USTAD FAIYAZ WASIFUDDIN DAGAR vs MR. A.R. RAHMAN & ORS.

2025-04-25 Information

$~J1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 6th February, 2025
Date of decision: 25th April, 2025
+ CS(COMM) 773/2023 and I.A.21148/2023
USTAD FAIYAZ WASIFUDDIN DAGAR ….. Plaintiff
Through: Mr. Neel Mason, Mr. Arjun Harkauli, Mr. Aditya Mathur, Mr. Vihan Dang and Mr. Ujjawal Bhargava, Advocates.
versus
MR. A.R. RAHMAN & ORS. ….. Defendants
Through: Mr. Amit Sibal, Senior Advocate, Mr. Kaushik Moitra, Ms. Vaishnavi Rao, Mr. Anurag Tandon, Ms. Arunima Nair, Ms. Subhalaxmi Sen, Ms. Shailza Agarwal, Mr. Abhishek Grover, Advs with Mr. Sai Shravanam for D-1 (M: 9899193616).
Mr. PS Raman, Sr. Adv., Mr. Sidharth Chopra, Ms. Sneha Jain, Mr. Vivek Ayyagari & Mr. Kuber Mahajan, Advs for D-2 (M:9958393111)
Mr. Saikrishna Rajagopal, Mr. Sidharth Chopra, Ms. Sneha Jain, Mr. Vivek Ayyagari & Mr. Vivek Ayyagari, Advs. for D-2 & 3.
Mr. Harsh Kaushik, Ms. Anushree Rauta, Mr. Shwetank Tripathi, Mr. Harsh Prakash, Mr. Deepank Singhal & Ms. Anchal Raghuwanshi, Advs. for D4. (M: 9782830038).
Mr. Mohit Bangwal, Adv.
Mr. Kunal Gupta, Adv.
Mr. Rahul Dhote, Adv.
Mr. Akshat Agrawal & Mr. Amaan Shreyas, Advs. for Intervenor
Mr. Anukool Chawla, Mr. Ankit Kothari, Ms. Abhiti Vachher (D-5 & 6)
CORAM:
JUSTICE PRATHIBA M. SINGH

JUDGMENT

Prathiba M. Singh, J.
Index
A. Factual Background 4
B. Proceedings before the Court 10
C. Submissions of the parties 16
Submissions on behalf of the Plaintiff 16
Submissions on behalf of the Defendant No. 1 20
Submissions on behalf of Defendant No. 2 26
Submissions on behalf of Defendant No. 3 28
Submissions on behalf of Defendant No. 4 31
Submissions on behalf of the Defendant Nos. 5 & 6 32
Submission on behalf of the intervenor 33
Rejoinder and sur-rejoinder submissions on behalf of the parties 34
D. Analysis and Findings 38
Issue I: Whether the suit composition is an original musical work of the Junior Dagar Brothers? 39
(A) Musical works and struggle with Indian Classical Music 39
(B) Whether the suit composition is an original musical work entitled to copyright protection? 49
(C) Whether the Junior Dagar Brothers are authors of suit composition? 67
Issue II: Whether the impugned song Veera Raja Veera infringes copyright of the Plaintiff in the suit composition Shiva Stuti? 80
Issue III: Whether the Plaintiff is entitled to any relief ? 108
E. Conclusion: 114
ANNEXURE-A 116
ANNEXURE-B 117

Shiva Stuti – The Suit composition1

Shiva Shiva Shiva
shankar aadidev
shambhu bholanaath
yogi mahaadev,
mahaabali shiv, aadi ant shiv
purannsakalkaaj har har mahaadev

Translation:
Shiva Shiva Shiva, God of Gods
Shambu Bholanath, the Great Yogi, Great Lord.
He has great power, he is the beginning and the end
He helps to complete all work, Har Har The Great Lord

The dhrupad composition which follows is a paean to one of the great gods of the Hindu pantheon, Lord Shiva. The text includes many of his epithets – Shankar the Beneficent, Aadidev, the First God, Shambu, the Benevolent, Bholanaath, the Innocent Lord, Yogi the Great Yogi, Mahaadev, the Great Lord, Har, the Destroyer. Images of Shiva generally depict him either as a Yogi deeply absorbed in meditation, or as Nataraja, Lord of the Dance, performing the tandav, a divine dance symbolising the eternal cosmic cycle of creation and destruction. In some forms it is a dance of joy; in others it is wild and frenzied, its every movement animated by a terrible destructive fury. In this performance it is the latter, wilder aspect of Shivas nature that is being evoked. The composition is, like its Bhimpalasi predecessor, in two parts (sthayi and antara), though set now to sultaal, a ten-beat rhythmic cycle which divides into five equal groups (i.e. 2 + 2 + 2 + 2 + 2). It is rendered at an extremely quick tempo, with each cycle only lasting just over two seconds. The composition starts on the first beat of the taal, with each section covering four cycles. In the sthayi, notice the distinctive syncopation which occurs towards the end of each cycle, giving the melody its special lilt.

1. The Plaintiff – Ustad Faiyaz Wasifuddin Dagar has filed this suit seeking, inter alia, permanent and mandatory injunction for recognition of the copyright in the above extracted musical composition Shiva Stuti (hereinafter the suit composition / Shiva Stuti). The Plaintiff also seeks to restrain Defendant Nos. 1 to 4 from utilizing the suit composition as part of sound recording of the song Veera Raja Veera (hereinafter the impugned song / Veera Raja Veera) without obtaining authorisation from Plaintiff and without attribution of moral rights of the original authors / composers of the suit composition.
2. The Plaintiff has also preferred I.A. 21148/2023 under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908 seeking, inter alia, appropriate directions to the Defendants to give credit to the original authors / composers of the suit composition, namely Late Ustad N. Faiyazuddin Dagar and Late Ustad Zahiruddin Dagar during every playout of the impugned song across all modes and mediums including digital, internet, Over-The-Top platforms, satellite, cable television etc. By way of the present judgement the Court shall dispose off the said application.

A. Factual Background

3. The Plaintiff – Ustad Faiyaz Wasifuddin Dagar, is the son of Late Ustad N. Faiyazuddin Dagar and nephew of Late Ustad N. Zahiruddin Dagar. The Plaintiffs uncle and father sang as a duo (jugalbandi) in their family tradition of Hindustani classical music, known as the Dagarvani style/ Gharana. The Plaintiffs uncle and father were popularly known as the Junior Dagar Brothers.
4. It is stated that the Plaintiffs ancestors have been Dhrupad vocalists for nearly 20 generations and have developed the Dagarvani Gharana within the traditional structure of Dhrupad genre of Hindustani classical music. The Plaintiff himself is an accomplished Dhrupad vocalist of the Dagarvani Gharana, and he was awarded the Padma Shri in the year 2010 in recognition of his contributions to Hindustani classical music.
5. The Defendant No. 1 Mr. A.R. Rahman is a renowned music director and composer whose works have been celebrated across the world. The Defendant No. 1 is the music director of the film Ponniyin Selvan 2 (hereinafter PS 2 / the film) in which the impugned song Veera Raja Veera is featured. The Defendant No. 2 Madras Talkies and Defendant No. 3 Lyca Productions Private Limited are the co-producers of the film. Mr. Mani Ratnam who is the co-owner of Defendant No. 2 is also the director of the film. Defendant No. 4 Tips Industries Limited is the holder of the rights over the audio and audio-visual songs utilised in the film. Defendant No. 5 Shivam Bharadwaj and Defendant No. 6 Arman Ali Dehlvi have been credited as the singers of the impugned song. It is not disputed that the Defendant No. 5 and Defendant No. 6 were long standing disciples of the Plaintiff.
6. It is the case of the Plaintiff that the suit composition was written and composed by the Junior Dagar Brothers sometime in 1970s and thus, the suit composition is a work of joint authorship. The Junior Dagar Brothers are stated to be the first copyright holders in the suit composition.
7. It is undisputed that the suit composition has been composed in Raga Adana in Sultaal (10 beat cycle) within the Dagarvani tradition of Dhrupad. The suit composition Shiva Stuti – along with its lyrics has been composed as a tribute to Lord Shiva, evoking various attributes and forms of the said God.
8. It is stated that the Junior Dagar Brothers had performed the suit composition, along with several other compositions, at the Royal Tropical Institute in Amsterdam on 22nd June, 1978. The said institute had recorded the said performance, which was later published and made available as a musical album titled Shiva Mahadeva by the Dagar Brothers, by an international music company PAN Records.
9. The Plaintiffs father and uncle passed away in the year 1989 and 1994, respectively. Thereafter, it is stated that the legal heirs of the Junior Dagar Brothers had entered into an oral family settlement agreement, whereby, the copyright in the suit composition and all original compositions of Junior Dagar Brothers stood transferred to the Plaintiff.
10. It is also stated that after the death of the Plaintiffs father, the Plaintiff had performed the suit composition with his uncle on various occasions. The Plaintiff alleges that various compositions (Bandish), including the suit composition, are used by him to train his students/disciples.
11. The facts leading up to the filing of present suit are that allegedly Defendant No. 5 and Defendant No. 6 had shared the suit composition with the Defendant No. 1 for being utilized as a music composition for the film PS 2, without the permission or authorisation of the Plaintiff. The sound recording of the impugned song was released on 28th March, 2023 on audio streaming platforms. Thereafter, on 8th April, 2023 the audio-visual recording of the impugned song was released on an online platform YouTube. It is interesting that in the said audio-visual recording, the Defendants have credited the impugned song as a Composition based on a Dagarvani Tradition Dhrupad.

12. It is stated by the Plaintiff that the initial communication to the public of the audio-visual version of the impugned song by the Defendants did not cite/ specify the suit composition as part of the song credits. It is alleged that the mention of Dagarvani tradition as an inspiration has been a result of the correspondence that thereafter happened between the parties.
13. On 13th April, 2023, the Plaintiff, after learning of the alleged unlawful utilisation of the suit composition by the Defendants, wrote a letter to Defendant No.1 and Mr. Mani Ratnam, regarding alleged infringement of moral rights of the Junior Dagar Brothers and copyright of the Plaintiff over the suit composition. The Plaintiff also suggested resolving the dispute with mutual consent of the parties since the impugned song had already been released. It is alleged that Defendant No.1 had assured the Plaintiff via phone call on 14th April, 2023 that moral rights of the Junior Dagar Brothers shall be duly acknowledged. The Defendant No.1 requested for some time to speak with the production team of the film in respect of the said assurances.
14. It is stated that since the Plaintiff did not receive any response from Defendant No.1, ld. Counsel for Plaintiff issued a legal notice to the Defendant No.1 vide email dated 20th April, 2023. In the said email, the Plaintiff, inter alia, expressed his willingness to grant a non-exclusive license in the suit composition to the Defendant No. 1. In response to the letter dated 13th April, 2023 and email dated 20th April, 2023, the Defendant No.2 Madras Talkies issued a reply dated 24th April, 2023, whereby, all claims of the Plaintiff qua the suit composition have been rejected.
15. Thereafter, the film PS 2 was released in the theatres on 28th April, 2023, on Amazon Prime (OTT platform) on 2nd June, 2023 and whereas the Hindi dubbed version was released on Amazon Prime (OTT platform) on 23rd June, 2023.
16. Thus, the Plaintiff being aggrieved by actions of the Defendants infringing moral rights of the Junior Dagar Brothers and copyright of the Plaintiff over the suit composition, has preferred the present suit, after attempting to amicably resolve the same.
17. The Plaintiff has also preferred an application under Order XXXIX Rule 1 and 2 seeking the following prayers:
Prayers
a. Pass an order of interim injunction directing the Defendant Nos. I to 4, their respective directors, officers, employees, agents, assignees, representatives and all other persons acting for and on their behalf to give credit to the authors of the Suit Composition, namely the Junior Dagar Brothers, namely Ustad N. Faiyazuddin Dagar and Ustad Zahiruddin Dagar during every playout of the Impugned Song across all modes and mediums including without limitation digital, internet, Over-The-Top (OTT) platforms, satellite, cable television;

b. Pass an order of interim injunction restraining the Defendants, their respective directors, officers, employees, agents, assignees, representatives and all other persons acting for and on their behalf from exploiting the Suit Composition in any manner whatsoever across all modes and mediums, including without limitation digital, internet, Over-The-Top (OTT) platforms, satellite, cable television, without a valid license from the Plaintiff;

c. Pass an order of interim injunction restraining the Defendant No. 5 and Defendant No. 6 from exploiting the Suit Composition in any manner whatsoever across all modes and mediums, including without limitation digital, internet, Over-The-Top (OTT) platforms, satellite, cable television, without a valid license from the Plaintiff;

d. Pass an order of interim injunction restraining the Defendants, their respective directors, officers, employees, agents, assignees, representatives and all other persons acting for and on their behalf from utilising the Impugned Song in any manner whatsoever across all modes and medium including without limitation digital, internet, Over-The-Top (OTT) platforms, satellite, cable televisions, without a valid license from the Plaintiff in respect of the Suit Composition;

e. Pass an order of interim injunction directing the Defendant Nos. 1 to 4, their respective directors, officers, employees, agents, assignees, representatives and all other persons acting for and on their behalf to take down the Impugned Song (whether playout being recorded or utilised in/for the purpose of public performance) across all modes and mediums;

f. Pass an order of interim injunction directing the Defendants to tender an unconditional apology, acknowledging the moral rights of the Junior Dagar Brothers and the copyright of the Plaintiff in respect of the Suit Composition and publish the same on all platforms across all modes and mediums wherein the Impugned Song is made available;

g. Pass an order of ad-interim injunction in terms of prayers (a), (b), (c), (d), (e), and (f);
h. Grant any other relief in favour of the Plaintiff and against the Defendants as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case and in the interest of justice.

B. Proceedings before the Court

18. On 20th October, 2023 the present suit was listed for consideration and after hearing the parties, summons was issued to all Defendants. Further, notice was issued in the application for interim injunction being I.A. 21148/2023. It was submitted by ld. Counsel for the Plaintiff, relying upon the notation chart placed on record, that though the lyrics of the impugned song are different from the suit composition, the taal / beat are identical. It was also submitted that the composition of the impugned song is identical to the suit composition in Raga Adana. In response to the same, ld. Counsel for Defendant No. 1 had sought time to take instructions. However, the ld. Sr. Counsel appearing for Defendant No. 2 and 3 had submitted that they are willing to attempt an amicable resolution. Whereas on behalf of Defendant No. 4 it was submitted that the suit composition lacks originality and mere manner of singing cannot be the subject matter of copyright.
19. The Court, on the said date, had also heard the suit composition and the impugned song in open court. Thereafter, considering the submissions of the parties and the music compositions in question, the Court had passed certain ad-interim directions. The relevant paragraphs of order dated 20th October, 2023 reads as under:
20. In the present suit, the Plaintiff prays for an injunction against the said Defendants. The grievance of the Plaintiff is that in the film PS2, a song by the name Veera Raj Veera has been filmed, which according to the Plaintiff is based on the Shiva Stuti composition in which the Plaintiff owns rights. The said song in the film has been sung by Defendant Nos. 5 and 6.

21. The case of the Plaintiff is that although the lyrics of the song Veera Raj Veera are different, the taal and the beat are identical and the composition itself is identical to the Plaintiffs original composition based on the Raga Adana. In order to establish this, a chart has been filed comparing the musical notations along with the affidavit of the Plaintiff.

22. Ld. counsel for the Plaintiff – Mr. Neel Mason has pointed out that Plaintiff learned of the said song in April 2023 when it was released for the first time in social media and on television, etc. Immediately, thereafter, Plaintiff wrote a personal letter to Defendant No.1 on 13th April 2023 wherein it was brought to the notice of Defendant No.1 that the Shiva Stuti composition has been imitated in the Veera Raj Veera song. No reply was sent by Defendant No.1. There was no response thereafter except a brief telephonic conversation between Plaintiff and Defendant No.1, wherein he is stated to have been assured that the manner in which the dispute can be resolved would be communicated. However, no such reply was received from Defendant No.1. Defendant No.2 thereafter replied to the legal notice and stated that the claim of copyright infringement is misconceived as the same is a traditional song. Further, the allegations of Defendant No.2 in the said reply were that the attempt of Plaintiff is to earn monetarily and an attempt to gain publicity. Thereafter, Plaintiff sent an email dated 20th April 2023 through counsel intimating the Defendant No. 1 of the infringement of the Plaintiff’s copyright and moral rights of the Junior Dagar Brothers i.e. the Plaintiffs father and uncle. But there was no reply.

23. In view thereof, the Plaintiff filed the present suit.

24. Today, ld. Counsel On behalf of Defendant No.1, submits that the suit papers have been served upon him recently and he would need to seek instructions in the matter. On behalf of Defendant No.2 and 3, Mr. Raman, ld. Sr. counsel submits that the composition for the Veera Raj Veera song was given by Defendant No.1 for incorporation into the film. In any event, Defendant Nos. 2 and 3 are willing to attempt an amicable resolution.

25. On behalf of Defendant No. 4 it is submitted that there is no originality claimed in the composition and the mere manner of singing cannot be the subject matter of copyright.

26. The Court has today heard the two compositions. At this stage, since Defendant No. 1 is yet to make submissions, the Court does not wish to make any observations in this regard. However, in terms of the Copyright Act, 1957, musical work is defined in Section 2(p) as under:
2.[(p) musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music;]

27. Considering the definition of musical work, there can be an infringement of copyright in a musical work even without the words, the lyrics and the action being similar.

28. The Plaintiff has attempted to establish infringement with the chart consisting of the notations and taal and the beat. The Defendant No.1 would be required to respond to the same.

29. At this stage, ld. Counsel for Plaintiff points out that Defendant No.1 has been given credit in respect of this song to the effect that the composition is based on Dagarvani tradition dhrupad. The same reads as under:

However, it is, further pointed out that in another YouTube video, there is an error in the said credit that is given for the composition of the song. The same is as under:

In the above video instead of Dagarvani the word Dargavani has been used.

30. After having heard ld. Counsels for the parties and after hearing the two compositions that were played before the Court today, in order to consider the ad-interim relief that is prayed for the following directions are issued:

i. Defendant No.1 shall produce the raw recording of Veera Raj Veera song along with its reply to the notation chart which has been handed over by Plaintiff today.
ii. Insofar as the YouTube credit is concerned, the typographical error where the Dagarvani is mentioned as Dargavani shall be corrected within the next 48 hours, and the corrected credit shall be reflected on the You Tub video.

20. It is noted that during the course of proceedings, an application for intervention was filed on behalf of Pandit Abhishek Kumar Mishra. The Court rejected the said application since the said applicant has no locus qua the lis between the parties. The relevant portion of the order dated 10th November, 2023 is extracted hereunder:
I.A. 22199/2023 (u/O I R 8A CPC & O 1 R10(2) CPC)
8. This is an application moved on behalf of Pandit Abhishek Kumar Mishra seeking intervention in the matter.

9. The present is not a Public Interest Litigation and is a dispute between the parties in respect of a particular song. Considering the nature of the suit, intervention is not permitted.

10. Ld. counsels for the Applicant are, however, free to assist the Court on any legal issues. Short written submissions is permitted to be filed.

11. Accordingly, this application is disposed of.

21. On 5th March, 2024, the Court after hearing the preliminary submissions of the Defendant No.1 and considering the fact that the present suit had been filed after release of the film PS2, directed the parties to seek instructions if instead of first adjudicating the application for interim injunction, the present suit itself may be finally decided subject to certain deposit as directed by the Court. The order dated 5th March, 2024 reads as under:
1. This hearing has been done through hybrid mode.

2. Arguments have commenced on behalf of Defendant No.1. Mr. Amit Sibal, ld. Sr. Counsel has made his submissions.

3. Considering the fact that the suit was filed post the release of the film, let the parties seek instructions if, instead of hearing the interim injunction application, the suit can itself be finally decided subject to certain deposit which can be directed by the Court. Considering the nature of the matter, one witness on each side can lead evidence.

4. List for further submissions on 15th April, 2024.
22. Since, the parties were not amenable to the above suggestion of the Court, the proceedings in the interim application for injunction continued. During the course of proceedings, the parties have been permitted on several dates to place on record audio and audio-visual recordings of the suit composition, impugned song as also renditions of the suit composition by third parties. The parties have also placed on record audio recordings of certain other musical works which have been relied upon during the course of their submissions.
23. The ld. Sr. Counsels and Counsels have been heard by the Court at length on several dates. Finally, on 6th February, 2025 arguments were concluded in the interim application being I.A. 21148/2023 and the matter was reserved for judgement.

C. Submissions of the parties

Submissions on behalf of the Plaintiff
24. Mr. Neel Mason and Mr. Arjun Harkauli, ld. Counsels have addressed the Court and made detailed submissions on behalf of the Plaintiff. It is submitted that the Plaintiff is a descendant of a long line of Dhrupad vocalists of about 20 generations known as the Dagar Gharana. The singing style of the Dhrupad vocalists from the said Gharana is known as the Dagarvani style. It is submitted that the Plaintiff himself is an accomplished Dhrupad vocalist and composer in the Dagarvani style who has been awarded with the Padma Shri in the year 2010.
25. The Junior Dagar Brothers had also composed and performed Hindustani classical compositions in the Dagarvani style. Mr. Mason, ld. Counsel for the Plaintiff submits that one of the earliest compositions of the Junior Dagar Brothers is the suit composition which was composed in Raga Adana in the 1970s. The suit composition was performed by the Junior Dagar Brothers in various international concerts including the one held at the Royal Tropical Institute in Amsterdam on 22nd June, 1978. It is submitted that the suit composition is also part of an album which was released in after the death of the Junior Dagar Brothers titled Shiva Mahadeva by the Dagar Brothers. The said album was released by the music company PAN Records.
26. It is argued that the grievance of the Plaintiff is that in the film PS-2, impugned song has been filmed based on the suit composition in which the Plaintiff owns rights. It is submitted that although the lyrics of the impugned song are different, the taal/ beat of the impugned song is identical to the suit composition. In support of this, the ld. Counsel drew the attention of the Court to the notation chart comparing the musical notations of the suit composition with those of the impugned song filed along with the affidavit of the Plaintiff. It is submitted that the said notation chart would show that the manner in which the musical notes/ swars appear in the two compositions is almost identical.
27. Ld. Counsel for the Plaintiff, relying on the said notation charts, submits that while no copyright is being claimed by the Plaintiff in Raga Adana in which the suit composition has been composed, or in the particular style of singing i.e., the Dagarvani style, replication of the suit composition would not be permissible. According to Mr. Mason, ld. Counsel, Defendant Nos. 1, 5 and 6 who are the music composer and singers of the impugned song, respectively, have admitted having access to the suit composition. However, the stand of Defendant No.1 is that it is an independent composition inspired by Dagarvani tradition as acknowledged in the film itself.
28. It is argued by the ld. Counsel that the Plaintiff does not claim any rights on any specific note/ swara, however, as a principle, the notes/swaras cannot appear in two different and original compositions in identical form and manner. In effect, Mr. Mason, ld. Counsel has attempted to argue that even though two separate compositions would be based on the same Raga, the compositions if original would still be different. Reliance is placed by the ld. Counsel for the Plaintiff on the following two decisions: (i) Ram Sampath v. Rajesh Roshan, 2008 SCC OnLine Bom 370 and (ii) Sulamangalam R. Jayalakshmi v. Meta Musicals, 2000 SCC OnLine Mad 381.
29. The crux of the submission of the ld. Counsel for the Plaintiff on the strength of these two judgments is that the main part of the suit composition has been lifted in the impugned song. Further, it is urged that even copying of the small part of an original composition can be injuncted by the Court and it is not necessary that the entire composition ought to be copied.
30. Insofar as the originality of the suit composition is concerned, it was submitted by Mr. Arjun Harkauli, ld. Counsel, that that every Raga is merely a set of principles, which the proponent has to follow. However, various swaras, which are in the Raga, can be mixed and matched and need not to be used in the same order. There can be repetitions, dragging, skipping and selection from within the Raga, which would make the composition sound completely different. The selection and the manner, in which the composition is made, is done by the composer. The Raga merely sets out the principles but the composition is new. The violation of copyright takes place if there is imitation of the composition when the principles of Raga are in public domain.
31. It is argued by the ld. Counsel that though there is no copyright in the Raga, the musical compositions are themselves original in nature. Every composer can set the composition to a particular Raga, which would then become the original composition of that composer.
32. In the present case, relying on the notation chart it is submitted that the composition begins with two notes from the Avroha, both of which are dragged and two notes from the Aroha which are again dragged and switched back to the Avroha. This particular manner in which the notes are picked, dragged or switched from the Aroha and Avroha is unique and would not be violative of the discipline of the Raga. Whenever a particular composition is played, for an untrained person the similarity would be easily perceptible. However, a person trained in classical music can identify the Raga depending upon the notes which are picked. The Raga itself neither restricts the choice of the notes either from the Aroha or Avroha, nor switching between the same in a manner as to make it a new and original composition. Thus, the submission on behalf of the Plaintiff is that the composition can be enumerable and the permutations are also enumerable.
33. On a query from the Court as to what is the relief that has been sought by the Plaintiff considering that the music, including the impugned song, as also the film have been released on almost all platforms including theatre, OTT, music apps and other platforms, Mr. Mason, ld. Counsel submits that the first prayer of the Plaintiff would be for an interim mandatory injunction directing the Defendants to remove the offending portion of the impugned song. In the alternative, it is prayed that the Court may direct monetary deposits in view of the interim order dated 20th October, 2023 if infringement is found. Further, it is submitted without prejudice, that pending trial the Defendants ought to be directed to acknowledge the moral rights of the Junior Dagar Brothers by inserting the following in the credit of the film:
Based on the original composition by
Late Ustad N. Faiyazuddin Dagar and Late Ustad N. Zahiruddin Dagar

34. It is submitted by Mr. Mason, ld. Counsel that the above prayers are without prejudice to each other.
35. It is, further, submitted that the music is continuously available on various music platforms, music channels as also on OTT platforms, therefore, any relief which is granted could still acknowledge the Plaintiffs rights.

Submissions on behalf of the Defendant No. 1

36. Mr. Amit Sibal, ld. Sr. Counsel has addressed the Court and made detailed submissions on behalf of Defendant No. 1. It is submitted that no evidence has been placed on record by the Plaintiff to show that the suit composition is the original composition of the Junior Dagar Brothers. In respect of the music album titled Shiva Mahadeva by the Dagar Brothers released in 1996, it is submitted that the accompanying inlay card, does not claim copyright of the Junior Dagar Brothers over the suit composition.
37. It is submitted by the ld. Sr. Counsel that Dhrupad is one of the oldest forms of Hindustani classical music traces its origin to the Samaveda i.e., almost 3000 years ago. The said genre of Hindustani classical music is passed from generations to generations through oral tutelage and is, therefore, bound by very strict rules for composition. The same is contrasted with other genres of Hindustani classical music such as Thumri and Khayal which give more freedom to the artist or the composer. Thus, it is submitted by the ld. Counsel that since the Dhrupad style is based on extremely strict rules, the copyrightable elements would be minimal.
38. Ld. Sr. Counsel has argued that the suit composition is in Dhrupad genre which is in public domain and no specific averments have been made in the plaint as to which part of the suit composition is original and which part is based upon the traditional Dhrupad genre. It is submitted that the Ragas form fundamental building blocks of Hindustani classical music especially the Raga Adana in the Dhrupad genre. Thus, the manner of singing i.e., Dagarvani style and the suit composition itself is not original and capable of copyright protection.
39. It is urged by the ld. Sr. Counsel that individual note sequences of a particular Raga cannot have any copyright inasmuch as every particular Raga has to follow a discipline which is prescribed. Though there are various options for composers, however, when two people operate in the same discipline, the similarity is bound to arise.
40. The ld. Sr. Counsel has in support of his submissions referred to the textbook on Raga which has been filed by the intervener called Raga Parichay by Harishchandra Shrivastava wherein insofar as Raga Adana is concerned, it shows the basic swaras which form part of the said Raga. On the basis of these references to the textbook, it is argued that the notation comparison which has been filed on record by the Plaintiff merely shows that the Defendant is following the discipline of Raga which is integral part of the said Raga.
41. The next argument raised by the ld. Sr. Counsel is that the suit composition is not an original composition since there are several renditions of the same existing in the public domain. Ld. Sr. Counsel relies upon other recordings by different artists to show that almost all the artists sing the suit composition in a similar form and, thus, there is no originality in the Plaintiffs work as it is a traditional composition. The performance by Ustad Zia Fariduddin Dagar and his disciple Pandit Ritwik Sanyal has been played in the Court at the request of the ld. Sr. Counsel. It is also urged that the family tree of the Plaintiff would reveal that there are several parts of the Dagar family who have all performed Shiva Stuti in a similar form as the suit composition. However, the assignment which is claimed from other members of the family by the Plaintiff vide document dated 10th October, 2023 does not include those persons whose recordings are relied upon by the Defendants.
42. The ld. Sr. Counsel has pointed out that initially the Plaintiff had claimed in the plaint that neither the Junior Dagar Brothers nor the Plaintiff himself had ever permitted/authorised their students to utilize the suit composition in any manner including for commercial exploitation. However, the Plaintiff has changed its stand after the Defendants had pointed out the various performances of different third parties. It is now claimed by the Plaintiff that the said performances by either family members of Dagar Family or their disciples were performed after seeking permission from the family members of Junior Dagar Brothers.
43. It is further submitted that initially the Plaintiff had claimed to be the sole owner of the suit composition, however, in the replication filed by the Plaintiff, he has completely changed his stand by stating that he is only a co-owner of the suit composition.
44. Further countering the Plaintiffs claim of originality in the suit composition the ld. Sr. Counsel has argued that some of the notations and lines which are claimed as original by the Plaintiff are actually germane to the Raga Adana itself. It is his submission that these notations are not only part of the grammar of Raga Adana but also of Ragas such as Darbari Kanada, Jaunpuri, etc. He further submits that various lines of the suit composition can also be found to be present in compositions which are centuries old such as the 13th century composition of Amir Khusro called Yaar-e-Man Biya Biya. The said composition has also been sung by Ustad Amir Khan and ld. Senior Counsel has played the said composition during the Court proceedings to show the similarities in the said composition and the suit composition.

45. Thus, it is argued that since neither the authorship nor the originality in the suit composition has been established by the Plaintiff, the suit composition does not deserve copyright protection.
46. The ld. Sr. Counsel thereafter has addressed the issue of alleged infringement of the suit composition by the impugned song. In this regard, at the outset, it is argued that the impugned song is itself an original composition, which uses the fundamentals of western music.
47. There is no prima facie case of infringement of copyright as substantial similarity between the suit composition and impugned song has not been demonstrated after deleting the elements which are in public domain. It is submitted that the test for infringement in respect of musical works, especially, in respect of Hindustani classical music would require the Court to separate the protectible elements from those that are common-place and existing in the public domain. It is only the protectible elements that have to be compared for the test of substantial similarity.
48. In support of the submission the ld. Sr. Counsel has referred to a decision of the United States Court of Appeals for the Ninth Circuit in Marcus Gray v. Katheryn Elizabeth Hudson [28 F. 4th 87 (9th Cir. 2022)] to argue that common place musical elements cannot be copyrightable. In this case, the Court is stated to have accepted the scene a faire doctrine in respect of musical works.
49. Further, it is argued that the individual notes cannot be copyrighted and that it is only the arrangement in which there can be copyright. If the arrangement is compared, the Plaintiffs and the Defendants arrangement are totally different. It is submitted by the ld. Counsel that the Plaintiffs arrangement is based on Hindustani Ragas whereas the Defendants arrangement has a blend of Hindustani, western and various other genres of music.
50. He also sought to distinguish the two judgments cited by the Plaintiff, namely, Sulamangalam R. Jayalaxmi (supra) passed by the Madras High Court as also the Bombay High Courts judgment in Ram Sampath (supra). In respect of the decision in Sulamangalam R. Jayalaxmi (supra), it is his submission that the Defendant was making a version recording and also using photographs of the singers of the Plaintiff which was clearly impermissible. In Ram Sampath (supra) also, the Defendant therein had agreed that the Plaintiffs authorship of the work was not disputed which is not the case herein. Further, in the said case the Plaintiff therein had also led experts evidence to show the similarity between the two works. However, in the present case the Plaintiff has not led any expert evidence in support of its case.
51. The ld. Sr. Counsel has also referred to the Defendant No.1s notes to argue that there is so much more in the impugned song when compared to the Plaintiffs work. The ld. Senior Counsel showed various parts of the impugned song in different formats i.e., only with the voice, only the orchestra, only the music and thereafter the overall recording to show that the various vertical elements have to be seen together and merely a single element cannot be compared in isolation. It is argued by the ld. Sr. Counsel that the swaras of the impugned song would also show that in the initial part, there are ten different harmonies and even in the later part, there are three accompanying harmonies. All of these have been combined to create the impugned song.
52. It is argued by the ld. Sr. Counsel that granting protection to the suit composition would amount to promoting a monopoly adversely affecting the artists and composers of Hindustani classical as also Carnatic music. In this regard, reliance is placed on Apple Computer Inc. v. Microsoft Corporation, 35 F.3d 1435 (9th Cir. 1994) and R.G. Anand v. Delux Films, (1978) 4 SCC 118.
53. In Hindustani or Carnatic music, the voice is the soul of the composition. Though, there can be no doubt that even a small part of note can be infringing, however, if the fundamental core notes are themselves in public domain, there cannot be any infringement.
54. It is submitted that the Defendant No. 1s impugned song does not use Raga Adana for the composition. Reliance is placed upon the affidavit of Mr. Sai Shravanam filed by the Defendant No. 1. The said expert had played tabla in the original recording of the impugned song. As per the expert the sul taal is not used even once by the Defendant No. 1 in the impugned song. Further, it is stated the initial musical framework of the impugned song is inspired by the suit composition and Dagarvani tradition. The impugned song is not specifically recorded based on Raga Adana, rather, the same improvises with the notes of Raga Jaunpuri or Raga Darbari Kanada and then develops based on shades of Raga Bihag or Raga Hameer Kalyani. It is submitted by the ld. Counsel that the impugned song being a mélange of different elements, the same is not infringing the suit composition.
55. Finally, it is submitted that no case is made out for an interim injunction as the impugned song was released on 29th March, 2023 and the present suit has been filed in October, 2023. The film has also been released on Amazon Prime which is an OTT platform, thus, due to the belated nature of the filing no injunction is liable to be granted.

Submissions on behalf of Defendant No. 2
56. Mr. P.S. Raman, ld. Senior Counsel appearing for Defendant No.2 -Madras Talkies firstly submits that the producer has exercised all due diligence in engaging Defendant No.1 who is a reputed music composer. The movie project itself is one which has been given life to by the Director/Producer – Mr. Mani Ratnam and is based on a well-known Tamil series called Ponniyin Selvan. The storyline published in the 1940-50s and was a personal accomplishment for Mr. Mani Ratnam to produce, direct and bring this story for viewing by the public.
57. The film in question i.e., PS-2 is the second part of a two part series. Insofar as the first movie Ponniyin Selvan-I is concerned, there is no dispute. The present suit is limited to the second part PS-2. It is his submission that the present suit has been filed belatedly on 16th October, 2023 since the impugned song along with the trailer of the film was released on 8th April, 2023, the film was released on 28th April, 2023 and the OTT release of the film took place on 28th June, 2023.
58. Ld. Sr. Counsel submits that initially, a notice was issued on behalf of the Plaintiff to the Defendants on 20th April, 2023. However, in the said notice, it is interesting to note that the Plaintiff has actually quantified the amount that would be payable for non-exclusive license for the Plaintiffs work. Having done so, the Plaintiff has already pre-estimated the monetary value and thus, under the provisions of the Specific Relief Act, 1963 no injunction would be liable to be granted under such circumstances. Reference is also made to paragraph 35(g) of the prayer clause in the plaint where a sum of approximately over Rs. 2 crores is sought as damages for infringement of copyright and the moral rights.
59. The next submission made by Mr. Raman, ld. Sr. Counsel is that the balance of convenience completely tilts in favour of the Defendants, as though the theatrical release of the film has already been done, the film is available even today on OTT platforms. The songs are also available on various online music platforms and any injunction which is granted would result in a situation where the Defendants may be compelled to pull down all the songs or make edits into the film or OTT platforms. Thereafter, if the Plaintiff loses or does not establish authorship or ownership, the Defendants cannot be adequately compensated. On the other hand, if the Plaintiff succeeds in a suit, the monetary value ascribed can always be paid to the Plaintiff and at that stage, the Court would determine as to whether the said amount would be payable by Defendant No.1 or Defendant No.2.
60. Insofar as the issue on merits is concerned, Mr. Raman, ld. Sr. Counsel broadly adopts the arguments and submissions made by Mr. Amit Sibal, ld. Sr. Counsel for the Defendant No. 1 to the extent that the intricacies of music compositions including the delineation between Raga and taal and the fact that there are various doubts that have been raised in respect of the Plaintiffs authorship would have to be gone into in the present suit.
61. The Plaintiff themselves has contended that the dhrupad style of music is a common style in northern India and therefore whether copyright can be claimed in such a style of music is also a legal issue which would have to be decided. Under such circumstances, the grant of an injunction would be completely untenable in these facts and circumstances.
Submissions on behalf of Defendant No. 3
62. Mr. Saikrishna, ld. Counsel appearing for Defendant No. 3 submits at the outset that the test of copyright infringement in a case involving music copyright cannot be the same as in other works. The test for infringement would have to be evolved specifically in the context of Indian classical music where the dictates of the Raga or discipline of Raga, also known as dharma of the Raga, has to be followed and there is very little scope for flexibility in the same. When the rigors of the Raga are outlined and no departure is permitted for composers, who work within limitations, the necessity to delineate the protectable and the unprotectable elements is essential. Classical music by its very nature would consist of a vast section of unprotectable elements and thus, the gleaning of the two categories of elements that form the compositions is important.
63. The next question that arises is whether the infringement is to be determined from the viewpoint of a lay observer or a discerning listener. In the context of music copyright, especially based on classical music, it ought to be from the point of view of a discerning listener, who can distinguish the protectable and non-protectable elements.
64. Two musical compositions may sound similar leading to a conclusion of infringement. However, if the unprotectable elements are removed, then the said compositions would be different. Unless and until there is bodily incorporation, therefore, in the case of classical music-based composition, infringement cannot be held. The term substantial lifting has to, therefore, be interpreted as virtual identity.
65. There are several peculiarities, which are associated with Indian Classical Music and considering the limited options that are available for any composer, the identity standard is quite high. The difference between virtual identity and absolute identity needs to be born in mind while deciding such cases. Reliance is placed upon Nimmer on Copyright2 to argue that in a case where the copyright is on a thin line, the similarity has to be supersubstantial and not merely substantial. The thin copyright subject matter has to be, therefore, first be gleaned from the overall competition. In the said context differences have to be determined between the three categories of works namely creative works, derivative works and compiled works. The said categorization would assist the Court in determining as to whether the work itself is capable of heavy copyright protection or thin copyright protection. In the case of Ragas, since the range of expression is limited, the test of substantial similarity has to be the test of virtual identity. The number of combinations in traditional Ragas being regimented, the scales being standardized, there is very little creativity that can be done by a composer and it is only once the said differentiation is made and the protectable elements are separated that infringement can be established.
66. Ld. Counsel relies upon the decision in Michael Skidmore v. Led Zeppelin [952 F.3d 1051 (9th Cir. 2020)] to argue that the public domain cannot be cheated by giving copyright protection what is not deserving so. The specific tradition of a genre has to be borne in mind, the common stock elements, standardized views of notes etc. would also have to be borne in mind while deciding how much of the composition is protectable. Further, in the case of Ragas there would be a rigorous public domain which also needs to be safeguarded and protected. The virtual identity standard would, therefore, govern such works which are based on Indian Classical Ragas.
67. It is further argued that the manner in which these Ragas are transmitted from generation to generation, through oral discourse, would also have to be borne in mind.
68. In Ets-Hokin v. Skyy Spirits, Inc., [323 F.3d 763], the Court was again concerned with a copyright in case of a photograph where in respect of the said sky bottle, there were several unoriginal elements and in such cases use of certain elements being indispensable, the copyright would be a thin copyright.
69. It is argued by ld. Counsel that in Section 14 of the Copyright Act, 1957 (hereinafter the Act), the word substantial in the case of musical compositions would, therefore, has to be read as identical where works which are protectable and unprotectable elements are concerned. Reference is made to Section 2(a) (iv) & (v) of the Act which use the word alteration to argue that the word alter in such a case would have to be given a restricted meaning. A large scale meaning cannot be applied to alterations. Reliance is placed upon the Barbara Taylor Bradford & Anr. v. Sahara Media Entertainment Ltd. & Ors. [2003 SCC OnLine Cal 323].
70. It is, thereafter, urged that whenever such works are involved even before embarking on the test of substantial similarity under Section 14 of the Act, the Court would have to first identify as to what part of the musical composition is, in fact, the original composition under Section 13 of the Act. Only thereafter, the test under Section 14 of the Act needs to be considered.
71. Finally, it is submitted that the entire test of infringement considering the nature of the work being a classical based Raga has to be from the ears of the discerning listener, who is able to distinguish between the elements that deserve to be protected and those which do not deserve to be protected.
72. Reliance is also placed upon Structured Asset Sales, LLC v. Edward Christopher Sheeran [673 F.Supp.3d 415(S.D.N.Y. 2023)] wherein the Court examined a similar test so as to determine as to whether there was a wrongful appropriation by the Defendant in the background of unprotectable elements from being part of the work. This decision brings out a distinction between mere copying and wrongful copying. According to ld. Counsel, mere copying in the case of classical Raga based compositions, is not sufficient. It has to be established that the copying was wrongful based upon the original protectable elements. The said case has been upheld by the United States Court of Appeal.
Submissions on behalf of Defendant No. 4

73. Mr. Kaushik, ld. Counsel appearing for Defendant No. 4 – Tips Industries Limited, firstly submits that Tips Industries had acquired the rights from the producer through a series of agreements. The first agreement is dated 26th November, 2019 which was entered between Defendant No. 2 – Madras Talkies and Defendant No. 3 – Lyca Productions Pvt. Ltd., under which the entire rights in the film PS-2 was granted in favour of Defendant No.3- Lyca in terms of clauses 3, 3.1 and specifically 3.1(g) which assigns the rights in the music and the lyrics. This agreement was with effect from 25th April, 2019. The second agreement is the composer agreement executed between the Defendant No. 2 producer and Defendant No. 1 composer, by which, the producer engaged the composer for rendering various services. This agreement though entered into on 8th June, 2022 was with effect from 1st April, 2019. Clause 5.1 of the said agreement is referred to and relied upon by the ld. Counsel.
74. The final agreement relied upon by Mr. Kaushik is the agreement dated 5th July, 2022 between Defendant No. 4 – Tips Industries and Defendant No. 3 – Lyca Productions wherein in terms of Clauses 1 to 4, the rights in various songs including the song videos and the music qua the film PS-2 were transferred to Tips Industries with effect from 21st June, 2022.
75. He thus submits that insofar as Defendant No. 4 is concerned, it has acquired rights through the proper course of agreements from the concerned producers of the film.
76. He further submits that the present case is not a fit case for granting injunction as the Plaintiff could be monetarily compensated in the event he succeeds in the main suit. On merits the ld. Counsel adopts and relies on the submissions of Mr. Raman, ld. Sr. Counsel.

Submissions on behalf of the Defendant Nos. 5 & 6

77. Mr. Ankit Kothari, ld. Counsel appearing for Defendant Nos. 5 and 6, the singers of the Hindi version of the impugned song submitted fairly, at the outset, that both the said singers were disciples of the Plaintiff. It is submitted that they were taught the suit composition Shiva Stuti as a traditional composition. It is argued that the entire mission of the Junior Dagar brothers was of spreading the Dagarvani tradition and art of Hindustani classical music rather than restricting it through copyright. This is clear from a reading of inlay card accompanying the CDs of the music albums placed on record by the Plaintiff. It is also stated clearly in the said inlay card that the publication of the recordings is a homage to the memory of the original Junior Dagar brothers.
78. Ld. Counsel submits that there have been at least 60 performances of the suit composition which have been placed on record by Defendant Nos. 5 and 6. In respect of these performances, the only response of the Plaintiff is that some of the singers have the blessings of the Plaintiff. However, it is to be noted that none of the said singers have given any credit to the Plaintiff. It is also argued that there is no assignment or transfer of rights in law in favour of the Plaintiff.
79. Lastly, it is submitted that any grant of injunction could severely prejudice the rights of individual artists to sing the suit composition which is a traditional composition.
Submission on behalf of the intervenor

80. Ld. Counsel Mr. Akshat Agrawal appearing for the Intervenor submits that in Hindustani classical music, there are various strands which can be termed as super sets such as Khayal, Dhrupad and Dhumri and within the said strands, there are various subsets for example in the Dhrupad Raga, there are various Gharanas. Dagarvani is one of the Gharanas for Dhrupad Strands. He submits that every Gharana has certain essential elements which constitute such Raga. The three elements, namely, Aroha, Avroha and Pakad are prescribed in musical textbooks qua each of the Ragas. There is rigidity attached to the manner in which the renditions in a particular Raga are to be made or performed and, therefore, the similarities are bound to be there. Thus, according to him, until and unless there is virtual identity in the two performances, the test of substantial similarity cannot be applied in the context of Hindustani Classical Music.
81. The performance of Raga is rooted in tradition and since the same is transmitted orally, there is no fixation of any particular composition. This also renders the test of originality challenging in such cases as no specific time period can be fixed for the creation of a particular composition. If the competing parties are from the same Gharana and are rendering the same Raga, the similarities are inevitable. Though there can be improvisations by different artist, in all probabilities, the same would sound similar to a lay person. It is his submission that Section 14 of the Act would have to be differently applied when such traditional classical music is being considered in a copyright manner.
Rejoinder and sur-rejoinder submissions on behalf of the parties

82. Mr. Neel Mason and Mr. Arjun Harkauli, ld. Counsels for the Plaintiff have made the rejoinder submissions on behalf of the Plaintiff. In respect of the argument that similarities exist between the works due to rigidity of the Raga, it is submitted that the Raga is merely a rule of composition but does not itself become a composition.
83. The ld. Counsel submits that it would be incorrect to categorize the suit composition has a derivative work since it is based on a Raga. It is submitted that any composition based on a Raga would be an original work and accordingly, the same would not fall within the category of works that are provided only thin protection. Reliance is placed on Nimmer on Copyright, 2023 Edition, to buttress his submission.
84. It is next argued that the standard of originality in India has been prescribed in the decision of the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1. It is submitted that a composition based on a Raga would satisfy the test of originality as laid down in Eastern Book Company (supra). Further, in respect of infringement the submission that the test to be applied in the present case would be that of virtual identity is rebutted. It is submitted that the test for infringement would be that of substantial similarity.
85. It is further submitted that the Court should apply the lay listeners test and not that of expert listener and in support of the same he relies upon the decision in Ram Sampath (supra) and Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. & Anr., 2010 SCC OnLine Del 2086. Reliance is also placed on the decision of the United States Court of Appeals in Katheryn Elizabeth Hudson (supra) to argue that even a combination of unprotected elements can be protected if the creativity is not revealed. In the present case, the highest that the Defendants can argue is that the suit composition is a combination of unprotected elements but it is still an original work entitled to copyright protection.
86. The ld. Counsel has also submitted that initially the suit composition may have been transmitted orally however, after the recording of the performance of the suit composition in Amsterdam in 1978, the musical work satisfied the requirement of fixation. Furthermore, since the Defendants have already admitted access to and inspiration from the suit composition, the right of the Plaintiff cannot be defeated on the ground of lack of fixation.
87. The reliance is placed upon the decision of Allahabad High Court in Nav Sahitya Prakash and Ors. v. Anand Kumar and Ors., AIR 1981 All 200, to argue that even if the Plaintiff is a co-owner, a suit for infringement is maintainable.
88. The ld. Counsel has highlighted the varying stance of the Defendants at different stages qua the basis on the impugned song i.e., from the same being composed on fundamental of western classical to the same being based in different Ragas such as Raga Darbari Kanada, Raga Jaunpuri etc.
89. On the contrary, Mr. Amit Sibal, ld. Sr. Counsel appearing for Defendant No. 1 has reiterated his submissions with respect to the issue of originality and test for infringement to be applied in the present case. It is submitted that since the Plaintiff does not deny that the note sequences in the suit composition are common-place the said sequences have to be excluded in the analysis for infringement.
90. Reference is again made to the composition called Yaar-e-man Biya Biya composed by Amir Khusro. It is stated that the said composition was in Raga Darbari Kanada which is stated to be the parent Raga of Raga Adana. Further, it is said that the Plaintiff has not rebutted the submission of Defendant No. 1 that the Amir Khusros composition pre-dates the suit composition and that the same share identical notations.
91. The ld. Sr. Counsel in sur-rejoinder submits that it is not disputed that copyright is permissible in Hindustani classical music compositions. However, it is submitted that since a composition within the Raga would have to adhere to the discipline of a Raga, the test for infringement would be in a very narrow compass after excluding common-place elements. In order to segregate the protectable from unprotectable elements would require an expert listener. Reliance is placed on Ram Sampath (supra) to submit that the expert evidence for infringement analysis is essential.
92. Further, the decision in Hamar Television (supra) is distinguished on the ground that issue in that case was with respect to broadcasting of recordings and whether the same would be covered with fair dealing exception. However, that is not the case here.
93. The claim of originality is also rebutted by the Defendant No. 1 and it is stated that the test of modicum of creativity laid down in Eastern Book Company (supra) is not satisfied in the present case by mere elongation of Swara g in the suit composition. It is submitted that the elongation of a Swara is a normal and common place practice in a Raga, and that alone cannot permit a copyright in the sequence and arrangement.
94. It is clarified in sur-rejoinder submissions that the impugned song is not composed in Raga Adana. Rather the impugned song is composed in Raga Darbari Kanada. In respect of the argument of the Plaintiff that the taal / beat has been copied from the suit composition it is submitted that the taal / beat are completely different in the two compositions. The suit composition admittedly uses sul taal (10 beat) whereas the impugned song uses Ardh Jhap taal (5 beat). In support of the same, the affidavit of the expert Mr. Sai Shravanam is relied upon by the ld. Sr. Counsel.
95. In respect of the relief of attribution is concerned, it is submitted that the Plaintiff has failed to establish that the authorship and infringement of the suit composition. Thus, granting attribution in the interim would not be capable of reversal later. Further since no attribution is claimed in respect of the other renditions already in public domain, granting attribution qua the impugned song would create confusion in the minds of general public. The balance of convenience is not in the favour of the Plaintiff.

96. Insofar as deposit is concerned, there is no attachment before judgment
that can be sought in the present case as no damages have been awarded and
the suit is at the interim stage. There are no pleadings that the Defendants are
likely to move out their assets outside the jurisdiction of the Court as required
under Order XXXVIII Rule 5 CPC.
97. Reliance is placed on Raman Tech (2008) 2 SCC 302 in respect of the submission that maintenance of accounts is a usual course of action in an IP suit. Lastly, it is submitted that there is no public domain material, which shows any claim of ownership by the Plaintiff over the suit composition and, thus, the Defendants cannot be blamed for having not given any attribution or even approaching the Plaintiffs prior to the impugned song being launched by the Defendants.
98. Heard the ld. Counsel for all the parties. The Court has also perused the various written submissions and reference material on Hindustani classical music handed over by the parties during the course of oral submissions.

D. Analysis and Findings

99. The conflict between rewarding creativity and stifling creativity is at the core of this case. The Plaintiff prays that the contribution and creativity of the Junior Dagar Brothers deserves to be rewarded. The Defendants argue that recognizing copyright in such a case would stifle creativity.

100. In view of the facts of the case and submissions made by the parties, the following broad issues arise for prima facie determination:
(i) Whether the suit composition is an original musical work of the Junior Dagar Brothers?
(ii) Whether the impugned song infringes copyright of the Plaintiff in the suit composition?
(iii) Whether the Plaintiff is entitled to any relief ?
Issue I: Whether the suit composition is an original musical work of the Junior Dagar Brothers?

(A) Musical works and struggle with Indian Classical Music

101. The tryst between Indian classical music and Copyright Law has been a long one. In the opinion of the Court, the complex nature of the subject matter of the present suit i.e., claim of copyright over a composition in Hindustani classical music, requires an appreciation of the legislative framework and the unique issues arising therefrom. It is also necessary to consider the reason for the legislature to evolve/amend the Act to extend protection to certain creative works, including to works based on Hindustani classical music.
102. Western classical music is a form of music where the musical work is reduced into writing in the form of notations, such as those depicted below:

103. Such depiction in writing was not compulsory in Indian classical music since traditionally the compositions were taught and communicated by the Guru to the Shishya in oral form. In fact, fixation of music itself was not compulsory in Indian classical music.
104. Presently, the term musical work, has been defined in Section 2(p) of the Act as under:
musical work means a work consisting of music and i