Symphony Recording Co., v. Mr.Prasad Guduru

J U D G M E N T The suit has been filed for infringement of copyright in respect of the following sound recordings owned by the plaintiff. Album Label Arasamarathu Vinayaga Symphony Sivam Symphony Suprabhatam Symphony Thiruneer Symphony Solla SollaInikuthaya Symphony Kandha Sashti Kavacham Symphony Thirisulam Symphony Karpooranayagiyemariamma Symphony Om Sakthi Om Symphony Ganapathy Kaaka Symphony Abhishegam Symphony

¶2The plaintiff firm is a music producer and they claim to be the producer of the above mentioned sound recordings. According to the plaintiff, they are the owners of the copyright in respect of the above mentioned sound recordings. According to the plaintiff, the defendants are individuals, who are involved in running two YouTube channels by name "My3music" and "bhakthii". According to the plaintiff, they discovered on 15.05.2014 that the entire contents of the musical albums of the plaintiff referred to supra were uploaded on YouTube.com by the defendants as "juke box videos" on their channels. The plaintiff states that these videos contain a photograph or a still, accompanied by music from the above albums. According to the plaintiff, each video uploaded has either one song from the album or the entire album itself. The plaintiff has disclosed the URLs, in which the plaintiff's musical albums has been illegally uploaded by the defendants in their respective YouTube channels. The details of the URLs, where the plaintiff's copyright has been infringed, are disclosed in the plaint and are reproduced hereunder:- Album Channel URL-Link Owner Arasamarathu Vinayaga Bhakthii h?v=ou5xl.Zdq8_o Symphony Sivam Bhakthii h?v=A9_N8H41res Symphony Suprabhatam Bhakthii h?v=wwNJIXquby Y Symphony Thiruneer Bhakthii h?v=rbwJ6JG718&li Symphony Solla SollaInikutha yya Bhakthii h?v=2nm-69VyNpU Symphony Album Channel URL-Link Owner Kandha Sashti Kavacham Bhakthii ch?v=IjVivijUlSg&listUUQIh 660XHM2YKMFHrw614A Symphony Thirisulam my3 h?v=KS qidrugOg Symphony Karpooranaya giyemariamm a my3 h?v=OuD130vV6Ww Symphony Om Shakti Om my3 h?v=xSKyIF4pti-g Symphony Ganapathy Kaaka my3 h?v=CY0Ng4Jm7 Symphony Abhishegam my3 h?v=ianKDECgyHU Symphony

¶3According to the plaintiff, uploading of the above sound recordings is a clear violation of the copyright of the plaintiff firm. According to them, they alone have the sole right to communicate its works with regard to its musical albums to the public. They have also claimed that they have not assigned the right to upload the albums on YouTube or any other website to any third party. According to the plaintiff, they being a premium member of YouTube, their entire catalogue of sound recordings has been given to YouTube and fingerprinted, and as a result, they claim that if some third party uploads the sound recordings of the plaintiff on YouTube, the plaintiff will get notification of such uploading. Therefore, according to the plaintiff, as soon as the defendants uploaded the sound recordings referred to supra, the plaintiff ought to have been notified of the same. However, they claim that they have not received any such notification. They suspect foul play by the defendants to deliberately ensure that the fingerprinted sound recordings were not automatically picked up by YouTube.

¶4According to the plaintiff, on 15.05.2014, when they discovered the infringing videos, they sent a copyright infringement notification via the form provided by YouTube stating that the above videos infringed the plaintiff's copyright. According to the plaintiff, pursuant to the said notification, YouTube had suspended the videos for a period of 10 days.

¶5According to the plaintiff, the defendants however made a counter-notification dated 23.05.2014 stating that they had exclusive internet rights to these albums and songs. When the plaintiff contacted the defendants through the phone number provided in the counter-notification, they stated that they had derived internet rights to these albums from a third party. However, according to the plaintiff, they did not mention the name of the third party, the antecedents of the third party's claim to the copyright in these sound recordings or the terms under which they got the rights from such third party.

¶6The plaintiff categorically contends that they have not given any rights in the sound recordings contained in any of these albums, much less internet rights, to any person whatsoever. The plaintiff claims that they are the sole owner of all the sound recordings in respect of musical albums, which are the subject matter of the suit.

¶7The plaintiff issued a legal notice dated 26.06.2014 to the defendants in respect of infringement of their copyright over the musical albums referred to supra. In the said legal notice, the plaintiff also requested the defendants to give the details of the person from whom they acquired the rights over the sound recordings owned by the plaintiff. According to the plaintiff, the first defendant did not reply to the legal notice dated 26.06.2014 and only the second defendant sent a reply on

09.07.2014 through his advocate, stating that the plaintiff did not have any copyright to the albums in question, and that the second defendant had procured the rights to these albums from the original owners of the same. Since the defendants continued to infringe the copyright of the plaintiff, the plaintiff has filed this suit.

¶8The defendants have already been set exparte by this Court on

01.12.2023. Though the defendants have been served with suit summons in the year 2015 itself, till date, no application has been filed to set aside the exparte interim injunction granted by this Court on 22.01.2015.

¶9The plaintiff has also recorded its oral and documentary evidence before the Additional Master-IV. A proof affidavit was also field by Mr.Rajesh S.Dhupad, partner of the plaintiff, reiterating the contents of the plaint, and he was examined as PW1. Through PW1, the following documents were marked as exhibits on the side of the plaintiff. Exhibits Nature of documents Ex.P1 11 numbers (series) are the original covers of CDs/Cassettes evidencing the ownership of the albums by the plaintiff Exhibits Nature of documents Ex.P2 Office copy of the legal notices sent by the plaintiff's counsel and the second defendant dated 26.06.2014 Ex.P3 Original reply to legal notices by the second defendant dated

09.07.2014 along with cover Ex.P4 Infringement notices sent by the plaintiff to the defendants via Youtube.com dated 15.05.2014 Ex.P5 Counter-notifications sent by the defendants to the plaintiff dated

23.05.2014

¶10The learned counsel for the plaintiff also drew the attention of this Court to Section 55(2) of the Copyright Act, 1957, and would submit that in case of musical work, as in the present case, if a name purporting to be that of the author appears on copies of the work as published , it is presumed that the name disclosed is that of the author of the copyright. He drew the attention of this Court to Ex.P1, which are the original covers of CDs/Cassettes pertaining to the plaintiff's musical works, wherein the name of the plaintiff is disclosed and therefore, applying Section 55(2) of the Copyright Act, it is presumed that the plaintiff is the author of the copyright for the said musical albums. He would submit that no contra evidence has been produced by the defendants to presume that the plaintiff is not the owner of the copyright. He also drew the attention of this Court to other exhibits marked on the side of the plaintiff and would submit that despite issuing a legal notice calling upon the defendants not to infringe the plaintiff's copyright along with the musical albums, the defendants are continuing to infringe the plaintiff's copyright by broadcasting in their respective YouTube channels illegally the music albums of the plaintiff.

¶11He also drew the attention of this Court to the reply dated

09.07.2014 sent by the second defendant, which has been marked as Ex.P3, and would submit that eventhough the second defendant is disputing the plaintiff's claim, they have sent a vague reply without giving any particulars with regard to the name of the third party from whom the second defendant has acquired the rights.

¶12This Court, after giving due consideration to the contents of the plaint, wherein the plaintiff has revealed its credentials as a producer of the musical albums referred to supra, and after giving due consideration to the covers of CDs/Cassettes evidencing the ownership of the albums by the plaintiff, which has been marked as Ex.P1, which is also supported by Section 55(2) of the Copyright Act as discussed supra, is of the considered view that the plaintiff is the owner of the copyright over the musical albums, which are the subject matter of this suit. The plaintiff has also sent an infringement notice to the defendants via YouTube.com on 15.05.2014 with regard to infringement committed by the defendants, which has been marked as Ex.P4. A similar counter-notification has also been sent by the defendants to the plaintiff on

23.05.2014, which has been marked as Ex.P5. Despite a legal notification dated 26.06.2014 sent by the plaintiff calling upon the defendants to stop infringing the plaintiff's copyright, which has been marked as Ex.P2, the plaintiff contends that the defendants are continuing to infringe the plaintiff's copyright. Though the first defendant has received the legal notice dated 26.06.2014 sent by the plaintiff, the first defendant has chosen not to send any reply, and only the second defendant sent a reply dated 09.07.2014 stating that from a third party, they have acquired rights in respect of musical albums, which are the subject matter of the suit. However, the second defendant has not disclosed the name of the third party, from whom, they have acquired the rights.

¶13Since the defendants have been set exparte and the suit is of the year 2015 and till date no application has also been filed by the defendants to set aside the exparte interim injunction granted by this Court on 22.01.2015, it is presumed that the defendants do not have any contra evidence with regard to the plaintiff's claim. As seen from Section 55(2) of the Copyright Act, 1957, there is a presumption about the ownership of the copyright, if a name purporting to be that of the author appears on copies of the work as published, when there is no contra evidence produced to disprove the same. Section 55(2) of the Copyright Act is reproduced hereunder:- "55. Civil remedies for infringement of copyright.

(2) Where, in the case of a literary, dramatic, musical or artistic work, or, subject to the provisions of sub-section (3) of section 13, a cinematograph film or sound recording, a name purporting to be that of the author, or the publisher, as the case may be, of that work, appears on copies of the work published, or, in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be."

¶14In the instant case, Ex.P1 are the CD covers, which discloses the name of the plaintiff as the author of the copyright in respect of the musical albums referred to supra. Therefore, this Court has to presume that the plaintiff is the owner of the copyright in respect of the musical albums, which are the subject matter of the suit, as no contra evidence is available on record to disprove the claim of the plaintiff.

¶15For the foregoing reasons, the suit claim has been proved and therefore, the suit is partly decreed by granting the following reliefs:-

(a) Permanent injunction is granted by restraining the defendants from uploading on YouTube.com or any other websites the sound recordings belonging to the plaintiff contained in the musical albums referred to supra.

(b) The defendants are directed to remove the albums mentioned in the Schedule to this plaint from YouTube.com or any other webiste where they have uploaded permanently.

(c) It is declared that the plaintiff is the legal owner of the copyright in respect of the musical albums referred to supra.

(d) Insofar as prayer (d), (e) & (f) sought for in the plaint is concerned, the learned counsel for the plaintiff, on instructions, is not pressing the same, and to that effect, he has also made an endorsement in the Court bundle. Therefore, the suit reliefs (d), (e) & (f) are dismissed as not pressed.

(e) However, the defendants are directed to pay the costs of the suit to the plaintiff.

22.02.2024 rkm Index:yes/no Speaking/non-speaking Neural citation: yes/no Plaintiff's witness: Mr.Rajesh S.Dhupad - PW1 Documents exhibited by the Plaintiff: Exhibits Nature of documents Ex.P1 11 numbers (series) are the original covers of Cds/Cassettes evidencing the ownership of the albums by the plaintiff Ex.P2 Office copy of the legal notices sent by the plaintiff's counsel and the second defendant dated 26.06.2014 Ex.P3 Original reply to legal notices by the second defendant dated

09.07.2014 along with cover Ex.P4 Infringement notices sent by the plaintiff to the defendants via Youtube.com dated 15.05.2014 Ex.P5 Counter-notifications sent by the defendants to the plaintiff dated

23.05.2014 AQJ

ABDUL QUDDHOSE, J. rkm

22.02.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2024 CORAM THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE Symphony Recording Co., A partnership firm, 11, Gangappa Street, Saligramam, Chennai-93. Rep. By its Partner Rajesh S.Dhupad .. Plaintiff /versus/ 1.Mr.Prasad Guduru 2.Trinadh Pampana Flat No.303, Sunrise Enclave Balkampet, S.R. Nagar, Hyderabad – 500 016. .. Defendants Prayer: Civil Suit has been filed under Order VII, Rule 1 of the Code of Civil Procedure, 1908 and Order IV Rule 1 of the Original Side Rules read with Section 62 of the Copyright Act, 1957, praying; (a) to grant a permanent injunction restraining the defendants from uploading on youtube.com or any other website, the sound recordings belonging to the plaintiff contained in the albums mentioned in Schedule to the plaint; (b) for a direction to the defendants to remove the albums mentioned in Schedule to this plaint from youtube.com or any other website where they have been uploaded permanently; (c) to declare that the plaintiff is the legal owner of the copyright in the albums "Sivam", "Suprabhatam", "Om Shakti Om", "Ganapathi Kaaka", "Solla Solla Inikuthaiyaa", "Abhishegam", "Kandha Shashti Kavacham", "Thirisoolam", "Arasamarathu Vinayaga", "Karpoora Nayagiye Mariamma" and "Thiruneeru"; (d) to direct the defendants to pay to the plaintiff the entire advertising revenue generated from the illegal upload of the albums mentioned in the schedule to this plaint; (e) to direct the defendants to pay punitive damages to the plaintiff of Rs.10,00,000/- for fraudulently ensuring that the fingerprinted sound recordings of the plaintiff did not get picked up by YouTube resulting in an automatic notification to the plaintiff; (f) to direct the defendant to pay a sum of Rs.20,000/- towards cost of legal notice dated 09.07.2014; and (g) to direct the defendants to pay the costs of the suit to the plaintiff. For Plaintiff : Mr.Rajagopalan for Mr.M.V.Swaroop Defendants set exparte