This article is written by Triveni Singal, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).
Table of Contents
“Chehre” a mystery/thriller Bollywood film based on criminal law, battled a copyright infringement suit right before its release. Its case has reinforced certain established principles under Indian copyright law while also shedding light on the procedural requirements in a quia timet action and applications for temporary injunctions.
In India, copyright subsists in original literary, artistic, dramatic, and musical works, cinematograph films, and sound recordings (Section 13 of the Copyright Act, 1957). A copyright owner has the right to reproduce the work in any form, issue copies, communicate it to the public, etc.
Facts of the case
The plaintiff-appellant, Uday Prakash, instituted a suit before the District Judge, Ghaziabad, claiming copyright infringement of his literary work titled ‘Highway-39’ (referred to as “copyrighted work”).
The said copyrighted work was registered in 2007 with the Copyright Office at New Delhi under Registration No. L-28822/2007. Subsequently, he filed an appeal against the order by the District Court rejecting his application for temporary injunction.
The plaintiff claims to have discussed his copyrighted work with an acquaintance, Mr. Mazhar Kamran (cameraman). The plaintiff alleged that, in June 2019, that he became aware through a “reliable source” that Mr. Anand Pandit (Defendant-Respondent no. 1) was producing a movie titled ‘Chehre’ that was based exactly on the same ‘plot and premise’ as the plaintiff’s copyrighted work. Rumi Jaffery, the director of the said impugned work, is the second defendant-respondent in the present case.
Contentions from the defendants side
- The suit was based on hearsay, conjectures, and surmises as no details of the ‘reliable sources’ were pleaded by the plaintiff. There was no proof that the plaintiff had shared his script of the copyrighted work with Mazhar Kamran or that Mazhar Kamran, in turn, passed on that intellectual property to the defendants.
- The plaintiff had failed to disclose facts and documents in support of the cause of action. The plaintiff had also failed to disclose that the copyrighted work is an original literary work, that defendant no. 1 had access to the copyrighted work, and that the script of the feature film is substantially similar to the copyrighted work.
- It was contended that the plaintiff merely rests his case on speculation that was far from one that meets the minimum standard of proof.
- At best, it can be construed as a quia timet action, where the burden of proof is much greater on the plaintiff in comparison to action for injunction, where an actual injury is sustained by the plaintiff contra-distinguished from an apprehended injury. It is further argued that the reasonable apprehension about an apprehended injury must arise from credible information, the particulars whereof are duly pleaded, that is utterly wanting.
- A civil suit cannot be a fishing or roving inquiry but must be based on established principles of law and accurate pleadings. It is urged that the plaintiff’s application for discovery was objected to by the defendants on facts and grounds recognized in law. The Trial Judge never directed the defendants to submit the script for the Court’s perusal. It has been particularly urged before this Court that the defendants’ script that is the basis of the feature film and the copyrighted work, both are inspired by a theme of the mock trial contained in the novel titled “A Dangerous Game”.
- A comparison of the two scripts may show a similarity between the common theme, but the treatment of the subject by each party is different and thus, it cannot be dubbed as an infringement of the plaintiff’s copyright. It is an action that is designed to prevent the defendants from commercially exploiting the feature film, which is an upcoming project nearing fruition. There is no unimpeachable evidence of the kind and degree required to make out a prima facie case in an action that is essentially quia timet.
- The plaintiff chose to approach this Court in the appeal at the eleventh hour. Any embargo on the release of the film would have a devastating effect on the rights of the third parties. It would lead to irreparable injury to the defendants and many others who have entered into an engagement with them.
Contentions from plaintiff side
- It was urged that the defendants’ script was not made accessible to the plaintiff and so he could not be expected to plead details of the comparison between the feature film and the copyrighted work.
- The defendants’ plea that belated approach to this Court against the impugned order on the eve of the release of the movie disentitles the plaintiff to relief is misplaced because the whole nation had plunged into a deep and devastating crisis about time on account of the second wave of the COVID-19 pandemic.
- The defendants’ contention that the suit is a quia timet action based on a mere apprehension is now no longer open, nor was it ever open. It is something that has to be seen in the plaintiff’s favour.
- The conduct of the defendants is mala fide, unscrupulous, and fraudulent as their project seeks to financially capitalize on the plaintiff’s creativity, labour, and scholarship.
- The plea of the defendants not to interdict the release of the movie on the ground that investments worth hundreds of crores of rupees have gone into its production is abominable.
Judgment by the Appellate Court
Factors to be considered for grant of interlocutory injunction
Temporary injunction matters are reputed to be decided on affidavits, with copies of documents annexed.
Three essential factors to be considered here are:
- Firstly, the plaintiff must establish his prima facie case,
- Secondly, the irreparable loss that he would sustain from a refusal of the injunction, and;
- Thirdly, the balance of convenience.
The Court in the present case stated that there was no doubt that these essential factors are not required to be established by the evidence of the kind that is expected to be led at the trial. But, it does require a prima facie case to be established and the two other ingredients by some evidence that can be led on affidavits. The first requirement about a prima facie case postulates that the case pleaded in the plaint, on the foot of which alone, the case for a temporary injunction stands, should disclose prima facie and not after a searching inquiry that must await trial, that a triable case is made out.
Whether a prima facie case is made out or not, is intrinsically connected to the cause of action regarding infringement of the copyright alleged
a) A mere discussion of a work involving intellectual intricacies with another is not a case enough to impute that other with knowledge of its contents; and knowledge good enough to share it with a third party.
To establish a prima facie case, in an action for infringement of copyright, there have to be pleadings to establish that the literary work, of which the plaintiff claims infringement should be shown to be the plaintiff’s original literary work, in the sense that the work is at least original rendition of a known theme with the plaintiff producing it, employing his knowledge, labour and skill. In addition, it has also to be established that the defendant had access to the plaintiff’s work and that the offending script is substantially similar to the plaintiff’s script.
In the present case, the Court observed that there is no doubt that the plaintiff holds a copyrighted work. But beyond that, the pleadings are utterly vague. There is an assertion to the effect that the plaintiff discussed the copyrighted work with Mr. Kamran, but it does not say that he showed the copyrighted work to Kamran or handed it over to him. Therefore, there is a very vague case pleading about the intermediary who could have possibly palmed off the copyrighted work to the defendants, on coming to know of its contents.
b) The plaintiff does not name the source through which he came to know that the feature film is based on a script that is a plagiarized version of the copyrighted work. The terms employed in the relevant pleadings are “reliable source/sources from the film industry” which can hardly go to make for a prima facie case or a triable case for the grant of a temporary injunction in an action for infringement of copyright.
c) Prima facie, the plaintiff never had the chance to see what the contents of the script leading to the feature film were, the movie having not been released as yet and certainly not until the time the suit was filed. The plaintiff has inferred that it is a copy of his work based on some hearsay, that he has expressed through vague allegations in the plaint, describing them as reliable sources from the film industry. The entire action is, therefore, based on the plaintiff’s conjecture. This cannot be the basis of an action for infringement of copyright. (Zee Entertainment Enterprises Ltd. v. Sony Pictures Network Pvt. Ltd. (2017 SCC OnLine Bom 409).
Quia timet action
Quia timet means “because he fears or apprehends”. It is a settled principle that in an action that is quia timet, for an injunction to be granted on a threat of injury, the evidence about threat should be through some tangible evidence laid before the Court. An injunction of this kind cannot be sought by a plaintiff on bald assertions based on hypothetical facts. (Graigola Merthyr Company Limited v. Mayor Alderman and Burjesses of Swansea,  Ch. 235).
The film “Chehre” has done its full gestation and would be released by the defendants in the morning hours tomorrow, but it is not the mere release of the film, that would afford the plaintiff a cause of action prima facie to maintain a quia timet. He would have to demonstrate from a case duly pleaded and evidence good enough to support entitlement to a temporary injunction on basis that the copyrighted work and the script leading to the feature film are prima facie so similar in the treatment may be of a common theme, that it is no more than an offending copy of the plaintiff’s copyright. But the Court held that this has not been sufficiently pleaded and proved by the plaintiff.
Infringement of copyright is not about the novelty of the work, but about its originality
In the present case, the Court compared the two scripts and observed that the two scripts prima facie are distinctly different treatments of the same theme. The theme is similar to that of the novel “A Dangerous Game”, authored by Friedrich Durrenmatt. But, that is not what is relevant. What is to be seen is whether the plaintiff’s treatment of the theme in his original way has been plagiarized. A very old theme may receive a different and distinctive creative development at the hands of different individuals. Both would be entitled to the copyrights of their originality. The commonality of the theme would not offer any cause of action for infringement. (XYZ Films v. UTV Motion Pictures/ UTV Software Communications Ltd, 2016 (67) PTC81 (Bom)).
Apart from the above-mentioned points, the appellate court also stated that unpublished copyright, unregistered or registered, is protected intellectual property. It cannot be plagiarized merely because the owner of the copyright has not published it until the time of infringement. And thus, the remark by the District Judge that the copyrighted work though registered as an unpublished document is extraneous to the consideration of a case for grant of a temporary injunction is irrelevant here. Thus, we see that the case has reiterated the fundamental principles governing copyright law in India.
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