Bombay High Court Refuses To Stall Release Of Web Series "Mission to Pakistan"

The court was hearing an interim application in a commercial suit by Solflicks Filmworks Pvt Ltd (SFPL) against Zee Entertainment Enterprises Ltd (ZEEL) seeking to restrain ZEEL from acting in pursuance to the termination letters, by which the Production Agreement was purported to be terminated. The application also sought restrain on ZEEL from entering into an agreement with any third party and from utilising any intellectual property rights 'belonging to SFPL' with respect to the series.

Justice NJ Jamadar, in an order passed earlier this week, observed, "What is of significance is the fact that the Production Agreement provided a mechanism for addressing the consequences which entail pre-mature termination of the contract. Once the Court finds that the claim of the ownership of copyright in the underlying work and the developed work or for that matter episodes, is not prima-facie sustainable, the issue of remedy on account of unlawful or unjustified termination of the Production Agreement, squarely falls in the realm of damages."

The Suit filed by SFPL, which is engaged in the business of content production, says that it had approached ZEEL for the first time in August 2018 through SFPL's predecessor partnership firm Ahaana Productions with an "initial concept." ZEEL liked the concept which was based on a book Mission to Pakistan and the two entities signed a Development Agreement in 2019 to further commission works and develop it further.

Subsequently, in February last year, a Production Agreement was signed between the two parties appointing SFPL as Line Producer to execute the production of the 'developed work' and 'developed concept' into an audio-visual program comprising episodic content tentatively titled as 'Mission to Pakistan.' SFPL was to be paid Rs 2,12,45,750 per episode aggregating to Rs 16,99,66,000 for eight episodes all inclusive of artist cost, production of program, packaging etc.

ZEEL cleared the screenplay on March 7, 2021 and proceeded with the next stage which involved getting dialogues written and providing a shoot timeline with regards to commencement of shoot from March 20, 2021. However, on June 16, 2021, ZEEL proceeded to terminate the production agreement citing a clause which talked about "creative differences/discontent warranting termination of the contract".

On August 28, 2021, ZEEL intimated SFPL that it was in the process of appointing another party to take over the work of Line Producer's work, which resulted in SFPL approaching the court.

Senior Advocate Birendra Saraf, appearing for SFPL, made two-fold arguments – that SFPL held copyrights in the work and that termination of the Production Agreement was not justified as there weren't any serious creative differences. He also submitted that the terms of the agreements are required to be construed "keeping in view the unequal bargaining power". According to Saraf, the instant case "epitomised the manner in which the creators/authors of original work are denuded of all their rights".

Saraf argued that the Development Agreement clearly said that SFPL shall be the exclusive owner of the copyright in the initial concept and as per the subsequent clauses in the Development Agreement and the clauses in the Production Agreement there can be no valid assignment under section 18 of the Copyright Act, 1957. He cited proviso to section 18(1) of the Act, which says that assignment of copyright shall take effect only when the work comes into existence, to say that till the episodes were complete in all respect, there could be no valid assignment.

He added that since SFPL had incurred expenses of more than Rs.4 crore for execution of the work under the Production Agreement, ZEEL should be restrained from releasing the web-series and commercially exploiting it till the interim relief application was finally heard.

Senior Advocate Venkatesh Dhond appearing for ZEEL, argued that the case of "unequal bargaining" was argued before the court for the first time and was not pleaded in the Suit/Application at all, therefore it cannot be taken into account now. He also cited various clauses of the agreements signed between the parties to show that SFPL had copyright only in the 'initial concept' which was assigned to ZEEL in the Development Agreement and later acknowledged and further assigned in the Production Agreement.

Clause 4.1 of the Development Agreement provided for Rs 87,90,000 as consideration for SFPL for rendering services and assignment of all the rights in relation to the initial concept, developed concept and development work. Clause 5.3 rendered all of works under the Agreement, in whatever stage of completion and/or after completion as "work-make-for-hire specially ordered and/or a commissioned work made for valuable consideration, commissioned by ZEEL, and ZEEL shall be deemed the sole "owner" thereof."

Dhond also cited other clauses mentioning assigning of all kinds of rights for all kinds of medium existing or to be discovered later. He took the court through various communications between the parties to justify the "creative differences" point.

"In the backdrop of the aforesaid provisions in the Development Agreement, the thrust of the submission on behalf of the plaintiff that the plaintiff still retained the copyright in the initial concept and the underlying work does not, ex-facie, merit countenance. Undoubtedly, the plaintiff pitched and claimed the copyright in the initial concept. However, for lawful and valuable consideration, the plaintiff not only duly assigned the copyright in the Initial Concept but also agreed that the further work based on the initial concept, shall be in the nature of the work made for hire," Justice Jamadar noted.

The court further added, "It is trite that in a work executed pursuant to such commissioning, in the absence of any agreement to the contrary, the person creating the work does not hold a copyright as the ownership of the copyright vests in the person getting the work commissioned." The court also rejected the argument about "unequal bargaining power".

The court refused to delve deep into the "creative differences" issue at this stage, and refused to grant any relief to SFPL.

Case Title: Solflicks Filmlworks Pvt. Ltd. Vs. Zee Entertainmlent Enterprises Ltd