C. Cunniah And Co. Vs. Balraj And Co.

C. Cunniah And Co. Vs. Balraj And Co.:Test for copyright infringement is substantial reproduction or a colorable imitation 

Case Title: C. Cunniah And Co. Vs. Balraj And Co.

Date of Order: February 4, 1959

Citation: AIR 1961 MAD 111

Name of Court: Madras High Court

Name of Judge: Hon'ble Justice Ganapatia Pillai

Introduction:

This case is a landmark decision in Indian copyright law concerning artistic works. It deals with the issue of copyright infringement in relation to the pictorial representation of a deity. The case primarily revolves around whether the respondents' picture, "Bala Murugan," was a copy or a colorable imitation of the appellants' picture, "Mayura Priya," in which they claimed copyright. The High Court of Madras analyzed the originality of artistic works, the elements required for copyright protection, and the standard for determining whether a work constitutes an infringement of copyright.

Factual Background:

The appellants, C. Cunniah And Co., were engaged in the business of selling pictures and picture frames in Madras City. In 1932, an artist named T. M. Subramaniam created a picture titled "Mayura Priya," which depicted Lord Balasubramanya. On July 13, 1938, he assigned the copyright of this picture to the appellant firm. The appellants began producing and selling printed copies of the picture from 1940. However, sales were temporarily halted between 1946 and 1950 due to wartime scarcity of printing materials, but resumed in 1950. In 1952, the appellants registered the picture under the Trade Marks Act.

The dispute arose when the appellants discovered that the respondents, Balraj And Co., were selling a similar picture titled "Bala Murugan." The appellants alleged that "Bala Murugan" was a colorable imitation of "Mayura Priya" and issued a legal notice to the respondents to cease production and sale of the picture. The respondents refused to comply, leading the appellants to file a suit seeking an injunction to restrain the respondents from printing and selling "Bala Murugan," damages for copyright infringement, an account of profits, and seizure of unsold copies of the infringing work.

Procedural Background:

The appellants initiated a suit for injunction, damages, and an account of profits on the grounds of copyright infringement. The respondents contended that their picture was an independent creation by an artist named D.W.1 and was not copied from "Mayura Priya." They also argued that the appellants could not claim copyright over "Mayura Priya" because it depicted a commonly known religious subject. During the trial, the appellants dropped their claim of trademark infringement since "Mayura Priya" was not used as a trademark for any class of goods.

The learned Single Judge, Ramaswami J., ruled that while the appellants held copyright in "Mayura Priya," the respondents had not infringed upon it. The suit was dismissed, prompting the appellants to file an appeal before the Division Bench of the Madras High Court.

Issues Involved in the Case:

The main issue before the court was whether the respondents’ picture "Bala Murugan" was a reproduction or colorable imitation of the appellants' picture "Mayura Priya," thereby constituting copyright infringement. Another issue was whether an artistic work depicting a common religious subject could be granted copyright protection.

Submission of Parties:

The appellants argued that their picture "Mayura Priya" was an original artistic work that involved skill and labor in its execution. They asserted that "Bala Murugan" was not an independent creation but a reversed copy of "Mayura Priya," incorporating nearly identical facial features, ornaments, and background elements. The appellants presented expert photographic evidence demonstrating the similarity between the two pictures, contending that the respondents had merely altered minor details to disguise their copying.

The respondents maintained that their picture was an independent work created by an artist based on conventional ideas of Lord Balasubramanya. They highlighted certain differences between the two pictures, such as variations in posture, orientation of the peacock, facial expressions, and background elements. They contended that similarities were inevitable given the common religious theme, and thus, their work did not amount to infringement.

Discussion on Judgments and Citations:

The court referred to several precedents on copyright law. In Hanfsataengl v. W. H. Smith & Sons (1905) 1 Ch. 519, Kekewich J. defined a "copy" as something that comes so close to the original that it suggests the original work to any person viewing it. Applying this test, the court examined the visual resemblance between "Mayura Priya" and "Bala Murugan."

The court also cited Corelli v. Gray (1913) 29 T.L.R. 570, which laid down four hypotheses under which similarities between two works could arise: mere chance, both works being derived from a common source, the plaintiff’s work being copied from the defendant’s, or vice versa. The court found that the only reasonable inference in this case was that the respondents' picture was derived from the appellants' work.

The court relied on Hanfstaengl v. Baines and Co. (1895) A.C. 20, where the House of Lords observed that intelligent copying often involves minor alterations to disguise infringement. The court noted that the respondents had made slight modifications, such as changing the deity’s hand gestures and reversing the image, but these changes were not sufficient to constitute an independent creation.

Reasoning and Analysis of the Judge:

The court found that the respondents’ picture "Bala Murugan" was a substantial reproduction of "Mayura Priya." While acknowledging some differences in details, the court emphasized that copyright law protects the original expression of an idea rather than the idea itself. The most distinctive and prominent elements of "Mayura Priya," including the facial features of the deity, the ornaments, the posture, and the overall composition, had been directly copied in "Bala Murugan."

The court rejected the respondents' argument that a common religious theme precludes copyright protection, clarifying that while the subject matter itself may not be protected, an artist’s original expression of that subject is eligible for copyright. The photographic evidence provided by the appellants demonstrated that "Bala Murugan" was a reversed copy of "Mayura Priya," created by mechanically reproducing significant portions of the original image.

Based on these findings, the court held that "Bala Murugan" constituted a colorable imitation of "Mayura Priya," amounting to copyright infringement.

Final Decision:

The High Court of Madras overturned the decision of the Single Judge and ruled in favor of the appellants. The court granted a permanent injunction restraining the respondents from printing and selling "Bala Murugan." The appellants were also awarded damages of Rs. 500, as agreed upon by both parties, in lieu of an account of profits.

Law Settled in the Case:

Copyright protection extends to artistic works even if they depict common religious subjects, provided that the work is an original expression requiring skill and labor. The test for copyright infringement is whether a work is a substantial reproduction or a colorable imitation of the original. Minor alterations and changes in details do not absolve a work from being an infringing copy if substantial similarities exist. Visual resemblance and overall impression play a crucial role in determining infringement. Copyright law protects the manner in which an idea is expressed rather than the idea itself. An infringing work does not need to be an exact copy; it is sufficient if a substantial part of the original work has been copied.

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Written By: Advocate Ajay Amitabh Suman,IP Adjutor [Patent and Trademark Attorney] ,High Court of Delhi