Copyright Infringement in Bollywood

In this blog post, Aniket Piyush, who is pursuing M.A. in Business Laws from NUJS, Kolkata, presents a detailed report on copying of ideas by bollywood filmmakers and legal issues that arise when you copy ideas, storyline or sequences from another movie.

Copyright Infringement in Bollywood

The term Bollywood has been coined by a British novelist. It primarily means the plethora of Hindi language films made every year. It does not represent the Indian cinema which consists of regional, creative, cultural and content enriched cinema.

The Indian film industry has had a long history of ripping off Hollywood and other foreign language films and the audience is used to this trend. Now, from a past decade, it is evident that the Hollywood giant production houses are collaborating with the Indian production houses. They have realized not only the available market in the sub-continent but also the fact that Indian filmmakers were already ripping off their story lines as a cultural adaption.

When it comes to Bollywood films it is always difficult to determine whether there is a copyright infringement or not. Since, all comprises prominently a similar concept of love story, song, action and emotional climax. The interpretation of the Apex Court in R. G. Anand v. Delux Films, (1978) 4 SCC 118 is primarily considered by judiciary.

Following are the rules downed by Supreme Court in the landmark judgment-

Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:

  • There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and the violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
  • Where the same idea is being developed in a different manner, it is manifested that the source being common, similarities are bound to occur. In such a case, the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal imitation of the copyrighted work with some variations here and there, it would amount to the violation of the copyright.

In other words, in order to be actionable, the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.

One of the surest and the safest test[s] to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer, after having read or seen both the works, is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

 

  • Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of copyright infringement arises.
  • Where however apart from the similarities appearing in the two works, there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental, no copyright infringement comes into existence.

As copyright infringement amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.

  • Where however the question is of the copyright infringement of stage play by a film producer or a Director, the task of the plaintiff becomes more difficult to prove piracy.
    It is manifested that, unlike a stage play, a film has a much broader perspective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a color and complexion different from the manner in which the copyrighted work has expressed the idea.
    Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, the copyright infringement may be said to be proved.

Following are the instances where the Bollywood filmmakers had to face the allegations for copyright infringement in court of law –

  • Knock Out

It is not often that a High Court Judge gets a chance to watch a Bollywood movie that also twice in a single day. Justice Rohan Dalvi, Mumbai High Court on 13th of October, 2010, in order to make sure that justice is served, watched back- to- back two movies post the court hours.

In the case of Twentieth Century Fox Film vs Sohail Maklai Entertainment Pvt. Ltd., the petitioner 20th Century Fox claimed that producer Sohail Maklai’s movie ‘KNOCKOUT’ was a rip-off of ‘PHONE BOOTH.

Where Sohail Maklai (Defendant) in his competency of producer claimed to hold the copyright for “Knockout” under section 2(d)(v) of The Indian Copyright Act, 20th Century Fox (Plaintiff) had acquired the concerning right vide an agreement with the screenplay writer of ‘Phone booth’ Larry Cohen, in 1998. The script of a movie falls under section 2(c)(iii) of The Copyright Act as an artistic work.

Counsel Virendra Tulzapurkar claimed that the plaintiff had been informed by the ‘industry sources’ that the defendant’s proclaimed original artistic work ‘knockout’ is a copy of the plaintiff’s work ‘phone booth’. He further stated that despite several imitations, the defendant refused to share the script of the movie ‘knockout’. On defendant’s behalf, Advocate Ameet Naik stated that the plaintiff cannot claim a monopoly on an idea of a person in “Phone Booth” and the fact that the plaintiff’s work itself has been inspired by the movie “LIBERTY STILL STANDS”.

Justice Dalvi watched both the movies and passed an order of “stay on release” of the defendant’s movie and also asked the defendant to provide a copy of the screenplay to the plaintiff.

  • Justice Dalvi observed that both the Bollywood films revolve around a hostage in a phone booth having a major conversation with a sniper, in the technology-driven era, both the protagonist use a telephone booth rather than a mobile phone for communicating.
  • In both the films, the hostage is intervened by intruders while they are having the conversations. The sniper acknowledges the hostage about the consequences of their ill decisions in past. The conversation between the hostage and the sniper is almost identical in both the film which, cannot be a coincidence.

There were minor dissimilarities as ‘phone booth’ revolves around extra-marital affair and ‘knockout’ primarily takes over the issue of black money with a zest of the extra-marital affair of the protagonist.

However, the division bench comprising of Chief Justice Mohit Shah and Justice D Y Chandrachud reversed the stay order and also asked the defendant to deposit Rupees 1.5Cr. to court as deposit.

On 22nd February, 2013, the defendant’s advocate informed The Bombay High Court issued a notice to the defendant to appear in court on next date or else ex parte judgment will be given. On the next hearing 5th March, 2013, both the parties submitted the minutes of order and suit be disposed in terms of minutes of order.

Now, minutes of order basically means that matter is settled between both the parties. On record, the court never found a copyright infringement and the matter was settled amicably between both the parties with a settlement amount of Rupees 1.25 Cr given by producer Sohail Maklai to the 20th Century Fox. Eventually, a rumor was spread by few leading media houses that the court had ordered the defendant to pay damage of Rupees 1.25Cr for copyright infringement. The Bombay High Court never found the defendant guilty for copyright infringement as the matter was settled outside the court.

Baghi- The Follower

Recently released and one of the numerous members of the 100 Crore club is UTV production’s ‘BAGHI- THE Follower’.

Though the film is a typical Bollywood, a happy go lucky boy meets a girl who is being traced and followed by the antagonist. With such a predictable and over-watched story still, it’s a surprise that it is an official remake of South Indian film ‘VARSHAM’.

In the climax of Baghi the protagonist in order to rescue his lady love infiltrate into a multistory building and on each floor, he has to fight with trained henchmen of the villain. At each floor the numbers of henchmen increases.

Sounds similar like any of the arcade video games we used to play or still play on our Xbox or PlayStation.

The catch is that though the movie is an official Hindi remake of Varsham, the last 20 minutes fight is found to be similar to The Raid: Redemption.

The story of Raid is simple, the most wanted kingpin of crime is on the 15th floor of a building and a group of policemen has to go through each floor and face the henchmen of villain which also include two furious ninja killers of the villain.

Now, after watching the trailer of Baghi, the producers of Raid: Redemption decided to file a suit for copyright infringement as the crux of Baghi and its trailer is the fight through the multistory building for reaching the villain.

The plaintiff ‘XYZ and others’ stated that the whole the Raid: Redemption has been summed up to the last 20-minute fight in Baghi. Justice Patel laid down two tests –

  1. Average Viewer Test– That whether an average viewer after watching or reading both the works is able to distinguish between them.
  2. The Substance Test– It is decided over the calculation that if the infringing portion is the crux of the work i.e. if after removing the said portion the work still holds it genuinely then, there is no copyright infringement. If post eradicating the portion the work collapses or is paralyzed, then there is the copyright infringement.

Justice Patel held that there is no infringement but the matter of the fact remains same as the whole film revolves around the climax’s fight, the antagonist prepares himself for that fight only. Moreover, the culmination of two original works whether or not mount as an original work that is to be interpreted by the judiciary.

Agent Vinod

Agent Vinod (2012) produced by Dinesh Vijan starring Saif Ali Khan faced a litigation for copyright infringement for songPyaar ki pungi’. The Iranian underground Pop band ‘Brobax Corp.’ claimed that the song‘s initial portion is identical to the composition of their work ‘Soosan Khanoom’.

In a reply to the alleging notice, the author of ‘Pyaar ki pungi’, Pritam stated that only initial tune of the song is similar to the Brobax Corp’s work and majority part of the work is original.

On 22nd March 2012 Justice S.J. Vazifdar, Bombay High Court heard the matter in which the copyright certificate issued by copyright authority of Canada was presented before the court. Musicians Khashayar Moradi Haghgoo, Keivan Moradi Haghgoo and Hamid Forouzmand   founded Brobax Corp. band in Canada.

The copyright certificate issued by the Canadian Copyright Board was in favor of the authors i.e. Khashayar Moradi Haghgoo, Keivan Moradi Haghgoo and Hamid Forouzmand.

Justice Vajifdar stated that there is no document which states that rights have been assigned to Brobax Corp. Therefore, the court held that Brobax Corp. never had the locus standi to file the suit for copyright infringement under Indian Copyright Act. The court decided that it does not require to delve into ascertaining the degree of similarity of both the compositions.

The Curious Case Of Gajhini

GAJHINI was the debutant and founder member of the 100 Crore club movies. The movie was directed by A.R. Murugadoss and starred Amir Khan in a role of a person who is on a revenge streak with the murderer of his girlfriend with a temporary memory. It was said to be an official remake of A.R. Murugadoss’s Tamil film.

Before the release, it landed in multiple suits, the first being from the producers of the Tamil version A. Chandrasekaran against A.R. Murugadoss for forging documents and claiming to have the copyright for the original Tamil Version.  The Bombay High Court ordered A.R. Murugadoss to submit an affidavit and removed the stay for the release of the film. Both the films were loosely based on Cristopher Nolan’s Momento.

20th Century Fox Vs. BR Films

BR Films in 2009 made a film ‘Banda Yeh Bindaas Hai ’starring Govinda and Tabu which was a copy of 20th Century Fox film ‘My Cousin Vinny’. The 20th Century Fox filed a suit against BR films asking damage for Rupees 7 Crores but, later on, the matter was settled outside the court with a settlement of 1.3 Crore Rupees.

Though the issue was taken up to the court, later on, it was settled outside the court. The producers of Banda Yeh Bindas Hai stated that they have an agreement of assignment for making an adaption of My Cousin Vinny from 2007. It was a bit different from the Jodi Breakers case where the aggrieved party was asking for the script of the film.

Is it Copyright Infringement?

It is quite evident that though initially the issue of copyright infringement is addressed to the court but, seldom it is decided by the court. Concerned parties are more willing to settle the matter amicably outside the court of law. It is more important to decide “what mounts as an original work”. Now if we consider Partner (2009), a copy of Will Smith starrer ‘Hitch’ based on the fact that the story revolves around a simple guy and a matchmaker, should we not look over one of our own gem ‘Chotti Si Baat’ which starred Ashok Kumar and Amol Palekar in 1975? It revolves around the same story of a simple guy and a matchmaker.

Copyright protects an idea, it’s manifestation and not the idea. It protects the way of expressing that particular Idea otherwise, every other work will be an infringing work of previous one.

Like, for example, can one compare and consider ‘Romeo and Juliet’ and Laila Aur Majnu’ identical except the facts that both are based in different time zone and in different region and culture? Both are having the similar story-line of love story of a poor boy and rich girl and at the end of the story both the lovers’ die.

For example, if we consider a story or plot of Ajay Devgan taking revenge for the death of Kareena Kapoor on a rainy night. If we strike out the star cast and the circumstantial weather factor then, we have a guy taking revenge for the death of his ladylove or it can be his mother or brother with whom he had an affection. Now, how can anyone own a monopoly right over such an ordinary and common story? Copyright can never protect an idea, it always protects the expression of the said idea.

Copyright can never protect an idea, it always protects the expression of the said idea.

 

The next primary issue was Cultural Borrowing which has been resolved to an extent, thanks to collaborations with the domestic and international production houses. Earlier it used to be one of the easiest and commonly used escapegates of filmmakers on the question of originality. Now the scenario has changed a lot and foreign production houses are themselves making Indian adaptions of their proclaimed work.

The judiciary now has to step in and outline the criteria and requisites for a copyright infringement. What if a filmmaker culminates plots of different movies in a single film? Is the quality which has been copied matters or the quantity? As what happened in ‘Baghi’ case.

It is important for the Judges as well that they should watch both the films which are in question of law as what happened in the case of ‘Knockout’. Until and unless one watches the film how can he decide whether there is a copyright infringement or not?

It is also to be noted down that majority of the allegations and suits are filed a week before the release of the film, it is done to extract heavy settlement amount from the filmmakers. In such cases, courts do observe that plenty of money are at stake because of the film and permits the release.

Section 60 of the Indian Copyright Act, 1057 states that if in the case of threat of a suit of copyright infringement if there is no sufficient ground then the alleged aggrieved party can ask for the damages. It was Mr. Rakesh Roshan who very first proposed that the procedure to file a suit for copyright infringement must be made strict.

It is difficult for the court to decide “who had copied whom” like in the case of ‘Gajhini’ which was a remake of its Tamil version which was copied from Hollywood’s ‘Momento’. Now, the producer of Tamil Gajhini should not claim any right over the originality of their work since it is the copy of another. Shall courts should intervene and take Suo moto in such cases?

It is important to take note that there are instances where Hollywood had also copied or let’s say, it has culturally borrowed work of their Indian counterparts. Though the instances are rare and copied or inspired contents are few or lesser in amount.

For example, portraying action sequence in animated form in ‘Kill Bill’ was inspired by Indian film ‘Abhay’. The opening tunes of Black Eyed Peas song are taken from works of Kalyanji and Anandji. Now, in both the cases, the rest of the work was original or let’s say the rest of the work was not entirely dependent on the inspired work. If one removes the similar work the rest of the part can carry on the plot. If it does not collapse it should not mount to an infringement.

In this era of resistance less access, it is impossible that comparisons won’t be happening. It is inevitable and bound to happen. The key is to carefully observe that at what degree the work is dependable on the said copied work. In this era, two different works can have nexus, though, both may be original in their own sphere. It is common to decide whether a work is copied or not. After all, even the landmark judgment of R.G. Ananad states the test as ‘a person with common memory after watching or reading a work is able to distinguish between the original and copied work ’.

Additional Read: Can a Product be named after a Celebrity without prior permission?

What do you think? Should Court define more details in Copyright Infringement cases? Drop your comments & Share the Article.

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