TaxTMI 
TaxTMI 
2015 (12) TMI 710
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....of a serial based on the Plaintiff's concept note, the Plaintiff was informed by the Programming Head of Zee saying that a promotional video had appeared on YouTube for a television show entitled "Zindagi Abhi Baki Hai Mere Ghost" being made by Star India, and that this seemed to be too similar to the Plaintiff's concept note to merit further work by Zee. According to the Plaintiff, Zee has since abandoned further development under its contract with the Plaintiff. 2. The Defendants very seriously contest the Plaintiff's right to bring the suit at all. They say it is most doubtful that the Plaintiff has any subsisting copyright in the concept note: those rights seem to be with Zee. There is also reason to doubt, they say, that the Plaintiff's partner, Nanditaa Kothari, was the author of the work in question. There is also a controversy about the circumstances of confidentiality alleged by the Plaintiff. All this is independent of their case that there was, in fact, nothing unique or special disclosed to Star India, and that the so-called infringing work is an entirely separate work independently conceived and created. 3. I heard Mr. Daver for the Plaintiff, Dr. Tulzapurkar for the....
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....lf as a Creative Consultant/Director. The Plaintiff claims that on 18th June 2013, Ms. Kothari sought a meeting with Star India to pitch certain concepts for TV programs. A meeting was held a few days later on 20th June 2013. Ms. Kothari claims to have disclosed in circumstances of confidence her concept note, and that this meeting was followed by others. She worked on a draft screenplay between 9th July 2013 and 30th August 2013. She asked others to work on the draft screenplay and the PowerPoint presentation. Further work was done in that regard. On 8th November 2013, Ms. Kothari obtained her registration from the Copyright Board under number L-56255/2013. On 11th December 2013, Ms. Kothari was among those who met with the representatives of Star India. At this time, Star India expressed its lack of interest in further developing this work. In early 2014, Ms. Kothari sought to pitch further concepts to Star India. On 19th February 2014, Ms. Kothari approached Zee with the concept note in question. This was carried further by Zee. In September 2014, Ms. Kothari severed ties with Baba Arts. The Plaintiff was constituted on 30th April 2015. On 9th June 2015, Ms. Kothari assigned her....
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.... the form in which it was disclosed, and it forms the kernel of the Defendants' infringing work. 8. This case differs materially from Beyond Dreams in three critical respects: first, the Defendants question the Plaintiff's standing or right to bring the suit at all saying that Ms. Kothari is not the author of the literary work; second, the Defendants contend that the Plaintiff's rights, if any, have been assigned in perpetuity to Zee, and have not since been re-assigned back to the Plaintiff; and third, the Defendants point to certain 'release forms' said to have been signed at the relevant time on behalf of Baba Arts. The second and third arguments of course proceed on the basis that copyright did (and does) vest in the Plaintiff. I think it is fair to say that the question of assessing any similarity will arise only if the Plaintiff can successfully meet these three contentions, all of which are in the nature of threshold or in limine defences. I will, therefore, address these three questions first before turning to the fourth defence, which is, naturally, that the works are dissimilar and there is no infringement. THE CLAIM TO SOLE AUTHORSHIP 9. The Plaintiff says that Ms....
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....f the Copyright Act, 1957. That section, with emphasis added, reads: Section 48 - Register of Copyrights to be prima facie evidence of particulars entered therein The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof or production of the original. 11. Indeed, Section 48 is Mr. Daver's answer to my question whether copyright registration is conclusive proof of authorship. I do not think this submission is at all correct. The section plainly says that the Register of Copyrights is prima facie evidence of the particulars entered in it. On its own, this means that there is only a presumption, albeit a strong one, nonetheless rebuttable about the correctness of the entries. That presumption can always be shown to be incorrect. Further, Section 48 is not an acknowledgement of actual authorship being proved, but only of copyright having been applied for and granted. The process involved in copyright registrat....
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....ds every party to such registration.[sic] Annexed hereto is the extract of the register of copyrights 'Copyright Certificate' certified by the Registrar of Copyrights and sealed with the Seal of the Copyright Office as "Exhibit A" along with a duly certified copy of the said Literary Work of the Plaintiff. Further, on various occasions vid e email s including but not limited to 10th September 2012, 18th September 2012, i.e., prior to Ms. Nandita Kothari's commencement of work for Baba Arts, Ms. Nandita Kothari after working on the said literary work, discussed the further development on the said literary work with Mr. Vipul Kothari. Annexed hereto and marked as "Exhibit B and C" are copies of the said emails. (Emphasis added) 13. This raises more questions than it answers. The emails in question are produced by the Plaintiff itself. They are of a time before Ms. Kothari began working with Baba Arts. They show Mr. Tyagi to have worked on the 'Literary Work' in question. Mr. Tyagi was therefore not an employee of Baba Arts. Nor was Ms. Kothari. The suggestion in the pleading that Ms. Kothari 'after working on the said Literary Work discussed' its further development wi....
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....aintiff in turn to Zee), and whether she was in fact the sole author of the work so assigned. I mention this because the 9th June 2015 Assignment to the Plaintiff (Motion paperbook, pp. 254-256) says that the work in Schedule I is assigned; and that Schedule (Motion paperbook, p. 256) blandly states only "Yeh Tera Ghar Yeh Mera Ghar". This is not qualified to be the work prior to Ms. Kothari's engagement before Baba Arts, nor can that be deduced from this document. In the paragraphs 15 to 17 of Plaint, the Plaintiff claims that from July 2013, Ms. Kothari 'requested her friends/acquaintances and also Mr. Nitin Keswani to work on a draft screenplay' for the first episode. But the screenplay, as we have seen, is specifically included in the Plaintiff's definition of the 'literary work' in question. Again, it is unclear whether Ms. Kothari was moonlighting and on her own commissioning further work on the material from third parties or whether these third parties were under contract to Baba Arts. Either of these two scenarios jeopardises the Plaintiff's entitlement even further. THE ASSIGNMENT TO ZEE 15. What is the effect of the Development Agreement dated 9th July 2015 betw....
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....in perpetuity and in all languages in each country and area and space throughout the universe (collectively, the "Rights") Such Rights in and to the Works shall include, but shall not be limited to all copyrights as vested and to the results and proceeds of Production House's services and all constituent elements thereto including literary works, musical works, dramatic works and/or artistic works as defined in the Copyright Act,1957 (as amended from time to time) as well as copyright statutes or law subsisting in any other parts of the Universe The Production house hereby confirms, represents and warrants that the ownership of the Rights in and to the Works shall vest with Zee, free of all encumbrances with effects from the moment of conceptualization, development or creations of such Works. Production House shall have no rights in or to, or to use, copy or otherwise dealt with,the Works in any manner. 5.8 The Production House hereby further acknowledges and agrees that notwithstanding the provisions of the Indian Copyright Act 1957, and the amendments thereof, all assignments granted or to be procured under this agreement shall not lapse or revert to Production House, even ....
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....ent. I do not think this is at all correct. All that Clause 6.6 says is that there will be a sort of 'cooling off' period of six months following the expiry of the Agreement or on failure of the parties to agree on the terms of the production. After that period, the Plaintiff was to have 'the right to exploit the Initial Concept'. This is, at best, a limited right. It is not in any sense a reassignment of the "Initial Concept". Given that there is before me nothing to show a formal termination of the Plaintiff's Agreement with Zee except for a mere pleading, it is impossible to accept that there is, as of the date of the suit, any copyright that though once assigned to Zee has now reverted to, and vests in, the Plaintiff. To maintain this suit, the Plaintiff would need to have in its hands, at a minimum, a formal termination by Zee, and a re-assignment of the copyright in the Initial Concept. 17. A suit such as this one can only be brought by the "owner of copyright". This is defined in Section 54 of the Copyright Act, and the civil remedies of such an owner are set out in Section 55. The former says that the owner of a copyright includes an exclusive licensee. That would ....
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....vision of copyright. Had any portion of the copyright been retained by the Plaintiff, the Agreement with Zee would surely have said so. On the contrary, that Agreement clearly suggests that what is assigned to Zee is a work that incorporates and builds on the 'Literary Work' in which the Plaintiff claims copyright. Indeed, the entire case proceeds, as I imagine it must, on the basis that what Ms. Kothari disclosed to the Defendants was incorporated in what she assigned to the Plaintiff and what the Plaintiff in turn assigned to Zee. 20. I must note, in passing, that there is in paragraphs 23 to 25 of the Plaint a material misdirection. In paragraph 23, the Plaintiff says that Ms. Kothari ceased to work with Baba Arts. In paragraph 24, the Plaintiff then says that she and her husband, Mr. Vipul Kothari, formed the Plaintiff. There then follows this statement: "and Ms. Nandita Kothari assigned several literary works including the said Literary Work and all its related works and materials to the Plaintiff company thereby making the Plaintiff Company the owner of the same." This clearly suggests that the assignment to the Plaintiff was some time in 2013 or 2014. Any doubt about....
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....thari and the Plaintiff claim that there was a disclosure of the 'Literary Work' in which Ms. Kothari held copyright to the 1st Defendant. In 2013, Ms. Kothari was a Creative Consultant to or a Creative Director with Baba Arts. The meeting with the 1st Defendant, Star India, is said to have been arranged on 11th December 2013. In paragraph 20 of the Plaint, the suggestion is clearly that Ms. Kothari "along with some others" met representatives of Star India and narrated the 'Literary Work' in question. A Power-Point presentation was also made, and the slides of this presentation show Ms. Kothari as the owner of the copyright. What the Plaint does not disclose is that one Nikhil Tanwani signed a Release Form of that date (Motion paperbook, pp. 190-193.)on behalf of Baba Arts. This is not the only such form he signed. There is a previous one of 30th August 2013 in respect of another proposal as well. (Motion paperbook, pp. 186-189.) Across the Bar and in its written submissions, the Plaintiff took a very strange tack: it disclaimed all knowledge of Nikhil Tanwani's signature on this form, and claimed that he had no authority to do so. The Defendants claim that both Ms. Kothar....
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....tendered be scanned for preservation. In correspondence the next day, 16th September 2015, the Plaintiff's Attorneys sent a set of 'corrected' and 'final' written submissions to the advocates for the Defendants. The handwritten portion was and is missing in this so-called 'final' set of written submissions. In these, the Plaintiff insists that no copy was ever given to the Plaintiff. This is patently untrue. The so-called 'final' written submissions are, thus, unfair to the Defendants, to the Court and most of all to Mr. Daver, whose conduct of his case has been beyond reproach throughout. 24. In any case, whether or not Mr. Tanwani was a 'director' on the Board of Baba Arts Ltd is hardly relevant. Dr. Tulzapurkar is completely correct when he says that Star India was entitled to assume that he had the authority to execute the release form; the company's profile showed his name in some sort of official capacity as part of the 'team' with the assigned role of 'Business Development'; (Profile document, separately tendered.) he is the son of the promoter of Baba Arts; Ms. Kothari's emails were copied to him; and Ms. Kothari did not object to his signing th....
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.... Ms. Kothari was unaware of the release form being signed or that it was not signed in her presence. Indeed, my handwritten notes of 11th September 2015 show that he argued that Mr. Tanwani had 'merely accompanied' Ms. Kothari. His presence is not disputed. Yet, in paragraph 3(f) of the written submissions, the Plaintiff now attempts to deny that Ms. Kothari was aware of Mr. Tanwani signing the release form. Star India insists Ms. Kothari was present at the time when it was signed. Ms. Kothari only now denies it. This is not a matter that lends itself to a prima facie view favouring the Plaintiff. Indeed, it seems to me most unlikely that Ms. Kothari did not know of the signing of this Release Deed, or that it was signed separately by Mr. Tanwani elsewhere out of sight of Ms. Kothari (who does not even say so), especially since Star India says this is standard procedure, and without a release deed it does not even enter into any discussions. Indeed, even on the Plaintiff's own showing, this seems to be an industry-wide standard: the Plaintiff itself signed a similar release deed with Zee.(Plaint, pp. 125-127.) There is in addition the other material regarding Mr. Tanwani's invo....
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.... murderer; who is, as it turns out, none other than the father of the young man's lady love. 32. The concept of a human living among spirits is hardly new. Our own popular culture boasts of several such: Bhootnath, its sequel, Bhootwala and so on,(Star India provides copious details in its Affidavit in Reply, paragraph 23, Motion paperbook, pp. 177-183.) and there are films internationally too with this theme (Casper, the friendly ghost being perhaps only the least menacing of the lot). Therefore when Mr. Daver claims that the concept of a human living in harmony with a ghost family is unique and is 'the crux and essence' of the Plaintiff's work, (Plaint, paragraph 41, p. 16.) this is almost certainly incorrect. 33. There are two documents produced by the Plaintiff to show this similarity. The first is the 'literary work' in question annexed to the Plaint as part of Exhibit "A"; (Plaint, pp. 35-51.)and the second is the powerpoint presentation said to have been sent to Star India. (Motion paperbook, pp. 71-99.) The copy of the latter annexed to the affidavit is difficult to read, being a particularly poor monochrome photocopy on green ledger paper; a colour printout was p....
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....n this chart, all claiming similarity. But what is the source of this? It is not to be found in the 'literary work' annexed to the Plaint and on which the suit is brought. It is not to be found in the slide presentation said to have been made to Star India. Is it a further iteration of the work as developed for Zee? If it is, then it has never been disclosed to Star India, and, in any case, it would be for Zee to file suit. This would be so even on an acceptance of the Plaintiff's assertion that it retained the copyright in the initial work despite the Agreement with Zee. A more helpful comparison is the one that is provided by Star India in paragraph 20 of its Reply, and it shows the very marked difference between the two works. (Motion paperbook, pp. 174-176.) 36. As a matter of law, when copyright infringement is alleged in this form, and in relation to a concept, there must be an established comparable similarity between the work in which copyright is said to subsist and the work said to be infringing. A person cannot claim copyright in some work, and then contrast the defendant's work with some entirely different work of unknown provenance and at a very great intellectual....