J.Jayakrishnan v. Bayview Projects Limited Liability Partnership

Madras HC22 Mar 2022OA/138/2022

Case brief

AI extract

What is this about?

In a copyright dispute over Tamil films, the Madras High Court adjourned hearing on interim injunction applications. The court held the applicants failed to establish a strong prima facie case of substantial copying due to low similarities and differences in plots. Consequently, the balance of convenience did not favor the applicants, and the order was disposed of without injunction.

What the court decided

AI extract

J.Jayakrishnan Vs Bayview Projects Limited Liability… — Intellectual Property | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION)

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TUESDAY, THE 22ND DAY OF MARCH 2022

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THE HON'BLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

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O.A.No. 138 of 2022

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C.S(Comm Div)No. 46 of 2022

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Mr J. Jayakrishnan, Proprietor – J K Creations No.19, Vellaiyan Street, Kotturpuram,

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Chennai – 600 085.

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M/s E5 Entertainments India Private Ltd., Represented by its Director Mr. J. Jayakrishnan, No.19, Vellaiyan Street, Kotturpuram, Chennai – 600 085.

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... Applicants / Plaintiffs

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-Vs-

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Bayview Projects Limited Liability Partnership Represented by its Director Mr. Boney Surinder Kapoor Bunglow No.18, Arjun Bunglow, Magnum Towers, Near State Bank of Jaipur, BHD Lokhandwala, Andheri (W), Mumbai – 400 053.

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Zee Entertainment Enterprises Limited 18^th Floor, 'A' wing, Marathon Futurex, NM Joshi Marg, Lower Parel,

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https://hcservices.ecourts.gov.in/hcservices/ Mumbai, Mumbai City – 400 013.

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H. Vinoth,

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G-Studios, Thirukkottaram, No.12/22, Gilcrist Avenue, Harrington Road, Chethpet, Chennai – 600 031.

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... Respondents / Defendants Original Application praying that this Hon'ble Court be pleased to

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grant an order of ad-interim injunction restraining the Respondents 1 to 3 from infringing the cinematographic film “METRO” by themselves, their partners / proprietor / directors, heirs, representatives, successors in business, assigns, distributors, agents, servants or anyone claiming through them or under them from infringing the Applicant's copyrighted cinematographic film “METRO” by reproducing, content network Distribution or transmitting, communicate or make available or distributing or duplicating or displaying or releasing or showing or uploading or downloading or exhibiting in OTT platform / television broadcast, satellite television / website broadcast in any manner whatsoever in the name of cinematographic film “VALIMAI” or in any other name in any language in the nature of violating / infringing the Applicant's copyrighted cinematographic film “METRO” .

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https://hcservices.ecourts.gov.in/hcservices/

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This Original Application coming on this day before this court for

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hearing in the presence of Mr.AR.L.Sundaresan, Senior Advocate For

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Mr.R.Chandrasudan, Advocates for the Applicants herein and Mr.P.S.Raman, Senior Advocate For M/s. Sanjay Ramaswami, Advocates for the 1^st respondent herein and Mr.Satish Parasaran, Senior Advocate, For M/s. Vijayan Subramanian, Advocate for the 3^rd Respondent herein and and the Judges Summons and the affidavit of Mr.J.Jayakrishnan, filed herein and the Counter Affidavit of 1^st and 3^rd respondent filed herein, and The

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Court made the following order :-

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The producer of the Tamil movie 'METRO' and the director thereof are the applicants. They seek to restrain the co-producers of the Tamil movie 'VALIMAI' and the director thereof from infringing their copyright in the cinematographic film 'METRO' by broadcasting the film 'VALIMAI' on OTT platforms and television, including satellite television.

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According to the applicants, the movie 'VALIMAI' is a substantial

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Paragraph 19 of the plaint, wherein scenes from the two movies are set out to highlight the similarity, is also relied upon. The applicants also rely upon tweets and YouTube posts. In addition, reviews of the movie 'VALIMAI' are referred to.

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On such basis, the applicants assert that a substantial number of social media users and reviewers, who watched both the movies in question, arrived at the conclusion that there is substantial similarity between the movies.

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The applicants contend that an exact copy is not necessary to succeed in an action for copyright infringement and that substantial copying would suffice. The applicants refer to and rely upon the following judgments to establish their case:

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i) R.G.Anand v. M/s.Delux Films and ors (1978) 4 SCC 118

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( paragraphs 19, 24, 25, 26, 27 and 29).

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ii) Shree Venkatesh Films Pvt.Ltd v. Vipul Amrutlal Shah and Ors .

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C.S.No. 219 of 2009, Order dated 01.09.2009 of the Calcutta High Court https://hcservices.ecourts.gov.in/hcservices/

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(paragraphs 8,10 and 11)

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iii) Yash Raj Films Pvt. Ltd v. Sri Sai Ganesh Productions and ors,

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C.S (Comm).No. 1329 of 2016, Order dated 08.07.2019 (paragraph 16).

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iv) Shamoil Ahmad Khan v. Falguni Shah and ors., Commercial IP Suit No. 1193 of 2019, Order dated 26.05.2020 (paragraphs 14 and 18).

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The first respondent refutes the contentions of the applicants on several grounds. The first contention is that that the movie 'METRO' was based on a book by one Mr.Gandhirajan, and that the credit in respect thereof was wilfully omitted while filing the film credits.

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The next contention is that the suit is based on social media posts on twitter. Aside from the twitter handle, even the identity of the person tweeting is not known. Consequently, no credibility can be attached to such tweets.

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The third contention of the first respondent is that there are substantial differences between the two movies. By way of illustration, the first respondent points out that the protagonist of the movie 'METRO' is a

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Journalist, whereas the protagonist of the movie 'VALIMAI' is a police https://hcservices.ecourts.gov.in/hcservices/ officer. The wayward younger brother is reformed by the mother and

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brother in the movie ' VALIMAI', whereas the mother is killed by the younger brother in the movie 'METRO'. In order to substantiate the contention regarding substantial dissimilarity, the first respondent drew reference to paragraph 10 of the counter.

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The fourth contention of the first respondent is that the suit has a hidden agenda, namely, to garner publicity for the movie 'METRO' in view of expiry of the OTT contract with 'Netflix'.

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With regard to balance of convenience, the first respondent points out that about 7 years have elapsed since the movie 'METRO' was released and that the applicants have fully exploited its revenue potential. Besides, it is pointed out that the OTT release of ' Valimai” is scheduled through the second respondent's sister concern on 25.03.2022. In conclusion, the first respondent refers to the review in the English daily, The Hindu, and other reviews whereby the movie 'VALIMAI' was praised lavishly.

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The second respondent refers to paragraph 11 of the counter of the first respondent and points out that the entire plot of the two movies has been set out therein, and that this would establish the substantial https://hcservices.ecourts.gov.in/hcservices/

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dissimilarities between the two movies.

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The first contention of the third respondent is that no prima facie

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case was made out by the applicants. The tweets and posts on YouTube completely lack credibility. Consequently, no materiality or weight should be attached thereto. By adverting to paragraph 12 of the plaint, the third respondent contends that the comparison made therein largely pertains to ideas and concepts over which no copyright exists. Consequently, it is contended that the applicants have failed to even make out a prima facie case of copy right infringement.

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The next contention of the third respondent is that the applicants did not draw any comparison of the scripts and screenplays of the two movies. While the respondents could arguably be accused of lack of creativity with some measure of justification, it certainly cannot be inferred that the movie 'VALIMAI' is a copy, substantial or otherwise, of the movie 'METRO'.

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In support of these contentions, the third respondent referred to and relied upon the following judgments:

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i) Star India Private Limited v. Leo Burnett (India) Private Limited,

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https://hcservices.ecourts.gov.in/hcservices/

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(2003) 2 BCR 655, wherein the Bombay High Court referred to Section 14(d) of the Copyright Act,1957 and held that no interim relief should be granted unless a prima facie case of at least substantial copying is made out.

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ii) A. John Charles v. K.V.Anand and others,O.S.A. No. 232 of 2019, Judgment dated 19.09.2019 (paragraph 8).

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iii) O.A. Nos 917 and 918 of 2011 in C.S.No.756 of 2011 (paragraphs 29, 30 and 31).

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By way of a brief rejoinder, the applicants point out that they cannot be accused of delay in as much as the suit was filed on 08.03.2022 after viewing the movie which was released on 24.02.2022. As regards prima facie case, the applicants contend that it is sufficient if an arguable case is made out and that it is not necessary to make out a cast-iron case. On a demurrer, the applicants submit that even if an interim injunction is refused, the respondent should be called upon to produce accounts. Such request for production of accounts is opposed by the respondents on the ground that commercial information pertaining to the respondents would be https://hcservices.ecourts.gov.in/hcservices/ disclosed in such event to the applicants.

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https://hcservices.ecourts.gov.in/hcservices/

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Thus, in light of the competing contentions, the question that

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arises for consideration is whether the applicants have made out a prima facie case and, if so, whether the applicants are entitled to injunctive relief in the facts and circumstances. The applicants rely on the similarities set out at paragraph 12 of the plaint and on the comparison of allegedly key characters and sequences from the two movies as set out at paragraph 19 thereof.

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In addition, the applicants rely upon tweets and posts on YouTube. On the contrary, the respondents rely upon the substantial dissimilarities, which have been set out in paragraph 10 of the counter of the first respondent. On examining the alleged similarities and dissimilarities, it certainly cannot be concluded even prima facie that the movie 'VALIMAI' is a blatant or egregious copy of the movie 'METRO'. At the same time, at the interlocutory stage, no definitive conclusion should be drawn. It is sufficient to state that the applicants have clearly not made out a strong prima facie case. Therefore, the other cardinal principles of balance of convenience and irreparable hardships assume centre stage.

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The admitted position is that the movie 'METRO' was released in https://hcservices.ecourts.gov.in/hcservices/ the year 2016. The respondents assert that the Netflix contract for OTT

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https://hcservices.ecourts.gov.in/hcservices/

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broadcast of the movie 'METRO' expires shortly. Whether the said assertion

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is true or not, it appears that the producers of the movie 'METRO' have exploited their copyright therein through multiple modes. By such process, prima facie, it appears that the copyright has been substantially monetised. As regards the movie 'VALIMAI', the theatrical release was on 24.02.2022, which is about one month ago. Even from the documents produced by the applicants, it appears prima facie to be a big budget movie which has been at least reasonably successful at the box office. The respondents have also pointed out that the OTT release of the movie is scheduled on 25.03.2022. When all these facts and circumstances are thrown into the mix, there is no doubt that the balance of convenience is not in favour of granting interim injunction. If an order of interim injunction is granted, undoubtedly, great hardship and loss would be caused to the respondents, and this would far outweigh the prejudice to the applicants. However, for the limited purpose of ensuring that separate accounts with regard to the revenue and profits from the movie 'VALIMAI' through the exploitation of OTT and television, including satellite, rights are available, if required, the respondents shall maintain separate accounts in such regard. In case this Court calls upon the respondents to produce such accounts at a later stage of the suit, the respondents shall produce the same.

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https://hcservices.ecourts.gov.in/hcservices/

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O.A.No.138 of 2022 is disposed of on the above terms without

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any order as to costs.

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List the main suit on 12.04.2022.

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WITNESS THE HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI, CHIEF JUSTICE, HIGH COURT AT MADRAS AFORESAID, THIS THE 22ND DAY OF MARCH 2022.

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Sd/ASSISTANT REGISTRAR (Comm.Cases) //Certified to be true copy// Dated at Madras this the day of 2022.

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COURT OFFICER(O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.

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https://hcservices.ecourts.gov.in/hcservices/

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ED 29.03.2022

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O.A.No. 138 of 2022 in

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C.S(Comm Div) No. 46 of 2022

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ORDER

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DATED : 22.03.2022

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THE HON'BLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

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FOR APPROVAL: 31.03.2022

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APPROVED ON : 31.03.2022

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https://hcservices.ecourts.gov.in/hcservices/

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION)

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TUESDAY, THE 22ND DAY OF MARCH 2022

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THE HON'BLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

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O.A.No. 138 of 2022

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C.S(Comm Div)No. 46 of 2022

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Mr J. Jayakrishnan, Proprietor – J K Creations No.19, Vellaiyan Street, Kotturpuram,

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Chennai – 600 085.

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M/s E5 Entertainments India Private Ltd., Represented by its Director Mr. J. Jayakrishnan, No.19, Vellaiyan Street, Kotturpuram, Chennai – 600 085.

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... Applicants / Plaintiffs

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-Vs-

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Bayview Projects Limited Liability Partnership Represented by its Director Mr. Boney Surinder Kapoor Bunglow No.18, Arjun Bunglow, Magnum Towers, Near State Bank of Jaipur, BHD Lokhandwala, Andheri (W), Mumbai – 400 053.

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Zee Entertainment Enterprises Limited 18^th Floor, 'A' wing, Marathon Futurex, NM Joshi Marg, Lower Parel,

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https://hcservices.ecourts.gov.in/hcservices/ Mumbai, Mumbai City – 400 013.

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H. Vinoth, G-Studios, Thirukkottaram, No.12/22, Gilcrist Avenue, Harrington Road, Chethpet, Chennai – 600 031.

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... Respondents / Defendants

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Original Application praying that this Hon'ble Court be pleased to grant an order of ad-interim injunction restraining the Respondents 1 to 3 from infringing the cinematographic film “METRO” by themselves, their partners / proprietor / directors, heirs, representatives, successors in business, assigns, distributors, agents, servants or anyone claiming through them or under them from infringing the Applicant's copyrighted cinematographic film “METRO” by reproducing, content network Distribution or transmitting, communicate or make available or distributing or duplicating or displaying or releasing or showing or uploading or downloading or exhibiting in OTT platform / television broadcast, satellite television / website broadcast in any manner whatsoever in the name of cinematographic film “VALIMAI” or in any other name in any language in the nature of violating / infringing the Applicant's copyrighted cinematographic film “METRO” .

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https://hcservices.ecourts.gov.in/hcservices/

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This Civil Suit coming on this day before this court for hearing, The

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Court made the following order:-

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The producer of the Tamil movie 'METRO' and the director thereof

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are the applicants. They seek to restrain the co-producers of the Tamil movie 'VALIMAI' and the director thereof from infringing their copyright in the cinematographic film 'METRO' by broadcasting the film 'VALIMAI' on OTT platforms and television, including satellite television.

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According to the applicants, the movie 'VALIMAI' is a substantial

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copy of the movie 'METRO'. In order to substantiate this allegation, the applicants rely upon paragraph 12 of the plaint, wherein a comparison has been made between the two movies. Such comparison is made under various headings such as family backdrop, character sketch of younger brother, character sketch of mother, portraits of some villains, etc. Paragraph 19 of the plaint, wherein scenes from the two movies are set out to highlight the similarity, is also relied upon. The applicants also rely upon tweets and YouTube posts. In addition, reviews of the movie 'VALIMAI' are referred to.

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On such basis, the applicants assert that a substantial number of https://hcservices.ecourts.gov.in/hcservices/ social media users and reviewers, who watched both the movies in question,

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movies.

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arrived at the conclusion that there is substantial similarity between the movies.

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The applicants contend that an exact copy is not necessary to succeed in an action for copyright infringement and that substantial copying would suffice. The applicants refer to and rely upon the following judgments to establish their case:

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i) R.G.Anand v. M/s.Delux Films and ors (1978) 4 SCC 118 ( paragraphs 19, 24, 25, 26, 27 and 29).

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ii) Shree Venkatesh Films Pvt.Ltd v. Vipul Amrutlal Shah and Ors .

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C.S.No. 219 of 2009, Order dated 01.09.2009 of the Calcutta High Court (paragraphs 8,10 and 11)

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iii) Yash Raj Films Pvt. Ltd v. Sri Sai Ganesh Productions and ors,

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C.S (Comm).No. 1329 of 2016, Order dated 08.07.2019 (paragraph 16).

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iv) Shamoil Ahmad Khan v. Falguni Shah and ors., Commercial IP Suit No. 1193 of 2019, Order dated 26.05.2020 (paragraphs 14 and 18).

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https://hcservices.ecourts.gov.in/hcservices/

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The first respondent refutes the contentions of the applicants on several grounds. The first contention is that that the movie 'METRO' was

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based on a book by one Mr.Gandhirajan, and that the credit in respect

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thereof was wilfully omitted while filing the film credits.

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The next contention is that the suit is based on social media posts on twitter. Aside from the twitter handle, even the identity of the person tweeting is not known. Consequently, no credibility can be attached to such tweets.

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The third contention of the first respondent is that there are substantial differences between the two movies. By way of illustration, the first respondent points out that the protagonist of the movie 'METRO' is a Journalist, whereas the protagonist of the movie 'VALIMAI' is a police officer. The wayward younger brother is reformed by the mother and brother in the movie ' VALIMAI', whereas the mother is killed by the younger brother in the movie 'METRO'. In order to substantiate the contention regarding substantial dissimilarity, the first respondent drew reference to paragraph 10 of the counter.

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https://hcservices.ecourts.gov.in/hcservices/

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The fourth contention of the first respondent is that the suit has a

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hidden agenda, namely, to garner publicity for the movie 'METRO' in view of expiry of the OTT contract with 'Netflix'.

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With regard to balance of convenience, the first respondent points out that about 7 years have elapsed since the movie 'METRO' was released and that the applicants have fully exploited its revenue potential. Besides, it is pointed out that the OTT release of ' Valimai” is scheduled through the second respondent's sister concern on 25.03.2022. In conclusion, the first respondent refers to the review in the English daily, The Hindu, and other reviews whereby the movie 'VALIMAI' was praised lavishly.

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The second respondent refers to paragraph 11 of the counter of the first respondent and points out that the entire plot of the two movies has been set out therein, and that this would establish the substantial dissimilarities between the two movies.

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The first contention of the third respondent is that no prima facie case was made out by the applicants. The tweets and posts on YouTube completely lack credibility. Consequently, no materiality or weight should https://hcservices.ecourts.gov.in/hcservices/ be attached thereto. By adverting to paragraph 12 of the plaint, the third

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respondent contends that the comparison made therein largely pertains to ideas and concepts over which no copyright exists. Consequently, it is contended that the applicants have failed to even make out a prima facie case of copy right infringement.

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The next contention of the third respondent is that the applicants did not draw any comparison of the scripts and screenplays of the two movies. While the respondents could arguably be accused of lack of creativity with some measure of justification, it certainly cannot be inferred that the movie 'VALIMAI' is a copy, substantial or otherwise, of the movie 'METRO'.

¶152

In support of these contentions, the third respondent referred to and relied upon the following judgments:

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i) Star India Private Limited v. Leo Burnett (India) Private Limited,

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https://hcservices.ecourts.gov.in/hcservices/

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ii) A. John Charles v. K.V.Anand and others,O.S.A. No. 232 of 2019, Judgment dated 19.09.2019 (paragraph 8).

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iii) O.A. Nos 917 and 918 of 2011 in C.S.No.756 of 2011 (paragraphs 29, 30 and 31).

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By way of a brief rejoinder, the applicants point out that they cannot be accused of delay in as much as the suit was filed on 08.03.2022 after viewing the movie which was released on 24.02.2022. As regards prima facie case, the applicants contend that it is sufficient if an arguable case is made out and that it is not necessary to make out a cast-iron case. On a demurrer, the applicants submit that even if an interim injunction is refused, the respondent should be called upon to produce accounts. Such request for production of accounts is opposed by the respondents on the ground that commercial information pertaining to the respondents would be disclosed in such event to the applicants.

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Thus, in light of the competing contentions, the question that

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arises for consideration is whether the applicants have made out a prima https://hcservices.ecourts.gov.in/hcservices/ facie case and, if so, whether the applicants are entitled to injunctive relief

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in the facts and circumstances. The applicants rely on the similarities set out

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at paragraph 12 of the plaint and on the comparison of allegedly key characters and sequences from the two movies as set out at paragraph 19 thereof.

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In addition, the applicants rely upon tweets and posts on YouTube. On the contrary, the respondents rely upon the substantial dissimilarities, which have been set out in paragraph 10 of the counter of the first respondent. On examining the alleged similarities and dissimilarities, it certainly cannot be concluded even prima facie that the movie 'VALIMAI' is a blatant or egregious copy of the movie 'METRO'. At the same time, at the interlocutory stage, no definitive conclusion should be drawn. It is sufficient to state that the applicants have clearly not made out a strong prima facie case. Therefore, the other cardinal principles of balance of convenience and irreparable hardships assume centre stage.

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The admitted position is that the movie 'METRO' was released in the year 2016. The respondents assert that the Netflix contract for OTT broadcast of the movie 'METRO' expires shortly. Whether the said assertion

¶167

is true or not, it appears that the producers of the movie 'METRO' have https://hcservices.ecourts.gov.in/hcservices/ exploited their copyright therein through multiple modes. By such process,

¶168

https://hcservices.ecourts.gov.in/hcservices/

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prima facie, it appears that the copyright has been substantially monetised. As regards the movie 'VALIMAI', the theatrical release was on 24.02.2022, which is about one month ago. Even from the documents produced by the applicants, it appears prima facie to be a big budget movie which has been at least reasonably successful at the box office. The respondents have also pointed out that the OTT release of the movie is scheduled on 25.03.2022. When all these facts and circumstances are thrown into the mix, there is no doubt that the balance of convenience is not in favour of granting interim injunction. If an order of interim injunction is granted, undoubtedly, great hardship and loss would be caused to the respondents, and this would far outweigh the prejudice to the applicants. However, for the limited purpose of ensuring that separate accounts with regard to the revenue and profits from the movie 'VALIMAI' through the exploitation of OTT and television, including satellite, rights are available, if required, the respondents shall maintain separate accounts in such regard. In case this Court calls upon the respondents to produce such accounts at a later stage of the suit, the respondents shall produce the same.

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