Padmini and ors.Vs.Raj Television Network Limited
Original Application No. 763 of 2013 in C.S. No. 686 of 2013 (Decided On: 13.04.2015)
The plaintiffs are the legal heirs of R Venkatraman, who produced the Tamil film ‘Ninaithale Inikkum’ in the year 1979, under the ‘Premalaya’ banner. In 1981 Mr Venkatraman assigned the copyright in the negatives, of both picture and sound, of the said film to ‘Kumar Pictures’, by way of an assignment deed, for a period of 99 years. The plaintiffs however, retained the re-take and dubbing rights. ‘Kumar Pictures’ subsequently assigned the negative rights to defendant Raj Television Network Limited (hereinafter ‘Raj T.V.’) through a deed dated 15.05.2000. In 2013, the plaintiffs by way of an advertisement in the newspaper and a weekly magazine came to know that Raj T.V. was theatrically releasing the film ‘Ninaithale Inikkum’ as a digital cinema which would be digitally produced and edited. The plaintiffs claimed that ‘Kumar Pictures’ was only assigned the right to the possession of negatives, which did not include digital cinematography, as such technology was not available at the time. Hence, according to the plaintiffs, Raj T.V. had infringed their copyright as no right to digital cinematography was available to them by the assignment made by ‘Kumar Pictures’. The plaintiffs have prayed for an ad-interim injunction, restraining Raj T.V. from releasing, exhibiting, distributing the digital cinematography of ‘Ninaithaalea Innikkum’ for any theatrical or non theatrical release.
Whether Raj T.V. had a copyright in the digital cinematography of the film ‘Ninaithaalea Innikkum’?
Yes, Raj T.V. had a copyright in the digital cinematography of the film ‘Ninaithaalea Innikkum’.
Rule of law
Section 18, Copyright Act, 1957.
Analysis of the Court
The plaintiffs in the present case stated that ‘Kumar Pictures’ were absolutely assigned the negative right to the film, which did not include right to digital cinematography. Digital cinematography had come into prevalence from 1990 onwards, which was after the date of release of the film ‘Ninaithale Inikkum’ as well as the date of assignment to ‘Kumar Pictures’. According to this contention ‘Kumar Pictures’ only had the right to assign, hire, communicate to public or take prints of the negatives or to do such acts as provided under Section 14(d) of the Copyright Act. The plaintiffs further stated that according to the second proviso of Section 18 (1) “no assignment shall be applied to a medium or mode of exploitation of the work, which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work.”Bearing this in mind no right in the digital cinematography existed at the time of the assignment deed and anyone who wanted to deal in such right had to first take the permission of the producer or his legal heirs.
They also stated that by virtue of Section 19 (2) the rights which were being assigned should be specified in the assignment deed, which in this case did not make any reference to digital cinematography or other ‘future rights’. By assigning the right to the negatives, the plaintiff had allowed only the exploitation of the negatives in all forms and such assignment could not be construed as assigning any other ‘future right’. The rights which were not specifically mentioned in the assignment deed would be retained by the producer or his legal heirs. Therefore, when a further assignment was made to Raj T.V., they were not entitled to any future rights, including the right to exploit the digital cinematography of the film.
The defendants, Raj T.V. opposed the plaintiff’s stance by claiming that the negative right could not be taken as a singular right. Negative right would include the right to digital cinematography, as no digital version of a film could exist without the negatives. They further brought the attention of the Court to the assignment deed between the plaintiffs and ‘Kumar Pictures’, which stated that the latter was made the sole owner and had the right to exploit the Tamil film in all dimensions through television and other mechanisms. According to Clause 12 of the deed, the right to receive royalties was also in favour of the assignee. The only rights, according to the deed, that the plaintiffs had retained were retake and dubbing rights.
With respect to section 18 of the Copyright Act, Raj T.V. claimed that the Section uses the term ‘owner’ and not ‘first owner’. Which meant that all the rights that came into existence subsequently due to technological advancement, would not automatically vest in the producer or his legal heirs, producer being the ‘first owner’ in case of a cinematograph film.
Lastly, as the defendants were assigned the entire copyright by ‘Kumar Pictures’, who was the sole owner, there was no requirement to obtain permission of the legal heirs of the producer, for the exploitation of the film.
The Court after considering the submissions of both parties and examining the particulars of the 1981 assignment deed stated that the negative right was not one specific right. It is not possible to obtain the digital version of a film without the negatives. A right of this nature would give the owner of the negatives a right against the world, to exclude everyone else from using the negatives of the film. In that case the contention of the plaintiff cannot be accepted, as without a right to use the negatives it would be impossible to come up with the digital cinematography of the film.
The Court then analysed Section 18 of the Copyright Act, 1957. Section 18 applies to the ‘owner’ of the copyright, and does not make use of the term ‘first owner’. ‘First owner’ in the case of a cinematograph film is the producer. The use of ‘owner’ is instrumental as the rights which come into existence with the passage of time, due to various technological advancements are not automatically vested in the ‘first owner’ or the producer. Therefore the proviso to this section, specifically the second proviso in this case would also benefit the ‘owner’ of the copyright, which in this case was M/s Kumar Pictures, and later Raj T.V. In this regard the Court then examined the scope and extent of the negative right under consideration. In P.Thulasidas vs. K. Vasanthakumari the Court dealt with the meaning of “absolute negative right”. The Court first went into the meaning of the world ‘absolute’, which means ‘unconditional’ or ‘without condition or limitation’. The Court stated that once an absolute right in the negatives has been conveyed, it would mean that the owner of the negatives would have the right to make copies, telecast the film on television or enjoy the negative right in any manner he likes. The right to use the negatives is ‘absolute, blanket, comprehensive, exhaustive, unbounded, unconstrained, unlimited and unqualified.’
In Rathna Movies s. Muthu Enterprises & another the Court considered the definition of a cinematograph film, under section 2(f) of the Copyright Act, 1957 to understand the extent of negative right. The Court said that taking the aforementioned Section and its explanation into consideration, negative rights would be inclusive of all rights that are inherent in a cinematograph film including the soundtrack, and any work produced by any process analogous to the cinematography, including video films. The Court stated that as the negative right of a film was completely leased out for 86 years it gave the lessee complete ownership of the film, which entitled him to exploit the film in any manner as mentioned in Section 14.
The Court in the present case agreed to the fact that negative right includes all other rights that exist with respect to a cinematograph film. With respect to clause 6 of the assignment deed (dated 21.09.1981) “Kumar Pictures’ were made ‘sole’ and ‘absolute’ owners of the negatives which allowed them to exploit the film in any manner, and later by way of a second assignment deed such right was given to the defendant, Raj T.V. As the entire copyright was assigned to ‘Kumar Pictures’ and then to Raj T.V. any subsequent rights that come into being would benefit the defendant and not the legal heirs of the producer of the film.
The Court in the light of the aforementioned facts rejected the plaintiff’s application for interim injunction.