Meaning of the expression "Original artistic work.

This is an appeal from the Judgment of Balakrishna Ayyar, J. in a suit C.S. No. 19 of 1952, filed on the Original Side of this Court by the first respondent (who will hereinafter be referred to as the plaintiff) against two defendants namely: (1) The Associated Publishers (Madras), Ltd., being the proprietors of the Associated Printers, a company registered under the Indian Companies Act and (2) K. S. Joseph, for the recovery of a sum of Rs. 10,000, being the estimated damages suffered by the plaintiff by reason of the infringement of his copyright in a portrait of Mahatma Gandhi painted by him. The plaintiff also prayed for a decree directing the second defendant Joseph to render an account to him of all sums which he had made by the sale of the offending prints which he had printed with the aid of thefirst defendant, directing the defendants or either of them to deliver to the plaintiff the unsold copies of the offending prints, and for an injunction restraining the defendants from further selling any copy of the offending prints. The material allegations in the plaint are as follows: The plaintiff is an artist who carries on the business of painting, printing and publishing and selling portraits of national leaders Among others he painted the picture of Mahatma Gandhi in a sitting posture after studying several photographs taken of the Mahatma when he was addressing his prayer meetings. This work was completed by him in or about June, 1948. The plaintiff as the author of the portrait is the owner of the copyright in it. The plaintiff conceived the idea of having printed copies made of the portrait with a view to their sale. For this purpose he employed the services of the first defendant to make a block in the Process Department of their journal, the Madras Mail. The original portrait painted by the plaintiff was handed over to the first defendant with a view to prepare the block. The first defendant first made a block which was not satisfactory and therefore not accepted by the plaintiff. The first defendant thereupon made a fresh block which was handed over to the plaintiff. The rejected block however was left with the first defendant who made improper use of it and the plaintiff had to file a suit C.S. No. 651 of 1948, on the file of the Original Side of this Court, for damages for infringement of his copyright. That suit was settled on the first defendant paying the plaintiff the suit claim and costs. The first defendant had thus notice that the plaintiff was the author and owner of the copyright in the portrait of Mahatma Gandhi in the sitting posture. Finding that there was great demand for prints of his portrait the plaintiff placed an order with the first defendant to print for him 5,000 copies of the said portrait by photo offset process in a size larger than that of the block made by the Madras Mail Process Department. For this purpose the original portrait painted by the plaintiff along with a retouched photo enlargement of the same were handed over to the first defendant in or about the first week of April, 1949. On nth June, 1949, 4,000 copies were handed over to the plaintiff and subsequently the balance was delivered. The original portrait and the photo enlargement were in the custody of the first defendant from April to June, 1949. The first defendant had thus full notice of the fact that the plaintiff was the author of the portrait and had copyright in it. The plaintiff found that by the time he took delivery of the copies of this portrait from the first defendant, the market was full of pictures in colour which were obviously colourable imitations in colour of the portrait painted by the plaintiff. These coloured prints constitute a clear infringement of the plaintiff’s copyright in the portrait painted by him. The infringing copies disclosed the name of the first defendant as their printer and that the copyright was vested in an institution called the Mahatma Gandhi Memorial Art House, T