SAREGAMA AGREES TO PULL DOWN PHOTOGRAPHS & STOP USING NAME OF MANNA DEY ON COVER OF ITS CDs IN A CASE FILED BEFORE SUPREME COURT[READ ORDER]

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In an SLP filed by daughter of Shri Mannay Dey, Saregama India Limited agreed to remove and not make any further use of the photographs and the name of late Shri Manna Dey on the cover of the subject CDs. The Court further directed that Civil Suit being O.S. No.6676 of 2017 pending before the City Civil Judge at Bangalore shall be decided as expeditiously as possible preferably not later than one year after the next date of hearing [Read order here].

The SLP was filed by Shumita Deb challenging the judgement passed by Karnataka High Court wherein the High Court had dismissed her plea seeking injunction against Saregama on grounds of copyright infringement by the label in the works of her father which form part of a Cover Version CD titled “Hyoto Tomari Jonno” which Saregama released as a tribute to Shri Manna Dey.

It is not clear as to why the issue before the Supreme Court was limited to use of photograph and name of Manna Dey as the reliefs which were sought by Shumita Deb in the appeal filed in the Karnataka High Court were a lot wider.

Update: As per the update provided by the law firm representing the Appellants here,

the Hon’ble Supreme Court passed the order in view of the prohibition present in the proviso to sub-section (2) of Section 31C of the Copyright Act, 1957, which stipulates that a Cover Version shall not be sold with any packaging, cover or label which is likely to mislead the public and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work. 

The Respondents tried to argue that since there were concurrent findings of fact by two lower Courts, the Hon’ble Supreme Court should not interfere with the exercise of discretion under appeal, in line with the judgement of Wander v Antox. The Hon’ble Supreme Court was not impressed by this argument since the orders of the Karnataka High Court and City Civil Court had not properly dealt with a mandatory legal provision.

In fact, the Hon’ble Bench was keen to admit the appeal and stay the operation of the Karnataka High Court order. However, upon the Respondents undertaking that they would remove the photograph and name of late Shri Manna Dey from the Cover Version, the Hon’ble Supreme Court was pleased to finally dispose of the appeal and direct the expeditious disposal of the lawsuit within a year.”

The Supreme Court order mentions that the special leave petitions are dismissed and any pending interlocutory orders are disposed of.

The original suit was filed before Additional City Civil Judge in Bengaluru who had dismissed the applications filed by Shumita Deb. Aggrieved by the orders passed by the City Civil Judge she had appealed in the High Court seeking permanent injunction to restrain Saregama from manufacturing, circulating, distributing, disseminating or selling by way of remixes, adaptations, cover versions or any other manner, infringing or violating copyrights over the compositions and songs of late Manna Dey.

The High Court had dismissed the appeal filed by Shumita Deb for the following reasons:

  • With respect to the 14 songs in which the Appellant had alleged infringement of copyright by the respondents, only 2 songs were composed by Manna Dey and in the remaining 12 songs he was only a singer. With respect to the 2 songs in which he was an author, he had assigned rights in favour of Saregama. The Court declined the Appellant’s argument that the assignment agreements were only performance agreements for a particular period and not agreements showing assignment of his rights by Manna Dey.
  • In reference to the argument of the appellants that the respondents had violated provisions of Section 31C of the Copyright Act which requires license or consent of the owner of the right in the work to make a cover version and such person should give prior notice of his intention to the owner of rights in respect of copies to be made by him at the rate fixed by the Appellate Board, the Court had observed that since the Appellant is not the owner of copyright, she cannot make use of this section.
  • The Appellant was claiming her rights on the basis of a power of attorney said to have executed by her father when he was alive. The court was of the view that she cannot act on the power of attorney after the death of his father and that her plaint does not show the existence of statutory right in her favour.

The Karnataka High Court had thus denied grant of temporary injunction in the appeal filed by her and held that the trial court had come to the right conclusion that a case for grant of temporary injunction does not exist. And that the reasons given by trial court cannot be disturbed even though it is possible to take other view by upholding Plaintiff’s case and accordingly dismissed the appeal.

In the matter before the Supreme Court, reports state that when the counsel appearing  for Saregama told the bench that the CD is a tribute to Manna Dey, Justice Bobde asked, “Just now tell us, will you take off Manna Dey’s photo?”  Responding to the query, the counsel said, “We will take off the photo of Manna Dey in the interim.”  However, Deb’s counsel said the music label cannot even use the name of Manna Dey on the CD cover of the album. When the bench said it would issue notice on the plea and grant stay on the high court’s order, the counsel appearing for the music label said they will remove his name also from the CD cover. The bench noted in its order that counsel appearing for the Respondents states that  the respondents will remove and not make any further use of the photograph and the name of late Manna Dey on the cover of the subject CDs”.

“This shall be without prejudice to their rights. We, therefore, do not consider it appropriate to entertain these special leave petitions,” the bench said.

The issue involves larger questions than what seem to reflect in the Supreme Court order. From a copyright infringement claim, the matter before the Supreme Court seemed to be focussed on Section 31 C of the Copyright Act which deals with statutory license for cover versions.

Section 31(C)(2) of the Copyright Act provides:

(2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Appellate Board in this behalf:

Provided that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this section.”

It appears that the Supreme Court’s decision in the matter was limited to removal of name and image of Manna Dey as a result of this proviso requiring the performer of the earlier sound recording’s name/ depiction not to be shown in the cover version. The Court does not seem to have delved upon the issue of the Appellant not being entitled to any claim under Section 31C as Manna Dey was not the owner of the works and further Section 31C being applicable in relation to third parties wanting to make a cover version and not the owner itself. In the instant case, Saregama being the owner of the sound recording rights was exercising its rights under Section 14 of the Copyright Act.

It would be interesting to see the outcome of the case before the trial court.

(Detailed post to follow on this issue if further information is received)

Image source: here