ilayaraja got stay order in mhc court division bench against eco recording adv saravanan interview

ilayaraja got stay order in mhc court division bench against eco recording adv saravanan interview

MEMORANDUM OF ORIGINAL SIDE APPEAL
UNDER ORDER XXXVI RULE 1 OF ORIGINAL SIDE RULES READ WITH CLAUSE 15 OF LETTERS PATENT

IN THE HIGH COUT OF JUDICATURE AT MADRAS
(Appellate Side Jurisdiction)

O.S.A.No. of 2022

Dr. Ilaiyaraaja,
No.38, Murugesan Street,
T.Nagar, Chennai – 17. … APPELLANT

-Vs-

1. B. Narsimhan,
Agi Music Pvt. Ltd No.6, Aruna Nagar 2nd Street,
Pallikarani, Chennai.

2. Echo Recording Company Pvt.Ltd.
No.30 Conran Smith Road, Gopalapuram,
Chennai-86.

3. M/s.Unisys Info Solution Pvt. Ltd.
Sco17, 12th Floor Main Market Sector 13 Urban estate,
Karnal 132001 Andhra Pradesh (State)

4. M/s.Agi Music
Represented by Agilan Lechaman Managing Director
Sdn Bhd 32 A Jalan BP 6/13 Bandar Bukit
Punchong 41700 Punchong Selangor Malaysia

5. M/s.Giri Trading Company
Rep.by Sushama Ranganathan Its managing Director
Office Modi Niwas Opp.Post Office Matunga,
Mumbai-400019. …. RESPONDENTS

ON APPEAL FROM THE JUDGEMENT AND DECREE OF THE HON’BLE JUSTICE DR. JUSTICE ANITA SUMANTH DATED 04-06-2019 PASSED IN C.S. NO. 625 OF 2014

Dr. Ilaiyaraaja,
No.38, Murugesan Street,
T.Nagar, Chennai – 17. … Plaintiff

-Vs-

1. B.Narsimhasn,
Agi Music Pvt. Ltd No.6, Aruna Nagar 2nd Street,
Pallikarani, Chennai.

2. Echo Recording Company Pvt.Ltd.
No.30 Conran Smith Road, Gopalapuram,
Chennai-86.

3. M/s.Unisys Info Solution Pvt. Ltd.
Sco17, 12th Floor Main Market Sector 13 Urban estate,
Karnal 132001 Andhra Pradesh (State)

4. M/s.Agi Music
Represented by Agilan Lechaman Managing Director
Sdn Bhd 32 A Jalan BP 6/13 Bandar Bukit
Punchong 41700 Punchong Selangor Malaysia

5. M/s.Giri Trading Company
Rep.by Sushama Ranganathan Its managing Director
Office Modi Niwas Opp.Post Office Matunga,
Mumbai-400019. … Defendants

MEMORANDUM OF APPEAL

The Appellant herein submits as follows:

(A) The address for the service of all notices and processes on the Appellant is that of his counsel M/s. K.Thyagarajan, A.Saravananan, Shivamurthy Y M, Advocates, MaThS Law Associyates, having office at Old No. 162, New No. 344, 2nd Floor, Thambu Chetty Street, Chennai-600001.

(B) The first Respondent is B.Narsimhasn, Agi Music Pvt. Ltd No.6, Aruna Nagar 2nd Street, Pallikarani, Chennai.

(C) The second respondent is Echo Recording Company Pvt.Ltd., No.30 Conran Smith Road, Gopalapuram, Chennai-86.

(D) The third respondent is M/s.Unisys Info Solution Pvt. Ltd., Sco17, 12th Floor Main Market Sector 13 Urban estate, Karnal 132001 Andhra Pradesh (State)

(E) The fourth respondent is M/s.Agi Music Represented by Agilan Lechaman Managing Director Sdn Bhd 32 A Jalan BP 6/13 Bandar Bukit Punchong 41700 Punchong Selangor Malaysia

(F) The fifth respondent is M/s.Giri Trading Company Rep.by Sushama Ranganathan Its Managing Director Office Modi Niwas Opp.Post Office Matunga, Mumbai-400019.

(G) The addresses for service of all notices and processes on the Respondents are the same as stated above.

(H) The present Appeal is filed as against the Judgment and Decree dated 04-06-2019 passed in C.S. No. 625 of 2014 by the Hon’ble Single Judge Dr. Justice Anitha Sumanth for the following amongst other Grounds;

GROUNDS OF APPEAL

1. The present Appeal is filed against the common Judgment dated 04-06-2019 passed in C.S. No. 625 of 2014 being suit filed by the Appellant herein and in C.S. No. 308 of 2013 filed by Agi Music Sdn Bhd. For avoidance of doubt, the Appellant is not challenging the Impugned Judgment in so far as the same relates to C.S No. 308 of 2013 filed by Agi Music Sdn Bhd except to the extent of certain observation as hereinafter in this appeal expressly assailed/challenged.

2. At the outset, the Appellant submits that the Impugned Judgement is without jurisdiction and the Learned Single Judge has clearly erred in exercising the jurisdiction in the present case. Both the Suits C.S. No. 625 of 2014 and C.S. 308 of 2013 are “commercial dispute” falling with Section 2(1)(c)(ix) and (xviii) of the Commercial Courts Act, 2015 and are also of a “specified value” and ought to have been transferred to the Commercial Division of the Hon’ble High Court of Madras under Section 15 of the Commercial Courts Act, 2015. Failure to do so amounts to an error of jurisdiction in as much as a commercial dispute has been decided by a non-commercial court.

3. Jurisdiction vested in a commercial court is both on the basis of subject matter and pecuniary. The moment there is subject matter jurisdiction conferred on a special court / tribunal, continuation of the proceedings before the original court / tribunal is void, since subject jurisdiction goes to the root of the matter.

4. That the Commercial Division of this Hon’ble Court was notified on 04.12.2017, therefore, for the remaining “procedures that were not complete at the time of transfer”, the Commercial Courts Act, 2015 is applicable.

5. On the aforesaid grounds alone, the Impugned Judgement is liable to be set aside and the matter transferred to the Commercial Court to conduct proceedings de novo from the date on which the suit ought to have been transferred. Without prejudice to the above, the Appellant urges the following amongst other grounds on merits.

6. The Appellant Dr. Ilaiyaraaja, is a legendry music composer, conductor, arranger, lyricists, and a singer and has admittedly the composer, author and the owner of all the musical works which are the subject matter of the suit. He is often credited for introducing western musical sensibilities in the Indian Film musical mainstream, predominantly in the South. He has Composed over 8,500 Songs., besides being the only composer in the world to have Composed Music for 1418 Feature Films in over 9 languages. The Appellant Dr. Ilaiyaraaja is the only composer in the world to have written lyrics for over 1500 songs besides singing over 1000 songs himself. There is nothing on record to show, much less to establish that the copyrights in respect of the Appellant’s musical work which are the subject matter of the suit were assigned or transferred in any manner known to law by the Appellant to any person except his wife late Shri. Jeevaraja (which assignment is also no longer subsisting). The Impugned Judgement, therefore, is without any basis in law or on facts.

7. The Hon’ble Single Judge failed to appreciate that the 2nd Defendant Company was incorporated on August 11, 1989, and it had produced only 10 or so agreements that were purportedly entered into by it with certain producers and barring these agreements, none of the other agreements (which are more than 200 plus agreements) were entered into by it. Further Hon’ble Single Judge had failed to see that the 2nd Defendant has not pleaded and established as to how and when the purported agreements which were executed by a proprietorship concern owned by one Mr. Subramanyam prior to August 11, 1989, inure to the benefit of the 2nd Defendant, which is a Private Limited Company and on what basis, the 2nd Defendant has claimed any rights under any of the purported agreements, relied on by the 2nd Defendant. This issue is even more complex as some of the purported agreements (En uyir thozhan dated 01.02.1990, Mallu vetti minor dated 03.02.1990, Thiruppu munai dated 15.06.1989, Ooru vittu ooru vandhu dated 02.12.1989, Manitha Jathi dated 03.02.1990, Indiran chandiran dated 08.01.1990, and Arangetra velai dated 15.12.1989) relied by the 2nd Defendant are those, signed by a proprietorship concern, even after the 2nd Defendant came into existence. Barring a bald and unsubstantiated averment, there was no material available on record for the learned Single Judge to say that the proprietorship concern, owned by Mr. Subramanyam was converted into a private limited company i.e., 2nd Defendant in 1988. Apart from the fact that this is factually wrong, and it is a mere reproduction of 2nd Defendant’s passing averment, this goes to the very root of the matter and renders the Impugned Judgment unsustainable in law.

8. The Impugned Judgment is ex-facie opposed to law to the facts, probabilities, and the applicable law in particular the Copyright Acct, 1957 as amended (the Act). The Learned Single Judge has erred in applying the provisions of the Act to the facts and circumstances of the case and/or applied the law without relevant facts or documentary evidence on record. The findings on certain issues are based on certain inferences drawn without any basis. For example, the findings in Para 27, 48 of the Impugned Judgment.

9. The Impugned Judgment has been rendered without necessary parties being present before the Court and without necessary evidence required to render findings on the various issues raised in the suit.

10. The Learned Single Judge erred in holding that the producers of the cinematograph films are the authors or the first owners of the musical works of the Appellant. The findings in the Impugned Judgement, to the extent they relate to sound recordings or even more erroneous and unsustainable. The Learned Single Judge has, while extracting and reproducing the provisions of the Act has failed to appreciate the position of law that the cinematograph film and the sound recording are two distinct categories of the intellectual property and that while, the sound recordings properly incorporated into a cinematograph film may constitute one category, the sound recording are of distinct category. In the absence of assignment or transfer of Appellant’s copyright in the same to any other person including the producer of the cinematograph film will not create any rights in favour of the 2nd Defendant Echo Recording.

11. The Impugned Judgment suffers from serious infirmity as it has ventured to record findings on the rights of the producers of cinematograph film or of the 2nd Defendant Echo Recording, without any of the producers of the cinematograph film, being parties to the suit or being examined. The Learned Single Judge has erred in holding that certain issues framed in the suit in C.S. NO. 625 of 2014, could be determined, in the absence of the producers of the cinematograph film from whom the 2nd Defendant claims his/their right. The significant disconnect is that the 2nd Defendant did not even allure to or produce any contract to establish the producer’s right to the sound recording(s) of the musical work of the Appellant, while the 2nd Defendant’s case was that there were in all 310 agreements obtained from various producers of the cinematograph films, the Learned Single Judge, seriously erred in proceeding on the basis that the 2nd Defendant was the party to all the agreements produced by and that it was sufficient to examine a sample agreement. The finding that all the agreements though allegedly entered with various producers by different parties are similar/identical in all respects is erroneous and such a summary approach adopted in a matter involving significant and substantial intellectual property rights has resulted in miscarriage of justice and is unsustainable. Shockingly, such assumptions were made even in respect of 40 + agreements claimed to have been entered into by the 2nd Defendant with certain producers of the cinemograph film but not produced by them before the court. Thereby, the Learned Single Judge has proceeded to determine very valuable rights such as copyright in respect of the musical works and sound recording of the Appellant, in a manner not known to the rules of evidence or other canons of jurisprudence.

12. The Learned Single Judge has failed to notice and appreciate the correct import of the provisions of Section 17 of the Act. In particular, the Learned Single Judge has failed to notice that there is no reference to the musical works and sound recording in proviso (b) to the said Section 17. Having held that the proviso (c) is not appliable, it was not open or permissible at all, to hold that producers have the right and that they have passed on such right to and in favor of the 2nd Defendant (Para No. 27 of the Impugned Judgement). Such a finding rendered without examining the proviso (b) of Section and 17 is a serious legal infirmity in the Impugned Judgement. As such, the eventual conclusions (based on such finding/premise) that the 2nd Defendant Echo Recording has obtained rights with regard to the sound recordings comprised in the films covered under the purported agreements and is entitled exploit the same, is erroneous and unsustainable.

13. The Hon’ble Single Judge has failed to appreciate true purport and intent of Proviso (b) of Sec. 17, which recognize that if a cinematograph film is made for a valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein, this proviso is not limited to a producer of a cinematograph film and is wider in its scope and any person who makes a cinematograph film for a valuable consideration. The learned Single Judge has apparently understood that the “producer” and “any person” referred to in the said proviso b of Sec 17, to mean the producer of the cinematograph film. On this basis alone and without examining the facts surrounding the production of the Cinematograph film, it has been assumed that the producers with whom the purported agreements relied on by the 2nd Defendant have been signed are the first owners of the copyrights. Therefor the findings of the Hon’ble Single Judge are erroneous and not sustainable under law.

14. It is thus clear from the said Section 17 of the Act, the Appellant being the author of the musical work and the sound recording, is the first owner of the copyright in respect thereof. The Impugned Judgement which takes a view contrary to this clear legal position is bad in law. The Appellant asserted that he, being admittedly the composer and the author of all of the musical work and also the producer of the sound recording of the musical work, he is the first owner of the copyright. In the absence any assignment or transfer or other appropriate contract by and from the Appellant, no other person has any right or title or ownership in respect of the same. This position is beyond the pale of any doubt or uncertainty upon a combined reading of the definitions of the terms, “author”, “producer”, “work” and “cinematograph film” and the provisions of Sections, 13 (a) (c) (4), 14 (a) (e), 16 and 17.

15. The finding of the Learned Single Judge in para 81 of the Impugned Judgement that “Second Defendant, Echo, has obtained rights in regard to the “sound recording” comprised in the files covered under the Agreements in Annexure 1 to its written statement and is entitled to exploit the same, specifically and strictly in the form and manner as contained in the respective cinematograph films only”, lacks clarity or room to mischief. In this context, the Learned Single Judge should have examined the scope of each agreement, and the difference between a cinematograph film and sound recording which are two distinct category of intellectual property rights and needs to be clarified for the sake of good order.

16. The Impugned Judgment and various findings and conclusions made/drawn therein or without any factual or legal basis. In particular, the assumption without any pleading or demonstrable evidence that the producers of the cinematograph films (with respect to the musical work and sound recording which are the subject matter of suit) had commissioned the relevant musical work or sound recordings are untrue and unsustainable. The stature, the standing and the command of the Appellant was such that the producers always rallied around him, and his compositions and sound recording to elevate the impact and ensure the success of their cinematograph films. This is a matter of public record. The ways in which, the producers of the cinematograph films, were able to incorporate the musical works and sound recording made by the Appellant varied. The following are some of the ways:
a. The Appellant’s musical works composed songs and tunes, sung by him in his own orchestras and in other orchestra groups in public without any reference to any films or any scenes. Some of these songs and tunes were played to the film producers and directors in his early days. The very first cinematograph film “ANNAKILI”, in which he was introduced as music director/composer, incorporated 2 such songs and became super hit songs and the success of the movie was largely attributed to the musical works and songs of the Appellant incorporated in the film. This is a matter of wide public knowledge and finds a place in Wikipedia.

b. Many tunes composed by the Appellant inspired by or suit many purposes and occasions were picked up different directors for their respective films. Many a time, he has not received any remuneration and permitted his musical works and sound recordings to be used by certain directors/producers/artists just based on the relationship and likings for them or their story line. This is matter of public record and one such instance for ready reference the movie “Panneer Pushpangal”, as quoted by the director of the Cinematograph film, the vide of which is available in YouTube even today.

c. There were instances where the Appellant composed a bunch of 6 to 8 songs and agreed to offer/permit them to incorporate into a cinematograph film, to a director only, if all of them are incorporated in the same cinematograph film. These were kind of thematic compositions and the films which incorporated those songs/musical works went on to become super hits. This is a matter of wide public knowledge and finds a place in Wikipedia and as recognized by the director, the video of which is available in YouTube even today. There are several producers/directors who have publicly admitted such facts at various forums and their contemporary video recordings are publicly available in OTT platforms such as YouTube.

d. Many a time, it was the Appellant who decided, with whom he will work and for which cinematograph film he will offer his musical work and sound recording. There were some instances as well where the songs composed, or the sound recording made, offered to some directors were not chosen by them but later picked up by some other directors and incorporated into their cinematograph film that they think may suit their situation or a scene. Many compositions and sound recordings were made without reference to any movie or any director or producer, permitted to be incorporated in certain cinematograph films on the terms mutually agreed.

The above instances are not exhaustive. The Learned Single Judge has adopted a broad brushed approach in assuming or taking it granted that in all cases, the producers would have commissioned the musical works and the sound recordings made by the Appellant. This approach is unfounded and has resulted in a serious miscarriage of justice. The valuable intellectual property rights of the Appellant cannot be extinguished, nor such valuable rights be created in favour of the producers or the 2nd Defendant, to the detriment of the Appellant, on such unfounded assumptions and broad brushed approach. The copyright in respect of each musical work and sound recording is separate and distinct intellectual property of the Appellant. Therefore, it was necessary for the 2nd Defendant to establish the producer’s and its own rights allegedly derived from the producers, in respect of each such asset, which it has miserably failed to do. As such, the Impugned Judgement suffers from serious infirmity and lack of legal and evidential basis. The application of judgement of the Hon’ble Supreme Court in IPRS is misconceived as the said judgment is distinguishable both on law and facts. The Learned Single Judge has erred that in deciding many of the issues without necessary and relevant facts being established and/or the necessary documentary evidence being produced.

17. The Hon’ble Single Judge failed to recognize the fact that the Appellant has received a remuneration only for permitting the producer to incorporate Appellant’s musical work and including the sound recording to accompany the virtual recording which was part of the cinematograph film and not for any transfer or assignment of copyright in the musical work and sound recording. In the absence of a contract to the contrary, in terms of the Act, the Appellant is the author, composer, producer and the first owner in respect to his musical work and sound recording.

18. The purported agreements relied on by the 2nd Defendant inter alia contains a representation, warranty, and a covenant the producers have obtained approval and/or consent of the author which clearly meant that the author was different from the producer in respect of original recordings and such author can be none other than the Appellant in respect of musical works and sound recording of the suit subject matter. The 2nd Defendant has not produced any such consent/approval/clearance obtained from any of the producers from the Appellant in respect of any of the rights it has claimed under the purported agreements. As a matter of fact, none of the producer sought/obtained any such approval/consent/clearance from the Appellant. Which is a crucial aspect which the disentitles the 2nd Defendant from relying on any purported agreements. The Hon’ble Single Judge erred and failed to appreciate this fact and the Impugned Judgement is liable to be set aside. The said purported agreements also provides that the producer will supply, simultaneously with or prior to, the delivery of each cinematograph film/original recording. Even today the original recordings are still with the Appellant and the same has never ever been handed over or delivered to any person, including the producer or the 2nd Defendant. The fact that the 2nd Defendant having not established the performance of warranties and covenants under the purported agreements cannot claim any copyright over musical works and sound recordings of the suit subject matter. The Appellant still owns the copyright thereof.

19. The Hon’ble Single Judge had not addressed some of the issues raised in para nos. 17 (in particular the issue nos. 2, 3, 6, 7) and para 21 of the Impugned Judgement and there are no findings in respect of the same. In the absence of any pleadings advanced or evidence tendered by the 2nd Defendant and in the absence of any findings by the Hon’ble Single Judge, the questions (i) whether the producers had commissioned each of the cinematograph film, musical work and sound recording, by initiating the same and engaging the Appellant, (ii) whether original musical works and sound recording were created/made for the purposes of the cinematograph films and the sound recordings in issue, (iii) whether the original recordings of the sound recording, and musical works were transferred/delivered by the Appellant to the producers of the cinematograph films or to the 2nd Defendant, (iv) whether there be more than one producer in respect of the subject matter of cinematograph films and whether several and distinct ownerships were involved in respect of the cinematograph film, the Hon’ble Single Judge could not have recognized the 2nd Defendant as the right holder in respect of the Cinematograph films in issue. On the Contrary, if the Hon’ble Single Judge had applied the facts and submissions made on behalf of the Appellant and rendered her findings on these issues, one of the necessary conclusions would have been that the Appellant is the copyright owner of the musical works and sound recordings which are the subject matter of the suit and C.S. No. 625 of 2014 merited a judgment and decree in favour of the Appellant.

20. The Hon’ble Single Judge having recognized in para 67 of the Impugned Judgement, that Echo has acquiesced to the fact that the sound recording of the subject matter musical work and sound recording were assigned by the Appellant in favour of his wife late Mrs. Jeevaraja, subsequent exclusive assignments of the right to Agi Music and further exploitations, Echo cannot claim any copyrights on the musical work and sound recordings.

21. The Hon’ble Single Judge ought to have considered the difference between the terms “remuneration” and “royalty” which are completely different terms and hence the statement of the plaintiff that he received remuneration of his works whenever he composed music for films does not infer that he received entire royalty amount towards transfer of copyrights. Though the plaintiff would have received remuneration which would merely compensate the expenses incurred for recording the musical work composed by the plaintiff, the same would not equate the amount of his entitlement of consideration for transfer of his copyrights.

22. The Hon’ble Single Judge failed to consider and infer the meaning of “copyright” as per clause 14 (a) in consonance with clause 14 (a) (i) of the Act. In case of the musical work, as per clause 14 (a) (i), copyright is the exclusive right “to reproduce the work in any material form including the storing of it in any medium by storing in in electronic means.” This gives a clear meaning that only the author who originally produced the musical work can grant right to reproduce it. The word ‘reproduce’ as mentioned in clause 14 (a) (i) makes it amply clear that author/composer of the musical work alone can assign the copyright to any other person.

23. The judgment in IPRS conferred right of the producer over the composer observing that “..when a cinematograph film producer commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his cinematograph film or composing music or lyric there-fore”. In the present case, the payment of proper reward or valuable consideration is not proved and when the same has been disputed by the author, the copyright remains with the author/plaintiff.

24. The Appellant reserves the rights to urge additional grounds during course of the proceedings of instant appeal and to seek leave of this Hon’ble Court to produce additional documents for proper and effective adjudication of the appeal/underlying suit.

The Appellant therefore humbly prays that this Hon’ble Court may be pleased to allow the instant appeal, set aside the Impugned Judgment and decree dated 04.06.2019 passed in C.S. No. 625 of 2014 and pass such other/further relief/s as this Hon’ble Court may deem appropriate in the facts and circumstances of the case and thus render justice.
Dated at Chennai on this the 08th day of February, 2022.

COUNSEL FOR APPELLANT APPELLANT
MEMO OF VALUATION
Value of Suit : Rs. 6000/-
CF paid : Rs. 450/-
Value of Appeal : Rs. 6000/-
CF paid : Rs. 450/-
Dated at Chennai on this the 08th day of February, 2022.

COUNSEL FOR APPELLANT APPELLANT

ilayaraja got stay order in mhc court division bench against eco recording adv saravanan interview

ilayaraja got stay order in mhc court division bench against eco recording adv saravanan interview

ilayaraja got stay order in mhc court division bench against eco recording adv saravanan interview

ilayaraja got stay order in mhc court division bench against eco recording adv saravanan interview

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