Mrs.Shanthi Thiagarajan v. K.E.Gnanavel Raja

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 5TH DAY OF JANUARY 2018 THE HON'BLE MR. JUSTICE M.SUNDAR O.A. No.3 of 2018 in C.S. No.10 of 2018 Mrs.Shanthi Thiagarajan, Rep. By its Proprietrix, Staar Movies, Prashanth Gold Towers, 8, Hanumanthan Street, T.Nagar, Chennai - 600 017.

: Applicant / Plaintiff Vs.

1.K.E.Gnanavel Raja, C/o.Studio Green, nd Floor, 13/6, Thanikachalam Road, T.Nagar, Chennai - 600 017.

2.Vignesh Sivan, Ceebros Atlantic Residence No.3, Montieth Road, A Block, Egmore, Chennai - 600 008.

: Respondents / Defendants Original Application praying that this Hon'ble Court be pleased to grant an order of ad interim injunction restraining the Respondents, by themselves, their partners, men, servants, agents, distributors, representatives or any one claiming through or under them from in any manner infringing the applicant's copyright in the rights over the original movie SPECIAL 26 by producing, directing,

distributing, releasing, screening or communicating to the public the cinenmatograph film under the title THANA SERNDHA KOOTAM or in any other name or in any other manner whatsoever pending disposal of the suit.

This Original Application coming on this day before this court for hearing and the court made the following order: Sole applicant herein is the lone plaintiff in the main suit. Respondents 1 and 2 herein are defendants 1 and 2 respectively in the main suit. Parties in this application are referred to by their respective ranks in the main suit for the sake of convenience and clarity.

2. With regard to jurisdiction of this Commercial Division, it is submitted by both the learned senior counsel before me i.e., Mr.R.Yashod Vardhan and Mr.Sathish Parasaran, that this suit pertains to alleged infringement of a copyright and therefore Section 62(1) of the Copyright Act, 1957 will apply. It is further submitted in unison by both the learned senior counsel that in the light of Section 62(1) of the Copyright Act, 1957 becoming applicable, this Commercial Division will have jurisdiction to entertain the main suit under first proviso to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (4 of 2016) (hereinafter referred

to as 'Act 4 of 2016' for brevity). I accept this common submission made by both the learned senior counsel before me. To be noted, Mr.R.Yashod Vardhan appears for the counsel on record for the sole plaintiff and Mr.Sathish Parasaran, appears for counsel on record for the two defendants.

3. The suit pertains to a movie, which goes by the name 'Special 26'. It unfurls from the plaint averment that 'Special 26'was made in the year 2013 and distributed by a company, which goes by the name Viacom 18 Media Private Limited, Mumbai (hereinafter referred to as 'Viacom' for brevity). It was a period film inspired by the Opera House Heist in Mumbai. It is further averred that the plot of 'Special 26' in a nutshell is that the protagonist, played by Mr.Akshay Kumar and his gang of 26 people pose as officers belonging to Central Bureau of Investigation (CBI) and pull off a heist with the help of local police officer. The protagonist meticulously plans the heist in the name of carrying out raids on behalf of CBI by hiring a group of men and with his lieutenants. Information about this plan is leaked to the original CBI and the investigating officer of the original CBI officer plants a mole in the hired group of people. The original CBI Officer replaces all the original

jewellery with fake jewellery and moves all the original jewellery to a workshop. With the connivance of local police, who is seemingly assisting the original CBI officers, the protagonist and his lieutenants raid the workshop when all eyes are on the showroom leaving the innocent hired men in the lurch. The film ends with the protagonist, his love interest and his lieutenant in Sharjah enjoying a cricket match (this movie is hereinafter referred to as 'said movie' for the sake of convenience and clarity).

4. It is averred in the plaint that the plaintiff approached Viacom to acquire remake rights of the said move and in the year 2014, by virtue of an agreement dated 09.08.2014, rights to remake the said movie were assigned to the plaintiff for four regional languages, namely Tamil, Telugu, Malayalam and Kannada. It is the further case of the plaintiff that upon acquiring such remake rights from Viacom, they commenced the groundwork to produce the movies in the regional languages. Thereafter, it is submitted by the plaintiff that in and by an agreement dated 21.09.2016, plaintiff assigned their aforesaid copyright in the said movie to RPP Film Factory (hereinafter referred to as 'RPP' for brevity) having its registered office at 11/11, Sree Apartments, Circular Road, United

India Colony, Kodambakkam, Chennai - 24.

5. Admittedly, under this Assignment Agreement dated 21.09.2016, according to the plaintiff, RPP had the rights to further assign the rights in the said movie. To be noted, this agreement dated 21.09.2016 is for a period of one year. I have also noticed the dispute resolution clause in this agreement is an arbitration clause. However, to be noted, RPP is not a party to this suit. In the other assignment agreement dated 23.09.2016 between RPP and the first defendant also, the dispute resolution clause is an arbitration clause. When this was pointed out by me, both the learned senior counsel submitted in unison that this being Intellectual Property Rights ('IPR' for brevity) issue, the question as to whether it is an action in rem or action in personam notwithstanding IPR being right in rem, has to be gone into and on that basis requested me to leave this question open for the present. In other words, this application is being disposed of leaving open the question as to whether the subject matter of this suit is arbitrable.

6. Under the aforesaid circumstances, the main suit was moved emergently predicated on the allegation that Defendants 1 and 2 are

on the verge of infringing the copyrights in the said movie by producing a Tamil feature film, which goes by the name 'Thaana Serndha Kootam' (hereinafter referred to as 'TSK' for brevity). To be noted, Defendant No.1 is Producer of TSK and Defendant No.2 is the Writer and Director of TSK.

7. When the suit was moved as an emergent suit, Mr.Vijayan Subramanian, learned counsel was before the Court with a plea that he has instructions from both the defendants to accept notice, oppose this interlocutory application and contest the suit. Though there was no caveat, considering the nature of the matter and considering the fact that I am informed that TSK is slated for release on 12.01.2018, I permitted the said counsel to make submissions. As mentioned supra, the said counsel was represented by senior advocate Mr.Sathish Parasaran.

8. The Contention of the defendants broadly are as follows: a) the plaintiff was following the making of TSK from at least 22.12.2016 and have come to the Court at the eleventh hour, which is impermissible and shows lack of bonafides on the part of plaintiff.

b) Defendants have got the rights to remake TSK in Tamil

and Telugu vide an Assignment Agreement dated 23.09.2016 entered into with RPP. To be precise, Defendant No.1 is the assignee and it is noticed from a copy of the assignment agreement placed before me that he is carrying on business as a sole proprietor in the name and style of M/s.Aadnah Arts. c) The first defendant has got assignment of rights in the said movie for valuable consideration and therefore, they are entitled to release the remade films in Tamil and Telugu on 12.01.2018.

9. The submissions of Mr.R.Yashod Vardhan learned senior counsel for the plaintiff are as follows:

a) The Telugu version of TSK is a dubbed version and the plaintiff has not parted with its rights to dub in favour of RPP and therefore, the first defendant does not have rights to dub.

b) TSK has now been sent for certification and it is not clear as to whether due credits have been given with regard to the original copyright holder.

c) On assignment of Copyright, the first defendant, has a duty to keep both RPP and the plaintiff informed about the

assignment. This would have protected the plaintiff qua the original maker of TSK i.e., Viacom.

d) Plaintiff did not have knowledge about TSK from 22.12.2016 as alleged, but they got knowledge only on 21.12.2017.

10. I have heard the rival submissions for sometime and the issues were narrowed down for the limited purpose of disposal of this interlocutory application and they are as follows: i) The apprehension of the plaintiff is that due credits should be given;

ii) The question is whether the Telugu version of TSK is dubbed version or a remake;

iii) Whether the first defendant has the right to dub.

11. In the light of aforesaid narrowed down issues/points for consideration, it is submitted by learned counsel for defendants that due credits have been given. That puts to rest the issue of credits being given. It is asserted by the learned senior counsel for the defendants that Telugu version is a remake and not a dubbed version. However, it is without prejudice to the contention of the defendants that their rights include rights to dub. At the moment,

I am leaving this question of whether the defendants have the right to dub left open to be decided in the main suit.

12. With regard to date of knowledge of plaintiff regarding the making of TSK i.e., as to whether it is 22.12.2016 or 21.12.2017, both are electronic communications and are subject to affidavits under Section 65B of Evidence Act, all of which can be decided only in trial in the main suit.

13. After I had dictated the orders, it was submitted on behalf of defendants that Telugu version of TSK may be dubbed. To be noted, I have already left open the question of whether the defendants have the right to dub TSK in Telugu is a matter to be decided in the trial/main suit. Therefore, if ultimately on the basis of evidence and on the basis of interpretation of the aforesaid agreement in the trial, if it unfurls and if this court comes to the conclusion that the defendants do not have right to dub, the defendants will be put to suitable terms and plaintiff will be entitled to make pleas in this regard.

14. Mr.Sathish Parasaran, learned senior counsel submitted, on instructions, that the defendants would strictly adhere to the terms and conditions of the aforesaid Assignment Agreement dated

23.09.2016, which in turn is based on the Assignment Agreement dated 21.09.2016 between plaintiff and RPP. It is also asserted that first defendant entered into the Assignment Agreement dated 23.09.2016 after being fully aware of the covenants in the Assignment Agreement dated 21.09.2016 between plaintiff and RPP. In this regard, it is very fairly submitted by the learned counsel for defendants, on instructions, that both the defendants will strictly adhere to all the covenants in the aforesaid Assignment Agreement dated 23.09.2016 (between first defendant and RPP) as well as Assignment Agreement dated 21.09.2016 (between plaintiff and RPP), subject of course to issues left open (supra) for being decided in the main suit.

15. With the above observations, I dispose of this application holding that TSK can be released on 12.01.2018, both in Tamil and Telugu, subject to determination of the aforesaid issues in the main suit and the defendant shall remain found in this regard. 16.Counsel for plaintiff and defendants make a joint request for Case Management Hearing under Act 4 of 2016 and are confident of adhering to the time lines to be fixed therein, besides being confident of quick disposal of the main suit.

List the main suit under the caption 'Case Management Hearing' on 22.01.2018.

Sd./- M.S.J.

05.01.2018 //Certified to be true copy// Dated at Madras this the 5 th day of JANUARY 2018.

COURT OFFICER (O.S.) TPY/05.01.2018 From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.