Copyright Law
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This article is written by Jai Shetty, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com.

Introduction

Nowadays, a party moving the court for prohibiting the show/exhibition of a film has become a common affair. People come out of the woodwork, to stop the release of a film either on religious grounds or on account of any copyright infringements or simply just to make a buck by harassing the producers incessantly. This article will focus mainly on infringements vis-à-vis the film, Jhund. Biopics are always a case of a concern, as they sometimes involve not only the rights of a person on whom the film is being made but also the surrounding people as well. The producers of a biopic film are usually left in a bad position when a suit for injunction is filed stating that the necessary rights have not been acquired to make the film. In this article, we will deal with personality rights, what constitutes personality rights and whether it has any legal backing to it. This article will also focus on the test that has been formulated by courts in India, to determine copyright infringement. Further, it will analyse how the Trial Court and the High Court have erred in passing such an order and subsequently upholding the same. 

What are personality rights?

The rights involved in a biopic film are called personality rights. Personality rights have now been recognised and enforced through (1) the right to privacy and (2) the right to publicity. These rights have to be acquired from the “celebrity” on whom the biopic is made. 

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The right to publicity can be seen as a right to protect one’s image from being exploited commercially without their consent. The right to privacy is a right that allows one to keep their life private. It allows them to protect their personality from being represented in public without permission.

Currently, there are no statutes or laws in India that particularly deal with the right to privacy or right to publicity, let alone personality rights as a whole. Over time, the courts in India have given it a nice shape by providing recognition to it. 

The Supreme Court in Justice KS Puttaswamy (Retd.) v. Union of India, stated that the right to privacy is a pre-constitutional right, which has been preserved and not created by it. The nine-judge bench of the Supreme Court in the same case after much deliberations also held publicity to be an element of privacy that is protected as a fundamental right.

A question now arises as to who can claim themselves as a celebrity? As much as everyone wants to be a celebrity in his/her own right, the Madras High Court in Shivaji Rao Gaikwad vs. Varsha Production, held that personality rights vest on those persons, who have attained the prestige of a celebrity and no proof of falsity, confusing or deception is required when the celebrity is identifiable. The actor in the above case was the first actor to claim this right, viz., Right to publicity and won the case. Rajnikant had sought to protect his particular signature styles. Subsequently, Defendant was restrained from using the title, ‘Main Hoon Rajinikanth’.

An ordinary citizen cannot claim personality rights but he can claim a right to privacy. The right to privacy is a sacrosanct right, which every individual enjoys, be it a celebrity or an ordinary person. This right can also be termed as ‘birth right’. A person is born with the right to privacy. No person can simply invade the privacy of a person. It does not differ from person to person. 

The right to privacy remains with each and every individual who is born and the right to die with that person. The Madras High Court was also of the same view in Makkal Tholai Thodarpu Kuzhumam Limited Vs. Mrs V.Muthulakshmi. The court therein stated that the “right of privacy” of the Late forest brigand Veerappan, did not subsist after his death, in view of the undertaking that the “right of privacy” of Veerappan’s wife and daughters, would not be affected. The court in this case categorically rejected the argument regarding the inheritability of the “right of privacy”. 

All that can be formally construed from the above-mentioned judgements is that, right to privacy and right to publicity which is collectively known as Personality Rights, has finally been afforded judicial recognition and that it is guaranteed under Article 21 of the Constitution of India.

What is an infringement?

An infringement or a copyright infringement occurs when someone duplicates or reproduces the original work of the copyright holder without taking due permission from him. 

In order to prove copyright infringement, copyright registration is not necessary but it will be highly useful if the plaintiff has registered the work, as the same will act as strong proof which can be better presented before a court of law. A copyright holder or the owner can prevent the misuse of his/her work by taking legal action, in case of any infringement. 

Section 51 of the Copyright Act, 1957 (“Act”)  specifically deals with when copyright works are infringed.

  • In a nutshell, an act done is said to be an infringement, when any such person who does not obtain the license from the copyright holder does any act which only the copyright holder is authorised to do; or
  • Any person who permits the place to be used for communication, selling, distribution or exhibition of an infringing work unless he can prove that he was not aware or has no reason to believe that such permission will result in the violation of copyright; or 
  • Any person who imports infringing copies of a work; or 
  • Any person who does an act, without obtaining a license from the Registrar of Copyrights under the Act or in contravention of a license granted or of any condition imposed by the Competent authority. 

Background of the Case

Jhund (“film”) deals with the concept of Life Rights, wherein the Telangana High Court (“High Court”) upheld an order for an injunction against Super Cassettes Pvt. Ltd. (“defendant/s”). The facts of this case are that one Mr Nandi Chinni Kumar, Original Plaintiff before the Trial Court, (“plaintiff”) had approached defendant no.1, Mr Akhilesh Paul (“defendant No. 1”) and entered into a Life Story Rights agreement with him. Akhilesh Paul was the captain of the team which is depicted in the said film. In exchange for signing off his life story rights, Plaintiff paid him Rs. 12 Lakhs. Plaintiff wanted to make a biopic/feature film based on the true-life story of defendant No. 1. A NOC was also obtained from Akhilesh, which confirmed that the plaintiff had bought exclusive True Life story events in order to make a biopic/feature film and that plaintiff is the only authorized person to make a screenplay/story of true-life story events. Subsequently, the plaintiff got his script titled ‘Slum Soccer’, registered with the Telangana Cinema Writers’ Association

The plaintiff then came to know about the release of the said film, through various media reports, which revolved around the life of coach Paul. Upon being informed about the unfortunate release of the said film, the plaintiff wrote to the defendant producers, keeping them abreast about the agreements entered into between the plaintiff and Akhilesh Paul, and how this is in clear violation of it. 

In addition to the above, the plaintiff filed an exhibit before the court, claiming that a certain amount of money was paid by the defendants to Akhilesh Paul, in order to showcase his life, in the said film. This was completely contrary to the exclusive assignment agreement which was in favour of the plaintiff. Since the plaintiff, though the assignment agreement owned everything in respect to the life story of Akhilesh Paul, any agreement entered into by Paul with the defendant has to be held void ab initio.

Subsequently, the plaintiff moved to the Trial Court and prayed for an order of injunction against the release of the film. 

Contentions of the court

The plaintiff contended that since Akhilesh Paul had assigned his life story rights to him only, any subsequent agreement of similar nature entered into by Akhilesh Paul shall be held to be void. 

Further, the plaintiff contended that he owns the concept, though, characterization, image, identity and expression apart from copyright in respect of the true-life story events of defendant No. 1. The action of the defendants in making the said film with a character/image/identity and scenes based on the true-life story events of defendant No. 1, Akhilesh Paul, constitutes an infringement of the copyright of the plaintiffs’ original work ‘Slum Soccer’. The defendants have unauthorizedly without his consent used the literary work and/or its constituent elements contained in the plaintiff’s copyrighted story.

On the other hand, the defendants contend that they had no access to the plaintiff’s script, Slum Soccer whatsoever. The question of copyright does not arise in a situation, wherein the script is not in the public domain. The defendants further allege that the filming began in April 2018 and the release of the film was originally on 8 May 2020. In spite of several newspaper articles corroborating this, the plaintiff as per his own will and volition, having malafide intentions waited till 13th May 2020, to file the present suit. This shows that he has come before this court with unclean hands.

The decision of the courts

Trial court’s decision

The trial court (“court”) held that the allegations made by the plaintiff against the defendants are true. There is every likelihood of prima facie infringement and breach of copyright. It was also observed that there appears to be blatant collusion among the defendants with Akhilesh Paul and that there are similarities that are apparent even from the teaser of the film. On the other hand, the defendants were refusing to assist the court by giving further details of their movie.

The court thus concluded that from the teaser of the film, its contents show that there are distinct similarities in the plot, depiction and the life and story of the protagonist of the film as with the registered script of ‘Slum Soccer’. Hence, the court directed to maintain the status quo against the defendants. A case of temporary injunction was also made. 

High Court’s decision 

Consequently, the defendants went in appeal against the above order. The Telangana High Court (“High Court”) relied heavily on the exhibit that the plaintiff had submitted. Although defendant no.1 had initially assured the plaintiff that he did not assign his true life story events nor did he permit the defendants to exploit the same, the exhibit states otherwise. The exhibit clearly documents the true conduct of defendant no. 1, inasmuch as it reveals his transactions with the defendant, which is also a factor in accepting the plaintiff’s case prima-facie. This suggests collusion between defendant no.1 and the other defendants, viz. the producers. The High Court concluded by stating that the plaintiff has made a prima facie case as to the existence of a right and as regards to infringement as well. If the defendants are permitted to exhibit and distribute their film, whatever novelty there is in the plaintiff’s screenplay and the script would be lost, and it would be difficult to compensate him by way of damages.

The High Court upheld the order of injunction against the defendants. The defendants then filed a Special Leave Petition (“SLP”) before the Supreme Court, to quash this order but to no avail. The SLPs were dismissed by the Supreme Court.

Analysis

The Courts in India have developed the following tests to determine copyright infringement; (a) Substantial Similarity (b) Accessibility and (c) Audience Test.

Firstly, the High Court cited R.G Anand VS M/S. Delux Films & Ors. (1978) AIR 1613, (“R.G Anand”) wherein the Supreme Court held that there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and 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 copyrighted work. 

Now, for any work to be infringed, there has to be substantial similarity in the two works. In the instant case, the High Court held that there is a possibility of similarity in expression and copyright infringement. The reason being, defendant No. 1, had narrated the exact same events and ideas to both the plaintiff and the other defendants, viz., the producers. It will be “possible” for the expression to be substantially similar. To that effect, the court held that a prima facie case of injunction was made out.

The High Courts’ reasoning is contrary to what the Supreme Court interpreted in its landmark judgement. In order to fulfil the first test, the two works have to be compared. The works of both, the plaintiff and the defendant have to be brought before the court of law to establish whether there is any resemblance. The plaintiff did not exhibit the screenplay/script of which the defendants have supposedly infringed. Instead, he had set out several similarities in tabular columns in his plaint between the screenplay “Slum Soccer” and the teaser of the said film. Merely on the basis of this, it was inequitable on the part of the Court to have come to a decision that the work has been infringed. 

It is clearly laid down in the R.G Anand case that mere facts and/or ideas cannot be copyrighted, the expression of those ideas, viz. a script would be copyrighted. Therefore, it is sufficient to say that the first test is not fulfilled by the plaintiff. 

Secondly, in Vinay Vats v. Fox Star Studios, the Delhi High Court reiterated what the Supreme Court had stated in its ruling in the R.G Anand case. The Delhi High Court rejecting the prayer for interim injunction therein held that plaintiff’s script was not in the public domain, and the defendant had no access to it whatsoever. The question of copyright infringement should not exist as the defendant could have never possibly copied the expression, for the expression, i.e., the script itself was not in the public domain. 

Moreover, it was also laid down in the R.G. Anand case that it is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others; and the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor changes or super additions or embellishment here and there.

In the instant case, the plaintiff’s script was not in the public domain for the defendant to infringe upon. The defendants did not have any access to his script. The only viable similarity is the fact that defendant no. 1 had iterated, quite possibly, the same facts to both the plaintiff and the defendants, which as seen from the above reasoning by the Supreme Court and the Delhi High Court, does not entail any protection to it. The plaintiff failed to fulfil the second test of accessibility. 

Thirdly, the audience test is from the point of view of a third person and/or a layman. When such a person looks, in this case, watches both the films and forms an opinion that they are in fact akin to each other, then copyright infringement exists. In the instant case, the plaintiff had filed the case at a belated stage, just prior to the release of the film. This was solely done to pressurise the defendants to make a statement before the court as held by the Bombay High Court in Dashrath D Rathod v. Fox Star Studios. The Bombay High Court therein held that the balance of convenience was with the defendants, an irretrievable injury was not present and hence there was no case of an interim injunction. 

Hence, in the instant case, the plaintiff herein has also failed to fulfil this test.

Similarly in ICC Development (International) Limited v. Arvee Enterprises (“ICC Development”), the Delhi High Court had held that “the right to publicity evolves from the right to privacy and can only inhere in an individual……Any effort to take away the right to publicity from the individual to a non-human entity would be violative of Articles 19 and 21 of the constitution. No individual can be monopolized.” 

The High Court herein has failed to recognise the true essence of what the Delhi High Court interpreted in its judgement. Further, the Delhi High Court in ICC Development case therein, stated that “it would be against the basic concept of “persona”. The “persona” is defined in Black’s Law Dictionary, the seventh edition to mean “a person; an individual human being”. Most of the courts abroad have refused to grant publicity rights of human beings to the non-living entities.”

It is clear from the above reasoning that such rights cannot be transferred wholly by way of assignment. In order to make money by utilising personality rights, the celebrity in question can ‘license’, as he/she would still be in control of all those rights. 

The High Court herein also cited Titan Industries v. Ram Kumar Jewellers, (“Titan”) when dealing with the recognisability of personality rights in India. Although the High Court did recognise personality rights, it, however, failed to recognise the fact that there was an exclusive license with the plaintiffs therein in the Titan case and not an assignment that would have been contrary to what was held in the ICC Development case. 

Conclusion

In my opinion, the Telangana High Court has blatantly erred in upholding the order of injunction. At the outset, mere facts cannot be copyrighted as stated above and also as per Article 9.2 of the TRIPS Agreement. Upon the plaintiff brutally failing all three tests, the High Court ought to have dismissed the case rather than entertaining and passing orders in its favour. 

References

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