Representation of a deity in human from entitled to copyright.

This appeal against the judgment and decree of Ramaswami, J., in C.S. No. 127 of 1953 arises out of a suit instituted by the appellants as plaintiffs for the reliefs of injunction, damages and accounts against the respondents. The appellants, Messrs. C. Cunniah and Co., are a firm of merchants carrying on business in Madras City in pictures, picture frames, etc. In 1932, according to the case in the plaint, one Sri T. M. Subramaniam drew a picture, M.O. 1 of Lord Balasubramanya and gave it the title of Mayura Priya. On 13th July, 1938, he assigned the copyright in this picture to the appellant firm. From 1940 onwards, the appellant-firm were making and selling printed copies of this picture to the public. There was, however, a temporary stoppage of the sale between 1946 and 1950 owing to scarcity of printing materials due to war conditions. However, the printing and sale were resumed from 1950 onwards. The appellant-firm got this picture registered under the Trade Marks Act of 1940 some time in 1952. Some time before October, 1952, it came to the knowledge of the appellant-firm that the respondent-firm was printing and selling copies of a close and colourable imitation of the appellant’s picture under the style of Bala Murugan. The appellants’ case is that the picture ‘Bala Murugan’ printed and sold by the respondents is a colourable imitation of the picture. ‘Mayura Priya’, in which the appellant-firm owns the copyright. Though called upon to cease the sale of the picture ‘Bala Murugan’, the defendants respondents refused to comply with this demand. The plaintiffs-appellants, therefore, came forward with the suit asking for an injunction prohibiting the respondent-firm from printing or selling the picture ‘Bala Murugan’, and also for a decree for damages in the sum of Rs. 2,000 for infringement of the copyright in their picture ‘Mayura Priya’ and for an account of the profits made by the defendants-respondents by the sale of their picture (Bala Murugan), and for seizure of the unsold copies of that picture.

The respondents-defendants contended that their picture was an independent production by the artist D.W. 1 and was not a copy of the plaintiff’s picture ‘Mayura Priya’. They also contended that the appellants had not acquired copyright in the picture known as ‘Mayura Priya’, because, the subject dealt with in that picture was a common subject, in which no copyright could be acquired by anyone.

The claim in the plaint was put forward both as an infringement of copyright and as an infringement of the registered trade mark right. However, during the trial, the case of infringement of trade mark was given up, as admittedly the picture ‘Mayura Priya’ is not used as a trade mark in relation to any class of goods.

The learned Judge, Ramaswami, J., who tried the suit, came to the conclusion that the artist D.W. 1 had drawn the defendants’ picture ‘Bala Murugan’ from his own trained imagination having regard to the conventional ideas and without any help derived from or resort to the picture ‘Mayura Priya’. On the question of the picture ‘Mayura Priya’ being the subject of copyright, the learned Judge found in favour of the appellants. However he dismissed the suit on his finding that the defendants had not infringed the copyright of the plaintiffs in their picture ‘Mayura Priya’.

Mr. K. S. Ramamurthi, learned counsel for the respondents, made a feeble attempt to contend that no copyright could be acquired in the picture, M.O. I styled ‘Mayura Priya’, because, it was the representation of a common subject like a painting of the deity ‘Balasubramanya’ made from conventional ideas as to his appearance in human form. It is well established that, in order to obtain copyright protection for literary, dramatic, musical and artistic works, the subject dealt with need not be original, nor the ideas expressed be something novel. What is required is the expenditure of original skill or labour in execution and not originali