GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

IN THE HIGH COURT OF CALCUTTA

GEE PEE FILMS PVT. LTD.

(PETITIONER)
V.

PRATIK CHOWDHURY AND ORS.

(RESPONDENT)

APRIL

4, 2016

MEMORANDUM ON BEHALF OF PETITIONER

COUNSEL ON BEHALF OF PETITIONER

AKSHAY KUMAR MANKAR
ROLL NO. 16 SECTION C
BATCH XIII

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

TABLE OF CONTENTS
LIST OF ABBREVATIONS..................................................................................................03
INDEX OF AUTHORITES................................................................................................04
STATEMENT OF JURISDICTION...................................................................................05
STATEMENT OF FACTS...................................................................................................06
ISSUES RAISED................................................................................................................07
SUMMARY OF PLEADINGS...........................................................................................08
WRITTEN SUBMISSION..................................................................................................10
1. WHETHER THE PETITIONERS ARE THE FIRST OWNER OF COPYRIGHT AS
PER THE COPYRIGHT ACT OF 1957?..............................................................10
1.1 WHETHER THE DEFENDANT NO. 3 AND NO. 5 WERE EMPLOYED UNDER A
CONTRACT OF SERVICE?.........................................................................................11

2. WHETHER THE PETITIONERS ARE ENTITLED TO INJUNCTION OF ANY

FORM IN THE PRESENT MATTER?...................................................................11
2.1 WHETHER THE PLAINTIFF HAS A PRIMA FACIE CASE?...................................12
2.2 WHEHTER THE BALANCE OF CONVENIENCE FAVOURS THE PLAINTIFF?......13
2.3 WHETHER THE PLAINTIFF WOULD SUFFER IRREPARABLE DAMAGE IF
INJUCTION IS NOT GRANTED?................................................................................13

PRAYER FOR RELIEF.....................................................................................................14

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

LIST OF ABBREVIATIONS

AC

Appeal Cases

AIR

All India Reports

Art.

Article

Co.

Company

Edn

Edition

Honble

Honorable

i.e.

that is

No

Number

p.

page

para

paragraph

v.

Versus

Vol.

Volume

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

INDEX OF AUTHORITIES

ACTS/STATUTES/RULES:
Copyright Act 1957

LIST OF CASES:
JUDGEMENTS

Dalpat Kumar and Another v. Prahlad Singh and Ors.

Lahari Recording Company limited v. Music Master Audio Video Manufacturing

co. ltd.

Morren v. Swinton and Pendlebury Borough Council

Stephenson, Jordan and Harrison v. Macdonald and Evans

Books :
Laws relating to Intellectual Property Rights, V.K. Ahuja, 2nd edn.
Law of Copyright, Alka Chawla, 1st edn.

Websites referred:

www.manupatra.com

www.westlaw.com

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

STATEMENT OF JURISDICTION

THE PETITIONER HAVE THE HONOUR TO APPROACH THE HON`BLE HIGH

COURT OF CALCUTTA UNDER SECTION 72(2) OF COPYRIGHT ACT 1957.

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

STATEMENT

OF

FACTS

I. The defendant No. 1 is a singer of Bengali Songs. The defendant No. 2 is engaged in the
business of manufacture and sale of cassettes, compact discs and other sound recording
systems. The defendant No. 3 is a song lyricist and music composer and defendant No. 4
is a relative of the defendant No. 3 and claimed to be a lyricist. The defendant No. 5 is
also a lyricist and music composer.
II. In the year 1999 the plaintiff commissioned defendant Nos. 3 and 5 to compose Bengali
non-film lyrics and music proposed to be sung by defendant No. 1 and proposed to
release those by way of cassettes and other sound recording systems. Pursuant to the
request of the plaintiff and on payment of consideration by the plaintiff, defendant No. 3
wrote lyrics and composed the music in respect of a Bengali non-film song subsequently
entitled 'Tanche Jakhan', similarly, on such consideration paid by plaintiff, defendant No.
5 wrote lyrics and composed the music in respect of another Bengali non-film song
Tomar Chhoante' which was also sung by defendant No. 1.
III. The recording of the aforesaid two songs together with others was conducted at the Presto
Digital Audio Recording Centre. At the time of such recording, a master tape thereof
owned by the plaintiff was prepared and was retained by the plaintiff.
IV. Subsequently, the plaintiff has come to know that defendant Nos. 1 and 2 had released a
music cassette containing eight songs sung by the defendant No. 1 and after going
through the said cassette it was found that the defendants had infringed the petitioner's
copyright in lyrics, music and literary and dramatic works relating to two of the songs
entitled 'Tanche Jakhan' and 'Tomar Chhoante' by making marginal and/ or cosmetic
changes to the lyrics thereto in a fraudulent attempt to pass off the said two songs as
different numbers by purporting to alter the titles of the said two numbers.
V. According to the plaintiff, it is the first owner of the copyright in respect of lyrics, music,
literary and dramatic work relating to the aforesaid two songs and in the addition is also
the owner of sound recording thereof.
VI. On the aforesaid application, this Court initially ex parte appointed a Receiver and also
granted ad-interim injunction and directed the plaintiff to give notice to the defendants.
VII. Pursuant to the said notice issued by this Court, the defendants have appeared. Hence
the present appeal.

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

ISSUES RAISED

WHETHER THE PETITIONERS ARE THE OWNER OF COPYRIGHT AS PER THE COPY
RIGHT ACT

1957

WHETHER THE PETITIONERS ARE ENTITLED TO INJUNCTION OF ANY FORM IN THE

PRESENT MATTER?

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

SUMMARY OF PLEADINGS
whether the petitioners are the owner of copyright as per the copy right act 1957
As per Section 17 of Copyright Act 1957 states:
Section 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:
Provided thata) in the case of 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; cc) to e) ..........
The plaintiff stated that in or about the year 1999 it commissioned defendant Nos. 3 and 5
to compose Bengali non-film lyrics and music for rendition thereof by defendant No. 1
and pursuant to the said request arid on consideration thereof paid by the plaintiff, the
defendant Nos. 3 and 5 wrote the lyrics and composed the music in respect of those two
songs. Thus the plaintiff should be the first owner of the copyright.

Whether the petitioners are entitled to injunction of any form in the present matter?
Section 55 of the Copyright Act of 1957 provides for civil remedies in case of
infringement of copyright. The said provision empowers and authorizes owner of a
copyright to remedies by way of the injunction/damages or otherwise as may be
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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

conferred, on infringement of a right under the Act in respect of any work. Thus as stated
there is clear case of infringement of copyright of plaintiff and injunction upon the sale,
distribution by the respondent or relatives of respondent or through any agent should be
prohibited.

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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

WRITTEN SUBMISSION

1. whether the petitioners are the owner of copyright as per the copy right act 1957

The provision for the first owner of copyright is given under Section 17 of the Copyright act
of 1957, the section states:
Section 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:
Provided thata) in the case of 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; cc) to e) ..........
as stated in statement of facts(point 2), that the plaintiff commissioned defendant Nos. 3 and
5 to compose Bengali non-film lyrics and music proposed to be sung by defendant No. 1, thus
according to the clause (c) of section 17 the plaintiff must be the first owner provided that
they are defendant no. 3 and defendant no. 5 are employed under a contract of service.
1.1. WHETHER THE DEFENDANT NO. 3 AND NO. 5 WERE EMPLOYED UNDER A
CONTRACT OF SERVICE?
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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

The provisions of Section 17(c), are only applicable when the employment of the Author is
under a contract of service not under a contract for service. According to Halsburys Laws of
England, a contract of service is not the same thing as a contract for services, the distinction
being the same as that between an employee and an independent contractor; an employee is a
person who is subject to the commands of his employer as to manner in which he shall work.
The existence of direct control by the employer, the degree of independence on the part of the
person who renders services, and the place where the service is rendered are all matters to be
considered in determining whether there is a contract of service.1
But it has been recognized that degree of control is not always so important particularly in the
case of professional people who may be employed under contract of service. 2 Thus, in
Stephenson, Jordan and Harrison v. Macdonald and Evans, 3 it was held by Lord Denning
MR that under a contract of service a man is employed as part of the business, and his work is
done as an integral part of the business; whereas under a contract for services, his work,
although done for the business, is not integrated into it but is only accessory to it.
Applying the above test in present case the work of defendant no. 3 and no. 5 that is the work
of a song lyricist and music composer is not an accessory to the nature of work i.e.
production of a music album but is integral part of the business and thus must be regarded as
to working under a contract of service not under a contract for service.
Thus applying the provisions of the section 17(c) the plaintiff must be the First owner of the
music cassettes so produced.

2. Whether the petitioners are entitled to injunction of any form in the present
matter?

Section 55 of the Copyright Act of 1957 provides for civil remedies in case of infringement
of copyright. The said provision empowers and authorizes owner of a copyright to remedies
1 Halsburys Laws of England, Vol. 9, 4th edition, para 860
2 Morren v. Swinton and Pendlebury Borough Council, (1965) I WLR 576
3 (1952) 69 RPC 10
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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

by way of the injunction/damages or otherwise as may be conferred, on infringement of a
right under the Act in respect of any work. Section 55 states
55. Civil remedies for infringement of copyright.
(1) Where copyright in any work has been infringed, the owner of the copyright shall,
except as otherwise provided by this Act, be entitled to all such remedies by way of
injunction, damages, accounts and otherwise as are or may be conferred by law for the
infringement of a right: Provided that if the defendant proves that at the date of the
infringement he was not aware and had no reasonable ground for believing that
copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other
than an injunction in respect of the infringement and a decree for the whole or part of
the profits made by the defendant by the sale of the infringing copies as the court may
in the circumstances deem reasonable.
(2)....
The plaintiff seeks injunction under this section of the copyright act, but granting of
injunction is subject to fulfilment of certain conditions which are :
i.
ii.
iii.

The plaintiff must have a prima facie case.

The balance of convenience is in favour of plaintiff and;
Irreparable injury would be caused to plaintiff if injunction were not granted.

Supreme Court in case of Dalpat Kumar and Another v. Prahlad Singh and Ors. 4, has
explained meaning of the phrases prima facie case, balance of convenience and
irreparable injury.
2.1 WHETHER THE PLAINTIFF HAS A PRIMA FACIE CASE?
The existence of prima facie right and infraction of the enjoyment of his property or the right
is a condition for the grant of temporary injunction. In the present case it is very clear from
the facts that if the plaintiff is the owner of such music cassettes, there is clearly violation of
copyright, thus there exists a prima facie case for granting of injunction.

2.2 WHEHTER THE BALANCE OF CONVENIENCE FAVOURS THE PLAINTIFF?

4 (1992) 1 SCC 719
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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

The court while granting or refusing injunction should exercise sound judicial discretion to
find the amount of substantial mischief or injury which is likely to be caused to the parties, if
the injunction is refused and compare it with that which is likely to be caused to other side of
the injunction is granted. In the present case, if injunction is not granted to the plaintiff the
defendants would continue the sale of infringing copies of the work produced which would
prima facie defeat the meaning of providing copyright to the owner.
2.3 WHETHER THE PLAINTIFF WOULD SUFFER IRREPARABLE DAMAGE IF
INJUCTION IS NOT GRANTED?
The court has to satisfy that non-interference by the court would result in irreparable injury
to the plaintiff seeking relief and that there is no other remedy available to him except one to
grant injunction and he needs protection from the consequences of apprehended injury or
dispossession.5 In the present case if court doesnt interfere the whole idea behind originality
of producer work will come into question and thus would lead to an irreparable injury to
plaintiff
As all three essential of granting injunction is available, an injunction restraining the
defendants and each of them whether by themselves or by their servants or agents or assigns
or otherwise howsoever from infringing the petitioner's copyright should be granted.

5 Lahari Recording Company limited v. Music Master Audio Video Manufacturing co. ltd., 2008 (37)
PTC 121 (Mad.) (DB) at p. 125
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GEE PEE Films Pvt. Ltd. v. Pratik Chowdhury and Anr.

PRAYER FOR RELIEF

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Honble Court may be pleased to adjudge and declare that:

Plaintiff as the first owner of the copyright.

An injunction restraining the defendants and each of them whether by themselves or by
their servants or agents or assigns or otherwise howsoever from infringing the petitioner's
copyright.
Or to pass any other order to meet the ends of Justice, Equity and Good conscience.
All of which is humbly prayed.

DATE: 4TH APRIL 2016

COUNSEL FOR PETITIONER

Akshay Kumar Mankar

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