NIRMA UNIVERSITY

INSTITUTE OF TECHNOLOGY
DEPARTMENT OF MATHEMATICS AND
HUMANITIES
PROGRAMME: B. TECH – CSE SEM - V
ASSIGNEMENT SUBMISSION OF CASE
ANALYSIS
FOR THE SUBJECT: LAW FOR ENGINEERS
(SS562)

CASE NAME: Kajal Agarwal vs VVD sons

SUBMITTED BY

Daxesh Parmar(17bce073)

Bhavya Patel(17bce074)

Hiren Patel(17bce076)

Purvil Patel(17bce086)
 BRIEF ESSENCE OF THE CASE (500 words)

The appellant-actress is a well-known actress in South India. In early

stages of her career, she entered into a promotion / advertising agreement
with the respondent whereby it absolutely was contended that the
parties restricted the term of copyright protection over
the advertisement (which is a cinematograph film) to a amount of
1 year. In different words, it absolutely was contended that, as per the
agreement, the respondent will use the advertisement material just
for a amount of 1 year from 29/12/2008 to 28/12/2009.

The appellant issued a legal notice dated 12/09/2011 and referred to

as upon the respondent to
instantly refrain from using the packaging materials. it absolutely
was contended that, in spite of the receipt of notice, the
respondent continuing to use the advertisement materials. The
appellant filed the suit seeking for the relief of compensation and for
a final injunction thus on restrain the respondent
from using the packaging materials.

This appeal on the original side (Original side appeal No.269 of 2017),

was filed underneath Order cardinal Rule one of the O.S.
Rules browse with Clause fifteen of the legal instrument against the
judgment and decree dated 03.07.2017 delivered in C.S.No.635 of 2011.
The dispute was repose alia touching on the extent of copyright
protection over the subject-matter cinematograph film.

The respondent contended that the appellant, who had already received

the remuneration for her performance, didn't enjoy subsisting
rights within the photography beat up that the respondent holds the
copyright. Citing the precise clause within
the agreement that given copyright to the respondent over the
cinematograph film, it absolutely was contended that the appellant can't
be allowed to show around and deny the statutory rights of the
respondent.

So, this case helped film personality to get knowledge regarding the
advertisement disputes and how to make a agreement for it.
 FACTS AND ISSUES

1. Provision to Section-17 of the Copyright Act

“17. First owner of copyright: - Subject to the provisions of this Act, the author
of a work shall be the first owner of the copyright therein: Provided that—

(a) within the case of a literary, dramatic or creative work created by

the author within the course of his employment by the businessman of a
newspaper, magazine or similar periodical below a contract of service
or berth, for the aim of publication in a very newspaper, magazine or
similar periodical, the aforesaid businessman shall, within the absence
of any agreement to the contrary, be the primary owner of the
copyright within the add to this point because the copyright relates to
the publication of the add any newspaper, magazine or similar periodical,
or to the replica of the work for the aim of its
being thus revealed, however altogether different respects the author
shall be the primary owner of the copyright within the work;
(b) subject to the provisions of clause (a), within the case of a photograph
taken, or a painting or portrait drawn, or AN engraving or a
cinematograph film created, for valuable thought at the instance of any
individual, such person shall, within the absence of any agreement to the
contrary, be the primary owner of the copyright therein;
(c) within the case of a piece created within the course of the author’s
employment below a contract of service or berth, to that clause (a) or
clause (b) doesn't apply, the leader shall, within the absence of any
agreement to the contrary, be the primary owner of the copyright .In
order to use the precondition in (b) against the respondent,
there should be AN agreement to the contrary to the result that the
parties themselves in agreement that the producer won't have the
copyright in spite of manufacturing the cinematograph film. within
the instant case, this precondition won't be applicable since the
appellant in agreement that the respondent can get pleasure
from copyright over cinematograph film and also the entire packaging.
Further, precondition in (c) can come back be
applicable solely wherever the author makes a piece within the course
of his employment below a contract of service. within the instant case,
the respondent took the initiative and wasn't below any
employment below a contract of service. Therefore,
the precondition isn't applicable.
In short, the copyright of the respondent isn't curtailed
by precondition (b) or (c) to Section seventeen of the Act. The
respondent was, therefore, control to be the primary owner of the
copyright of the cinematograph film and also the packaging made by
them.

2. Section-26 of the Copyright Act

In this,
The respondent was given with a statutory right for
a amount of 60 years over the cinematograph film. This statutory
right can't be withdrawn by a performer within the cinematograph film
by virtue of an agreement. The Court control that “Clause 9 within
the agreement ought to be appointed the which means that as
between the appellant and also the respondent, the correct to
provide the cinematograph film and alternative substance can continue
for a amount of 1 year and also the same Clause doesn't curtail the
copyright of the respondent.” so, there's no restriction or prohibition
upon the appellant from endorsing or acting within
the advertizement film of alternative producers who deal
with similar product.

3. Section-38 A (2)

In this,
“(2) Once a performer has, by legal instrument, consented to the
incorporation of his performance during a cinematograph film he shall
not, within the absence of any contract to the contrary, object to the
enjoyment by the producer of the film of the performer’s right within
the same film:
Provided that, yet something contained during this sub-section,
the performer shall be entitled for royalties just in case of
constructing of the performances for industrial use.”
Once a entertainer by a legal instrument consents to include that
performance during a cinematograph film,
the performer thenceforth cannot object to the producer’s right within
the cinematograph film, unless there's a contract to the contrary. within
the gift case the appellant having consented to include her performance
as an actor within the cinematograph film made by the
respondent who is that the author of it, the appellant cannot stop the
respondent from enjoying their producer’s right. there's no contract to the
contrary in this case and even the agreement
dated 29.12.2008 doesn't contain any Clause preventing the respondent
from exercising his absolute right because the producer of the
cinematograph film.
For the explanations above, the court dismissed the OSA. However, the
judgment and decree within the suit won't sub the manner of the
appellant to severally sweat her title for royalties by virtue
of condition to sub Section-(2) of Section-38-A of the Copyright Act, 1957.

JUDGMENT AND ANALYSIS

The judgement is as follow” It was held that the respondent is the producer of
the cinematograph film and therefore, will fall within the definition of” author”
and consequently will also fall within the definition of” producer”. Further,
since what was produced by the respondent is a cinematograph film, it will
also come within the purview of the definition of” work”.
It is an admitted fact that the appellant, by virtue of Clause 4 of the
agreement, had acknowledged that the copyright rests with the respondent.
By virtue of this condition, the respondent who is the author of the “work”,
shall be the first owner of the copyright. As the first owner of the copyright,
the respondent will have the exclusive right to communicate the
cinematograph film to the public by virtue of Section-14 (I) (d) (iii).

Once the respondent becomes the first owner of the copyright, the right shall
subsist for a period of 60 years as provided under Section-26 of the
Copyright Act.

Social impact:
This judgment will impact most celebrity endorsement contracts in so far as
commercial advertisement videos are concerned. By operation of Sec-17 of
the Copyright Act, copyright vests in the Producer, which is usually the
endorsee company (which might have engaged an ad agency for the purpose)
and under Sec.-14 read with Sec.-26, the producer is free to exhibit it to the
public for a term of 60 years. The statutory term would prevail over any term
fixed by the contract. I was delighted to argue this case in the High Court.
Unfortunately, often at the stage of preparation of contracts, this legal
implication is lost on the authors of the contract. That’s why boiler-plate
contracts are a bad idea when high-stakes are involved. An SLP has been filed
before the Supreme Court by Kajal Agarwal and is due to come up shortly.

As to summarise, it was held that Section-26 of the Copyright Act, which

provides for the term of copyright protection, is non-derogable. Section-26 of
the Copyright Act is couched in mandatory terms. If the Court is to be
persuaded to adopt a dynamic or liberal interpretation, sufficient intrinsic and
extrinsic materials must be provided. In this context, I guess, jurisprudential
arguments might have been helpful. One among the justifications of IPR is
utilitarian justification. An IP right comes at a certain cost to the society. If
the parties themselves decide to limit the term of copyright protection, it
means lesser cost to the society. If parties can exercise discretion by giving
due regard to the costs and benefits of the arrangement, it may help the
society to preclude incurring unwanted cost. In other words, it can be argued
that if parties decide to limit the term of copyright protection, it is in the best
interests of the society. Going by this logic, interpreting Section 26 as a
derogable provision, makes logical sense.

Even though the Court held in favour of the respondent’s term of copyright
protection, the net result of this judgment may not be favourable for the
respondent. As the actress can enter into agreements with competitors of
respondents, who may be armed with legally acceptable puffing, the earlier
advertisement of the respondent may not serve the desired purpose.
Therefore, generally speaking, in the light of this judgment, the focus in
promotion / advertising agreements, may shift to (legally acceptable) restraint
of trade.