Veeramani Kannan, Represented by its Power of Attorney Agent, Sridhar Subbarayan vs Super Audio (Madras) Private Limited, Represented by its Director Navin N. Daswani

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 1950

IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
Veeramani Kannan, Represented by its Power of Attorney Agent, Sridhar Subbarayan – Plaintiff
Versus
M/s. Super Audio (Madras) Private Limited, Represented by its Director Navin N. Daswani – Defendant
Civil Suit (Comm.Div.) No. 412 of 2020 & O.A. No. 770 of 2020
Decided On : 07-09-2021

Advocates:
Advocate Appeared:
For the Plaintiff :K. Rathinavel, Advocate.
For the Defendant :U. Vinay Metha, Advocate.

Headnote:
Civil Procedure Code,1908- Order VII, Rule 1 - Copyright Act, 1957 - Sections 2(qq), 2,13,14, 51, 55,58 38-A & 62 - UK Copyrights, Patents and Designs Act, 1988 - Sections 16, 19 and 20 - Permanent injunction - Praying to grant a judgment and decree on following terms - Pass an order of permanent injunction against defendant, its directors, agents, officers, holdings, subsidiaries etc. from using or broadcasting any songs in Music Album in violation of plaintiff's performer's rights under Section 38A of Copyright Act, 1957 - Pass on order directing defendant to render true and correct accounts of profits earned from commercializing plaintiff's performer's rights in Music Album - Whether plaintiff as singer of songs contain music album marketed by defendant is entitled to enforce performer's right under Section 38 of Copyrights Act - Whether plaintiff is entitled to restrain defendant from using or board casting any of songs in music album - Whether plaintiff is entitled for any damages as prayed for - Whether plaintiff is entitled for rendition of accounts - What other reliefs plaintiff is entitled to - Held, However by contract if performer relinquishes said right, on receiving a lump sum consideration, thereafter he cannot enforce right conferred under proviso to Sub Section (2) of Section 38-A of Copyright Act, 1957 - Court cease and desist notice issued by plaintiff it is stated that by virtue of being a singer in music album it is well within ambit of a performer as described under Section 2(qq) of Copyright Act, 1957 and it conferred with exclusive performance right under Section 38-A of Copyright Act, 1957. Consequently he is entitled for royalties from defendant for broadcasting his songs to various platforms - Per contra learned counsel appearing for defendant submits that to specify definition of Performer performance must be a live performance - Work of plaintiff as a singer was not a live performance and therefore he will not fall within definition of Performer - Hence proviso to Sub-Section (2) of Section 38-A of Copyright Act, 1957 is not applicable. Section 2(qq) of Copyright Act, 1957 defines “Performer - Once performance made live either at one breath or in bits or pieces may available for reproduction or circulation for publi special right conferred to performer accrues - Just because performance is recorded in a studio or in bits or pieces right of performer cannot be taken away by mis-interpreting expression 'made live' employed while defining performance - Civil Suit dismissed

JUDGMENT :

(Prayer: Civil Suit has been filed under Order IV, Rule (1) of the Original Side Rules and Order VII, Rule 1 of C.P.C., read with Sections 2,13,14, 51, 55,58 & 62 of the Copyright Act, 1957, praying to grant a judgment and decree on the following terms:-

(a) pass an order of permanent injunction against the defendant, its directors, agents, officers, holdings, subsidiaries etc., from using or broadcasting any the songs in the Music Album in violation of the plaintiff's performer's rights under Section 38A of the Copyright Act, 1957.

(b) pass on order directing the defendant to render true and correct accounts of the profits earned from commercializing the plaintiff's performer's rights in the Music Album.

(c) pass an order directing the defendant to pay damages of Rs.5,00,000 for commercializing the performer's rights in the plaintiff's songs.

(d) pass an order directing the defendant to pay the costs of the suit to the plaintiff.)

(The case has been heard through video conferencing)

1. Suit filed under the Copyright Act, 1957 for injunction against the defendant from broadcasting the songs in the music album of the plaintiff more fully mentioned in the plaint violating the plaintiff's right as performer and for rendition of accounts of the profit earned from commercialising the plaintiff performer right in the music album and also to pay damages of Rs.5,00,000/-.

2. According to the plaintiff, he is a Singer by profession. He has sang various devotional songs in all the regional languages including Tamil. The defendant is a Music Company carrying on business of producing music album songs, videos etc., During the year 2015, the defendant engaged the plaintiff to write, compose and sing various devotional songs for the music album named, 'Shiva Murugan Paamalai'. Accordingly, the plaintiff sang four songs namely, (i) 108 Chants of Lord Shiva; (ii) Shivan Aarthi; (iii) 108 Chants of Lord Muruga and (iv) Murugan Aarthi. All the right in the music album were sold to the defendant for consideration as per the agreement dated 15.04.2015. The defendant had released the music albums in various platforms such as CDs, VCDs, DVDs, etc. However, since March 2020, the defendant, without taking any permission from the plaintiff or paying any royalties to the plaintiff for his performer's rights had published these songs in YouTube and had commercially exploited the same. Furnishing the dates of uploading the music album containing four songs, the suit is filed alleging that the defendant has made the songs available for streaming in the online platform, which is illegal and violative of plaintiff's performer's right under Section 38-A of the Copyright Act, 1957. The plaintiff, after coming to know about the violation of his right, issued cease and desist notice to the defendant on 29.09.2020 and called upon the defendant to make payments towards the plaintiff's share of royalties collected by the defendant till date and also to pay a sum of Rs.5,00,000/- towards damages. Inspite of cease and desist notice, the defendant continues the streaming the songs without taking any license from the plaintiff or paying the performer's royalties to the plaintiff. Hence, the suit is filed for the aforesaid prayer.

3. The defendant has filed written statement wherein, the claim of the plaintiff as a performer is denied. According to the defendant, the performer's right to seek royalties is available only if the performance is a live performance. The music album, which is the subject matter of the suit is non-live studio recording. Therefore, it does not fall under the definition of Copyright and the plaintiff is not a performer under the said Act. Hence, he is not entitled for royalties as envisaged under Section 38-A of the Copyright Act, 1957. The production of music album involves various steps and the processes, such as conception, scratch recording, vocal rehearsal, sessions track recording, final vocals recordings and mixing and editing, etc. Th

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