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Saregama alleges Copyright Infringement by Dirty Picture Song prior to Satellite Release of Movie

Many readers would undoubtedly already be familiar with the recent histrionic abilities of the Bollywood actress Vidya Balan in the widely-acclaimed movie ‘Dirty Picture’. On April 22, 2012, the movie is due to have its satellite launch, following which it will be aired in television channels across the country. It is at this stage that a recent petition has been filed seeking an injunction from broadcasting the film itself or at any rate the song therein titled "Ooh La La Ooh La La". The matter, titled Saregama India Ltd vs Balaji Telefilms Ltd. & Ors was heard before Justice I.P. Mukerji at the Calcutta High Court on 18 April, 2012.

The petitioner alleged that the said song, which has attained considerable popularity till date since the music of the film had been released on television on 21st October, 2011 (and the film itself was released in theatres on 2nd December, 2011), contains the lyric and tune "Ooh La La Ooh La La", which stands in violation of the petitioner’s copyright in the song "Ui Amma Ui Amma", from an old hindi film ‘Mawali’, having Mr. Bappi Lahiri as its music composer.

During the hearing of this matter, both the songs were played on a laptop for the judge’s benefit and he found quite a strong similarity between the tunes. However, the defendant argued that such a small part of the old song spanning a few seconds has virtually no content in lyric or music and hence there is no copyright of any person in it. Therefore, the allegedly offending part of the song "Ooh La La Ooh La La" cannot be deemed to be a copy of that part of the old song.

The petitioner relied on a deed of assignment of copyright to strengthen his case. However, the defendant contested the validity of the said deed, arguing that there was no specific duration of the assignment mentioned in the deed [As per Section 19(5) of the Copyright Act, 1957, if the period of assignment is not stated it shall be deemed to be five years from the Deed of Assignment]. The petitioner countered the argument by saying that S. 19(5) was introduced in the 1957 Act at a much later point of time after the assignment. The Court found that the deed appeared prima facie to be an unconditional and absolute assignment and before the amendment and hence rejected the defendant’s challenge regarding the deed’s validity.

An important issue was why the petitioner delayed so long before bringing this infringement suit, which, according to the defendant, resulted in loss of plaintiff’s right to get an ad interim order of injunction. To support this claim, the petitioner relied on the twin cases of Mr. Ajay Monga vs. Red Chillies Entertainment Pvt. Ltd. [Bombay High Court, 6th August, 2008] and Nariman Pictures and Ors. Vs. Baba Arts Ltd. And Ors. [Bombay High Court, 22nd December, 2011]. The Court in the present matter held that there existed substantial similarity between the two tunes and their overall impact, despite the difference in words. It was also held that the petitioner, in the light of Ram Sampath vs. Rajesh Roshan & Ors [2009(40) PTC 78(Bom.)] made a prima facie case of infringement, by arguing that even a small part of the song is capable of copyright protection. However, the Court made two important observations regarding this.

Regarding the question of inordinate delay by the plaintiff, the Court considered the case of Medas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors. [(2004) 3 SCC 90], which stated that if infringement is established then injunction must follow as a matter of course. However, the two aforementioned Bombay High Court judgments went on to posit that when the balance of convenience is altered by reason of delay, then the above principle of automatic grant of injunction may not be applicable. Given that considerable money has already been spent in buying the broadcasting rights and that the film is scheduled to be telecast on 22nd April, 2012, grant of an injunction at this stage, according to the defendant, would cause irreparable damage to be suffered. Considering such a situation, the Court refrained from issuing such injunction, in the light of the balance of convenience argument.

The Court also considered petitioner’s letter dated 7th February, 2012, wherein it had informed the defendant of such infringement, but expressed willingness to grant license for consideration. It was the Court’s opinion that the petitioner had not lost the right of exploitation of the copyright by sale of the license to the defendant and given that it had been deprived of such right by the defendant’s subsequent actions, it is entitled to compensation from the defendant. The defendant was thus permitted to carry on the telecast of the movie as scheduled, but was also directed to deposit a sum of Rs. 2 Crores (the estimated amount for which the petitioner might have issued license to the defendant) with the Registrar, Original Side within 25th April, 2012, to the credit of the suit.

It thus seems good news for the public who will still be able to enjoy the movie from April 22 onwards without any cuts/deletion, although perhaps the time has come to question the tactics employed by certain people to file infringement suits just prior to a movie’s release/satellite launch, knowing well that the producers/distributors will be hamstrung by the fear of suffering ruinous financial losses in case an interim injunction is awarded.

Source: Spice IP Blog