India Tv Independent News Service Pvt. Ltd. & Ors. Vs. Yashraj Films Pvt. Ltd.
2013 (53) PTC 586 (Del)
There were two suits filed by Yash Raj Films. In one suit, the Defendant used the first line of the lyrics of a hit song ‘Kajra Re Kajra Re Tere Kare Kare Naina’ in an advertisement.
In another suit, during a chat show, Vasundhara Das, a singer, during course of the chat sang nine stanzas, either in full or in part, from her songs during the course of singing, clippings from the cinematographic film concerned were displayed in the background.
The Plaintiff filed a suit and the Single Judge of the Delhi High Court gave it an injunction. The Defendants filed an appeal before the Division Bench. The Division Bench allowed the appeal by applying the ‘Doctrine of De Minimis’.
The Division Bench asked Plaintiff’s counsel that if the maker of the advertisement in first case, would have approached his clients for appropriating half a line from the sound recording and had told the purpose of the advertisement i.e. consumer awareness and consumer education, what would his clients had charged. Counsel stated probably nothing, but if the advertisement was found to be of a commercial value, learned senior counsel said that his clients would have probably charged around 10,000/-.
On the facts of the case the Division Bench observed:
As compared to other areas of law, copyright invites maximum trivial violations. Clicking a picture of a sculpture or the waiters and the waitresses singing ‘Happy Birthday To You’ at a birthday party, are ready examples minor violations of copyright.
One solution to trivial copyright violation is application of legal maxim de minimis non curat lex, often shortened to ‘de minimis’ which means:
(i) The law does not concern itself with trifles; and
(ii) The law does not regard trifles; and
(iii) The law cares not for small things.
Three features of the Copyright Law are largely responsible for applying the ‘Doctrine of De Minimis’:
(i) any type of work that is fixed and contains even a modicum of creativity is copyrightable.
(ii) Copyright attaches to these works automatically without the need for registration.
(iii) Rights of copyright owners are wide.
Therefore, It is not in society’s best interest to adjudicate these copyright disputes because ultimate compensation paid would not justify public expenditure in the adjudicatory process.
The factors commonly considered by Courts in applying de minimis are well listed:
(i) the size and type of the harm
(ii) the cost of adjudication
(iii) the purpose of the violated legal obligation
(iv) the effect on the legal rights of third parties
(v) the intent of the wrongdoer
In the advertisement in first case, size of the harm is use of mere five words. The intent of the defendant is not to steal. The intent is to create the scene of a small kirana shop. The purpose of the allegedly violated legal obligation i.e. infringement of a sound recording is to prevent a wrongful gain to oneself by appropriating the work of the other, and suffice would it be to state that the advertisement being a consumer awareness advertisement would not be of any personal financial gain to the advertiser. In light of the statement of Plaintiff’s counsel, a sum of Rs. 10,000/- be too trivial a sum vis-a-vis the social cost of adjudication. Thus, the infraction is trivial and attracts the defence of de minimis.
In the TV Show in second case, one cannot separate from the life of the performer her performances and if in the natural setting of a chat show she were to sing, as long as the singing duration is limited to a minute or so, it would be a case of de minimis use. However, if major part of the programme is consumed by the performer singing, it may be a different situation. The facts of each chat show, its theme, its setting and the participation by the live audience at the show are all factors which have to be kept in mind. In this case, the intention was to inform the viewers how Vasundhra Das was introduced into music and what milestones she achieved in her life. Thus, unless at the evidence led to the contrary at the trial, prima facie, the defence of de minimis would be available even to Vasundhra Das as also India TV in relation to the programme.
The Appeals were allowed. However, a limited injunction was granted to Plaintiff to the extent that no visual clippings from any cinematographic films would be displayed.