earlier Orders in the Laawaris-Housefull matter this year, the interim Order by the Calcutta HC was passed on May 13,2010.The Court speaking through CJ Mohit Shah has now listed the matter for final hearing on June 21,2010 when the Court resumes after the summer vacation. The Court pondered over the 1981 Agreement between film production house Prakash Mehra Productions and Saregama relating to the right of the soundtrack in the film Laawaris,to ascertain whether the rights in sound recording which were transferred by Prakash Mehra in 1981 included only the right to reproduce the song in the form of records as has been contended by the Mehras or if it also included a right to synchronize the lyrics and music of the songs in the film Laawaris along with other lyrics and embody them as a song as a part of the cinematography.
The Order referred to the impugned judgment and Order of April 29,2010 (granting an injunction in favour of Mehras against NGE and others) stating that the views expressed by Justice Pathreya would require a reconsideration in the view of the arguments advanced in the present matter. In particular, the Court stated that the impugned Order had not taken into consideration clause 4 of the 1981 Agreement.
Eros International (DISTRIBUTORS of Housefull) challenging the impugned Order of April 29,2010 submitted that Justice Pathreya had completely overlooked the question of balance of convenience while granting the injunction in favour of Mehras. Since Housefull was already slated to release all over India and abroad on April 30,2010, a large number of prints were already distributed. Eros also submitted that it had purchased the right to distribute and exhibit the film from Nadiadwala after paying a substantial amount of money which ran into crores and thus Justice Pathreya could not have restrained the exhibition of the film by the impugned Order.
Saregama,Eros and NGE also submitted that the impugned Order should not have granted injunction in favour of the Mehras owing to the delay in moving to Court. Newspaper reports stating the similarity of the songs in Laawaris and Housefull was made public much before Mehras sought an injunction. Further,para 5 (d) of the plaint of Mehras in CS 1338/2010 was challenged. As per this, Mehras claimed that during his lifetime,Prakash Mehra had not transferred/licensed the copyright in literary work and sound recording in favour of any third person.
However, by a letter dated March 4,2010, Mehras wrote to Saregama stating that NGE had not approached Mehras to purchase the song for the item number in Housefull and would like to know if they had approached Saregama for the same and under which clause of the agreement was the permission given and that "Mehras may be given the copyright to mark the same." Owing to such conduct, the claim of injunction should have been disgranted.
Mehras on the other hand submitted that the 1981 agreement was only for the purposes of sound recording and not for embodying any song of Laawaris for any cinematographic effect. They argued that the copyright in sound recording does not include the right to exploit the literary work and the music of the song in question into a cinematographic film. In the light of the decisions in Rama Naranga case [AIR 2007 SC 2029] and Pushpa Devi v. Rajinder Singh [(2006) 5 SCC 566] they also questioned the maintainability of the appeal in light of the Order of April 29,2010.
Counsels of Kalyanji-Anandji who were the music directors in Laawaris brought foward another interesting angle stating:
"Prakash Mehra had copyright only in .... the sound recording of the songs in the said film, but Prakash Mehra had no right in the musical work in the said songs of LAWAARIS .... it was Kalyanji Anandji who had composed the music of the songs in the film LAWAARIS and that Kalyanji Anandji were not employees of Prakash Mehra. Kalyanji Anandji had the rights in the musical work of the songs in the film LAWAARIS as recognized by Section 57 of the Copyright Act, 1957. .... there has never been any assignment of Kalyanji Anandji's rights in the musical works of the songs in LAWAARIS and, therefore, Kalyanji Anandji are entitled to get an interim injunction against the exhibition of the film HOUSEFULL with the song in question."
(We have analyzed this issue earlier here.)
They further submittted that makers of Housefull had mutilated and modified the song in question and thus Kalyanji-Anandji also have a right to restrain the exhibition of Housefull. Saregama however opposing this stated that although Kalyanji-Anandji were the composers, for the last 30 years,they had claimed no rights of their own with respect to the songs.It was only the producer Prakash Mehra who held the copyright had subsequently assigned it to Saregama by the 1981 Agreement.Relying on the judgment of Anandji Shah v. Ritesh Sidhwani (2006), Kalyanji-Anandji should be treated to have entered into a contract of service with producer Prakash Mehra who had the copyright over the works.Therefore, Kalyanji-Anandji cannot seek an injunction with respect to the exhibition of Housefull.
Justice Shah opined that since the ramification of interpreting these complex questions of law will be on the entire film industry, a detailed hearing can take place only after the vacations.The Court however considered the necessity of an interim arrangement during the pendency of the appeals. Taking into account the question of balance of convenience, the Court considered the issue of delay on part of Mehras in moving the Court quite seriously.The fact that Mehras were aware of the fact of inclusion of the disputed song in Housefull around March 4,2010 and approached the Court only on April 19,2010 in the opinion of the Court was very crucial. Also,Mehras were aware of the music release of Housefull on March 15,2010. This factor too was not appreciated by the learned Judge in the impugned Order of 29 April,2010.
Granting an injunction on the exhibition of the film on April 30,2010 when the movie was slated to be released on April 30 was done without due consideration to the question of balance of convenience. To go ahead with the injunction requiring the distributors to recall the 1400 prints and delete portions from the movie would cause immense hardship to the producers,distributors and the music recording company.On the other hand, the suit filed by Mehras in Bombay High Court on wherein they claimed damages of Rs.50 lakhs (this suit was subsequently withdrawn in the Calcutta suit on April 29,2010) served the interests of justice in a far better manner.
The Court finally granted an interim stay of the injunction as per the impugned Order of April 29,2010 with a bank guarantee of Rs.50 Lakks to be furnished by Saregama,Eros and NGE. With regards to the issue raised by Kalyanji-Anandji, the Court didnot express a specific opinion but ordered a bank guarantee of Rs.25 Lakhs to be furnished either by Saregama,Eros and NGE jointly or NGE individually.It further restrained the producer of Housefull release any new prints of the movie till the final disposal of the matter.
We thank Frequent Anon and Kruttika Vijay for bringing this Order to our notice.We will keep an eye on the final Order to be passed June 21 and consider the finer issues emerging from the present Order.
PS-Image from here.
PS-Image from here.