Case3: Sholay Media & Entertainment Pvt. Ltd. & Anr.

Vs Vodafone
Essar Mobile Service Ltd & Ors.
Literature review:
Section 18 of the Copyright Act, 1957, which has not been amended at any point of time, to
the extent it is relevant, provides that the owner of the copyright in the work may assign,
the copyright to any person, either wholly or partially and either generally or subject to
limitations and either for the whole of the copyright or any part thereof.
It further provides that where the assignee of a copyright becomes entitled to any rights
comprised in any copyright, he becomes the owner of the copyright so assigned and in
respect of the rights which are not assigned, the assignor is treated as the owner of the
copyright.
Related cases referred to:
Raj Audio Vision vs. K. Mohana Krishnan & Ors. AIR 1998 Mad 294
Herber L. Cohen dba Bizzare Music Co. vs.Paramount Pictures Corp. 845 F.2d 851,
Warber Bros. Pictures vs. Coumbia Boradcasting Systems Inc. 216 F.2d 945
Advocates who appeared in this case:
For the Plaintiff: Mr. Sudhir Chandra, Sr. Adv. with Mr. Jagdish Sagar and Mr. Rahul
Ajatshatru.
For the Defendant: Mr. Rajiv Nayyar, Sr. Adv. with Ms. Prathiba M. Singh and Mr. Sudeep
Chatterjee for D-1 & 2.Mr. Sandeep Sethi, Sr. Adv. with Mr. Akshay Ringe for D-3 & 4.

Sr. No.

Basis

Defining
problem:

Content
the Case Details:
The film Sholay was produced by Sippy Films, a
proprietorship concern of plaintiff No.2. Vide Gift
Deed dated 14th September, 2000, all rights in the
film Sholay were assigned/transferred by plaintiff

No.2 to plaintiff No.1 and it is alleged in the plaint

that plaintiff No.1 has been exploiting those rights
across various verticals such as satellite broadcast,
pay television, internet rights etc. Defendant Nos. 1
and 2 are cellular service provider, which are also
offering various value added services such as
ringtones, true tunes, caller tunes internet radio
etc. to their subscribers. Vide deed of assignment
dated 7th August, 1978, the predecessor of the
plaintiff granted certain rights in the film Sholay to
Polydor of India (now rights acquired by M/s
Universal Music India Pvt. Ltd.). The case of the
plaintiff is that the assignment extended only to (i)
the right to make records for sale and distribution
and (ii) the right to communicate the soundrecordings by way of radio broadcast, and the
remaining rights were reserved by the predecessor
of the plaintiffs and they have continued to exploit
those remaining rights. It is alleged that defendant
Nos. 1 and 2 i.e. Vodafone Essar Mobile Services
Ltd.

and

Vodafone

Essar

Ltd.

have

been

commercially exploiting the copyright work of the

film Sholay on mobile and digital platforms without
obtaining any license. The following terms of the
Assignment Deed, in view, indicate that the rights
to use the sound-recording of the film Sholay on
digital and/or mobile platform continued to vest in
the assignor:(a) The assignor, after assigning rights limited to
making or authorizing the making of records, to
make any other record embodying the same

recording, to cause the recording embodied in the

record to be heard in public and to communicate
the same by radio diffusion, has reserved the
residual rights to himself. The learned counsel for
the defendants contended that the residual rights
envisaged in this Clause mean the remaining rights
in the film Sholay and not the remaining rights in
the sound-recording.
(b) The contention of the learned counsel for the
plaintiffs is that the general expression any other
device in Clause 1(b)(ii) of the Assignment Deed
has to be read ejusdem generis with the words disc
and tapes and if this is done, it would mean only a
physical device and not a digital device.There were
plenty of these to and fro allegations placed on
each of the four defendant parties and the plaintiff
party.
According to SHOLAY MEDIA AND ENTERTAINMENT
PVT. LTD, the rights given were only to use it as a
record but the defendant parties claim that there
are certain statements in the copyright act that
clearly state that all the rights had been
transferred. The allegation is about the fact that
ringtones and caller-tunes are being subscribed to
users of the music of sholay by the telecomm
companies, which becomes digital media whereas
the plaintiff claim that rights were issued only for
the physical components, discs, cds, etc. as a
record. further research has also shown that Sholay
M&E has received royalties before for digitally
supplied music created, and that time there was no

such allegations charged or placed .

2

Related

concepts Copyrights and related rights in case of media and

applicable

for

case:

the other entertainment works are listed as follows:

A literary work:- it includes computer

programmes,

tables,

compilations

and

computer databases.

A dramatic work:- it includes any piece of

recitation,

choreographic

work

or

entertainment in dumb show, the scenic

arrangement or acting,whose form is fixed
in writing or otherwise.

A musical work:- it includes works of music,

any graphical notation of such work but
does not include any words or action
intended to be sung, spoken or performed
with the music.

An artistic work:- it means a painting, a

sculpture,a

drawing

(including

diagram,map,chart or plan),an engraving or

a photograph, whether or not they possess
artistic quality. It also includes a work of
architecture and any other work of artistic
craftsmanship.

A cinematographic film:- it means any work

of

visual

recording

on

any

medium

produced through a process from which a

moving image may be produced by any
means.

A sound recording:- it means recording of

sounds

from

which

sounds

may

be

produced regardless of the medium by

which sounds are produced.

'Related rights' are the rights of performers such as
actors, singers and musicians; producers of
phonograms and broadcasting organisations.

http://business.gov.in/manage_business/rights.php

Qualitative

and The case deals with the infringement of copyrights,

Quantitative data:

the Assignment Deed provides for payment of

specified royalty to the assigner. The amount of

royalty is 10% of the net selling price, which goes
up to 15% if the sale touches 1 million units. As and
when the sale reaches 1 million, an additional
royalty of 10%, making an aggregate of 20% is
payable for every unit sold in excess of 1 million
units.
The documents filed by the parties show that vide
letter dated 21st September 2010 Universal Music
India Pvt. Ltd. sent a royalty statement from the
period 1 st October 2011 to 30th March 2010 to
Sippy Films and along with a cheque of
Rs.20,16,535/- towards royalty due, as per the
statement. The statement pertains to royalty of
physical as well as digital and other media.
4

Alternative

action/

Recommendations:

I personally feel that both the parties, i.e

the plaintiff (Sholay Media & Entertainment
Pvt. Ltd) and the defendants- Vodafone
Essar mobile Services Pvt. Ltd, Vodafone
Essar Ltd and Universal Music Pvt Ltd
brought strong cases to the Delhi High
Court. This basically resulted from an
inconclusive amendment in the Copyrights
Act. According to the plaintiff, only the
rights for the record purpose of preserving
the copies on physical components such as
cassettes, cds, tapes etc were transferred
to the defendant company and the residual
rights were held back with Sholay M & E.
but now the defendant companies are
earning high revenues by making caller

tunes, ringtones, etc out of the original

content. That is where the conflict had
risen.

The

confusion

was

because

of

the

amendment. In the amendment, the words

physical component was mentioned. That is
exactly why the usage of the content in
form of ring tones and caller tunes were
termed as digital components and was
hence opposed by the plaintiff. But the
defendants defended rightly saying that the
according

to

the

act,

all

rights

of

reproducing music were transferred in their

name and hence they could use all the
privilege of using their name, content etc.
but the major stand out happened to be the
physical, digital issue.

The judge had to make an important call as

to how to settle the differences and make
the proper call to strike a balance between
both the parties because both had really
strong grounds on either of their ends and a
proper and fair verdict was to be delivered
by him. I think the verdict that was finally
passed was a just and a fair one as interests
of both the parties were catered to.