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2011 Supreme(Mad) 4845
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MS. JUSTICE R. MALA
Miss. Kajal Aggarwal
Versus
The Managing Director, M/s. V.V.D. & Sons P.Ltd.
O.S.A.No.403 of 2011 & M.P.No.1 of 2011
Decided On :Decided on : 22-12-2011
For the Appellant:V. Manohar, Advocate.
For the Respondent:P.V.S. Giridhar for M/s. P.V.S. Giridhar Associates, Advocates.
The limited right of using the reputation of an actress/model for commercial purposes and the impact on future advertisement prospects.
Headnote:
Copyright - Use of Profile in Cinematograph Film - Agreement Clause 4, Copyright Act - The court discussed the interpretation of the agreement clauses, copyright laws, and the commercial use of the profile. It emphasized the limited right of using the reputation of the actress/model and the impact on future advertisement prospects. The court held that the respondent cannot use the profile of the appellant in Ad films beyond the period of the agreement.
Fact of the Case:
The appellant, an actress, entered into an agreement with the respondent to endorse their products for a period of one year. After the agreement expired, the respondent continued to use the appellant's profile in their products, leading to a legal dispute.
Finding of the Court:
The court found that the respondent's use of the appellant's profile beyond the agreement period caused irreparable injury to the appellant's reputation and future advertisement prospects.
Issues: The issues included the interpretation of the agreement clauses, the application of copyright laws, and the impact of the respondent's actions on the appellant's reputation and future prospects.
Ratio Decidendi: The court held that the respondent cannot use the profile of the appellant in Ad films beyond the period of the agreement, emphasizing the limited right of using the reputation of the actress/model and the impact on future advertisement prospects.
Final Decision: The Original Side Appeal was allowed, and the Application in the suit was allowed in toto, with no order as to costs.
R.BANUMATHI,J.
1. Being aggrieved by refusal to grant interim injunction restraining the respondent from using the profile of appellant in the cinematograph film, audio, video cassettes and C.Ds in promoting the product of the respondent, the plaintiff has preferred this appeal.
2. Case of appellant/plaintiff is that she is an actress having good number of fans and the appellant agreed to endorse the products of the respondent/defendant. Case of appellant/plaintiff is that the respondent approached the appellant for promoting their products of hair oil and coconut oil through various mediums of advertisements like film, Television, magazines, hoarding, etc.. The parties have entered into an agreement dated 29.12.2008. As per the terms and conditions of the said agreement, the appellant agreed to be a model for promoting the objects of the respondent in mass media such as press, hoarding, package material etc. As per the terms, the said agreement is valid for a period of one year. Case of appellant is that the agreement entered with the respondent expired in December 2009 itself and thereafter the respondent has no manner of right to use the videos, photographs, printed materials or picture of the appellant in any of their products. The appellant has further alleged that even after expiry of the agreement, the respondents have been advertising their products using her pictures/name and the action of the respondent amounts to the violation of the breach of terms of the agreement and misused. Further case of appellant is that her popularity increased multi-fold and there is much demand for her presence as brand ambassador for the products of many reputed companies including multi-national companies and due to the conduct of the respondent, her reputation and commitment given to other companies was greatly affected. After issuing legal notice dated 12.9.2011, the appellant had filed the suit C.S.No.635 of 2011 claiming damages of Rs.2,50,00,000/- and also for permanent injunction restraining the respondents from using or publicising or projecting or promoting or advertising the materials with the presence of the appellants profile or her presence in any form. Along with the suit, the appellant has filed Application in O.A.No.787 of 2011 seeking interim injunction restraining the respondent from using the image of the appellant in their products and also from advertising the appellants endorsement/advertisement video in television Channels, websites, Internet or in any other form or media.
3. The respondent/defendant has entered appearance and filed counter contending that in December 2008, the appellant was an ordinary model and acting in Ad films and respondent has used the same for the purpose of marketing and promoting their products, particularly hair oil and coconut oil. According to the respondent, there is no convention or custom in the field of advertising that the advertisement would be permissible only for one year and as such the appellants claim that respondent cannot use the materials produced in the year 2008 for more than a year is incorrect and untenable. The respondent holds copyright over Ad film and all rights in the said film vest in the respondent and that the appellant has no manner of right over the same since she has been paid the sum demanded by her for acting in the same. Stating that the appellant has not made out a prima facie case and claiming copyright in the promotional films/video cassettes, the respondent/defendant filed counter praying for dismissal of the application.
4. Before the learned single judge, respondent/defendant has undertaken that henceforth respondent will not use still photographs or other profile of the appellant on any of its products except with the written consent of the appellant. In so far as injunction against ad films is concerned, the learned single judge held that clause 4 of the agreement was to the effect that Ad films etc., would become the property of
