Kesari Maratha Trust – Appellants v. Devidas Tukaram Bagul – Decided on 6.05.1998

Kesari Maratha Trust – Appellants v. Devidas Tukaram Bagul – Respondent

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History

Cross Reference: 1999 IPRL 71 (Bombay High Court)

A. B. Palkar, J.

NLS 1999 CR/Bom.

First Appeal No. 377 of 1982, 6th May 1988.

ORAL JUDGMENT

  1. This appeal is against a decree passed by Extra Joint Judge, Pune on 31st January 1981 in Civil Suit No. 6 of 1976. By the impugned decree, the learned trial Judge has awarded nominal damages of one rupee as claimed by the plaintiff with further directions to the defendants to give possession of the block-plate, negative and other materials, used for reproduction of the photograph, if available to the plaintiff, and the defendants, their agents and servants have been further restrained permanently from reproducing the plaintiff’s artistic work which is a photograph of one well known poet in Marathi literature, namely Shri Suresh Bhat. The plaintiff is the well-known writer in the field of Marathi literature. He is also a photographer, which art appears to have been developed by him as a hobby. The poet Shri. Suresh Bhat has published some of his poems in a book titled “Rang Maza Vegala” (Marathi).

 2. Defendant No. 1 is a public trust known as “Kesari Mahratta Sanstha”, having its registered office at Pune of which defendant No. 2 who is, at present, Speaker of the Legislative Council, is the editor, printer and publisher. The defendant trust publishes a daily newspaper know as “Kesari”.

  1. The plaintiff had taken a photograph of Shri Suresh Bhat in an artistic manner and the same was published on the cover of the book of “Rang Maza Vegala” with specific mention below the photograph that the “photograph is taken by the plaintiff’. It is an admitted fact that in 1976 certain poets and writers in Marathi literature were awarded prizes for their different works and in the issue of “Kesari” dated 19.2.­1976 alongwith other writers and poets the photograph of Shri Suresh Bhat appeared and this photograph was for all practical purposes a copy of the photograph taken by the plaintiff. The defendant did not ask for any permission of the plaintiff before publishing the photograph. The plaintiff claims that he holds a “copyright” in the said photograph, which was published by the defendants. Thus there is an infringement of plaintiff’s copyright.
  1. The plaintiff, therefore, visited the office of the then Chief News Editor Shri Chandrakant Ghorpade. However, his claim that he is the holder of “copyright” in the said photograph was not accepted. So the plaintiff issued a notice dated 13.3.1976 requesting the defendants to rectify the aforesaid act by tendering an apology in the newspaper for violating the copyright. This request was turned down by the defendants by reply, dated 18.3.1976. The defendants denied that plaintiff had any copyright in the said photograph. By his letter, dated 17.4.1976, the plaintiff had reiterated his claim but to no purpose and he is, therefore, compelled to file the present suit.
  1. Contesting the suit the defendants contended by their written statement that, no doubt, in the issue of Kesari dated 19.2.1976 the photograph of Shri Suresh Bhat was published. However, it was pub­lished as it was a current event and was a news item as Shri Suresh Bhat was one of the prize winners of Marathi literature awarded by the Government. The defendants published the news alongwith the photo­graph. The plaintiff has no copyright in the said photograph and even otherwise the defendants are not liable for infringement of the copy‑right of the plaintiff because they were not aware and had no reliable grounds even to suspect that the copyright of the plaintiff subsists in the said photograph. The act, even otherwise, does not constitute any infringement of copyright as it was a fair dealing with the plaintiffs work for the purpose of reporting the current event in the newspaper, and as such the plaintiffs action is ill‑founded.
  1. After framing necessary issues, the learned trial Judge recorded the evidence of the plaintiff and on behalf of the defendants one Eknath Umakant, the Assistant Editor of “Kesari” was, examined. After hearing the arguments the learned trial Judge came to the conclusion that the plaintiff did have a copyright in the said photograph, which was in­fringed by the defendants, and as such he passed the impugned decree.
  1. In his evidence the plaintiff, who is a well‑known writer and was also working as a sub‑editor of the well‑known weekly publication “Sadhana” and had worked as a Professor at Fergusson College, Pune, has stated that he studied the poems of Shri Suresh Bhat and was impressed, and therefore, he took the photograph of poet Shri Suresh Mat in 1976 as his study had helped him to understand the personal­ity of Shri Suresh Bhat and with this background he tried to show high‑lights, intensity of light, direction of light and vision and has pro­duced artistic effects in the said photograph by showing a peculiar background with focus in particular manner. The entire face is not shown in the photograph after taking into account the personality of the poet and not his anatomy (figure). With the literary background of the plaintiff, it is not possible to differ from this statement of plaintiff that having been influenced by the poems of the poet, he developed interest and therefore, he has taken the photograph in a peculiar manner. After it was photographed, one publisher known as “Mauj Prakashan” sought his permis­sion to publish the same on the book of ‘Rang Maza Vegala’, which is a collection of the poems of Shri Suresh Bhat. One other editor of “Satya Katha” magazine by name Shri Ram Patwardhan also made similar re­quest and the plaintiff had consented for publication of the photograph. He also requested to pay minimum royalty of Rs. 25/‑. However, the newspaper “Kesari” did not seek his permission before publishing the said photograph. Since he is the author of the said photograph he holds a copyright in the said photograph and has claimed the aforesaid relief in this suit for infringement of the same right. The plaintiffs claim of nominal damage of Rupee one shows that he is interested in vindication of his right and not in any monetary gain. In his cross examination it has come to light that mentioning his name below the photograph was sufficient notice to the public at large regarding his copyright although some times the letter “C” is printed in a circle on the photograph to show copyright, such a letter is not printed on the photograph in dis­pute. Although he does not have any degree or diploma in the art of photography, he has developed this art and even a look at the said photograph of Shri Suresh Bhat would reveal that he has developed the art due to specific background of interest and involvement in Marathi literature. He does not dispute that the said photograph was published by defendants in order to report current events in the field of Marathi literature
  2. Defendant’s witness Eknath Umakant, the Assistant Editor stated that according to their information the plaintiff does not hold any copyright and he never informed them about it. He further admitted that on the photograph, printed on cover‑jacket of the book of poems mentioned earlier, it is written, “photograph Devidas Bagul”, What is material is that he admitted that it is their practice to obtain prior permission from all the copyright holders before publishing any work and they were not aware about the plaintiffs holding any copyright. He has admitted the correspondence and stated that after plaintiff asserted his copyright they made inquiry with Shri Suresh Bhat. It is nobody’s case that Shri Suresh Bhat is holding any copyright, and the statement of the witness that they made inquiry with Shri Suresh Bhat as to whether a copyright has been given to the plaintiff, has no meaning in law as it does not depend upon him. In any case, when the photograph was taken, he has given it and never objected for its publication on cover jacket of collection of his poems. He also admitted that from the writing below the photograph he had become aware that it was taken by the plaintiff. He also admitted that while publishing the photograph in their edition they never put symbol “C” in a circle to show that copyright exists. He ultimately admitted that the plaintiff had requested them that they should publish in their newspaper that the said photo­graph was taken by the plaintiff. However it was never published. Though there is a practice of publishing correct name of an author, or poet or writer in case his name is misprinted or not printed, they do no follow the procedure in case of photograph.
  3. This is the position of the evidence on record. It is clear that admittedly, the photograph was taken by the plaintiff with consent of Shri Suresh Bhat. It was published on the cover jacket of the aforesaid book and the defendants have copied from the cover jacket. Although they were aware that it was taken by the plaintiff they did not make any inquiry and when plaintiff approached them, they refused to ac­knowledge the fact that it was taken by the plaintiff.
  4. This being a suit not for any monetary consideration but for as­serting a legal right, at the stage of appeal an offer was given to the defendants to publish, even today that on such‑and‑such‑a‑day the photo­graph of Shri Suresh Bhat was published and that it was a photograph taken by plaintiff. The defendants were adamant and informed the court that they want to know what is their right because it is a constant problem for them and so the matter could not be settled.
  5. It is, therefore, necessary to see the legal position, which in my opinion has been rightly pointed out by the learned trial Judge. The Copy Right Act 1957 Section 2 which is an interpretation clause shows that artistic work as per clause (c) means; a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality. And as per clause (d) sub clause (iv) the author in case of photograph means the person taking the photograph. In case a copy­right exists, it subsists for a period of about 40 years. As per Section 17 the author of the work is the first owner of the copyright therein.
  6. It was not disputed before me that the copyright need not be compulsorily registered.
  7. As per section 55 civil remedies for infringement of copyright are claiming damages and injunction. The Proviso to the Section states that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction. This is a case in which the appearance of the plaintiffs name below the photograph was a sufficient notice to the de­fendants. As per law the plaintiff is admittedly, the author of the copyright in the photograph. Even in his reply sent in respect to a query by defendants Shri Suresh Bhat has stated that he is not aware as to what is the legal position. He has not given a right to the plaintiff. Plaintiff did not expect any monetary gain but recognition of the copy­right through publication in the newspaper so that no other person thereafter would commit such infringement of his copyright.
  8. One more fact to be noted is that the plaintiff is a man of lit­erature. He has neither means, nor energy to fight litigation with the defendants which is an established trust publishing prestigious newspa­pers, periodicals etc. Therefore, the plaintiff did not want to take the matter further and gave an offer which defendants are not ready to accept even today. The damages are claimed just to vindicate the plaintiff’s right. Same could have been refused had the defendants proved that there was no reason for them to have any knowledge that the photograph was taken by the plaintiff. The ignorance of legal aspect of the matter by the defendants that copyright did exist and it belonged to the author of the photograph is no excuse for them to infringe the copyright.
  1. All these aspects of the matter have been rightly considered by the learned trial Judge. He has also referred to aforesaid different pro­visions of law. The learned trial Judge has also discussed the aspect of absence of symbol (c) in a circle as it is not the requirement of the Indian Copyright Act and if it is the requirement of similar law in other countries, we need not consider the arguments in that respect at all. In fact, in this case, after the publication, the defendants were fully made aware by the plaintiff of his copyright. The defendants did not bother even to take legal advice and even to know what is the legal position. The defendants were not and are not ready to give the plain­tiff due credit by acknowledging the fact that he is the author of the photograph. I am, therefore, clearly of the view that the learned trial Judge has taken the correct view of the matter and there is no reason to interfere with the decree. The part of the decree regarding damages has already been executed as was informed by the learned counsel for the appellants. There being no substances in the appeal, if must fail, Appeal is dismissed with costs.

 

Cross Reference: 1999 IPRL 71 (Bombay High Court)

 

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