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S. Mahalingam v/s Vasan Publications Pvt.Ltd., Chennai & Others

    Appl.No. 661 of 2012 in C.S.No. 522 of 2012

    Decided On, 09 November 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE VINOD K. SHARMA

    For the Appearing Parties: ------



Judgment Text

1. This application has been filed to grant an order of ad-interim injunction against the respondents, their Directors, their subsidiary companies, divisions departments, Officers, Editors, Publishers, Printers, News Agents, Photographers, Agents, Whole Sellers, Retailers, Servants and all other acting for or on their behalf, either directly or under a contract of service or through a contract of service, restraining them from infringing the applicant's copyright in any of the art works (in particular the pen & ink on paper and paintings), including those published under the title, 'Thennattu Selvangal' in Ananda Vikadam during the period 1948 to 1961, of Late of P.M.Sreenivasan popularly known as 'Silpi' by copyright, reproducing, printing, publishing, either in Ananda Vikatan magazine, Sakthi Vikatan magazine or any other magazine, book or publication of the respondents, their sister companies, Divisions and selling, distributing or in any manner dealing with them.

2. It is pleaded that the father of the plaintiff/applicant was born in the year 1919 at Puliyur a small village near Kumbakonam to Mahadeva Iyer and Lakshmi ammal. Father of Silpi was having a flourishing business in Namakkal and hence settled there. Silpi had his earlier education at Board High School, Namakkal. His talent of art/drawing came to light in the earlier childhood at about the age of eight years itself. The famous Tamil poet Namakkal Kavinganr recognized his talent and admitted him in the Government School of Arts and Crafts, Madras in the year 1939. Though the course was for six years, Thiru Silpi was able to complete the same in three years by getting double promotions. He was also awarded by none other than Pandit Jawaharlal Nehru, The Prime Minister of India having won the first prize in the painting competition. It is the submission of the plaintiff that though the artists were not paid as compared to writers and editors, the painting of Silpi was well recognized.

3. It is submitted that in the year 1941 as a student of Art, he was approached to license his drawing in a weakly magazine ‘Ananda Vikatan’. It is submitted that it was a contract for service for which he was paid license fee /royalty as consideration on a piece work basis. After completing the course in 1943 till his death in the year 1983, he was engaged by the various reputed publishing companies at various point of time jointly and severally including by the first and third respondents to license his drawings/art work and paintings for use by them. This was said to be done on contract for service basis with a specific sum paid towards license fee payable against royalty which was either paid on monthly basis or per work basis. It is also the case of the plaintiff/applicant that Maha Paramachariyal of Kanchi the Late Sri Chandrasekarendra Saraswathi Swamigal in the year 1953, gave his blessings and he encouraged him to create works of arts relating to painting of Gods, Goddess, Temples and it was on his advise that late Silpi started paintings of Gods, Goddess, Temples etc.,

4. Silpi also painted Swamiji's portrait which was done in twenty days. It is the case of the petitioner that for doing the painting work he was paid with monetary fee towards license fee/royalty as consideration for the works of his choice which he licensed to those who engaged his services. Therefore, Silpi was the author and first owner of the copy right of all his arts works. It is submitted that the first and second respondent and their parent concerns had also engaged Silpi's service on a contract for service basis and used his drawings/paintings in their publications on a regular basis, for which he was paid consideration by way of license fee/royalty. As already noticed above, Silpi prepared various spirituals of various Gods, Goddess, Temples from Kanyakumari to Badrinath in his carrier of 50 years and attained great repute and fame. Some prominent drawings of Silpi are as under:

1. Sri Karpagavinayagar - Pillaiyar Patti

2. Sri Balaji (Venkatachalapathy) I, II - Thirumala - Thirupati

3. Sri Aanjaneyar - Namakkal

4. Sri Renganathan - Srirangam

5. Sri Guruvayurappan (1965 & 1978) - Guruvayur

6. Sri Parthasarathy Perumal (Krishnan) - Triplicant, Chennai,

7. Sri Ramanathaswamy - Rameshwaram

8. Sri Somasundareshwarar - Madurai

9. Sri Dhandayuthapani (Palani Aandavar - Raja Alangaram) - Palani,

10. Sri Kamakshi Amman (1951, 1964, 1963, 1968) Kancheepuram

11. Sri Mariamman - Samayapuram

12. Sri Aandal - Srivilliputhur

13. Sri Karpakambal - Mylapore, Chennai.

14. Sri Dhandayuthapani - Palani Sannathi

5. Some of the prominent paintings of Silpi are of the temples at Mylapore, Tanjore, Kumbakonam, Tirukarukkavur, Seerkali, Namakkal, Srirangam, Samayapuram, Srivilliputhur, Triplicane, Sriperumpudur, Tiruthani, Srisailam, Dwaraka, Badrinat, Kasi and Ujjani.

6. The petitioner is the son and he had another sister. It is the case of the plaintiff/applicant that no Will was executed by Late Silpi. Therefore, the copy right of his art work and drawings and paintings came to vests with the applicant and his sister. It is being exploited by licensing the same to publishers in magazine.

7. It is the submission of the applicant/plaintiff that an advertisement was issued in ‘Ananda Vikatan’ dated 01.08.2012 regarding the publication of the work of Late Silpi, and thereafter another advertisement was issued by ‘Vikatan Pressuram' in July-August 2012 issue.

8. It is the pleaded case of the plaintiff/applicant that he came to know that the respondents are about to come out with a combined publication of the art works of Silpi which were previously published in the weekly magazine ‘Ananda Vikatan’ under the tile 'Thennattu Selvngal' during the period 1948-1961, the copyright of which vested with the plaintiff/applicant and his sister. That this is being done without the permission of the plaintiff/applicant. Thus, the plaintiff submits that he has a prima facie case, and that balance of convenience is in favour of the plaintiff/applicant, and further, that the plaintiff will suffer hardship and irreparable loss and injury in case the temporary injunction is not granted.

9. Mr.R.Gandhi, learned Senior Counsel appearing for the plaintiff/applicant referred to Section 2(c) of the Copy Right Act, 1957, which describes the 'artistic work' as under:-

"(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 o architecture); and

(iii) any other work of artistic craftsmanship;

10. It is the contention of the learned Senior Counsel that the act of the respondents in publishing art works of Late Silpi is in violation of Copy Right Act,1957 as the plaintiff/applicant is the owner of the copy right of the art works of late Silpi with his sister having inherited it, being the son. That once it is not disputed that the work sought to be published is the art work of late 'Silpi', who is the owner of the art work, which is inherited by the plaintiff, the action on the prima facie is in violation of copy right of the plaintiff/applicant, therefore, the plaintiff is entitled to injunction.

11. It is also the contention of the learned Senior Counsel appearing for the applicant/plaintiff that the artists late Silpi was not under contract of service with the respondents but was performing the service on his own having been not engaged on contract of service.

12. In support of this contention learned Senior counsel placed reliance on the judgment of the Calcutta High Court in A.I.R. 2002 Calcutta 33 ( Gee Pee Films Pvt. Ltd. vs. Pratik Chowdhury and others ) wherein the Honourable Calcutta High Court was pleased to lay down as under:

"11. It is apparent from the aforesaid provisions contained in the Act that so far lyrics and musical works are concerned, lyricist and composer respectively are the authors thereof and in view of Section 17 of the Act, the first owner of the copyright of lyrics and musical works shall be the authors unless it is shown that such work was made in course of author's employment under a contract of service or apprenticeship with his employer and there is no agreement to the contrary as regards retention of copyright.

18. As pointed out in the case of Market Investigation Limited v. Minister of Social Security reported in (1969) 2 GBD 173, referred to in the said Bangladeshi decision that fundamental test to be applied in determining whether a person is engaged in "a contract of service" is "is the person who has engaged himself to perform these services performing them as a person in business on his own account ?". If the answer to that question is 'Yes', then the contract is a contract for service; on the other hand, if the answer is 'no' then the contract is a contract of service.

19. in the instant case, it is not the plaintiff's case that the defendant Nos. 1 and 3 to 5 were its employees at any point of time and in course of such employment those songs were written, composed or sung. Under the aforesaid circumstances, in my view, no case has been made out to bring the transaction within the purview of 'contract of service' as mentioned in Section 17 ) of the Act.

20. If we apply the aforesaid test to the fact of the present case, the answer must be in affirmative and thus no case has been made out to bring the transaction within the purview of 'contract of service' as mentioned in Section 17 ) of the Act.

13. The petition is opposed by the respondents. It is submitted that as the art works of Late Silpi were under the contract of service with the respondents, therefore the respondents are the owners of the art works of late Silpi.

14. In support of this Mr.P.S.Raman, learned Senior counsel appearing on behalf of the respondents placed reliance on Section 17 of the Copy Rights Act which reads as under:

"First owner of copyright:- Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:

Provided that-

(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;

(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration, at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(c) in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(cc) in the case of any address or speech delivered in public, the person who has delivered such address or speech or if such person has delivered such address or speech on behalf of any other person, such other person shall be the first owner of the copyright therein notwithstanding that the person who delivers such address or speech, or, as the case may be, the person on whose behalf such address or speech is delivered, is employed by any other person who arranges such address or speech or on whose behalf or premises such address or speech is delivered;

(d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(dd) in the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein."

15. The learned Senior Counsel appearing for the respondents referred to document attached with the typed set of papers filed by the plaintiff, i.e., copy of the magazine of the respondents, showing that the Silpi was entrusted to work individually as artist for the magazine.

16. The reliance was also placed on the interview of the plaintiff published in the magazine wherein it is admitted by plaintiff that late Silpi worked for the magazine from 1948-1961.

17. The contention of the learned Senior counsel appearing for the respondents therefore, is that the work which is sought to be published by the defendants/respondents is only the art works which was created by late Silpi as the employee of the magazine from the period from 1948 to 1961. It is contended that the magazine is used to publish periodical booklet along with the art drawn by late Silpi which were under the ownership of the respondents therefore, in view of Section 17 of the Copy Right Act, the plaintiff cannot have any right over these paintings.

18. In support of this contention of learned Senior counsel placed reliance in the Judgment of the Kerala High Court in C.D.J. 1987 Kerala H.C. 531 ( V.T. Thomas vs. Malayala Manorama Co. Ltd. in CMP 31410 of 1987 in CMA.No.230 of 1987 decided on 07.12.1987 laying down as under:

" 16. The term 'author' occurring in Se. 17 ) is defined under Se. 2 (d). That term has to be understood in relation to a 'work'. Two different entities are visualised in the sub-section, the 'author' and the 'employer' it is impossible to imagine that in relation to any artistic work, the same person would simultaneously be the author and the employer. It is therefore un-assumable that as regards the cartoons and caricatures produced by Toms, Manorama is the author. Toms is the person who impregnates an idea; one who actually executes a design. It is Toms; hands which fix the picture upon the paper. Toms is therefore the author. In a sense, his authorship of the content and form of the cartoon series way back in 1957 (at a time when he was not the employee of Manorama as is inferable from Para.21 of the plaint itself) ordinarily entitles him to the copy right. "

17. The artistic works of an author made as employee, and while in the course of his employment, pass on tot he employer in contingencies postulated, inter alia in S. 18 ). The process comes to an end in certain situations. The termination of the employment is one such situation. There has been such a situation in the present case. It would then follow that as regards the future production of Toms, there is no inhibition arising out of the statutory sanction under S. 17 ). He is free to draw. He is independent to take his brush and draw the lines and create the figures. He can give life to his characters as be wishes; and he can present them in such media as be prefers.

18. Plaintiff pictured the popularity of the weekly magazine Manorama. The fact that Toms commences the publication of his undoubtedly popular cartoon series of Boban and Molly in another publication, is not likely to affect adversely the prospects of circulation of Manorama in an irreparable way. A plea that the publication of the cartoon series in another magazine would spell an irreparable ruin for Manorama, is only to be stated to be rejected. It will be wholly unreasonable even to put forward such an assumption. Should it happen that any such impact is felt, that is remediable by monetary compensation, if the plaintiff's contention ultimately prevails There are indications that the Manorama appeared with Boban and Molly even during short spells of absence of Toms. (See para S of the Plaint). It was represented that even now, that Weekly contains the Boban and Molly caroon column, so drawn by some other cartoonist. "

19. On consideration, I find that there is no merit in this application. Section 17 of Copy Right Act, 1957 clearly stipulates that the work done as an employee in the magazine, is to be treated to be the ownership of the owner, who has the right of re-production in the similar newspapers or the magazine. This is wha

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t is sought to be done. 20. The contention of the learned Senior Counsel appearing for the plaintiff/applicants that the work was done under the contract for service and not under the contract of service cannot be accepted, as from the documents produced by the plaintiff along with type set shows that in an interview, it was the plaintiff, who admitted that his father had worked with the respondents publication from 1948 to 1963. 21. It is not disputed that the work now sought to be published relates to that period when Late Silpi was under employment of respondents and not of earlier or later date. 22. The judgment of the Calcutta High Court on which reliance has been placed by the learned Senior Counsel in the given facts of this case goes against the plaintiff/applicant, as Calcutta High Court also held that the arts work under the contract of service belongs to the owner does not vests with the artists. The petitioner/plaintiff cannot deny the document placed by him, in support of the case, in the typed set of papers, which prima facie proves the employment of late Silpi from the year 1948 to 1961, with the respondents. 23. The plaintiff, therefore, has failed to make out a prima facie case, nor any irreparable loss can be caused to the plaintiff, as the plaintiff can always be compensated in event of success in the suit, finally, in proving that there was any violation of Copy Right. The documents placed on record, do not make out any prima facie case in favour of the plaintiff for grant of ad-interim injunction. 24. Consequently, this application is dismissed. However, it is made clear that observations made in this order shall not be treated in the final opinion of the case, as it will be for this court to take the final decision after the parties are allowed to lead evidence in support of their stand. No costs.
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