1.These two appeals arise out of the acquittal of the respondents in two cirminal cases, which were filed by the appellant under Section 63 of the Copyright Act (hereinafter referred to as the Act), for infringement of certain copyrights which he had in a picture of Tiruvalluvar.
2. The complaint of the appellant was as below: He had drawn a picture of Saint Tiruvalluvar, from his own imagination on the basis of his intensive study of Thirukkural for over thirty years. He had registered this picture under the Copyright Act. He had also published in the papers that he had the copyright of the portrait of Thiruvalluvar as published in the several dailies. Sangu Ganesan. the respondent in C. A 913 of 1969 who is the proprietor of Srimagal Company, had printed pictures of Thiruvalluvar and used it for the calenders. He had fixed the price of thousand calendars at Rs. 1330. These pictures were similar to the picture the appellant had drawn and registered. Khanna and Ashok (father and son) who figured as respondents 1 and 2 in C. A.914 of 1969, are dealers in pictures and calendars at No. 111 Devaraja Mudali St. Madras. The first respondent approached the appellant and suggested to him the desirability of printing small size pictures of Thiruvalluvar. The appellant told him that he had no power to alter either the size or the price as fixed by the Govt. He did not give any permission to him or to any one to print any picture of Thiruvalluvar as suggested by him. While so. both the respondents printed and published pictures of Thiruvalluvar, to be used for calendars. They had left some space lower down in these pictures, for the printing of calendar proper. The pictures thus printed and published were exactly like the picture which the appellant had drawn and registered and in which he had a copyright. With these allegations, he filed two complaints separately one against (1) Sangu Ganesan and (2) another against the respondents in C. A. 914 of 1969, under Section 63 of the Act, When questioned, Sangu Ganesan denied the infringement of the copyright attributed to him. The first respondent in C. A. 914 of 1969 stated that he had nothing to do with the case. The second respondent, his son. added that he had purchased these pictures from certain dealers at Sivakasi. On a comparison of the pictures said to have been drawn by the appellant with the other pictures complained of by him. the learned Magistrate arrived at the conclusion that they were neither identical nor similar. With this finding, he acquitted all the respondents. These acquittals are now challenged by the appellant in these two appeals.
3. Under Section 63 of the Copyright Act, 1957, any person who knowingly infringes or abets the infringement of (a) the copyright in a work, or (b) any other right conferred by this Act, shall be punishable with imprisonment which may extend to one year, or with fine, or with both. Sub-section (1) of Section 1.4 states:
For the purposes of this Act, 'copyright' means the exclusive right, by virtue of, and subject to the provisions of, this Act:
(a) ... (b) in the case of an artistic work, to do or otherwise the doing of any of the following acts, namely:
(i) to reproduce the work in any material form:
(ii) to publish the work:
(iii) to include the work in any cinematograph film:
(iv) to make any adaptation of the work:
(v) to do in relation to an adaptation of the work any of the acts specified in relation to the work in Clauses (i) to (iii); ...
'Artistic work' as defined in Clause (c) of Section 2 means, (i) a painting, a sculpture, a drawing including a diagram, map, chart or plan as engraying or a photograph, whether or not any such work possesses artistic quality, (ii) an architectural work of art; and (iii) any other work of artistic craftsmanship. Section 51 of the Act deals with the infringement of copyright. Sub-clause (i) of Clause (a) of Section 51 of the Act states that when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act, does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, he commits an infringement of the copyright which that person has. Under Clause (b)_, when any person (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright or (iii) by way of trade exhibits in public, or (iv) imports except for the private and domestic use of the importer into India, any infringing copies of the work, he commits an infringement of the copyright. Sangu Ganesan, according to the appellant, had printed and was selling, in different forms, coloured imitations of the portrait of Thiruvalluvar drawn by the appellant. The respondents in C. A. No. 914 of 1969 had sold some pictures of Thiruvalluvar exactly resembling the picture in which the appellant had the copyright.
4. Under Section 14 (1)(b)(i), for the infringement of a copyright, there should be a reproduction of an artistic work in a material tangible form. The Indian Copyright Act (Act III of 1914) referred to colourable imitation of the original work. In the new Act, we do not have these words. The question, therefore, solely depends upon the interpretation of the expression 'reproduction in material form' used in Section 14 (1) of the Act. The word 'reproduction' is a word of ordinary popular usage. The Shorter Oxford English Dictionary refers to the progressive evolution of its meaning thus: 'The action of process of bringing again before the mind in the same form; the action or process of repeating in a copy; a copy or a counter-part; a copy of a picture or other work of art by means of engraving or some other process; a representation in some form or by some means of the essential features of a thing'. 'Reproduction for the purposes of infringement of a copyright' means reproduction of the work itself or a substantial part of it. What is essential is to see whether there is a reproduction of a substantial part of the picture. There can be no test to decide what a substantial part of a picture is. Lord Herschel LC in Hanfstaengl v. Baines and Co., 1895 AC 20 observes
It depends really on the effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it or at least of its design.
As pointed out in Cunniah and Co. v. Balraj and Co., : (1960)1MLJ53 : : AIR1961Mad111
One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction.
There might be and there will be obvious differences deliberately introduced to avoid a possible charge of infringement. If the court, on a comparison of the appellant's picture with the infringing picture comes to the conclusion that the latter picture was consciously copied from the work of the former, that will be sufficient to hold that the copyright is infringed. As observed by Lord Atkinson in Emerson v. Davies, 1848-3 Story U. S. Rep. 768, the true question is whether the same plan, arrangement and combination of materials have been used before for the same purpose or for any other purpose. The matter is put effectively by Copinger in his Law of Copyright, at page 148, thus :
For example, assume two cases in which advertising posters resemble the plaintiff's original and that, in the one case in which the resemblance is less close, it is provided aliunde that the defendant's artist had the plaintiff's work in front of him and slavishly imitated certain specific features of the design, but in the other, though the general appearance is closer the artist is able to establish that, though he made use of the plaintiff's basic idea, his execution was quite independent, it is submitted that the former and not the latter would be an infringement.
5. Kekewich, J. in Hanfsataengl v. W. H. Smith and Sons, 1905-1 Ch 519, defines the copy thus:
A copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it.
Applying this test, the degree of resemblance between the two pictures, which is to be judged by the eye. must be such that the person looking at the respondents' pictures must get the suggestion that it is the appellant's picture. In this sense, the points of resemblance and dissimilarity in the picture assume some importance in finding out whether taken as a whole the respondents' pictures produce the impression in the mind of any observer, which amounts to a suggestion of the appellant's picture. One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction. As pointed out in Associated Publishers (Madras) Ltd. v. K. Bashyam : AIR1961Mad114
In order to constitute infringement there should be direct or indirect use of those features of the plaintiff in which copyright subsists. It is unusual for an infringement to consist of an exact reproduction of the whole of the plaintiff's work. Consequently it is difficult to be precise as to the amount of copying or degree of resemblance necessary to constitute infringement. The conclusion must depend, in the words of Lord Her-schell 'really on the effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it or at least of its design.
Thus, it is well-settled that an infringement could only come into existence where the impugned picture was taken from the picture of the complainant. In deciding this question, there need not be an exact reproduction to support the inference that the picture of the respondents was taken from the complainant's picture. Indeed, every intelligent copying must introduce a few changes. Shortly stated, the effect which produces upon the mind by a study of the two pictures should be to the end that the respondents' picture is nothing but a copy of the picture of the complainant.
6. The peculiar features in the picture drawn by the appellant, as stated by him, are (1) Thalaimudi (design); (2) Thadi (shape and density;)(3) pattern of using the upper cloth (Angavastram) (4) the holding of the palmyrah leaves (Chuvadi) (5) the holding of the instrument for writing (Ezhuthani); (6) the portion of the right toe; (7) the Peed-dam, and (8) the facial expression. The appellant as P. W, 1 has sworn that in the infringing copies of the pictures, the pattern of the Thalaimudi. the position of the upper cloth, the holding of the cudjan leaves and the handling of the Ezhuthani, are similar, Ex. P-l is the picture in respect of which copyright is claimed. There can be no doubt that this work is an artistic work coming within the definition in Clause (c) of Section 2 of the Act, Exs. P.5 and P.6 are the impugned pictures in C. A, 913 of 1969 and Ex. P.4 is the infringing picture in C. A. 914 of 1969. There is striking similarity between the two pictures, especially in the facial expression, the piercing look, the method of wearing the Angavasthram and the holding of the Ezhuthani. The general impression left in my mind on looking at all the pictures is that the infringing pictures reproduce in substantial part the special features of the picture Ex. P.I in respect of which the appellant claims a copyright. As I have already pointed out, in every intelligent copy there must be a few changes and there are such changes in Exs. P.5, P.6 and P.4, and that too. not in the picture proper, but in the background and in the Peedam.
7. It was next contended that in view of Clause (t) of Section 52 (1) of the Act, which states that the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under Sub-clause (iii) of Clause (c) of Section 2, if such work is permanently situate in a public place or any premises to which the public has access, will not constitute an infringement of copyright. The statue of Thiruvalluvar is installed in the public road opposite to the Sanskrit College in Mylapore. This the appellant admits. The contention advanced by the respondents proceeds on a misapprehension. We have for example statues installed permanently in public squares or streets. We have in. the Marina at Madras a statue known as Triumph of Labour' by the sculptor Roy Choudhury. It is an artistic work installed permanently in a place where the public have access. The artist or the person to whom he transferred the sculpture cannot claim that photographs of the sculpture or painting of it will constitute an infringement of his copyright. We have the instance of the original painting of Mona Lisa by Leonarde da Vinci installed in the Louvre Museum at Paris. It is open to any member of the public with the permission of the Museum authorities to make a reproduction of this painting and publish it. It is to exempt such cases from the scope of infringement of copyright that Section 52 (1) is enacted. But. what happened in this case is that the artist or the owner while keeping the original painting in his own custody has for commercial purposes printed a large number of copies of it and sold them to the public and probably has also given some free copies to temples for installation. That will not tantamount to his installing his original work in a public place on the analogy of a sculpture kept in a public square, or a Dainting hung up in a portrait gallery. Therefore, this objection appears to us to be groundless vide: The Daily Calendar Supplying Bureau, Sivakasi v. United Concern : AIR1967Mad381 , 383. Thus, in both the cases, there is an infringement of the copyright of the photograph Ex. P.I. The respondents have committed an offence punishable under Section 63 of the Copyright Act and they are accordingly convicted.
8. Each of the accused in these cases is sentenced to pay a fine of Rs. 100, in default to suffer simple imprisonment for two months. Time for payment of fine, one month. Out of the fines, if collected. Rupees 75 shall be paid to the appellant in C. A. No. 913 of 1969 and Rs. 150 shall be paid to the appellant in C. A. No. 914 of 1969.
9. The appeals are allowed.