Leonard Stone, Kt., C.J.
1. These are two appeals from the District Judge of Kaira. The action, which gives rise to them, concerns the copyright in a picture drawn and coloured by the plaintiff in November, 1933, of Shri Ranchhodraiji's Diwali Shringar.
2. In 1935 the plaintiff filed a suit against defendant No. 1 alleging the infringement of the plaintiff's copyright in the said picture by a picture of defendant No. 1. Some confusion has occurred in the Court below, the repercussions of which have followed this appeal, with regard to the numbering of the exhibits, there being in fact two exhibits Not 19. In order to avoid any, further confusion I propose to refer to the plaintiff's picture made in November, 1933, as. the ' 1933 picture,' and the first defendant's picture as the ' 1935 picture,' and to the other picture with which this suit is concerned, as the ' 1939 picture.' The original exhibits will be marked accordingly.
3. The former suit was compromised, and by the consent decree a permanent injunction was granted against defendant No. 1 restraining him, in effect, from infringing the plaintiff's copyright. Thereafter, until 1939, nothing appears to have happened until defendant No. 2 published a large number of lithograph prints of the picture, which I will refer to as the ' 1939 picture,' and which has been sometimes referred to as exhibit 21 and sometimes as exhibit 83. Of this picture it is said, not only that it infringes the plaintiff's copyright in the 1933 picture : but also, that, although it has been put forth in the name of defendant No. 2, as appears from the right-hand bottom corner of the lithograph prints, this device is only a cloak or sham and that in reality1 it is the work and publication of defendant No. 1 ; so that, so far as he is concerned, it is not only a breach of the plaintiff's copyright in the 1933 picture; but is also a violation of the injunction granted by the consent decree in 1935. In that event both defendants would be. liable to have an order made against them for an injunction and consequential relief, and in the case of defendant No. 1, he would also be liable foe the consequence of his breach of the consent decree In the Court below the learned Judge held that the 1939 picture was published irreality by defendant No. 1 in the name of defendant No. 2, and he held that the injunction in the 1935 consent decree was operative against defendant No. 2 Somewhat surprisingly he found in answer to issue No. (5) that the 1939 picture was not a colourable imitation of the 1933 picture and that the 1939 picture could not be passed off for the 1933 picture. This apparent inconsistency appears to have arisen from the fact that the learned Judge considered that the consent decree was complete bar to defendant No. 1 or any one in collusion with him or on his behall publishing any picture of Shri Ranchhodraiji. Although the consent decree isdraw up in the most inartistic terms, it is not capable, in our judgment, of bearing any such wide construction.
4. The plaintiff's 1933 picture is of the idol of Shri Ranchhodraiji of the Dakoi Temple, and the idol is depicted in the dress regalia and ornaments of Diwali. The original of it is before us; it is a painting or coloured drawing and came into existence in this way : I will quote from the plaintiff's evidence given incross-examination which stands uncontroverted:
I have drawn Ranchhodji's picture, without the basis of any photo or picture ofRanchhodji. Sketch, plan and execution of my picture are the result of my imagination. My picture is neither a model drawing, nor an object drawing, but a memory drawing. I drew the said picture from the Ranchhodji's image. I have taken no other basis.
It is not true that the form of the deity is exactly like that of idol, and not drawn from my imagination. The form of the Sinhasan (throne) is not the same as in the temple. A curtain is kept behind the idol in the temple. At the top of the silver throne there is a silver plate representing the sun in the temple. It is not true that an embroidered figure of the sun is there on the back curtain at the top.
And later in his cross-examination he says this :
During the time I was drawing the picture I was daily seeing the idol of Ranchhodji in the temple. V took three or four days to draw. My idea was to make changes in the image. My picture had a good market from 1933 to 1936-37. My picture is not of real Ranchhodji. I registered my picture in the Old Custom House at Bombay, but afterwards I learnt, that there was no necessity for registration. I got the declaration of trade-mark of my picture in the office of the Sub-Registrar of Bombay.
5. Mr. B. G. Thakor in a very full and able argument took the, point that there can be no copyright in a reproduction of the idol itself and its dresses and that the copyright in the idol invested in the regalia of the different festivals, is either in the idol itself or in its committee or trustees. That interesting submission does not fall for derision in this case ; because there is no evidence that the idol or its committee or trustees raised any such claim, and in fact the plaintiff's 1933 picture is protected by a declaration of trade-mark. Further, as appears from the plaintiff's evidence which I have already quoted, the plaintiff's 1933 picture is no slavish copy of the idol adorned in Diwali Shringar, but is rather the plaintiff's conception of an idea inspired by having seen the idol. We do not decide anything with regard to this point which may arise for decision in some other case.
6. In our judgment, the plaintiff's 1933 picture is an original work containing skill and artistic merit; it in no sense has that degree of precision which can be produced by photographic or other mechanical means. We have had the advantage of comparing the 1933 picture with the photograph of the idol enlarged up to the approximate size of the 1933 picture. There is no doubt, when the two are compared, that the plaintiff, as members of his profession are wont to do, has taken a full degree of artistic licence, so that there are numerous points of difference between the 1933 picture and the idol itself as portrayed by the photograph, though admittedly the idol was then adorned for another festival. A striking example of this can be seen in the exposed portions of the idol. In the photograph the idol has no Bhamar (eye-brows) whereas in the 1933 picture long curved Bhamar are shown.
7. In all cases of this nature there is no better way of detecting the piracy in an alleged infringing work than by making a careful examination of it to see whether any of the deviations and mistakes which artistic licence permits in the original have been reproduced into the alleged infringing copy.
8. The second defendant's story is that he employed one Baldevdas to make a painting of the idol from a photograph, which he purchased in the bazaar and gave to Baldevdas and which has been produced in this Court. He says that Baldevdas produced the 1939 picture and that this he sent to Messrs. M. A. Joshi with an order for reproduction of 10,000 lithograph prints of it, many of which he has since sold. Therefore, so far as defendant No. 2 is concerned, the only question is whether the lithograph prints, which he has had made and published infringed the plaintiff's copyright in the 1933 picture. With the photograph, the 1933 picture and Baldevdas' painting, which is the master copy from which the lithograph prints were made, before us a comparison can be made.
9. Although the lithograph reproductions have been reduced in size, when the master copy of the 1939 picture is compared with the 1933 picture, it will be seen that the head and head-dress of the idol are almost precisely similar in every respect and that the one will fit oven the other, so that the indentures of the outline coincide with striking precision. Another significant similarity is that whereas in the photograph-the forehead of the idol is ornamented by an oval jewel, in the 1939 picture as in the 1933' picture there is a Tillak of precisely similar size and proportions on the forehead of the idol. Further the Bhamar (eyebrows) which are in the 1933 picture are also in the 1939 picture : though none appear in the photograph.
10. We entertain not the smallest doubt that Baldevdas or whoever painted the 1939 picture copied substantially from a reproduction of the plaintiff's 1933 picture, to an extent which is an infringement of the plaintiff's copyright. The second defendant is wholly unable to explain these similarities, and, in our judgment, the learned Judge in the Court below was wrong in holding that there was no infringement; though on other grounds he made a decree against the second defendant. But the decree is in the wrong form, and there will be substituted for it the decree which I will presently state.
11. That leaves outstanding the position of defendant No. 2, who is a distant connection by marriage of defendant No. 1, the allegation against him being that he colluded with, or instigated, defendant No. 1 to infringe the plaintiff's copyright, and that this was a device of getting round the injunction in the consent decree of 1935.
12. Mr. Chundrigar has marshalled the facts and evidence against defendant No. 1 as follows : First, that although in Court, he did not go into the witness box; secondly, that defendant No. 2 has neither the capacity nor the money to embark on this venture ; thirdly, that in several respects defendant No. 2's story as to his dealings with the artist Baldevdas and also with Messrs. M. A. Joshi are proved to be false ; and lastly, that there is some evidence that one, and, possibly, two, of the lithograph prints were purchased in defendant No. 1's shop. The learned Judge in the Court below ordered defendant No. 1 to pay the costs of the action on the ground that these facts proved his guilt. Suspicious they, no doubt, are, but the burden of proving that defendant No. 1 colluded, conspired or instigated the breach of the plaintiff's copyright is on the plaintiff. He could have discharged that burden by calling the representative of Messrs, M. A Joshi to show who really financed the venture. In large measure Messrs. M. A. Joshi were in mercy to the plaintiff, since they had printed and reproduced the offending work, and could have been made defendants to this action.
13. In this Court defendant No. 1 has disclaimed all knowledge of and interest in the infringing work, and his counsel offers to give an undertaking not to sell or in any wise deal with the 1939 picture and the reproductions thereof, and he further offers an undertaking to deliver up any offending copies which may have come into his possession.
14. In the result, the order which we make is as follows : The order in the Court below will be set aside, and for it will be substituted the following decree : ' It is ordered that defendant No. 2, his servants and agents, be perpetually restrained from publishing, printing, selling, delivering or otherwise disposing of, or causing or permitting to be published, printed, sold, delivered or otherwise disposed of, any copy or copies of the 1939 picture or any part thereof. And the plaintiff by his counsel disclaiming any intention of publishing the infringing work or the copies thereof, it is ordered that the 1939 picture and all copies, thereof which remain unsold or are in the possession or power of defendant No, 2 be delivered up by defendant No. 2 to the plaintiff. And it is ordered that defendant No. 2 do pay the plaintiff's costs of this action and of these appeals.
15. Defendant No. 1 by his counsel undertaking not to publish, print, sell, deliver or otherwise dispose of, or cause or permit to be published, printed, sold, delivered or otherwise disposed of, any copy or copies of the 1939 picture or any part thereof, and to deliver up to the plaintiff the 1939 picture and all copies thereof which remain unsold or are in the possession or power of defendant No. 1, no order is made against defendant No. 1 as to costs or otherwise.'