Delhi High Court
Saregama India Limited vs Vels Film International Limited & Ors. on 30 January, 2025
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 38/2025 & I.A. 1021/2025, I.A. 2163/2025
SAREGAMA INDIA LIMITED .....Plaintiff
Through: Mr. CM Lall, Sr. Adv. with Mr.
Ankur Sangal, Ms. Sucheta Roy, Ms.
Amira Dhawan, Ms. Shambhavi
Mishra, Ms. Ananya Mehan, Ms.
Samanyu Sethi, Advocates
(M:9910113028)
versus
VELS FILM INTERNATIONAL LIMITED & ORS. .....Defendants
Through: Mr. K. Rigved Prasad, Ms. PS
Deepika and Mr. V. Shreekumar,
Advocates for D-1.
Mob: 9790913150
Email: [email protected]
Ms. Anushree Rauta, Mr. Deepank
Singhal, Ms. Anisha Shetty, Mr.
Shwetank Tripathi, Advocates for D-2
(M:9782830038)
Mr. Manu Kulkarni, Mr. Ankit
Parhar, Ms. Shloka Narayanan, Ms.
Sriparna Dutta Choudhury, Advocates
for D-3 (M:9871766591)
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
% 30.01.2025
I.A. 1021/2025 & I.A. 2163/2025
1. The present suit has been filed by the plaintiff against the defendants
for infringement of its copyright in the literary and musical work of the song
„En Iniya Pon Nilave‟ from the cinematograph film „Moodu Pani‟ in the
cinematograph film „Aghathiyaa‟, produced by defendant no. 1, which is
Signature Not Verified
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
slated for release on 31st January, 2025. It is undisputed that the defendants
have used the lyrics and music composition of the song in question and have
caused a fresh recording of the same.
2. By this judgment, this Court shall decide the applications filed by the
plaintiff and defendant no. 1 respectively, for grant of injunction and
vacation of the interim order dated 16th January, 2025, pertaining to the
rights of the parties in the song „En Iniya Pon Nilave‟ from the
cinematograph film „Moodu Pani‟. While the plaintiff claims right in the
said song on the basis of assignment from the producer of the cinematograph
film in question, the defendant no. 3 claims his right in the said song, being
the music composer of the said song. Defendant no. 1 claims its right on the
basis of agreement with defendant no. 3.
Facts of the case:
3. The case, as set up by the plaintiff, is as follows:
3.1 Plaintiff is inter alia engaged in the business of acquisition of
copyright in sound recordings and literary, musical, dramatic works
contained therein and distribution, sale and exploitation of the same through
various modes and mediums.
3.2. The plaintiff was formerly known as „The Gramophone Company of
India Limited‟. The plaintiff was also known as „HMV‟ (His Master‟s
Voice).
3.3 The plaintiff is in the business of music entertainment and has
produced and/or acquired and therefore, owned and continues to own the
copyright in many sound recordings, as well as musical and dramatic works,
which form part of the said sound recordings.
3.4 The plaintiff owns a sizeable catalogue of films as well as a rich
catalogue of film music and non-film music in Tamil as well as other
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
regional languages. The plaintiff enters into various license agreements with
third parties to allow them to use the plaintiff‟s works.
3.5 Producer of the cinematograph film „Moodu Pani‟, i.e., Raja Cine
Arts, entered into an agreement dated 25th February, 1980 with the plaintiff
(then known as „The Gramophone Company of India Limited‟) through the
plaintiff‟s agent, Saraswati Stores. Hence, as per the terms of the plaintiff‟s
agreement, the plaintiff is the owner of the sound recordings and the musical
and literary works in the songs of the cinematograph film „Moodu Pani‟,
including, the song „En Iniya Pon Nilave‟.
3.6 Recently, on 9th January, 2025, the plaintiff was shocked to come
across a teaser of the cinematograph film „Aghathiyaa‟, on various social
media platforms, wherein, defendant nos. 1 and 2 were announcing the
release of sound recording on 10th January, 2025, which proclaimed to be a
„recreation‟ of the song „En Iniya Pon Nilave‟.
3.7 Upon receiving knowledge of the same, the plaintiff immediately sent
a cease-and-desist notice dated 10th January, 2025 to the defendant nos. 1
and 2 directing the said defendants to inter alia cease-and-desist from
using/exploiting the plaintiff‟s copyrighted works, as well as from
publishing the infringing song on various platforms.
3.8 However, despite receiving the legal notice from the plaintiff, the
defendant nos. 1 and 2 proceeded to publish the infringing song on various
streaming websites.
3.9 Defendant no. 1 vide Email dated 11th January, 2025, responded to the
legal notice sent by the plaintiff and submitted that defendant no. 1 had
taken a license to adapt, record/recreate and synchronize the original song
„En Iniya Pon Nilave‟ from the owner of the copyright in the said song and
underlying works, i.e., defendant no. 3.
Signature Not Verified
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
3.10 Thus, the present suit has come to be filed by the plaintiff alleging
infringement of its copyright in the song in question by the defendants.
Proceedings before the Court:
4. When the present matter was listed for hearing on 16 th January, 2025,
on the basis of preliminary hearing and noting that the defendants had not
appeared despite advance service, this Court restrained the defendants from
releasing/publishing the song „En Iniya Pon Nilave‟, on any platform or
media, till the next date of hearing.
5. Thereafter, when the matter was taken up for hearing on the next date,
i.e., 27th January, 2025, learned counsel appearing for defendant no. 2
submitted that it was merely the licensee, distributor and content manager of
defendant no. 1. It was submitted on behalf of defendant no. 2 that in
compliance of the order dated 16th January, 2025, the defendant no. 2 had
already taken down the song in question from all the social media platforms.
He further submitted that the defendant no. 2 undertakes to be bound by any
order passed by this Court, which shall be duly complied with. Noting the
said submission made by defendant no. 2 and binding the defendant no. 2 to
the said statement, with the consent of the plaintiff, defendant no. 2 was
deleted from the array of parties vide order dated 27th January, 2025.
Submissions by Plaintiff:
6. On behalf of the plaintiff, it has been submitted, as follows:
6.1 As per Section 17 of The Copyright Act, 1957 (“Copyright Act“), as
well as various judicial pronouncements, it is settled law that the producer of
a cinematograph film or a sound recording is the first owner of the copyright
in the sound recordings, literary works, musical works and other works,
which form a part of the said cinematograph film. Thus, producer of the
cinematograph film has all the rights granted to an owner of copyright over
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
the musical and literary works in a cinematograph film, including, the right
to assign the same to another entity.
6.2 As per the terms of the plaintiff‟s agreement with the producer of the
cinematograph film „Moodu Pani‟, the plaintiff is the owner of the sound
recordings and musical and literary works in the songs of the cinematograph
film „Moodu Pani‟, including the song „En Iniya Pon Nilave‟.
6.3 Defendant no. 3 was the music composer and hence, the author of the
musical work of the original song. However, as the original song was made
for and is part of the cinematograph film „Moodu Pani‟, it is the producer of
the said cinematograph film who was the first owner of the copyright in the
musical work and literary works of the original song. As the said producer
assigned all the copyrights in the original song to the plaintiff, the plaintiff is
the subsequent owner of the copyright in the literary and musical works in
the original song and not the defendant no. 3. Thus, the defendant no. 3 did
not have the right to issue any license in favour of the defendant no. 1 in
relation to the musical work of the original song.
6.4 Defendant no. 3 is not the author of the literary work, i.e., the lyrics of
the original song. Therefore, defendant no. 3 cannot claim any rights in the
literary work of the original song. In view thereof, defendants are illegally
exploiting the plaintiff‟s copyrighted works and are taking benefit of the
copyright, which is owned by the plaintiff.
6.5 The infringing song cannot be called an adaptation, as the defendants
have neither made any arrangement nor transcription of the work in terms of
the definition of adaptation as given in the Copyright Act.
Submissions by Defendant No. 1:
7. Per contra, on behalf of defendant no. 1, it has been submitted as
follows:
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
7.1 Defendant no.3 is the composer of the original song and is
accordingly the author and owner of the underlying musical work.
7.2 Defendant no.1 is the producer of the cinematograph film
„Aghathiyaa‟ and for the same purpose, has created a new sound recording,
which is an adaptation of the original song. Defendant no.1 has invested
significant monies, engaged a music composer to compose the adaptation
and also funded the orchestra and synchronization of the adaptation. Hence,
the ownership of the new sound recording of the adaptation and the right to
exploit the new sound recording, enures to the benefit of defendant no. 1.
7.3 Defendant no.1 is a bona fide third party licensee of the underlying
musical and literary work, by virtue of license agreement dated 17 th March,
2023, and has paid a sum of Rs. 5,40,000/- to defendant no. 3, as
consideration.
7.4 Section 13(4) of the Copyright Act aims to protect the copyright of
the original author in the musical or literary work. Defendant no. 1 herein,
specifically, has the right to make an adaptation of the work in terms of
Section 14 of the Copyright Act.
7.5 Reliance on Section 17 by the plaintiff to claim ownership over all the
rights granted to an owner of copyright over the musical and literary works,
is therefore, completely unfounded and contrary to the Copyright Act.
7.6 Reliance is placed on the judgment in the case of RDB and Co. HUF
Versus Harper Collins Publishers India Pvt. Ltd., 2023 SCC OnLine Del
3046, wherein, in the context of a conflict between the producer of the film
and the author of the screenplay/ literary work, it was held that by operation
of Section 13(4), copyright in the screenplay as a literary work, cannot be
affected by the separate copyright in the cinematograph film itself.
7.7 The aforesaid judgment in the case of RDB (supra) was upheld by the
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
Division Bench by its order dated 11th August, 2023 passed in
FAO(OS)(COMM) 167/2023, RDB and Co. (HUF) Versus Harper Collins
Publishers India Pvt. Ltd. In the said order, the Division Bench held that the
producer of the film could not have possibly claimed a supervening right in
the screenplay in the light of the clear language and intent of Section 13(4)
of the Copyright Act.
7.8 The claim of the plaintiff is erroneous and unfounded and would
effectively render Section 13(4) of the Copyright Act otiose.
7.9 Claim of the plaintiff that the original authors would be entitled to
retain their rights under Section 14(1)(a) of the Copyright Act only after
2012, in view of the fact that proviso to Section 17 was inserted in 2012, is
liable to be rejected. Such an interpretation is contrary to the judgment in the
case of RDB (supra) and also the law, as laid down by Supreme Court. Such
an interpretation would again render Section 13(4) of the Copyright Act
otiose, since Section 13(4) was in force since 1957.
7.10 Proviso to Section 17, as inserted in the year 2012, is only
clarificatory and does not confer any new right, which is evident from the
wording of the said Section.
7.11 Plaintiff has conceded that rights under Section 14(1)(a), other than
the right to make a cinematograph film/ sound recording, are retained by the
original author of the underlying musical and literary work.
7.12 The bona fide of defendant no. 1 is evident from the fact that by
Email dated 11th January, 2025, in reply to the legal notice of the plaintiff
dated 10th January, 2025, defendant no. 1 clearly stated that it was always
ready for an amicable solution for the issue.
7.13 The ownership over the right to adaptation subsisting in the original
underlying musical and literary work, vests with the author. Thus, the
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
plaintiff has miserably failed to establish any prima facie case against the
defendant. Thus, the present application is liable to be dismissed.
Submissions by Defendant No. 3:
8. On behalf of defendant no.3, it has been submitted as follows:
8.1 Defendant no. 3 owns the „musical work‟ and has rights in relation to
the said musical work, including, the right to create „Adaptation‟ under
Section 14(1)(a)(vi) of the Copyright Act.
8.2 This is a case of adaptation of musical work, in which the right lies
with the author of the music, i.e., defendant no. 3, who is the music
composer.
8.3 Under Section 17 of the Copyright Act, the author of the work is the
first owner of the Copyright. In relation to musical work, composer is the
author. Defendant no. 3 being the author of the musical works in the song,
he is the first owner of the copyright in the musical work in the song.
8.4 Defendant no. 3 has all the rights under Section 14(1)(a) of the
Copyright Act, including, reproducing the work in material form, issuing
copies of work to the public, performing the work in public or
communicating it to the public, making a cinematograph film or sound
recording based on the work.
8.5 Section 14(1)(a)(vi) specifically permits defendant no. 3 to make any
adaptation of the musical work. In the present case, plaintiff admits that the
defendant no. 3 has adapted the musical work in the song.
8.6 Plaintiff has not shown that defendant no. 3 assigned any copyright
under Section 14(1)(a) of the Copyright Act, except the limited right of
using the „musical work‟ for synchronization for the cinematograph film. No
right of adaptation was assigned either to plaintiff or any other person.
8.7 Section 13(4) of the Copyright Act specifically protects the separate
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
copyright in the musical work, even if it is included in a cinematograph film
or sound recording.
8.8 The plaintiff cannot take advantage of Section 17 of the Copyright
Act as the necessary pleadings in regard thereto are missing from the plaint.
The plaintiff was required to state that the work in question was created at
the instance of a person, for valuable consideration. Plaintiff cannot rely on
clause (b) of the first proviso to Section 17, because defendant no. 3 was not
commissioned by the producer of the film/plaintiff.
8.9 Plaintiff has not demonstrated the essential requirements to claim
ownership of the copyright in musical works, under Clause (b) of the first
proviso to Section 17, i.e., that the musical work was made for valuable
consideration at plaintiff‟s or producer‟s instance. Further, Section 17 of the
Copyright Act does not state that if valuable consideration is given, the
composer of music is divested of his right. The music composer being the
author of the work has a right to create and make an adaptation of a song.
8.10 Defendant no. 3, has time and again, asserted that most of his musical
works were made at his own instance and were later incorporated in the
cinematograph film after his assent, made pursuant to the request of the
directors or producers of the movies concerned.
8.11 The decision of Supreme Court relied upon by the plaintiff, is wholly
distinguishable because the Supreme Court did not consider the issue on
whether musical works could be adapted by the composer even after it was
synchronized in a cinematograph film.
8.12 The defendant no. 3 is claiming right from the date of the amendment
of Section 17 in the year 2012. The 2012 amendment applies to the present
case, at least, on and from 21st June, 2012, the date on which the amendment
came into force. By virtue of second proviso to Section 17, defendant no. 3‟s
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
copyright in the musical work is intact and not defeated by plaintiff‟s right
in the cinematograph film.
8.13 Defendant no. 3, being the music composer, had certain right earlier
prior to the amendment of Section 17. Subsequently, the legislature has
conferred more rights upon the author of a work. The 2012 amendment was
made specifically to benefit the authors of musical and literary works.
Therefore, the amendment is beneficial legislation for authors of musical
and literary works.
8.14 Bombay High Court in the case of Indian Performing Rights Ltd.
Versus Rajasthan Patrika, 2023 SCC OnLine Bom 944, held that the 2012
amendment nullifies the effect of provisos (b) and (c) of Section 17 of the
Copyright Act.
8.15 Defendant no. 3 is the owner of the musical work. Thus, he has all the
rights in terms of Section 14 of the Copyright Act.
8.16 Proviso to Section 17 only refers to Section 13(1) of the Copyright
Act and does not affect the rights of defendant no. 3 under Section 14 of the
Copyright Act which defines copyright.
8.17 From a plain reading of the 2012 amendment, it is clear that it is
intended to apply to existing agreements/rights.
8.18 Raja Cine Arts cannot assign defendant no. 3‟s copyright in the
musical works of the song of the plaintiff, when it did not possess the said
rights.
Findings and Analysis:
9. I have heard learned counsel for the parties and have perused the
record.
10. The basic question that this Court is called upon to decide is as to
whether the copyright in the song „En Iniya Pon Nilave‟ from the
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
cinematograph film „Moodu Pani‟, vests in the plaintiff, in view of the
assignment in its favour by the producer of the movie „Moodu Pani‟; or as to
whether the copyright of the same vests with defendant no. 3, the music
composer of the song in question.
11. In order to decide the issue in question, it would be apposite to refer
to the scheme of the Copyright Act, which elucidates the various works in
which copyright subsists.
12. Various amendments were carried out in the Copyright Act from time
to time. Since in the present case, the agreement on the basis of which rights
are being claimed by the plaintiff, is of the year 1980, the provisions of the
Copyright Act prior to amendment, shall be applicable.
13. Copyright is defined in Section 14 of the Copyright Act. In case of
musical work, copyright has been defined to mean the exclusive right to do
the following:
i. To reproduce the work in any material form.
ii. To publish the work.
iii. To perform the work in public.
iv. To produce, reproduce, perform or publish any translation of the
work.
v. To make any cinematograph film or a record in respect of the work.
vi. To communicate the work by radio diffusion or to communicate to the
public by a loud speaker or any other similar instrument the radio diffusion
of the work.
vii. To make any adaptation of the work.
viii. To do in relation to a translation or an adaptation of the work any of
the acts specified in relation to the work in clauses (i) to (vi);
14. However, the rights pertaining to copyright, in terms of Section 14 of
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By:AMAN UNIYAL
Signing Date:30.01.2025
18:53:17
the Copyright Act, are subject to the other provisions of the said Act.
Meaning thereby, the exclusive rights which are conferred as owner of
copyright, are subservient to the other provisions of the Copyright Act and
the said rights are not absolute.
15. Section 14(1)(a) of Copyright Act, pertaining to copyright in musical
work, reads as under:
14. (1) For the purposes of this Act, “copyright” means the exclusive
right, by virtue of, and subject to the provisions of, this Act,
(a) in the case of a literary, dramatic or musical work, to do and
authorise the doing of any of the following acts, namely:
(i) to reproduce the work in any material form;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to produce, reproduce, perform or publish any
translation of the work;
(v) to make any cinematograph film or a record in respect
of the work;
(vi) to communicate the work by radio-diffusion or to
communicate to the public by a loud-speaker or any other
similar instrument the radio-diffusion of the work;
(vii) to make any adaptation of the work;
(viii) to do in relation to a translation or an adaptation of
the work any of the acts specified in relation to the work in
clauses (i) to (vi);
xxx xxx xxx”
(Emphasis Supplied)
16. Section 13 of the Copyright Act provides that copyright shall subsist
throughout India, in the following classes of works:
a. Original literary, dramatic, musical and artistic works
b. Cinematograph films
c. Records
17. Section 13(4) further provides that copyright in a cinematograph film
or a record, shall not affect the separate copyright in any work in respect of
which, or a substantial part of which, the film, as the case may be, the record
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By:AMAN UNIYAL
Signing Date:30.01.2025
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is made. The rights, as conferred under Section 13 of the Copyright Act, are
again subject to the other provisions of the Copyright Act. Thus, copyright is
not an absolute right and would be subject to the various provisions of the
Copyright Act.
18. Relevant provisions of Section 13 of the Copyright Act, are
reproduced as under:
13. (1) Subject to the provisions of this section and the other provisions of
this Act, copyright shall subsist throughout India in the following classes
of works, that is to say,–
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) records.
xxx xxx xxx
(4) The copyright in a cinematograph film or a record shall not affect
the separate copyright in any work in respect of which or a substantial
part of which, the film, or, as the case may be, the record is made.
xxx xxx xxx”
(Emphasis Supplied)
19. Author of a work has been recognized as the first owner of the
copyright. As per definition of author, as given in the Copyright Act, in
relation to a musical work, the composer is the author. In relation to a
cinematograph film or sound recording, the producer of the film, is the
author. The definition of author as given in Section 2(d) of the un-amended
Copyright Act, is reproduced as under:
2. In this Act, unless the context otherwise requires,–
xxx xxx xxx
(d) “author” means, —
(i) in relation to a literary or dramatic work, the author of the
work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the
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By:AMAN UNIYAL
Signing Date:30.01.2025
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artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph film, the owner of the film at
the time of its completion; and
(vi) in relation to a record, the owner of the original plate from
which the record is made, at the time of the making of the plate;
xxx xxx xxx”
(Emphasis Supplied)
20. Cinematograph film has been defined to include the soundtrack,
including, any work produced by any process analogous to cinematography.
Section 2(f) of un-amended Copyright Act defines cinematograph film as
follows:
“2. ……..
xxx xxx xxx
(f) “cinematograph film” includes the sound track, if any, and
“cinematograph” shall be construed as including any work produced by
any process analogous to cinematography.
xxx xxx xxx”
(Emphasis Supplied)
21. As per Section 17 of the Copyright Act, subject to other provisions of
the Act, the author of a work is the first owner of the copyright. Thus, a
music composer shall be the first owner of the copyright therein, however,
subject to other provisions of the Copyright Act. However, in terms of
Section 17(b) of the Copyright Act, in the case of a cinematograph film
made for valuable consideration at the instance of any person, in the absence
any agreement to the contrary, producer of such cinematograph film
becomes the first owner of the copyright in the sound track associated with
the film.
22. Under the Scheme of the Copyright Act, the copyright in the
cinematograph film vests with the producer of the film, which includes, the
soundtrack of the cinematograph film. Section 17 of the un-amended
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By:AMAN UNIYAL
Signing Date:30.01.2025
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Copyright Act, reads as under:
17. 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;
xxx xxx xxx”
(Emphasis Supplied)
23. Thus, as per Section 17 of the Copyright Act, the producer of a
cinematograph film or a sound recording, is the first owner of the copyright
in the sound recordings, literary works, musical works and other works,
which form a part of the said cinematograph film. Accordingly, in view of
the agreement dated 25th February, 1980 between the producer of the
cinematograph film Moodu Pani with the plaintiff, the copyright in the
sound recordings and the musical and literary works of the songs of the
cinematograph film Moodu Pani, came to vest in the plaintiff. As per the
terms of the plaintiff‟s agreement dated 25th February, 1980, the plaintiff is
the owner of the sound recordings and the musical and literary works in the
songs of the cinematograph film „Moodu Pani‟, including the song „En Iniya
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By:AMAN UNIYAL
Signing Date:30.01.2025
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Pon Nilave‟.
24. Reference in this regard may be made to the judgment of the Supreme
Court in the case of Indian Performing Right Society Ltd. Versus Eastern
Indian Motion Pictures Association and Others, (1977) 2 SCC 820. In the
said judgment, the Supreme Court has categorically held that the producer of
a cinematograph film can defeat the right of the composer of music by
engaging him. It has been held that when a cinematograph film producer
commissions a composer of music for valuable consideration for the purpose
of making his cinematograph film or composing music, the sounds for
incorporation or absorption in the soundtrack associated with the film, are
included in a cinematograph film. In such case, the producer of the
cinematograph film, becomes the first owner of the copyright therein and no
copyright subsists in the composer of the music so composed, unless there is
a contract to the contrary between the composer of the music and producer
of the cinematograph film. Thus, Supreme Court has held as follows:
“xxx xxx xxx
17. This takes us to the core of the question, namely, whether the
producer of a cinematograph film can defeat the right of the composer
of music … or lyricist by engaging him. The key to the solution of this
question lies in provisos (b) and (c) to Section 17 of the Act reproduced
above which put the matter beyond doubt. According to the first of these
provisos viz. proviso (b) when a cinematograph film producer
commissions a composer of music or a lyricist for reward or valuable
consideration for the purpose of making his cinematograph film, or
composing music or lyric therefore i.e. the sounds for incorporation or
absorption in the sound track associated with the film, which as already
indicated, are included in a cinematograph film, he becomes the first
owner of the copyright therein and no copyright subsists in the composer
of the lyric or music so composed unless there is a contract to the
contrary between the composer of the lyric or music on the one hand
and the producer of the cinematograph film on the other. The same
result follows according to aforesaid proviso (c) if the composer of music
or lyric is employed, under a contract of service or apprenticeship to
compose the work. It is, therefore, crystal clear that the rights of a music
… composer or lyricist can be defeated by the producer of a
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cinematograph film in the manner laid down in provisos (b) and (c) of
Section 17 of the Act. We are fortified in this view by the decision
in Wallerstein v. Herbert [(1867) Vol. 16 Law Times Reports 453] relied
upon by Mr Sachin Chaudhary where it was held that the music composed
for reward by the plaintiff in pursuance of his engagement to give effect to
certain situations in the drama entitled “Lady Andley’s Secret”, which was
to be put on the stage was not an independent composition but was merely
an accessory to and a part and parcel of the drama and the plaintiff did
not have any right in the music.
xxx xxx xxx”
(Emphasis Supplied)
25. The aforesaid judgment has been relied upon by the Supreme Court
and followed in a subsequent judgment in the case of International
Confederation of Societies of Authors and Composers (ICSAC) Versus
Aditya Pandey and Others, 2016 SCC OnLine SC 967.
26. It is to be noted that in view of the provisions of Section 13(4) of the
Copyright Act, which states categorically that copyright in a cinematograph
film or a record shall not affect the separate copyright in any work in respect
of which, the film or the record, is made, the defendant no. 3 as the music
composer, is entitled to perform various acts as copyright owner in terms of
Section 14(1)(a) of the Copyright Act, otherwise than as a part of a
cinematograph film.
27. The defendant no. 3, as music composer of the song in question, in
view of Section 17, proviso (b) of the Copyright Act, has already exhausted
his right under Section 14(1)(v) of the Copyright Act. However, the
defendant no. 3 is entitled to carry out all the other acts in terms of Section
14(1)(a) of the Copyright Act, except to make any cinematograph film or a
record in respect of the musical work.
28. Thus, dealing with the rights of a music composer in relation to
Section 13(4) and Section 14(1)(a) of the Copyright Act, Supreme Court in
the case of Indian Performing Right Society Ltd. (supra), has held as
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follows:
“xxx xxx xxx
15. The interpretation clause (f) of Section 2 reproduced above, which
is not exhaustive, leaves no room for doubt when read in continuation with
Section 14(1)(c)(iii) that the term “cinematograph film” includes a sound
track associated with the film. In the light of these provisions, it cannot
be disputed that a “cinematograph film” is to be taken to include the
sounds embodied in a sound track which is associated with the film.
Section 13 recognises “cinematograph film” as a distinct and separate
class of “work” and declares that copyright shall subsist therein
throughout India. Section 14 which enumerates the rights that subsist in
various classes of works mentioned in Section 13 provides that copyright
in case of a literary or musical work means inter alia (a) the right to
perform or cause the performance of the work in public and (b) to make
or authorise the making of a cinematograph film or a record in respect
of the work. It also provides that copyright in case of cinematograph film
means among other rights, the right of exhibiting or causing the exhibition
in public of the cinematograph film i.e. of causing the film insofar as it
consists of visual images to be seen in public and insofar it consists of
sounds to be heard in public. Section 13(4) on which Mr Ashok Sen has
leaned heavily in support of his contentions lays down that the copyright
in a cinematograph film or a record shall not affect the separate copyright
in any work in respect of which or a substantial part of which, the film, or
as the case may be, the record is made. Though a conflict may at first sight
seem to exist between Section 13(4) and Section 14(1)(a)(iii) on the one
hand and Section 14(1)(c)(ii) on the other, a close scrutiny and a
harmonious and rational instead of a mechanical construction of the said
provisions cannot but lead to the irresistible conclusion that once the
author of a lyric or a musical work parts with a portion of his copyright
by authorising a film producer to make a cinematograph film in respect
of his work and thereby to have his work incorporated or recorded on
the sound track of a cinematograph film, the latter acquires by virtue of
Section 14(1)(c) of the Act on completion of the cinematograph film a
copyright which gives him the exclusive right inter alia of performing
the work in public i.e. to cause the film insofar as it consists of visual
images to be seen in public and insofar as it consists of the acoustic
portion including a lyric or a musical work to be heard in public without
securing any further permission of the author (composer) of the lyric or
musical work for the performance of the work in public. In other words,
a distinct copyright in the aforesaid circumstances comes to vest in the
cinematograph film as a whole which in the words of British Copyright
Committee set up in 1951 relates both to copying the film and to its
performance in public. Thus if an author (composer) of a lyric or
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track of a cinematograph film, he cannot complain of the infringement
of his copyright if the author (owner) of the cinematograph film causes
the lyric or musical work recorded on the sound track of the film to be
heard in public and nothing contained in Section 13(4) of the Act on
which Mr Ashok Sen has strongly relied can operate to affect the rights
acquired by the author (owner) of the film by virtue of Section 14(1)(c)
of the Act. The composer of a lyric or a musical work, however, retains
the right of performing it in public for profit otherwise than as a part of
the cinematograph film and he cannot be restrained from doing so. In
other words, the author (composer) of a lyric or musical work who has
authorised a cinematograph film producer to make a cinematograph
film of his work and has thereby permitted him to appropriate his work
by incorporating or recording it on the sound track of a cinematograph
film cannot restrain the author (owner) of the film from causing the
acoustic portion of the film to be performed or projected or screened in
public for profit or from making any record embodying the recording in
any part of the sound track associated with the film by utilising such
sound track of from communicating or authorising the communication
of the film by radio-diffusion, as Section 14(1)(c) of the Act expressly
permits the owner of the copyright of the cinematograph film to do all
these things. In such cases, the author (owner) of the cinematograph film
cannot be said to wrongfully appropriate anything which belongs to the
composer of the lyric or musical work. Any other construction would not
only render the expresses provisions of clauses (f), (m), (y) of Section 2,
Section 13(1)(b) and Section 14(1)(c) of the Act otiose but would also
defeat the intention of the Legislature, which in view of the growing
importance of the cinematograph film as a powerful media of expression,
and the highly complex technical and scientific process and heavy capital
outlay involved in its production, has sought to recognise it as a separate
entity and to treat a record embodying the recording in any part of the
sound track associated with the film by utilising such sound track as
something distinct from a record as ordinarily understood.
xxx xxx xxx”
(Emphasis Supplied)
29. Considering the definition of author, as given in Section 2(d) and
provisions of Section 17 proviso (b) of the Copyright Act, it is clear that in
case of soundtrack/sound recording, which forms part of a cinematograph
film, the producer of the film is the author, who shall be the first owner of
the copyright therein, in the absence of any agreement to the contrary.
However, the right of the composer of the music shall be safeguarded in
terms of Section 13(4) and 14(1) of the Copyright Act, otherwise than as a
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part of the cinematograph film. Meaning thereby, the rights of the music
composer, which is part of a cinematograph film, in terms of Section 14(1)
of the Copyright Act, shall include the right to carry out all the acts, except
to make any cinematograph film or a record in respect of the work as
envisaged under Section 14(1)(v), as the said right of the music composer
gets exhausted in terms of Section 17 proviso (b) of the Copyright Act.
30. It is also to be noted that the copyright in the song, which vests with a
producer of the film, includes the musical work, the literary work, i.e., the
lyrics, and the sound recording, which includes, musical composition as well
as lyrics. The defendant no. 3, as the music composer, has no copyright over
the literary work, i.e., the lyrics or the sound recording. Therefore, having no
rights over the lyrics of the song, there is no question of defendant no. 3
having any right to assign rights in the lyrics of the song to a third party. In
the present case, on the basis of the agreement with defendant no. 3, the
defendant no. 1 has used the lyrics and musical composition of the song, in
order to recreate the sound recording of the said song. In the absence of any
rights in the lyrics of the song, the defendant no. 3 was not entitled to assign
any right with respect thereto. Thus, on this account also, the defendant no. 1
is not entitled to claim any right on the basis of an agreement with the
defendant no. 3.
31. This Court cannot accept the contention of defendant no. 3, i.e., the
music composer, that in view of second proviso to Section 17, which has
been inserted by way of amendment of the year 2012, he shall have right
with effect from 2012. It is to be noted that in terms of the second proviso to
Section 17, which has been inserted in the year 2012, in case of any work
incorporated in a cinematograph work, the same shall not affect the rights of
the author in the work. The second proviso to Section 17, as inserted by the
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amendment of 2012, reads as under:
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:
xxx xxx xxx
[Provided that in case of any work incorporated in a cinematograph work,
nothing contained in clauses (b) and (c) shall affect the right of the author
in the work referred to in clause (a) of sub-section (1) of section 13.]
32. Thus, as per the second proviso of Section 17, which has been
inserted by way of an amendment of 2012, the right of a music composer of
a song which is part of a cinematograph film, will not be affected.
Accordingly, after the amendment of 2012, only if the music composer
enters into a specific agreement with the producer of the film, that his rights
shall be transferred to the producer of the cinematograph film. However, the
present case pertains to a work before the 2012 amendment, and therefore,
the said amendment is not applicable to the present case. The said
amendment is prospective in nature and cannot be considered to operate in a
retrospective manner.
33. As regards the contention that the song in question is in the nature of
adaptation in terms of Section 14 of the Copyright Act, the same is totally
misplaced. „Adaptation‟ has been defined in Section 2(a) of the Copyright
Act in relation to a musical work, any arrangement or transcription of the
work. In relation to the music composition, „adaptation‟ would connote
arrangement of the music. However, in the present case, it is undisputed that
the defendants have used the lyrics and music composition of the song in
question and have caused a fresh recording of the same. In the absence of
any right over the lyrics of the song, defendant no. 3, as the music composer,
had no right to cause the use of the lyrics and claim the same to be
adaptation of his work, which was confined to only music composition and
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not the literary work, i.e., the lyrics of the song.
34. It is undisputed that the defendant no. 3 is only the music composer
and not the lyricist of the song in question. Therefore, the defendant no. 3 by
no terms, can be considered as the author of the lyrics of the song in
question, which forms part of the sound recording, in which the plaintiff has
copyright in terms of agreement with the producer of the film in question.
Thus, the defendant no. 3 had no authority to assign any right for use of the
lyrics of the song, on which he has no copyright.
35. Similarly, recognizing the right of a producer of a sound recording,
Bombay High Court in the case of Music Broadcast Private Limited Versus
Indian Performing Right Society Limited, 2011 SCC OnLine Bom 953, has
held as follows:
“xxx xxx xxx
93. The author of a literary work is the author of the work [section
2(d)(i)]. The composer is the author of a musical work [section 2(d)(ii)].
Section 17 provides “subject to other provisions of this Act, the author of
a work shall be the first owner of the copyright therein.” Thus, the first
owner of the copyright in a literary work and a musical work are the
author of the literary work and the composer of the musical work
respectively. Under section 14(1)(a)(iv), the composer of a musical work
and the author of a literary work have the exclusive right to make or
authorise the making of a cinematograph film or a sound recording in
respect of their works. Once this is appreciated, it becomes clearer that
the judgment of the Supreme Court applies to a sound recording with the
necessary adaptations. Thus, once the author of a lyric or a musical
work parts with a portion of his copyright by authorising the producer of
a sound recording to make a sound recording in respect of his work and
thereby to have his work incorporated or recorded in a sound recording,
the producer of the sound recording acquires by virtue of section
14(1)(e) of the Act, a copyright which gives him the exclusive right
stipulated in section 14(1)(e) which includes the right to communicate
the sound recording to the public. A distinct copyright comes to vest in
the sound recording as a whole. I see no reason why if this is the case for
cinematograph films, it is not so in respect of a sound recording.
xxx xxx xxx”
(Emphasis Supplied)
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36. The judgment relied upon by the defendants in the case of RDB
(supra) is clearly distinguishable and does not apply to the facts and
circumstances of the present case. The said judgment related to copyright in
a screenplay and not musical and literary works incorporated in a sound
recording/cinematograph film. The defendant in the said case was making a
novel out of a screenplay of the original cinematograph film. The defendant
was not making a new cinematograph film out of the screenplay. Whereas,
in the present case, the defendant no.1 has made a new sound recording
using the music and lyrics of the original song, for a cinematograph film.
37. Similarly, the judgment in the case of Rajasthan Patrika (supra)
relates to the payment of royalties to the copyright societies for lyricists and
composers. The said case deals with the issue of right of the authors to
receive royalties for utilization of their works in any form. The said
judgment does not give any finding regarding who owned the said rights
prior to 2012. Therefore, the said judgment is distinguishable and not
applicable to the present case.
38. In view of the aforesaid detailed discussion, the plaintiff has made out
a prima facie case that as per the terms of the plaintiff‟s agreement with the
producer of the cinematograph film „Moodu Pani‟, the plaintiff is the owner
of the sound recordings and musical and literary works in the songs of the
cinematograph film „Moodu Pani‟, including the song „En Iniya Pon
Nilave‟. Accordingly, it is held that the defendant no. 1 cannot use the said
song, as recorded by it, without license from the plaintiff.
39. However, considering the submissions made before this Court, this
Court is of the view that balance of convenience lies in favor of the
defendant no. 1, as the movie produced by defendant no.1, i.e.,
„Aghathiyaa‟, where the song in question has been used, is slated for release
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on 31st January, 2025. This Court further notes the submission of the
defendant no. 1 that it has invested significant moneys for recreation of the
sound recording of the song in question. Thus, this Court is of the view that
irreparable loss shall be caused to the defendant no. 1, if it is restrained from
using the song, which already forms part of its cinematograph film,
„Aghathiyaa‟.
40. During the course of hearing, learned Senior Counsel appearing for
the plaintiff had indicated an amount of Rs. 30 Lac, as license fee for the
song in question, and had stated that the plaintiff had no objection if the
defendant no. 1 pays the said amount to the plaintiff.
41. Considering the facts and circumstances of the present case, it is
directed that the defendant no. 1 shall be allowed to use the song in question
in its cinematograph film, subject to deposit of Rs. 30 Lac with the Registrar
General of this Court, within a period of two days. The said amount shall be
deposited by the defendant no. 1 with the Registrar General of this Court,
without prejudice to its rights and contentions, as the rights and contentions
of both the parties are left open, which are subject matter of final
adjudication.
42. It is further clarified that the observations made in the present
judgment, are only prima facie in nature and nothing contained herein shall
be construed as an expression on the merits of the case.
43. This Court further notes the submission of defendant no.1 that it does
not intend to pay any further amount, as it has already paid substantial
amount to defendant no. 3. Thus, in case the defendant no. 1 does not intend
to deposit the aforesaid amount, as directed by this Court, the defendant no.
1 shall stand injuncted from using the song in question, in its cinematograph
film, „Aghathiyaa‟.
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44. The present applications are disposed of, in the aforesaid terms.
MINI PUSHKARNA, J
JANUARY 30, 2025
AK/KR
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