1. ' The plaintiff who claims to be a leading model of this country has filed this suit against advertising agency as well as against M/s. Lever Brothers Pakistan Ltd. Which is a leading manufacturer of several products including "Lux Toilet Soap", for the relief of permanent injunction restraining the defendants from using the plaintiff's photograph or any video tape showing her as a model for any advertising purpose in respect of the product 'Lux Toilet Soap'. In addition, she has also prayed for a decree of Rs, 7 lacs as royalty for the illegal and authorised use of her photographs by the defendants during the period June, 1995 till December, 1995. Alongwith her suit, she has also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. 116 of 1996 for grant of interim injunction against defendants till disposal of the suit, in terms as mentioned hereinabove.
2. ' On 30-11-1993, an agreement was executed between the plaintiff and the defendant No, 1 whereby it was agreed that the defendants would be entitled to the exclusive right to use the model's (plaintiffs) photographs for advertising the product 'Lux' in all forms of advertisement like newspaper, periodicals, printed materials, films, hoarding, neon signs, display panels, packing materials and at any place. According to the plaintiff, this agreement was for one and half years commencing from 30-11-1993 and ended on 30-5-1993; that prior to the date of termination plaintiff on 2-5-1995 wrote to defendant No, 1 expressing her intention not to continue with the agreement in view of clause 8 of the abovesaid agreement. This notice was replied by the defendants. However, the defendants did not discontinue using the plaintiffs photograph for the purpose as mentioned in clause 4 of the said agreement which resulted in filing of this suit.
3. ' I have heard Mr. Arshad Tayebally, Advocate for plaintiff, Mr. Ghulam Abbas Pishori, Advocate for defendant No,
2. The first argument of Mr. Arshad Tayebally is that in view of clause 8 of the agreement dated 30-11-1993 the agreement stood terminated on 30-5-1995 and, therefore, the defendants are not entitled in law to continue with the use of or to exploit photographs or images of the plaintiff. On the other hand, the learned counsel for the defendants have referred to clauses 4, 5, 9 and 10 of the said agreement in support of their contention that this agreement in its spirit authorises the defendants to use the photographs and images of the plaintiff for good as by virtue of this agreement it has become their exclusive property even after termination of the said agreement.
4. ' Although a Court is not required to finally interpret the intentions of the parties to any agreement or its terms and conditions at this interlocutory stage, but, since the question involved for the grant of interim injunction revolves around this contract, it is necessary that a tentative view be formed about the terms and conditions of this agreement in order to ascertain the existence or otherwise of the three principles for grant and refusal of interim injunction. Reverting to clause 3 of this agreement, it shows that the plaintiff was paid a sum of Rs,3 lacs as retainer fee. Clause 4 contemplates that after receipt of the payment vide clause 3, the defendant No,1 would be entitled to the exclusive right to use her photographs for all advertising purposes including film, hoardings, neon signs etc. Etc. This clause further authorises the defendants to apply before the Trade Mark Authority for registration of these advertisements. Clause 5 of this contract prohibits the plaintiff from modeling in any other advertisement pertaining to allied products during the subsistence of this agreement. In clause 6 the defendant No, 1 had undertaken not to use the photographs of the plaintiff for any purpose other than advertisement of their product namely "Lux". The present controversy revolves around the interpretation of the clauses 8, 9 and 10 of the abovesaid agreement which are reproduced as under: "(8) This agreement will remain in force for a period of one and a half years (1-1/2 years) from the date hereof unless it is terminated earlier as per clause (2) above, and may be extended for a further period on terms as may be mutually agreed between Lintas and the Model.
(9) The Model will be released of the obligation hereunder upon termination of this Agreement.
(10) All advertising materials produced by Lintas-based on the photographs of the Model will remain the property of Lintas during the period of this Agreement and even after its termination." #TBS 60 Karachi #TBE ' According to Mr. Munawwar Ghani, the period of termination as mentioned in clause 8 is for the purpose of restraining the plaintiff in acting or modeling in any other advertisement of the allied or like product as of "Lux" and, therefore, this was clarified in clause 9 through which the plaintiff was to be released of her obligations upon termination of this agreement. On the contrary, the case of the plaintiff is that the defendants are not entitled to use the photographs or T.V. Images of the plaintiff after termination of this contact. It was also argued by Mr. Arshad Tayebally that the agreement is not to be read in part but it is to be read with reference to the context of the entire contract.
5. ' It was further argued by Mr. Munawwar Ghani that the plaintiff has agreed that her photographs and T.V. Images are to be treated as property of the defendants for which in support he has referred to clause 10 of the agreement. Mr. Ghani has also referred to section 54 of the Specific Relief Act, 1877 in support of his contention that a plaintiff is entitled for interim injunction when there is an invasion from the defendants' side to the plaintiff's right to enjoy a "property". According to the learned counsel the property in suit does not belong to the plaintiff and, therefore, she is not entitled for interim injunction as prayed. Be that as it may, I am of the tentative view that the term 'property' used in clause 10 of the agreement refers to all advertising materials produced and created by the defendants and nowhere it is suggested that the defendants shall be entitled to use photographs or T.V. Images of the plaintiff for an indefinite period. This clause prohibits the plaintiff from claiming any such advertising materials upon which her photographs are printed or reproduced and that such movable properties, according to this clause exclusively belong to the defendants. However, there is another property involved in this suit which in my view is the "photographs" and the "TV image" (personality) of the plaintiff which belongs to the plaintiff. The term "property" used in section 54 of the Specific Relief Act, 1877 is not limited to movable or immovable properties but includes several kinds of creation including intellectual property as defined by several illustrations given thereunder. It clarifies that perpetual injunction can be granted even in the matters of violation of contract, breach of trust infringement of copy right,, patent, trade mark, easement, nuisance etc. Etc. Therefore, the term "property" should not be restricted to the definition as canvassed by the defendants since it will frustrate the spirit of section 54 of the Specific Relief Act, 1877.
6. ' It was further argued by Mr.Arshad Tayebally that in view of the plaintiff's letter dated 2-4-1995 (Annexure 'B-5') to the plaint, since she has discontinued to use Lux Toilet Soap, attribution of such statement to her in different advertisements that she is still using the same amounts to 'injurious falsehood' and ' false statement'. It was, therefore, vehemently pressed by the advocate for the plaintiff that the grant of prohibitory injunction has become more inevitable as the same is in public interest. In my view injurious falsehood consists in making of a false statement by the defendant about plaintiff or his property which is calculated to cause him or her damage and as a result of such false statement the plaintiff suffers damage. Therefore, in order to establish a case of injurious falsehood burden is on the plaintiff to show the presence of the following elements:--
(i) There must be a false statement about the plaintiff or his property;
(ii) such statement must be calculated to cause damage to the plaintiff;
(iii) that such statement must be made in public or within the hearing of a third party;
(iv) that such statement was made maliciously by the defendant; and
(v) that the plaintiff has suffered damage as a result of the false statement made by the defendant.
7. ' Since the abovementioned elements are a matter of evidence, the same cannot be decided on the basis of affidavits at this interlocutory stage.
8. ' It is pertinent to note that in clause (8) of the said agreement it was agreed between the parties that the agreement can be terminated even prior to the expiry of the agreed period or may be extended by further period on terms as may be mutually agreed between the plaintiff and the defendants. This controversy, whether the user granted to the defendants is perpetual or temporary in nature cannot be decided without recording evidence. However, if it is decided at a later stage that the agreement was for one and a half years then in such event it would be the plaintiff who will suffer loss and injury. I am saying so because the plaintiff is a model by profession and earns her livelihood from this profession. If she is restrained from pursuing her profession/vocation, others may fill the void to her detriment and there is a reasonable probability that her chances of a successful comeback to her vocation/profession would be burdened by an injunction. In the agreement, it was also agreed vide clause (9) that the plaintiff shall stand released of her obligations after termination of this agreement. The argument of Mr. Munawwar Ghani in this regard that the termination was for the purpose of releasing the plaintiff of her obligation not to act for any competitive product, is not pursuasive as it is highly doubtful that the defendants would continue to use the plaintiff's personality for selling their product when she may be doing the same for the defendants competitors. Therefore, to say that despite termination of the agreement the defendants are entitled to perpetual user of the plaintiff's image would be to say something which is not available in the written contract.
9. ' For a model or for an artist to act in advertisement or to allow the advertisers to use and exploit his or her photographs, pictures or T.V. Images, in fact, amounts to earning livelihood. One can argue that it may be an additional earning for such models but for all legal intent and purpose this amounts to availing a job by a model for livelihood for which some monetary compensation is to be paid, either in the shape of modeling charges, acting feel or retainership. In view of this matter a contract which involves livelihood of any of the party is to bey read with much caution and care and any benefit arising out of such contract must be interpreted in favour of such party whose livelihood is based on the agreement. Keeping in view this principle, I am of the tentative view that the exclusive right to use the plaintiff's photographs and T.V. Images for advertising purpose was acquired by the defendants under the agreement which is Annexure ' A' to the plaint and after its termination, the defendants may be entitled to retain all such advertisement materials upon which the picture, image or photograph of the plaintiff are printed and published but they are not entitled to use the same for public consumption in any periodicals, newspapers, T.V. Or film after termination of such agreement. This leads to the conclusion that prima facie, the plaintiff has established a case for grant of interim injunction in her favour. On the question of irreparable loss injury, it would be suffice to observe that the plaintiff who claims to be a model, if refused interim injunction as prayed, may be deprived of her livelihood and, therefore, balance of convenience is also in her favour.
10. ' As a result of the above discussion, I grant this application as prayed.