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TMI Blog1959 (2) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... oppage of the sale between 1946 and 1950 owing to scarcity of printing materials due to war conditions. However, the printing and sale were resumed from 1950 onwards. The appellant firm got this picture registered under the Trade Marks Act of 1940 sometime in 1952. Sometime before October 1952, it came to the knowledge of the appellant firm that the respondent firm was printing and selling copies of a close and colourable imitation of the appellants' picture under the style of Bala Murugan. The appellants' case is that the Picture Bala Murugan printed and sold by the respondents is a colourable imitation of the picture Mayura Priya in which the appellant firm owns the copyright. Though called upon to cease the sale of the picture Bala Murugan , the defendants-respondents refused to comply with this demand. The plaintiffs appellants, therefore, came forward with the suit asking for an injunction, prohibiting the respondent firm from printing or selling the picture Bala Murugan and also for a decree for damages in the sum of ₹ 2000 for infringement of the copyright in their picture Mayura Priya and for an account of the profits made by the defendants resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the picture produced is still the result of skill and labour of the artist; and it certainly entitles him to claim copyright in the product of his labour. No more need be said to reject the contention of Mr. K. S. Ramamurthi that the appellant firm, did not possess copyright in the picture Mayura Priya . 6. The more important argument advanced by Mr. K. S. Ramamurthi was that, granting that the artist employed by the respondents bad the picture Mayura Priya before him and drew inspiration from that picture for drawing his own picture Bala Murugan , still, the question would be whether the respondents' picture was a mechanical copy of the appellants' picture, or, whether it was an independent production of the artist, employing his own skill and labour. Before discussing this question, we would briefly notice the statutory provision that touches upon this matter. The provisions of the Indian Copyright Act, 1927, do not apply to this case, and we have to look to the provisions of the Indian Copyright Act, 1914. This Act made the English law of Copyright in Sections 1 and 2 Geo. v. Co. 46 applicable to India with certain modifications. The definition of infringeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icture was on a small scale. As further instances, he pointed out that the peacock in the respondents' picture faces left, while the same bird in the appellants' picture faces right. Again, in the appellants' picture Bala Subrahmanya is shown as having one hand round the neck of the peacock, while in the respondents' picture his right hand is shown in the raised posture blessing the world. The background of the picture was also said to be different, because, in Mayura Priya there is a fort like building in the background, while in Bala Murugan a representation of the Palani temple appears in the background. The rest of the background in both the pictures is identical, consisting of hills, meadows and wild flowers. In our view, nothing turns upon the names of the publishers in the two pictures being different or the names of the pictures themselves being different. Coming to the figure of Bala Murugan, he is said to be slighter in build and his looks are said to he more adolescent, whereas the figure in Mayura Priya is that of a brown-eyed boy stouter in build with chubby cheeks. The result of the comparison is thus expressed by Ramaswami J. : I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the offending picture with slight variations in clothes and colour. This is riot also a case where we can reduce copying from the fact that the offending picture reproduces also the deviation and mistakes of the picture in which the copyright is claimed. With all respect to Ramaswami J. we are unable to agree that, if the picture of the respondents, Bala Murugan, was produced as a result of an independent effort by the artist, D. W. 1, there would be such striking similarity between the two pictures, especially in the facial lineaments of the boy-God and in the ornaments worn by him and in the features of the peacock and also in the particular manner in which a bunch of hair is curled on the forehead of the face. D. W. 1, the artist said to be responsible for drawing the respondents' picture, was questioned in cross-examination upon many points of resemblance, a few of which we will notice below. He was shown the representation of the common elements in all pictures of Balasubramanya, namely, the trident, the peacock, the cobra and the adolescent figure of the God in six other pictures exhibited in the case, and was asked to state whether these representations were si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rks being taken from a common source, (3) the plaintiff's work being taken from the defendant's and! (4) the defendant's work being taken from the plaintiff's. It is well settled that an infringement could only come into existence where the defendant's work was taken from the plaintiffs work. In deciding this question, there need not be an exact reproduction to support the inference that the defendant's work was taken from the plaintiffs work. Indeed, every intelligent copying must introduce a few changes; and we find evidence of such intelligent copying in the few changes introduced in the shape of the trident, in the posture of the arms, in the position occupied by the face of the peacock and the cobra and in the pictorial representation of the building in the background. These do not constitute, in our opinion, the criteria of an independent work by the artist employed by the respondents. 10. It is impossible to lay down any rule which could serve as a useful test of what constitutes a copy or colourable limitation. As was observed by the House of Lords in Hanfstaengl v. Baines and Co., 1895 A. C. 20, At all events, it is much easier to arrive at w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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