suggested by Zee, to work on additional material. No particulars of this are disclosed.
19. I mention this because in the written submissions, the Plaintiffs’ suggestion is that the suit is in respect of what is described as the 'Initial Concept' in the Zee Agreement, and that the copyright in this 'Initial Concept' was never assigned to Zee but always remained with the Plaintiff. That cannot be true. If it were true, and that what was given to Zee was entirely independent of the copyright work that is the subject matter of this suit, there would have been no need to mention Zee at all. Besides, nothing in the Agreement with Zee suggests this kind of division of copyright. Had any portion of the copyright been retained by the Plaintiff, the Agreement with Zee would surely have said so. On the contrary, that Agreement clearly suggests that what is assigned to Zee is a work that incorporates and builds on the ‘Literary Work’ in which the Plaintiff claims copyright. Indeed, the entire case proceeds, as I imagine it must, on the basis that what Ms. Kothari disclosed to the Defendants was incorporated in what she assigned to the Plaintiff and what the Plaintiff in turn assigned to Zee.
20. I must note, in passing, that there is in paragraphs 23 to 25 of the Plaint a material misdirection. In paragraph 23, the Plaintiff says that Ms. Kothari ceased to work with Baba Arts. In paragraph 24, the Plaintiff then says that she and her husband, Mr. Vipul Kothari, formed the Plaintiff. There then follows this statement:
'and Ms. Nandita Kothari assigned several literary works including the said Literary Work and all its related works and materials to the Plaintiff company thereby making the Plaintiff Company the owner of the same.'
This clearly suggests that the assignment to the Plaintiff was some time in 2013 or 2014. Any doubt about what is being averred is disspelled by the opening words of the succeeding paragraph 25:
25. Pursuant to the above, in February 2014, Ms. Nandita Kothari approached Ms. Atmaja Unny representative for Zee to discuss the concept and storyline titled 'Yeh Tera Ghar Yeh Mera Ghar' and thereafter after receiving an approval for the same verbally, presented the concept and the storyline to Zee. Annexed hereto and marked as 'Exhibit M' is a copy of the email dated 19th February 2014. This clearly suggests that the copyright assignment by Ms. Kothari to the Plaintiff was before February 2014. That document (the assignment to the Plaintiff ) was of 9th June 2015, over a year later. A copy of it was also not produced with the Plaint, a matter I find to be decidedly odd given the circumstances in which the suit is brought, but came only in the Affidavit in Rejoinder as Exhibit F. (Motion paperbook, pp. 254-256).It may be possible to say that this is immaterial so long as the assignment from Ms. Kothari to the Plaintiff preceded the assignment from the Plaintiff to Zee, and it matters not when that happened, but I think there is something more fundamental at issue here. One expects accuracy and candour in a pleading, and where a plaintiff is as slipshod as this in matters relating to its own title, then a Court will look askance at other assertions too, and justifiably seek material that even prima facie supports those. This is not so much a question of falsus in uno, falsus in omnibus as it is a question of credibility. Statements such as those I have set out earlier, read in isolation, might indeed be innocuous. Read with assertions of sole authorship, also found to be at the very least dubious, this casts a cloud over the entire action.
21. But more importantly for our purposes, this completely puts to rest any remaining doubt about the Plaintiff retaining copyright in the 'Initial Work' as its written submissions now claim. In this context, Mr. Kadam’s submission for the 2nd Defendant must be accepted: so long as the agreement with Zee is not formally terminated, and without a proper re-assignment of the copyright to the Plaintiff, Zee was at least a necessary party to this action:
Section 61 of the Copyright Act requires this.
THE DISCLOSURE IN CONFIDENCE
22. There is a very great deal of controversy about an aspect that I expected would be clear-cut. Ms. Kothari and the Plaintiff claim that there was a disclosure of the ‘Literary Work’ in which Ms. Kothari held copyright to the 1st Defendant. In 2013, Ms. Kothari was a Creative Consultant to or a Creative Director with Baba Arts. The meeting with the 1st Defendant, Star India, is said to have been arranged on 11th December 2013. In paragraph 20 of the Plaint, the suggestion is clearly that Ms. Kothari 'along with some others' met representatives of Star India and narrated the ‘Literary Work’ in question. A Power-Point presentation was also made, and the slides of this presentation show Ms. Kothari as the owner of the copyright. What the Plaint does not disclose is that one Nikhil Tanwani signed a Release Form of that date (Motion paperbook, pp. 190-193)on behalf of Baba Arts. This is not the only such form he signed. There is a previous one of 30th August 2013 in respect of another proposal as well (Motion paperbook, pp. 186-189.).Across the Bar and in its written submissions, the Plaintiff took a very strange tack: it disclaimed all knowledge of Nikhil Tanwani’s signature on this form, and claimed that he had no authority to do so. The Defendants claim that both Ms. Kothari and Mr. Tanwani in terms said at the meeting that the latter had the authority to sign that release document. There is also nothing to indicate in subsequent emails that Ms. Kothari made the pitch or presentation on her own and independently of her engagement with Baba Arts. In fact, the preceding correspondence indicates to the contrary. The email dated 18th June 2013 from Ms. Kothari to Star India appears to be for some other show, but it attaches a profile of Baba Arts and is copied to Mr. Tanwani (Motion paperbook, p. 55).Similarly, the email dated 3rd July 2013 from Ms. Kothari to Star India references another meeting and is also copied to Mr. Tanwani (Motion paperbook, p. 184.).A third email of 11th July 2013 from Ms. Kothari is to the same effect (Motion paperbook, p. 185).In all these, Ms. Kothari describes herself as a Creative Producer/Director for Baba Arts Ltd. This is also true of the emails from Ms. Kothari of 21st August 2013 and 1st October 2013, all also copied to Mr. Tanwani (Motion paperbook, pp. 60-61).The email of 1st October 2013 is with specific reference to the work in question (Motion paperbook, p. 61). Star India says also that Ms. Kothari was present when Mr. Tanwani signed the release form.
23. The Plaintiff says that Mr. Tanwani had no authority to do so. That is hardly credible. He was copied on all mails. With her email of 18th June 2013, (Motion paperbook, p. 55)Ms. Kothari sent a profile of Baba Arts Ltd to Star India. Before me, there is a great deal of controversy about this. The profile is shown to have been attached to the email of 18th June 2013, but is not itself disclosed in the Plaint. A copy was tendered in Court. In the written submissions, the Plaintiff makes a grievance that this was ‘never shared with’ the Plaintiff and that what Star India showed me was wrong, and that Mr. Tanwani was never a ‘director’ with Baba Arts Ltd and hence had no authority to sign any release form. This is most unfortunate. At the time when the written submissions were first tendered and taken on file on 15th September 2015, Mr. Daver made a marginal note in his own hand that a copy was given to him as Counsel for the Plaintiff in Court. I have that copy on file. It shows the endorsement in blue fountain pen ink on page 3, toward the bottom third of paragraph 3(c). I am separately directing that the whole document as tendered be scanned for preservation. In correspondence the next day, 16th September 2015, the Plaintiff’s Attorneys sent a set of ‘corrected’ and ‘final’ written submissions to the advocates for the Defendants. The handwritten portion was and is missing in this so-called ‘final’ set of written submissions. In these, the Plaintiff insists that no copy was ever given to the Plaintiff. This is patently untrue. The so-called ‘final’ written submissions are, thus, unfair to the Defendants, to the Court and most of all to Mr. Daver, whose conduct of his case has been beyond reproach throughout.
24. In any case, whether or not Mr. Tanwani was a ‘director’ on the Board of Baba Arts Ltd is hardly relevant. Dr. Tulzapurkar is completely correct when he says that Star India was entitled to assume that he had the authority to execute the release form; the company’s profile showed his name in some sort of official capacity as part of the ‘team’ with the assigned role of ‘Business Development’; (Profile document, separately tendered)he is the son of the promoter of Baba Arts; Ms. Kothari’s emails were copied to him; and Ms. Kothari did not object to his signing the release form either then or later.
25. This is of consequence because the case is that the disclosure was made by Ms. Kothari and not by her on behalf of Baba Arts Ltd. Other than the copyright notice on the slides, there was nothing till that time to show that Ms. Kothari was contacting Star India on her own. If that were so, we do not know why Baba Arts was brought into the frame in the first place. Now in an action of this sort, an essential ingredient is not just the disclosure in circumstances of confidentiality, but also the knowledge of the person to whom disclosure is made that the person making the disclosure has the right to do so and holds subsisting rights in the work in question. This must be unequivocally shown. It can admit of no ambiguity. Therefore, if Baba Arts had no rights over the work, no release form could have been signed (or allowed to be signed) on its behalf. We do not know why, if she had the rights, Ms. Kothari sat by and watched Mr. Tanwani sign that release form. That he did sign it is not disputed. That Ms. Kothari did not thereafter disclaim his authority to sign it is also not disputed. All that Ms. Kothari says is that Mr. Tanwani did not have sufficient authority to sign it. This is an argument wholly without merit because at least as far as Star India is concerned, Mr. Tanwani had the ostensible authority to sign it. Star India could not have known otherwise. The Plaintiff’s protestations, especially in the Rejoinder (Paragraph XXV, pp. 224-225)ill serve their purpose: there is little use in now picking holes in the contents of the release form, where it was signed and by whom. In paragraph 6 of its Affidavit in Reply, (Motion paperbook, p. 169)Star India says it emailed Mr. Tanwani on 22nd August 2013 asking him to get in touch with another employee of Star India for the specific purpose of signing a release form for any proposal or pitch. It matters not whether he was a Director on the Board of Baba Arts. The profile relied on by the Plaintiff itself shows him to have been in charge of business development, and Ms. Kothari’s emails, as we have seen, were all marked to him. Again, this is not the only such form Mr. Tanwani has signed for Baba Arts, an aspect that Ms. Kothari does not deal with at all (Motion paperbook, pp. 186-189).
26. I must also note that in the oral arguments, Mr. Daver did not once say that Ms. Kothari was unaware of the release form being signed or that it was not signed in her presence. Indeed, my handwritten notes of 11th September 2015 show that he argued that Mr. Tanwani had ‘merely accompanied’ Ms. Kothari. His presence is not disputed. Yet, in paragraph 3(f ) of the written submissions, the Plaintiff now attempts to deny that Ms. Kothari was aware of Mr. Tanwani signing the release form. Star India insists Ms. Kothari was present at the time when it was signed. Ms. Kothari only now denies it. This is not a matter that lends itself to a prima facie view favouring the Plaintiff. Indeed, it seems to me most unlikely that Ms. Kothari did not know of the signing of this Release Deed, or that it was signed separately by Mr. Tanwani elsewhere out of sight of Ms. Kothari (who does not even say so), especially since Star India says this is standard procedure, and without a release deed it does not even enter into any discussions. Indeed, even on the Plaintiff’s own showing, this seems to be an industry-wide standard: the Plaintiff itself signed a similar release deed with Zee (Plaint, pp. 125-127).There is in addition the other material regarding Mr. Tanwani’s involvement to which I have already referred.
27. If this is so, it is material. Clause 2 of the Release Form warrants that the Proposer (evidently Baba Arts) is the sole creator/author/owner of the Proposal and that to the best of its knowledge, no rights vest in any other party (Motion paperbook, pp. 191-193). Clause 1 says that the proposal is being made voluntarily and is unsolicited. Clause 9 then says that the proposal and its constituent elements (script, outline, drawing, etc) have been duly summarized in Schedule A, and that it is only those features that have been disclosed. Now Schedule A only describes the submission or proposal as 'Tera Ghar Yeh Mera Ghar'. That is handwritten, and the submitter is 'Nikhil G. Tanwani, Baba Arts Limited'.
28. I imagine this ends the matter on confidentiality. There is simply nothing now to show that the disclosure was made by the Plaintiff or by Ms. Kothari for herself and that it was not made on behalf of Baba Arts.
SIMILARITY IN THE WORKS
29. Given all that has gone before, this question is now really redundant, and even at the Bar not much time was spent on this. Mr. Daver showed me a list of the similarities to urge that the Plaintiff’s work is the kernel of the Defendants’ work, and provided the springboard for it.
30. In paragraph 9 of the Affidavit in Reply, (Motion paperbook, p. 170)Star India says that no literary work was shared at all. Again, this is a matter that will need evidence, a matter for a much later stage. Mr. Kadam is again correct in saying that at least at this stage, there is no causal connection established between the Plaintiff and the 2nd Defendant.
31. The 2nd Defendant claims to have independently conceived of a theme for a television serial set in what it calls the paranormal comedy genre. This was apparently called 'Akele Akele'. It was set in a small village in Goa. The protagonist was a destitute youth, orphaned early in life and a fish vendor. He yearns for a family. His inamorata is one of his regular customers. He loses what little money he has to his name and is forced to live on the streets. During a storm, he takes refuge in a bungalow. It is haunted; there is not just one revenant, but a whole caboodle of them, and these apparitions apparently welcome our hero to their phantasmagorical bosom. But there is a more sinister purpose: the spectres seek revenge against their murderer; who is, as it turns out, none other than the father of the young man’s lady love.
32. The concept of a human living among spirits is hardly new. Our own popular culture boasts of several such: Bhootnath, its sequel, Bhootwala and so on, (Star India provides copious details in its Affidavit in Reply, paragraph 23, Motion paperbook, pp. 177-183)and there are films internationally too with this theme (Casper, the friendly ghost being perhaps only the least menacing of the lot). Therefore when Mr. Daver claims that the concept of a human living in harmony with a ghost family is unique and is ‘the crux and essence’ of the Plaintiff’s work, (Plaint, paragraph 41, p. 16)this is almost certainly incorrect.
33. There are two documents produced by the Plaintiff to show this similarity. The first is the ‘literary work’ in question annexed to the Plaint as part of Exhibit 'A'; (Plaint, pp. 35-51)and the second is the power-point presentation said to have been sent to Star India (Motion paperbook, pp. 71-99).The copy of the latter annexed to the affidavit is difficult to read, being a particularly poor monochrome photocopy on green ledger paper; a colour printout was provided in Court. The trouble with both is that they are set out in Hindi written not in Devnagari, which would have been comprehensible, but in our regular English alphabet. I have considered both these, and they do not seem
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to me to be anything at all like the 2nd Defendant’s concept. The latter seems to have at least an underlying pathos and a definite edginess or menace. The Plaintiff’s work is lighter in tone, and directed more to comedy. In neither version of the Plaintiff’s work do I find this revenge motif. The slide at page 70 speaks of one Tilak Ambani investing his life savings in a house for his family. That house already has another family in it: the ghost family. 'Now these two families must not only stay together, but they must also live together,' the slide says. 'Is this possible?' There then follows the story, set in Borivali, Mumbai. Tilak Ambani is a professional pandit or priest. He has to provide for his wife, their two children and his parents. After much searching, they find a house that fits the budget. They move in and find the ghosts of a Sikh family of four. The two families become friends, and despite the differences in their cultural backgrounds and lifestyles, they develop a bond. We then come to the final slide (The equivalent of Motion paperbook pp. 78-79).Each family has its issues, but the ghost family cannot address these. They have unfulfilled wishes or desires, societal and family problems, and the Tilak family becomes their source for addressing these. The two families work together, and the solutions are said to be humorous. The thrust (or, to use the Plaintiff’s description, the ‘crux and essence’) of all this seems to be the ability of wholly disparate families to get along. Hence: 'Yeh Tera Ghar, Yeh Mera Bhi Ghar', the ending line of this slide. 34. Incidentally, almost every illustration in this Power-Point Presentation seems to have been pillaged willy-nilly from some other work, including, I notice, an image of Casper (Motion paperbook, p. 76). 35. And now comes the unfortunate part. Nothing in either of these two documents supports the comparative chart that was shown to me on 11th September 2015. Here, the Plaintiff claims its story includes themes about the ghost family claiming ownership of the house, being murdered, hoping for revenge and justice and so on. There is a welter of additional material in this chart, all claiming similarity. But what is the source of this? It is not to be found in the ‘literary work’ annexed to the Plaint and on which the suit is brought. It is not to be found in the slide presentation said to have been made to Star India. Is it a further iteration of the work as developed for Zee? If it is, then it has never been disclosed to Star India, and, in any case, it would be for Zee to file suit. This would be so even on an acceptance of the Plaintiff’s assertion that it retained the copyright in the initial work despite the Agreement with Zee. A more helpful comparison is the one that is provided by Star India in paragraph 20 of its Reply, and it shows the very marked difference between the two works (Motion paperbook, pp. 174-176). 36. As a matter of law, when copyright infringement is alleged in this form, and in relation to a concept, there must be an established comparable similarity between the work in which copyright is said to subsist and the work said to be infringing. A person cannot claim copyright in some work, and then contrast the defendant’s work with some entirely different work of unknown provenance and at a very great intellectual and literary remove from the work in which copyright is said to exist. 37. This is where the Plaintiff’s case fails the Beyond Dreams test, and fails it utterly. Gupte J held that a first pre-requisite was to identify the confidential information itself. That is not done. Second, it must be material not in the public domain. The ‘crux and essence’ claimed by the Plaintiff sits squarely in the public domain. Then, the material disclosed must be sufficiently developed to lend itself to realization; and this takes us to the springboard or kernel doctrine, which has it that breach of confidentiality liability will arise where it is shown, the other tests being satisfied, that the plaintiff’s work lies at the heart of the offending or infringing work; and that the rival work has only dressed up the kernel with additional material. I would add to this a further test, viz., a demonstration that the plaintiff’s work on which the suit is brought is indeed comparable to that of the defendant. All these tests, including the factual test of whether or not there was a handing over of proprietory material in circumstances of confidence, must be established. 38. None are. The Motion fails. It is dismissed. 39. Given the Plaintiff’s conduct and the manner in which it has attempted in its written submissions to depart from what actually transpired in Court, I would have been of a mind to impose costs, and severe ones at that, on the Plaintiff. That I do not do so is only on account of Mr. Daver, and his temperate, quiet and measured conduct of a difficult case. At least in its choice of counsel, the Plaintiff got it right.