CS(OS) 1670/2006 Page 1 of 5 *IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS)1670/2006 % Date of decision: 21.04.2009 PLAYBOY ENTERPRISES ….… Plaintiff INTERNATIONAL INC. Through: Mr. Pravin Anand and Mr Dhruv Anand, Advocates Versus MR CHAITANYA PRABHU & ORS ....... Defendants Through: Ex parte CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported No in the Digest? RAJIV SAHAI ENDLAW, J. 1. The plaintiff being the publisher of the PLAYBOY MAGAZINE has instituted the present suit against the defendants involved in publishing, selling and marketing of the DEBONAIR MAGAZINE for the relief of permanent injunction restraining the defendants from reproducing, printing, publishing, selling and offering for sale in any manner photographs or any other works or publications carrying photographs or any other works of which the plaintiff is the copyright owner. The plaintiff has further averred that some other photographs/materials, in which even though the plaintiff may not have the copyright but which are published in the magazine aforesaid of the plaintiff, are also reproduced by the defendants in their magazine. The plaintiff has also claimed the relief of CS(OS) 1670/2006 Page 2 of 5 permanent injunction in that regard. The ancillary reliefs of rendition of accounts, delivery etc have also been claimed. 2. Vide ex parte order dated 5th July, 2000 the defendants were restrained from reproducing, printing, publishing, selling, offering for sale or distributing photographs or any other work of which the plaintiff has the copyright. 3. The defendants appeared and contested the suit by filing the written statement. The defendants at the outset stated that the plaintiff has no right to institute the suit with respect to the photographs in which the plaintiff itself admits it does not have the copyright. The defendants have otherwise contended that they have published the photographs in their magazines supplied to them by different photographers for valuable consideration. It is denied that the photographs published in the magazine of the defendants are the photographs in which the plaintiff has the copyright or that the defendants have in any way violated any rights of the plaintiff. The defendants have otherwise generally denied the contents of the plaint. 4. On the pleadings of the parties issues were struck on 10th September, 2007 as to whether the plaintiff had the copyright in pictures subject matter of the suit and as to whether the defendants had infringed the copyright of the plaintiff and as to the entitlement of the plaintiff to rendition of accounts etc. However, it is not deemed expedient to record the issues verbatim since the defendants have since stopped appearing and have been proceeded against ex parte. On 10th September, 2008, the ex parte order was confirmed to the extent of restraining the defendants from reproducing, printing CS(OS) 1670/2006 Page 3 of 5 and publishing and offering for sale the photographs which are the subject matter of the suit. 5. The plaintiff has in the plaint in paras 10 and 15 thereof given particulars of the photographs in which the plaintiff has copyright and which have been reproduced/published by the defendants in their magazine. The defendants have also given particulars of the magazines of the defendants in which the photographs in which the plaintiff has copyright have been published. The defendants in their written statement in paras 10 and 15 generally denied the contents of the corresponding paras of the plaint. Significantly, the defendants have neither pleaded that the plaintiff does not have the copyright in the photographs particulars of which are given in the said paragraphs of the plaint nor given the source of the photographs published by them and which are alleged by the plaintiff to be infringing the copyright of the plaintiff. The defendants have again harped upon the averments of the plaintiff in the plaint in relation to other photographs in which the plaintiff does not claim copyright. The plaintiff has alongwith the plaint also filed the photographs appearing in its magazine and the photographs appearing in the magazine of the defendants and which establish the identity of the two. 6. As aforesaid, the defendants stopped appearing and were today ordered to be proceeded against ex parte. The counsel for the plaintiff has confined the relief in the present suit to a decree for permanent injunction with respect to the photographs / material in which the plaintiff has copyright. CS(OS) 1670/2006 Page 4 of 5 7. The suit has inter alia been filed with respect to the photographs found infringing its copyright by the plaintiff and published by the defendants till the date of institution of the suit. A question which arises is whether the decree for permanent injunction should be confined to those photographs only, as has been done in the interim order or to all photographs in which the plaintiff may have a copyright. It would be travesty of justice to confine the relief in the present suit to the photographs particulars whereof are given in the plaint itself. Such a decree for permanent injunction would be futile inasmuch as the defendants having already published the photographs in their magazine are unlikely to publish them again. The plaintiff cannot be expected to institute successive suits for permanent injunction as and when it acquires copyright in future/further photographs. The defendants also have no claim or right or authority to publish the photographs in which the plaintiff has a copyright. The plea of the defendants that the defendants acquired the photographs published by them from different photographers and for consideration is no plea in law. Even if the defendants have acquired for consideration the photographs in which the plaintiff has a copyright, does not entitle the defendants to infringe the copyright of the plaintiff. The defendants before paying consideration to the photographers ought to satisfy themselves of the rights of the persons selling the photographs to the defendants. If the defendants are lax in doing so, they ought to suffer for the same and cannot be heard to say that they have not infringed the copyright directly owing to the existence of an intermediary. The plaint is verified and accompanied by affidavits in accordance with law. Since the defendants have been proceeded ex parte, need was not felt to direct the plaintiff to file affidavits by way of examination in chief. The position in law being undisputed in the written CS(OS) 1670/2006 Page 5 of 5 statement of the defendants also that the defendants are not entitled to publish the photographs and other materials in which the plaintiff has copyright, a decree for permanent injunction in terms of prayer paragraph (a) is accordingly passed in favour of the plaintiff and against the defendants. The parties, however, as conceded by the counsel for the plaintiff are left to bear their own costs. The decree sheet be drawn up. RAJIV SAHAI ENDLAW (JUDGE) April 21, 2009 M