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2013 Supreme(Mad) 33
HIGH COURT OF JUDICATURE AT MADRAS
R. BANUMATHI & K.K. SASIDHARAN, JJ.
S. Mahalingam
Versus
Vasan Publications Pvt. Ltd. rep. By its Chairman/Managing Director/Executive Director & Others
O.S.A. No. 446 of 2012
Decided On: 02-01-2013
For the Appellant:R. Gandhi, Senior Counsel, Assisted by Muthukumar, for M/s. G.M.S. Law Associates, Advocates.
For the Respondents:P.S. Raman, Senior Counsel, for N. Ramesh, Advocate.
The main legal point established in the judgment is the interpretation of Section 17(a) of the Copyright Act, 1957, regarding the first owner of copyright in works created by an author during the course of employment by a magazine.
Headnote:
Copyright - Ownership of Art Works - Copyright Act, 1957, Section 17 - The judgment discusses the ownership of copyright in art works created by an artist during his employment with a magazine. The court analyzes the provisions of Section 17 of the Copyright Act, 1957 and the employment relationship between the artist and the magazine to determine the first owner of the copyright. The court concludes that the magazine, as the employer, is entitled to the statutory protection under Section 17(a) of the Act, and the appellant has not made out a prima facie case for injunction.
Fact of the Case:
The appellant, son of a renowned artist, filed a suit seeking an injunction to restrain the respondents from publishing art works of the artist, claiming ownership of the copyright. The respondents, as the employer of the artist, contended that they were the first owner of the copyright in the art works created during the artist's employment.
Finding of the Court:
The court found that the artist was an employee of the magazine during the period when the art works were created and held that the magazine was entitled to the first ownership right of the copyright under Section 17(a) of the Copyright Act, 1957. The court dismissed the application for injunction, stating that the appellant could be compensated in the event of success in the suit.
Issues: The core issue was the ownership of copyright in the art works created by the artist during his employment with the magazine. The court also considered the balance of convenience and the possibility of irreparable injury in granting the injunction.
Ratio Decidendi: The court's decision was based on the interpretation of Section 17(a) of the Copyright Act, 1957, which provides the first owner of copyright in works made by the author in the course of his employment by a magazine. The court also considered the principles of prima facie case, balance of convenience, and irreparable injury in granting injunction.
Final Decision: The court disposed of the appeal, directing the first respondent to deposit a sum of Rs.15,00,000/- to the credit of the civil suit, to indicate the pendency of the suit in their publicity materials, and to maintain accounts of printed copies and sale of books. The court made it clear that its findings were tentative and would not stand in the way of deciding the suit on merits.
K.K. SASIDHARAN, J.
1. This intra court appeal is directed against the order and decretal order dated 9 November 2012 in O.A.No.661 of 2012 in C.S.No.522 of 2012, dismissing the application filed by the appellant for an interim order of injunction restraining the respondents from publishing the art works of late Sri P.M.Sreenivasan, published earlier under the title "Thennattu Selvangal" in Ananda Vikatan during the period 1948 to 1961, as it would infringe the copyright of the legal representatives of the artist.
Brief Facts:-
2. The appellant filed a suit in C.S.No.522 of 2012 before the original side of this Court against the respondents with the following contentions:-
(a) The appellant is the son of Sri P.M.Srineevasan, a well known and renowned artist, popularly known as "Silpi" (hereinafter referred to as the "Silpi");
(b) Silpi was born in the year 1919 at Puliyur near Kumbakonam. His talent in art/drawing came to light even in his early childhood. The famous Tamil poet Namakkal Kavingar recognized his talent and made him to join in the Government School of Arts and Crafts at Madras, sometime during 1939. Though the duration of course was six years, Silpi, with his extra talents, completed the course in three years. In view of his talent and taking into account his recognition, the publishers of "Ananda Vikatan" approached him to license his drawings for publication in "Ananda Vikatan".
(c) The art works of Silpi mainly pertain to the images of Gods, Godesses and temples drawn or painted and physically seen by him. Silpi had drawn more than 5000 drawings over a career spread over more than 50 years. This prompted many publishers, including the first respondent to utilize his drawings and paintings on payment, treating it as a license.
(d) The first respondent utilized the services of Silpi and he was paid license fee / consideration for drawing picture and the art works were published in "Ananda Vikatan". It was purely a contract. Silpi was recognized as the first owner of copyright in all his art works.
(e) Silpi who died on 10 January 1983 is survived by the appellant and his sister R.Saradambal. Since Silpi died intestate, his right over his works devolved on the appellant and his sister and they have been exploiting the copyright by licensing them to publishers, Corporate entities and Government Departments in various ways including by using them in calendars, greeting cards, booklets etc. purely on a license basis.
(f) While so, the appellant was shocked when he came to know from an advertisement published in Ananda Vikatan dated 1 October 2012 and "Vikatan Pressuram", July/August 2012 issue, that the respondents are about to come out with a combined publication of the art works of Silpi, which were published in the weekly magazine Ananda Vikatan under the title "Thennattu Selvangal" during the period 1948 to 1961, the copyright of which now vests with him and his sister. The act would amount to infringement of copyright and as such, the appellant was constrained to file the suit for injunction to restrain the respondents from publishing the works of Silpi in any form.
Interlocutory Application:-
3. The appellant, along with the suit, filed an interlocutory application in O.A.No.661 of 2012 praying for an order of interim injunction pending disposal of the suit.
Counter of first respondent:-
4. The Managing Director of Vikatan Publishers, first respondent in the interlocutory application, filed a counter affidavit in O.A.No.661 of 2012 with the following averments:
(a) The deceased Silpi was employed as an artist in "Ananda Vikatan", magazine from the year 1943 and till 1967. There existed a relationship of employer-employee and it was a continuous relationship till 1967 without any break.
(b) Silpi was a regular employee with Ananda Vikatan and he was paid monthly salary. He was also paid all service benefits like other employees. Sometimes, he was sent out of Chennai on assignment to draw/work for t
