The Entertainment industry is increasingly engaging itself in deciding various disputes. The case of Gaurav Dayal v. Rabbi Shergill and Ors. 2009 (39)PTC 205 (Del) (DB) decided an appeal filed by the Music Director of the Motion Picture "Sorry Bhai" to challenge the decision of the Ld. Singe Judge whereby an ex-parte order held that the intellectual property rights of the song Jalte Hain in the movie were likely to suffer.
The Single Judge had heard the two songs in dispute in his chamber, Gaurav Dayal' Jalte Hain and Rabbi' Ballo and declared them similar if not identical. Gaurav Dayal also stated that he was the producer of Rabbi' previous album, Avenge Ja Nahin and hence was familiar with his music.
The grounds raised to challenge the order of the Single judge that the concept of balance of convenience and irreparable harm had not been considered and only a prima facie view of the matter had been taken. He also averred that the music cassettes and the CDs of the film titled Sorry Bhai which included the song Jalte Hain was released in October 2008. It was further averred in the plaint that Rabbi learnt of the similarity of the two songs only one day prior to the institution of the suit and the same in the appeal was stated to be devoid of credence.
Gaurav Dayal submitted that the orchestral arrangement of the
song Jalte Hain was itself based upon the song Aisha, a prior
release and therefore, even if it is assumed that his orchestral
arrangement
was similar, Rabbi was not entitled to an injunction as his musical
arrangement lacked originality. The counsel for Rabbi averred that
Gaurav Dayal was instrumental in the recording of the song Ballo
for Rabbi' album and he along with the other defendants was
directly involved in the infringement of the copyright of the
same.
The Judges presiding over the matter heard the two songs in
conflict. Alongside, on the insistence of Gaurav Dayal, the song
Aisha was also heard and the CD containing the three songs was
taken on record. Upon hearing the three songs in question, the
Court opined that the song Jalte Hain
composed by Gaurav Dayal was not similar in terms of its melodic
structure to Ballo. The Court found was some similarity in the use
of the guitar, which is an electric guitar in so far as the song
Aisha is concerned and an acoustic guitar in the case of Gaurav
Dayal and Rabbi' song. The Court also found difference in the
use of accompliments and claps as far as Rabbi' song Ballo was
concerned.
The Court took the view that the main constituents of the song is the melody and that some similarity in the rhythm of the accompanying acoustic guitar was not sufficient to infer that Gaurav Dayal had plagiarized Rabbi's song. The Court observed that the lyrics of the two songs were different and held the prima facie opinion that the song Jalte Hain was not a reproduction in a material form of Rabbi's song.
The Court also opined that the plaint did not sufficiently
explain as to how, when the CDs and cassettes were released in
October 2008, Rabbi had heard them only on 25th November, 2008, a
day prior
to the filing of the plaint, and two days prior to the release of
the film. The Court cited cases wherein an injunction had been
refused as the plaintiff though aware about the title of the
defendant's movie had approached the court for injunction only
a few days prior to its release.
The Court took notice of the fact that the learned Single Judge while passing the impugned order had prima facie dwelled upon the nature of the case, without going into the balance of convenience, which was evident from the date of the release and the date of the filing of the suit and the irreparable injury which could be redressed by damages. The Court also opined that they had taken a view of the orders that had been passed by the single Judge and that they were treating the present appeal to be a challenge to both the orders at the request of Gaurav Dayal' counsel.
The Court stated that while staying the operation of the learned Single Judge' orders, they directed Gaurav Dayal and his co-defendants in the original suit to maintain full accounts of the movie Sorry Bhai, the sale of the audio and video cassettes and CDs and the revenue generated by the film and that the same be filed in the Court from time to time.
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