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This article has been written by Shivika Gupta, pursuing the Diploma Programme in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Where a whole industry such as the Media and Entertainment industry depends upon “creativity” and always brings something new to the table, the protection of such content and to prevent it from being copied, the importance of copyright protection becomes essential. Copyright is a form of Intellectual Property, which means a property that is not tangible. For example, a physical property like a piece of land or a building can be protected from trespassers by using different means of security, but what happens if I wrote a script for a movie, which was the creation of my one ‘intellect’ and I want to protect it from others copying it. In this case, Intellectual Property Laws, and in the case of Literary, musical, dramatic works or films, Copyright Laws help in protecting such works. 

In the case of Movies, legally called “cinematograph films” the producer usually is the owner of the movie which is an “ intellectual property” and he has the right to decide what happens with it, whether he wants to allow others to reproduce, translate, remake, copy  or adapt his intellectual property. He also can take legal action against anyone who, without his permission, tries to use, reproduce, translate, remake, copy or adapt his movie. 

Despite all the laws we have in India, copying others work in prevalent, especially in the Bollywood Industry. Bollywood has been accused a lot of time of copying stories of other movies, be they from Hollywood or South Indian Movie Industry. There have been cases where a Bollywood movie was copied too!

Did you know the music legendary song, ‘Mehbooba Mehooba’ from everyone’s favourite movie, Sholay is copied from Demis Roussos’s Say You Love Me and David Dhawan’s Movie Partner, is a copy of Will Smith starred Hitch and there are many more examples. In this article we will be looking at some famous cases of copyright infringement (that’s the legal term, that is, work is copied without permission) in Bollywood and what did the Indian Courts decide.

Namaste London  (Shree Venkatesh Films vs Vipul Amrutlal Shah)

Bollywood producers have also gotten chances to sue others for copying their films. Such a case happened in 2009 when the makers of a Bengali Film titled as ‘Poran Jaye Joliya Rae’, were accused of copying the story of the Bollywood Blockbuster, Namaste London.

The copyright to the script and screenplay of Namaste London was owned by Vipul Amrutlal Shah. Upon realizing that a Bengali Film, Poran Jaye Joliya Rae’ is a substantial copy of Namaste London, Mr. Shah, being the owner of the script, filed an application in Calcutta High Court, seeking an order of injunction against the exhibition of Poran Jaye Joliya Rae.

Namaste London revolves around the daughter, Jasmeet, of a non-resident Indian family, who was brought up in Britain and she professed to be British by culture. Her family wants her to get married to an Indian Man, brings her to India, where she marries Arjun. On coming back to London, she disclaims her marriage to Arjun and starts planning her wedding with her British boyfriend Charlie. Arjun accepts her feelings and cooperates with her in her marriage to Charlie. Towards the end of the film, Jasmeet realizes that she does not want to marry Charlie and loves Arjun

The story of the Bengali film was very similar to Namaste London. 

The respondents contended that even if the story was similar to the Hindi Film, there were several scenes in the Film that are ‘novel to Bengali cinema’, hence the Bengali film is by itself an original work. The respondents relied on the cases of  Star India vs. Leo Burnett and Zee Entertainment. vs. Gajendra Singh, in which the word ‘copy’ was interpreted narrowly and it was held that ‘copy’  of a cinematograph film means in common parlance as ‘carbon copy’ or a ‘replication’ of the whole or a part.

The Plaintiffs contend that there was, in fact, an infringement and relied on the R.G Anand Case, in which the honourable Supreme Court had held that, in order to determine whether a film is a copy or not, the safest test is to see whether a common viewer after seeing both the films is of clear and unmistakable opinion that the subsequent work is a copy of the original. 

The Calcutta High Court held that ‘copy’ as defined in the R.GAnand case was more acceptable and the Bengali film “is substantial if not a verbatim copy of the Hindi film as a whole”, hence there is a prima facie infringement of its story and screenplay in the Film and passed an ad-interim order granting an injunction on the exhibition of the film. This order was appealed before a 2 judge bench of the same court but was denied.

Knock Out (Twentieth Century for Film Corporation v. Sohail Maklai Entertainment)

In 2010, Twentieth Century Fox Film Corporation sent a legal notice to the producers of the film, ‘Knock Out’, for infringing the copyright of their 2002 film, ’Phone Booth’. The producer of Photo Booth, Sohail Maklai Entertainment Ltd., denied all the allegations, this led to a suit filed by the makers of Photo Booth, in Bombay High Court, alleging copyright infringement and praying for an injunction.

Photo Booth is a movie about an infidel publicist held hostage in a phone booth, by a sniper, who threatens to kill him if he doesn’t confess his infidelity to his wife and obey his commands.

Knock out revolves around a similar premise; in addition, it also involves a political conspiracy.

The defendants contended that an ‘idea’ is not protected under copyright and the fact that the Bollywood film has the same theme as Phone Both, cannot amount to infringement.

Bombay High Court relied on the case of Zee Telefilm v. Sundial Communication, which held that an idea is a ‘novel (new) idea’ if it is developed into an expression. Such a novel idea is protected under copyright.

As the original novel expression of the idea in both the films relates to a man held hostage in a telephone booth by a sniper, there is a copyright infringement.

The court also observed that the test to determine whether a subsequent work is a copy or is to see that, if the parts that are said to be coped are removed from the subsequent film, whether the remainder of the film become meaningless or not. If yes, there is infringement. The court held that there were similar scenes in both the films, and if those were removed from Knock Out, it would rob the essence of the movie. Hence there was infringement.

The matter was settled by the parties later where Sohail Maklai paid 1.25 crores to Fox Studios.

Baaghi (XYZ Films V UTV Motion Pictures)

XYZ Films filed a case against UTV Motion Pictures in 2016, alleging that there Film, Raid: The Redemption, was copied and compressed into the last twenty minutes of the Bollywood Blockbuster, Baaghi. The plaintiffs prayed for an order of injunction against the release of the film.

‘Raid: the Redemption’ is a movie about a group of policemen, entering a multistory building to defeat a criminal overlord who controls the building from the top floors. The makers of the movie alleged that the last 20-minute sequence of the movie Baaghi has the same concept.

The plaintiffs contended that Baaghi uses the Film’s “central/main plot/story, screenplay to build its story”. Here, Baaghi is identical to and is a copy of ‘Raid: the Redemption’. They stated that the viewers after watching both the films would be under an unmistakable impression that the subsequent work appears to be a copy of the original and hence there is infringement.

Bombay High court observed that the plaintiff’s copyright does not subsist in the so-called central theme of the movie. It subsists, only in a particular realization of it; and if that is not copied, and the rival work is wholly different, there is no infringement.”  It observed that the idea of the hero fighting a villain on the top floor of a building cannot be protected as it is a very general idea.

Furthermore, the  “kernel“ of Baaghi is the final fighting sequence, it is not essential to its story, hence there is no infringement. The court did not grant an injunction.

Conclusion

There has also been a case where a copied move was embraced by the original makers. Such a thing happened in Kaante which was copied from Quentin Tarantino’s Reservoir Dogs. Reservoir Dogs is a movie about six bank robbers in a heist. 

There were no legal proceedings, in this case,  in fact both the movies were screened together in April, 2017.

Whether a particular movie is infringing another’s copyright is really a subjective question. On one hand, an idea could be executed in two different movies, as in the case of Raabta, but it wouldn’t amount to infringement, on the other hand where certain aspects of the movies are similar, it is upon the judiciary to interpret whether there is an infringement or not. 


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