In this blogpost, Harsha Jeswani, Student, National Law Institute University, Bhopal writes about whether an author can claim copyright on the title of his work and also analysis the case Krishika Lulla v. Shyam Vithalrao Devkatta

INTRODUCTION

Last year, the Supreme Court rendered a landmark judgment holding that no copyright subsists in respect of a literary work. The judgment was given by a bench comprising justices M.B. Lokur and SA Bobde. They heard an appeal of Krishika Lulla and others against the decision of the Bombay High Court, which had refused to quash a complaint filed under Section 63 of the Copyright Act, read with Sections 406 and 420 of  the  Indian  Penal  Code, 1860.

Before discussing the case, let us first understand the concept of Copyright in India. Copyright is a statutory right which is recognized and protected by copyright under The Copyright Act of 1957. It is a form of intellectual property which gives protection to the unique expression of one’s. It is a negative right as it enables the owner to prevent others from copying and using his ideas without his consent. At the same time, it gives the author an exclusive right for the commercial exploitation of his work.

The (Indian) Copyright Act, 1957 protects following works-

• artistic work including a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving, a photograph, a work of architecture or artistic craftsmanship, dramatic work,
• literary work (including computer programmes, tables, compilations and computer databases),
• musical work (including music as well as graphical notation),
• sound recording, and
• cinematograph film

The Copyright is always granted on all Original literary, artistic, musical or dramatic, cinematograph and sound recording works. Original here means that the work must not be copied from anywhere.

Copyright protection begins as soon as the work is created. In India, the registration of copyright is optional as it serves as mere evidence of the fact. Copyright is granted till the lifetime of the author or artist and sixty years following the death of the author.

Now the issue that came before the Supreme Court in the case of Krishika Lulla v. Shyam Vithalrao Devkatta decided on 15 October 2015 was whether the author can claim copyright over the title of a work.

The brief facts of the case were-

The respondent had written a story with the title “Desi Boys.” On 25.11.2008, he got the synopsis of the story registered with the Film Writers Association. His friend told him that the son of a director required a comedy film story. He emailed the synopsis of the story to his friend on 14.10.2009. The respondent did not receive any reply. After some time, the respondent saw the promos of a film titled “Desi Boys” which was actually spelled as “Desi Boyz.”  The film was released throughout India with title “Desi Boyz” on 25.11.2011.  The Respondent claimed that using the title “Desi Boyz” in the film amounts to a clear violation of the copyright.

The question before the court was whether the respondent has copyright in the title “Desi Boys” which he has given to the synopsis of a story.

The Court noted that copyright in India is a statutory right provided under The Copyright Act, 1957. Before coming to the conclusion, it is important to understand whether the title can be a subject of copyright. Title by itself is in the nature of a name of a work and is incomplete by itself, without the work.

The court referred to Section 13 of the Copyrights Act, 1957 which provides that copyright is granted for original literary work. The term title is not to be included in the definition of “work”. Also, the two terms “Desi” and “Boys” are so commonly used terms that there cannot be anything original. It is obvious, therefore, that the title “Desi Boys”, assuming it to be work, has nothing original in it in the sense that its origin cannot be attributed to the respondent. In fact, these two terms cannot be regarded as literary work.  The mere use of common words, such as those used here, cannot qualify for being described as ‘literary’.

In the instant matter, the title of a film was on the basis of the title of mere synopsis of a story. The title of the film cannot, therefore, be regarded as a literary work, and so it doesn’t constitute any copyright in it according to Section 13 of Copyrights Act, 1957. Thus, no criminal complaint is maintainable under this act for infringement of Copyright.

It was also observed by the Apex Court that no copyright subsists in the title of a literary work and, therefore, the complaint of the plaintiff is unsustainable, and he is not entitled to any relief as the title is not a subject of copyright. This does not signify that a title cannot be protected from being copied as held in Dicks v Yates that where “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention.”

Thus, it was laid down by the Hon’ble Court that in the present case, the title “Desi Boys” does not constitute any title and so no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is unsustainable.