IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
O.S.A. No.446 of 2012
S.Mahalingam : Appellant
1. Vasan Publications Pvt. Ltd.
rep. By its Chairman/
Managing Director/Executive Director,
No.757, Anna Salai,
Chennai 600 002.
Vasan Publications Pvt. Ltd.,
No.757, Anna Salai,
Chennai 600 002.
3. Vikatan Pressuram,
rep. By its Proprietor/Partner/Director,
No.757, Anna Salai,
Chennai 600 002. : Respondents
Appeal filed against the Fair and Decretal Order of this Court dated 9 November 2012 in O.A.No.661 of 2012 in C.S.No.522 of 2012.
For appellant : Mr.R.Gandhi, Senior Counsel,
Assisted by Mr.Muthukumar,
for M/s.G.M.S.Law Associates
For respondents : Mr.P.S.Raman, Senior Counsel,
J U D G M E N T
This intra court appeal is directed against the order and decretal order dated 9 November 2012 in O.A.No.661 of 2012 in C.S.No.522 of 2012, dismissing the application filed by the appellant for an interim order of injunction restraining the respondents from publishing the art works of late Sri P.M.Sreenivasan, published earlier under the title "Thennattu Selvangal" in Ananda Vikatan during the period 1948 to 1961, as it would infringe the copyright of the legal representatives of the artist.
Brief Facts :-
2. The appellant filed a suit in C.S.No.522 of 2012 before the original side of this Court against the respondents with the following contentions :-
(a) The appellant is the son of Sri P.M.Srineevasan, a well known and renowned artist, popularly known as "Silpi" (hereinafter referred to as the "Silpi");
(b) Silpi was born in the year 1919 at Puliyur near Kumbakonam. His talent in art/drawing came to light even in his early childhood. The famous Tamil poet Namakkal Kavingar recognized his talent and made him to join in the Government School of Arts and Crafts at Madras, sometime during 1939. Though the duration of course was six years, Silpi, with his extra talents, completed the course in three years. In view of his talent and taking into account his recognition, the publishers of "Ananda Vikatan" approached him to license his drawings for publication in "Ananda Vikatan".
(c) The art works of Silpi mainly pertain to the images of Gods, Godesses and temples drawn or painted and physically seen by him. Silpi had drawn more than 5000 drawings over a career spread over more than 50 years. This prompted many publishers, including the first respondent to utilize his drawings and paintings on payment, treating it as a license.
(d) The first respondent utilized the services of Silpi and he was paid license fee / consideration for drawing picture and the art works were published in "Ananda Vikatan". It was purely a contract. Silpi was recognized as the first owner of copyright in all his art works.
(e) Silpi who died on 10 January 1983 is survived by the appellant and his sister R.Saradambal. Since Silpi died intestate, his right over his works devolved on the appellant and his sister and they have been exploiting the copyright by licensing them to publishers, Corporate entities and Government Departments in various ways including by using them in calendars, greeting cards, booklets etc. purely on a license basis.
(f) While so, the appellant was shocked when he came to know from an advertisement published in Ananda Vikatan dated 1 October 2012 and "Vikatan Pressuram", July/August 2012 issue, that the respondents are about to come out with a combined publication of the art works of Silpi, which were published in the weekly magazine Ananda Vikatan under the title "Thennattu Selvangal" during the period 1948 to 1961, the copyright of which now vests with him and his sister. The act would amount to infringement of copyright and as such, the appellant was constrained to file the suit for injunction to restrain the respondents from publishing the works of Silpi in any form.
Interlocutory Application :-
3. The appellant, along with the suit, filed an interlocutory application in O.A.No.661 of 2012 praying for an order of interim injunction pending disposal of the suit.
Counter of first respondent :-
4. The Managing Director of Vikatan Publishers, first respondent in the interlocutory application, filed a counter affidavit in O.A.No.661 of 2012 with the following averments :
(a) The deceased Silpi was employed as an artist in "Ananda Vikatan", magazine from the year 1943 and till 1967. There existed a relationship of employer-employee and it was a continuous relationship till 1967 without any break.
(b) Silpi was a regular employee with Ananda Vikatan and he was paid monthly salary. He was also paid all service benefits like other employees. Sometimes, he was sent out of Chennai on assignment to draw/work for the magazine at the expense of the publisher. All the tools and stationery, including pen, pencil, paint, brush, drawing sheets etc. were provided by the first respondent.
(c)The art works were published in Ananda Vikatan under the title "Thennattu Selvangal" from 1948 to 1961.
(d) Silpi, in addition to the assigned works, also performed his regular duty by drawing cartoons, for the magazine as a regular employee.
(e) The first respondent took a decision to publish the collection of published works, in a book format under the same title "Thennattu Selvangal". Since Silpi worked as an employee of Ananda Vikatan, during the period 1948 to 1961, the first respondent is the first owner of the copyright. Therefore, the appellant is not entitled for any relief in the suit as well as in the interim application.
The judgment under appeal :-
5. The learned Judge found that the works sought to be published related to that period when Silpi was under the employment of respondents and not earlier or later date. According to the learned Judge, Section 17 of the Copyright 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 reproduction in similar newspaper or magazine.
The learned Judge, from the documents available on record arrived at a prima facie case that late Silpi functioned only as an employee from 1948 to 1961.
The learned Judge opined that the appellant can always be compensated in the event of his success in the suit. Accordingly, the application for injunction was dismissed.
6. Feeling aggrieved by the decision in the interlocutory application, the appellant is before us.
Rival Submissions :-
7. The learned Senior Counsel for the appellant made the following submissions :-
(a) Silpi was not an employee of the first respondent. He was a freelance artist. Silpi used to visit religious places of importance for the purpose of drawing pictures. His drawings were given to the magazine for publication on license basis. Therefore, the ownership of copyright vested only with Silpi and the appellant inherited the said right;
(b) There was no employer-employee relationship between the first respondent and Silpi so as to claim first ownership right by the magazine;
(c)Section 17 of the Copyright Act recognizes the right of the author of the work;
(d) As per Section 17(a) of the Copyright Act, the proprietor of the magazine has got only a limited right to publish the work or to reproduce it in the magazine and he has no right to publish the work in a book form;
(e) The proposed publication in a book form would amount to infringement of copyright and as such, the appellant being the legal heir of the first owner/author, is entitled to protect his interest under Section 55 of the Act.
(f) The respondents have distorted the art work and as such, the appellant has made out a case for injunction under Section 57(1)(b) of Copyright Act.
(g) Since Silpi was the author of the art work and in the absence of any assignment of such works in favour of respondents, the appellant has made out a prima facie case.
8. The learned Senior Counsel for the respondents would contend :
(a) The documents on record prima facie show that Silpi was an employee under Ananda Vikatan at least from 1948 to 1961. Since the works in question were made during the period of employment, the publisher has got the first ownership of copyright.
(b) The first respondent is only reproducing the works published under the title "Thennatu Selvangal" in Ananda Vikatan from 1948 to 1961. Therefore, the publication would come under Section 17(a) of the Copyright Act.
(c)The first respondent in the book has clearly indicated that the book is a collection of serial published in Ananda Vikatan and authored by Silpi. The book contains only the works published from 1948 to 1961. The works of Silpi after his retirement from Ananda Vikatan were not included in the book. Therefore the appellant has no cause of action against the respondents.
(d) The first respondent has already printed 4000 copies and the book is proposed to be published on 2 January 2013 in connection with the Book Fair - 2013. The respondents would be put to irreparable loss in case interim order is granted to restrain them from publishing the book.
Factual analysis :-
9. The appellant is the son of Sri P.M.Srinivasan, a well known and renowned artist. The contribution made by Sri P.M. Srinivasan in the field of art in its various forms was appreciated by one and all. It is said that Sri Chandrasekarendra Saraswathi Swamigal, Maha Paramacharya of Kanchi, instructed him to create works of art in relation to Gods, Goddess, Temples and other forms of arts pertaining to spirituality and blessed him to create marvelous pieces of art in all its form. Sri P.M.Srinivasan was known as "Silpi" and this name is found engraved in all his works.
10. There is no dispute with regard to the factual position that the art works published in Ananda Vikatan under the title "Thennattu Selvangal" during the period 1948 to 1961 were all created by Silpi. The core question is whether Silpi being the author of the work was recognized as the first owner of the copyright, or the publisher of Ananda Vikatan, in the capacity as proprietor of the magazine is entitled to claim that they are the first owner of the copyright in respect of such of those works made during the currency of employment of the author with the magazine.
11. The appellant claims that Silpi was not an employee of Ananda Vikatan and the paintings and drawings were given to the magazine on licence/ royalty basis, retaining the first ownership therein with the author. On the other hand, the first respondent specifically claimed that Silpi was an employee of Ananda Vikatan, and only in the said capacity he had drawn the pictures and cartoons and other artistic works. The legality and correctness of the rival contentions can be decided only after adducing evidence by both sides. We are now concerned only with the prima facie case and as to whether balance of convenience is in favour of granting injunction and thereafter, the question of irreparable injury.
Statutory framework :-
12. The object of the Copyright Act is to protect the author of the work from the possible fraudulent reproduction of the work without his permission. The author being the creator of the work, by using his talents, skill and knowledge must be in a position to enjoy the benefits of such creation. Third parties, who have not played any part in such creation should not be given the benefits by its unlawful reproduction. It is for this purpose, the Copyright Act was enacted.
13. Section 17 of the Copyright Act reads thus :-
17. 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:
(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;
14. The documents available on record are more than sufficient to arrive at a prima facie case that Silpi was an employee of Ananda Vikatan at least from 1948 to 1961. It is said that Silpi was very much attracted by the works of Thiru.Mahalingam, popularly known as "Mali"who was functioning as the Art Editor of Ananda Vikatan. Mali was equally attracted by the marvelous works of Silpi, even as a student at the Government School of Arts and Crafts, Egmore.
This mutual respect and admiration appears to have resulted in the joining of Silpi in Ananda Vikatan as an artist.
The woks of Silpi contain an introduction of the pictures and drawings. The texts prepared by Silpi were edited by the editorial team of Ananda Vikatan and thereafter, the works were published in the magazine under the title "Thennatu Selvangal".
The write up produced by the respondents contains a reference that Silpi left Ananda Vikatan which he had served for years and joined Bhavans Journal in Bombay.
15. In case the artistic work was made by the author during the currency of his employment with a magazine, sub clause (a) of first proviso to Section 17 of the Copyright Act would protect the first ownership right of the proprietor of magazine to reproduce the work.
16. There is no dispute that all these works were earlier published in Ananda Vikatan during the period from 1948 to 1961. The counter affidavit shows that the first respondent has decided to publish the collection of already published works in a book form under the very same title "Thennattu Selvangal". The appellant has no case that the other works of Silpi, which were not published during the said period in Ananda Vikatan, were also included in the book proposed to be published by the first respondent. The proprietor of the magazine is given a legal right to reproduce the work for the purpose of publication. So long as the republication is confined only to the already published works, made during the currency of employment, the legal representatives of the author cannot be heard to say that the magazine should be injuncted from republishing the works.
17. The right claimed by the appellant under Section 57 of the Copyright appears to have no basis. The appellant has produced the artistic work in colour. The first respondent has included the black and white copies of the pictures in the book. Because of the difference in colour, it cannot be said that the publisher is guilty of distortion.
Analysis Legal :-
18. The Supreme Court in Seema Arshad Zaheer & Ors. vs. Municipal Corporation of Greater Mumbai & Ors. (2006) 5 Scale 263, indicated the salient features of prima facie case thus :
"The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."
19. The Supreme Court in Dalpat Kumar vs. Prahlad Singh, 1992 (1) SCC 719, observed that prima facie case alone is not sufficient to grant injunction.
"5. ........ Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages ..........."
20. Most recently, the Supreme Court in Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd., (2012) 6 SCC 792, reiterated the legal position regarding injunction :
"29. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable."
21. The materials on record gives an indication that Silpi during the period of publication of "Thennattu Selvangal" was on the pay rolls of Ananda Vikatan. The first respondent is therefore entitled to the statutory protection under clause (a) of first proviso to Section 17 of the Act. Therefore, we are of the view that the appellant has not made out a prima facie case.
22. The first respondent has already published these works in Ananda Vikatan under the title "Thennattu Selvangal". The present attempt is only compilation and reproduction of the very same art works in the form of a book. The first respondent is said to have already printed 4000 copies of the book. The name of Silpi as the author of the work is disclosed in the books along with Silpi's photo printed on book's cover. In view of the disclosures and completion of printing, balance of convenience is not in favour of granting injunction.
23. In case injunction is granted, it would cause irreparable loss to the first respondent. Even as per the appellant, he has been exploiting the copyright by licensing to Corporates and individuals by charging fee/royalty.
As observed by the learned Single Judge, in such cases, the appellant can always be compensated in the event of his success in the suit.
24. Therefore, we are of the considered view that the appellant has not satisfied the trinity of prima facie case, balance of convenience and irreparable injury. We are in complete agreement with the views expressed by the learned Single Judge.
25. The next question is as to how best the interest of the appellant could be protected pending disposal of the suit.
26. The first respondent has already printed 4000 copies of book. Each book is priced at Rs.650/-. We have no details of the amount spent by the first respondent for printing the books. The learned Senior Counsel for the first respondent during the course of arguments submitted that the publisher is prepared for depositing the income from sale in Court.
We are therefore of the view that interest of justice would be subserved in case the following directions are issued :-
27. Directions :-
(1) The first respondent is directed to deposit a sum of Rs.15,00,000/- [Rupees Fifteen Lakhs only] to the credit of C.S.No.522 of 2012 on or before 16 January 2013.
(2) The first respondent is directed to indicate the pendency of the suit relating to copyright in all their publicity materials, including advertisement in newspapers and magazines.
(3) The first respondent is further directed to maintain accounts with regard to printed copies and sale of books, and the same shall be filed in C.S.No.522 of 2012. The first of such statement shall be filed on or before 31 January 2013 and thereafter, once in three months.
28. The above directions are without prejudice to the contentions of the respective parties in the civil suit and the copyright claimed by the first respondent. We also make it clear that our findings with regard to prima facie case and other aspects are only tentative in nature and as such, those observations would not stand in the way of deciding the suit on merits.
29. The original side appeal is disposed of with the above direction. No costs.