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This article is written by Sonika Kulkarni, a student pursuing Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com

Introduction

The word ‘Plagiarism’ stems from the Latin verb ‘Plagiarius’ used in the first century AD which then meant ‘to kidnap’. Used by a Roman poet Martial to describe a theft of his literary work thus giving ‘Plagiarius’ a flavour of ‘stealing someone else’s work’. The word ‘Plagiarism’ as it exists and is understood today, can be defined as “to steal and pass off (the ideas or words of another) as one’s own, to use (another’s production) without crediting the source, to commit literary theft, to present as new and original an idea or product derived from an existing source” according to the Merriam-Webster online dictionary. In simple terms plagiarism constitutes lifting of pre-existing work, discrediting the author and passing off the work as one’s own. 

Plagiarism in Movies

“There are no accidents and coincidences” they say. And yet, Disney’s Simba from ‘The Lion King’(1994) had an older sibling ‘Kimba- The White Lion’(1960); both on a quest to avenge the death of their fathers. Closer to home, how Kaira and Dr.Jehangir from ‘Love you Zindagi’(2016) have Canadian cousins Erica and Dr.Tom from the Television series ‘Being Erica’(2005); the therapists helping the leads with issues regarding relationships. Also movies often are adaptations of books and novels, dramas as well. Even the launch posters of movies might appear similar sometimes. The movie industry worldwide is replete with such examples wherein similarities can be spotted between two works with respect to main themes, story, characters, screenplay, dialogues. With requisite permissions from the owner of rights in the original works and giving credit to the original author invites no legal consequences.

Let us consider the controversy surrounding Disney’s ‘The Lion King’ released in 1994 which is alleged to be heavily influenced from Japanese animator Osamu Tezuka’s work ‘Kimba- the white lion’ which aired in 1965. 

Resemblances and Similarities [1]

Plot:

Both the stories are centred on an African lion cub, the fathers of both the cubs being murdered by the villain.

Antagonists: 

The main villain in Lion King is a an evil lion with a black mane named Scar having a scar over his left eye. The main villain in Kimba is an evil lion named Claw having a black mane and a scar in the place of his left eye.

Supporting characters:

Scar’s henchmen are three spotted hyenas whereas Claw has two spotted hyenas as his henchmen. Both the characters Simba and Kimba have a couple of animal advisors including a mandrill and a bird – the bird in Lion King is a hornbill named Zazu and the one in Kimba is a parrot named Pauly.

Some Scenes and Shots: 

A scene in the Lion King shows Zazu flying to Simba who is clinging to a tree amidst a wildebeest stampede telling him to hold on and that his father is coming. In the episode “Running Wild” of Kimba, Pauly flies to Bucky Deer who is clinging to a tree amidst an antelope stampede telling him to hold on and that Kimba is coming.

In Lion King a scene shows a fire being started by lightning and rain puts it out. Similarly in the episode “ The Red Menace “ of Kimba, lighting starts a fire and the rains put it out.

In an important scene from the Lion King the image of Simba’s father, Mufasa forms in the clouds. A similar version of the scene appeared in the anime series Kimba.

Despite the uncanny similarities between the two works substantiated by visual evidence, Disney denied claims of plagiarism. They stated that during the production of Lion King the team involved had no idea of the existence of the anime Kimba. Also no legal action was brought upon by Tezuka Productions against Disney. Machiko Satonaka, a well-known Japanese animator sent an open letter to Disney accompanied by a petition signed by 82 artists and hundreds of fans of Tezuka requesting Disney to add few lines of acknowledgement paying respects to Osamu Tezuka for the original story. This letter marked the end of the controversy.[2]

This is a strong case of unchecked plagiarism. Had Tezuka Production taken the legal recourse, certainly Disney’s Lion King would have landed in trouble.

What is considered plagiarised?

There are no specific standards or levels for films to be adjudged plagiarised. The Supreme Court of India and various High Courts have laid down and used certain principles and tests to check whether a movie is plagiarised. Let us study some important cases in this regard.

Lay Observer method 

R.G. Anand vs M/s Deluxe Films and Ors ( AIR 1978 SC 1613)[3]

The plaintiff accused the defendant of copying his drama ‘Hum Hindustani’ in the defendant’s movie ‘New Delhi’. The Court applied the ‘Lay Observer’ test which states: if the reader, spectator or the viewer after having read or seen both the works is of a clear opinion and an unmistakable impression that the subsequent work appears to be a copy of the original. The Judges after perusal of both the works, found the film of the defendant different in treatment.

This is a subjective method and therefore what is termed as plagiarism in one case may not be plagiarism in another. However it is considered to be the best test.

Substantial similarity and Dissimilarity Argument 

Twentieth Century Fox Films vs Sohail Maklai Entertainment Pvt Ltd [4]

The defendant was accused of unlawfully copying the film ‘Phone Booth’(2002) of the plaintiff and remaking it into ‘Knockout’. The basic premise of Phone Booth is – an unfaithful publicist is held hostage by a sniper who demands that a confession is made by the publicist to his wife about his infidelity. The sniper toys with his hostage and threatens to kill if he does not give in to sniper’s commands. The film KnockOut is also based around a sniper that holds an unfaithful man hostage in a phone booth. However, Knock Out includes a political conspiracy plot into the script along with song-and-dance sequences. 

It was contended that the number of dissimilarities outnumbered the similarities. It was held in this case that even a small amount of the original, “even if it is qualitatively significant, may be sufficient to be an infringement.” The main premise of the original is the most material part of it without which the film cannot stand and thus the defendant’s film was adjudged ‘Substantially’ copied from the original.

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Scenes-a-faire

Under scenes à faire doctrine any ‘expressions’ that are standard or common to a particular topic are excluded from protection and no person can claim a right on them. The Calcutta High court had applied this doctrine in Bradford v. Sahara Media Entertainment. In Bradford, the English novelist Barbara Bradford alleged that an Indian television series titled Karishma—The Miracle of Destiny (2003) was an unauthorized adaptation of her novel, A Woman of Substance. The court held that Bradford did not have protection over the subject matter that was common to both works because the material was “too common” to the topic at issue. [5]

Related Conventions

The Universal Declaration of Human Rights, Article 27(2) states: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”.

It is the responsibility of all countries to protect the rights of the cultural community in order to ensure growth of the entertainment industry worldwide.

There are two principal international conventions on copyright protection namely:

  • Berne Convention for protection of literary and artistic works, 1886 [6]
  • Universal Copyright Convention, 1952 [7]

These conventions accord protection to literary and artistic works from the moment they are ‘fixed’ there being no prerequisite of ‘registration’. Artistic works also include cinematograph films. They require the enforcement of copyright protection to citizens of all countries party to the conventions. Every country under the conventions must have a national law in place for tackling the issue of copyright infringement. They specify the general period of copyright assignment to be the life of the author plus sixty years. India is a party to both the conventions.

Laws on Plagiarism in India

Unlike other countries, Plagiarism in films is not considered as a grave legal issue in India. Plagiarism and copyright infringement are not sufficiently differentiated. In Bollywood ‘Copying’ is given a sophisticated word ‘Inspiration’ which does not qualify as anything unethical in the view of most Indian producers and directors. 

Plagiarism is an issue of Ethics. It is unlawful but not illegal and therefore entails Civil action. 

Remedies available

An aggrieved party can institute a civil suit against the alleged plagiarist. The reliefs granted by the Court include interim or permanent injunctions, payment of damages, providing due credit, a share in the profits made by the film.

When plagiarism is of such extent so as to cause copyright infringement the provisions of The Copyright Act, 1957 apply. The moral rights of an author are given statutory recognition under the said Act and the author cannot waive these rights.

Under Sec 57 of the Copyright Act, 1957 [8], the author of literary works and audio-visual works is entitled to Moral Rights which are:

  1. Right to Paternity: The right of paternity refers to the right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. 
  2. Right to Integrity: The right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation. 

Preventive Steps

The authorities like the Central Board of Film Certification (CBFC) and various producer and writer guilds should actively address the issue of plagiarism in films. Some measures that can be incorporated are as follows: 

  1. When a film is in process of getting a certification by CBFC the board must conduct some due diligence if it finds obvious similarities in comparison with a pre-existing work.
  2. The film-makers must be mandated to provide documents relating to authorisation or copyright assignment in case of book adaptations, remakes, etc which must be well scrutinised by the board.
  3. The CBFC should refrain from certifying the films until it is thoroughly satisfied that the film is original or in other cases if the necessary permissions are sought.
  4. Various film industries should form collaborations to oversee the issue of rampant and blatant plagiarism worldwide. 
  5. The entertainment laws should be made stricter to keep violations in check.
  6. Some specific and definite standards should be established to determine if a film is plagiarised.

Why is a certain level of Plagiarism allowed? 

Plagiarism is the piracy of intellectual property of the author. An idea, a theme, a principle, historical or legendary facts are considered as the common property. Every person can freely choose an idea as a subject matter and develop it differently as per his will. When two writers create a story based on the same idea, similarities are bound to occur, but an inference of plagiarism cannot be drawn merely on the basis of these similarities. Thus no one can claim a right on these. A single idea can be presented through different perspectives and in multiple ways. In many cases plagiarism goes unchecked and there being no defined standards of what constitutes plagiarism in films, it remains an open-ended question. 

Conclusion

Film industries throughout the world are plagued with the menace of plagiarism. Plagiarism in films goes unchecked mainly due to the absence of specific defined standards to put a check on it. Also given the high cost of adjudication aggrieved authors refrain from taking the legal recourse. The state and the film industry must therefore formulate a strict regulatory framework to address this issue and protect the rights of authors and ensure creation of original and better content for the viewer entertainment.

References

  1. www.hollywoodreporter.com Big Little Lions: Disney’s New ‘Lion King’ Dodges the ‘Kimba’ Similarity Issue.
  2. www.hollywoodreporter.com Big Little Lions: Disney’s New ‘Lion King’ Dodges the ‘Kimba’ Similarity Issue.
  3. www.Indiankanoon.org/doc/1734007/
  4. www.Indiankanoon.org/doc/72003037/
  5. www.law.emory.edu/elir/content/volume-26/issue-1/comments/is-bollywood-unlawfully-copying-hollywood
  6. www.wipo.int/treaties/en/ip/berne/
  7. www.portal.unesco.org
  8. www.copyright.gov.in
  9. image source: hollywoodrepoter.com Big Little Lions: Disney’s New ‘Lion King’ Dodges the ‘Kimba’ Similarity Issue.

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