By, Shouraseni Chakraborty
In the case of R.G. Anand v. M/s Delux Films & Ors.[i] the plaintiff, a playwright, had formulated and produced the play ‘Hum Hindustani.’ On a request from the defendant and on self-consideration to turn it into a motion picture, the story was narrated to the defendant. The defendant, without prior consultation with the plaintiff, made a film- ‘New Delhi’, which was alleged by the plaintiff to be a copy of the play. The Apex Court held that though the plaintiff was to be considered the owner of the play, there was no infringement of his work by the creation of the movie. This was a landmark judgment redefining the threshold of copyright infringement in India. It struck a clear balance between what would be considered an original, an adaptation and a pirated work from the dimension of the copyright legislation in the country, thus spearheading the debate revolving around the idea-expression dichotomy.
The judgment of the court can be enumerated majorly under six limbs. Firstly, the court held that there could be no copyright in an idea, subject-matter, themes, plots or historical/legendary facts and hence, it is not the originality of thought/ idea but the originality of the expression of such thought/idea that is protectable. Secondly, when there are multiple expressions of the same idea, with the source being common, similarities are bound to occur. But what needs to be checked is whether the defendant’s work is a colorable imitation of the copyrighted work and whether or not such similarities are on substantial or fundamental aspects of the mode of expression adopted in the copyrighted work. Thirdly, the court based the test of copyright infringement from the perspective of the viewer/reader/audience whose judgment after a thorough evaluation of both the works would be detrimental in making out a case of piracy. The fourth aspect held that if both the previous and the subsequent works are a culmination of the same theme, but the subsequent work is presented and treated differently so that it becomes a completely new work, there can be no question of copyright violation. In its fifth limb, the judgment dealt with creative intent. Where there is a minimal iota of similarity, what needs to be checked is the intention of the creator of the subsequent work to copy the original, for which the material, broad dissimilarities between the two works is res ipsa loquitur. Lastly, the judgment dealt with complexity in the determination of copyright violation in a case where the prior work and the subsequent work differ in the mediums they are projected in. For instance, the prior work was a play, while the latter- a movie. Unlike a play with a limited live audience and a singular approach, motion pictures have a broader perspective, often greater run-time, cinematographic intricacies and introduction of sub-plots. The ultimate test lies in the amount of attribution the viewers make to the original work to make a case of copyright infringement.
Sweat of the Brow versus Originality Test
One of the major takeaways from the RG Anand precedent was the formation of a basis of the ‘Sweat of the Brow’ doctrine in India, which delved into the intricacies of the subsequent work. It stated that if a substantial amount of labour could be traced out while evaluating the subsequent work; it would pass the bar of copyright infringement. The quality of the subsequent work or the amount of overlap was not taken into consideration. But such a threshold left a very minute scope of creativity. Hence, mere compilations like telephone directories were entitled to have copyright protection. But such compilations would result in a formulation of a fact- making it a discovery and not an invention. Hence, this test was later disregarded in Eastern Book Company v. DB Modak[ii], which led to the development of the ‘Originality Test’ wherein the author of the subsequent work is absolved from a copyright infringement claim if his work (the subsequent work) enshrines an adequate amount of creativity and diligence.
The Scene A Faire: RG Anand’s latent approach
An extension of the Originality doctrine is seen in a Scene A Faire scenario, which states that when certain similarities are non-avoidable, what needs to be determined is if the depiction pertains to certain things which are extremely common to a particular situation, for e.g. the depiction of police life in the South Bronx will definitely include ” drinks, prostitutes, vermin and derelict cars.”[iii] Hence, such depictions do not come under the realm of copyright protection. Quite recently, the Scenes a Faire doctrine was tested on the touchstone of copyright infringement when Rajnikanth starrer Lingaa’s director was accused of imitating the script of K.R. Ravi Rathinam’s movie Mulai Vanam 999[iv], which is about a British engineer revolving around the Mullaperiyar dam. Rajnikanth refuted such claims stating that the nationalization of a river was a social issue, culminating in a historical fact and common public knowledge on which no particular person has a monopoly right.
This judgment was in line with the RG Anand precedent, which vehemently stated that even though the movie and the play were based on the same theme- provincialism, they were widely apart with respect to, inter alia, the characters, plot, and inculcation of the theme into the screenplay. So New Delhi could not be considered to be a colorable imitation of Hum Hindustani. The play qualified as a ‘dramatic work’ under Section 2(h)[v] and the movie-an ‘adaptation’ vide Section 2(a)(i).[vi] Once it is considered as an adaptation, it can be free from copyright infringement (as per Section 52) and is provided statutory recognition as per Section 14(a)(vi).[vii] So, in its essence, the RG Anand case came to the correct decision (making an unintentional use of the scene a faire), albeit with the wrong reasoning.
Modicum of Creativity and Nichols Abstraction: The Present (and the Future?)
The United States’ ‘Modicum of Creativity’ approach is a modern proliferation of the originality test, which delves into the thought process and the judgment involved behind the formulation of a subsequent work.[viii] However, using this approach in isolation is not enough. Whether the subsequent work is the result of a thought process and adequate judgment should be determined after passing it through the ‘Nichols Abstraction’ test. It narrows down to the product that remains after filtering out all the dissimilarities. For example, in Mansoob Haider vs. Yash Raj Films Pvt. Ltd. & Others[ix] the makers of the Bollywood movie Dhoom 3 were accused of infringement of the Plaintiff’s copyright in the script- ONCE. The Supreme Court pursued the RG Anand precedent in confirmation with the Nichols Abstraction Test holding that there was no copyright infringement. The residual product that remained after filtering out all the dissimilarities between the two was the main idea behind the works and ideas are not protectable.[x]
Even though the aforementioned tests have been fruitful so far, their future implications are not free from uncertainty. For instance, evaluating a claim for copyright infringement from the perspective of an average viewer can be misleading. In Vinay Vats v. Fox Star Studios India Pvt. Ltd.[xi] with the court holding that material differences should be able to be made out by a prudent man having a thorough knowledge about both the works. But what exactly qualifies as thorough knowledge? For instance, a critic having a clearer understanding will surely be able to chalk out the subtle nuances- the undertones, the objects and the similarities between the works. So whether their opinion of the works is the ultimate test for determining a case of infringement is a grey area yet to be considered.
THE MODERN IMPLICATIONS
The High Courts have a diverted opinion as far as copying and colorable imitation is concerned. The Calcutta High Court in Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah[xii] adopted a broader approach pertaining to situations where there are material similarities between the works when observed with prudence and diligence- a stance followed by the Delhi High Court in MRF Limited v. Metro Tyres Limited.[xiii] However, the Bombay High Court has taken a stricter approach in Star India Private Limited v. Leo Burnett (India) Pvt. Ltd,[xiv] where a T.V. commercial for Tide detergent was alleged to be an imitation of Star Plus’ popular show Kyunki Saas Bhi Kabhi Bahu Thi. The court dismissed such claims comparing both the works as a whole in both qualitative and quantitative terms- an approach that its Kolkata and Delhi counterparts lagged. The judgment also delved into the intention of the creator and the main focus principles, which were again a huge part of the RG Anand judgment.
Recently, the Hindi movie Baaghi was under scrutiny before the Bombay High Court in the case of Xyz Films LLC And 2 Ors v. UTV Motion Pictures/UTV Software[xv], wherein the plaintiffs claimed that the last 20 minutes of the total runtime was an exact copy of their movie- Raid: The Redemption and that the defendants had used the central/main plot/screenplay of the prior work to build their story. The court reiterated that the central theme is not protectable and neither is a particular sequence that is a “kernel” to the story and not a part of the main story. Hence, it was not granted protection.
Determination of copyright violation has become extremely complex in the modern scenario. With the advent of OTTs and social media, the complexity is more than ever. Minute differences can cause elaborate litigation- for instance, the tussle between Bala-Ujda Chaman or Raabta-Magadheera. Even though a film as a whole is protected under copyright law, its screenplay, songs, lyrics etc. should ideally also be allowed copyright protection. For instance, improv actors should be given rights over their performance. In such a scenario, the contentious works and their contentious parts should first be checked against one another and then, as a whole, thus incorporating a more holistic approach for a modern implementation of the precedent.
[i] R.G. Anand v. M/s Delux Films & Ors.,AIR 1978 SC 1613.
[ii] Eastern Book Company v. DB Modak, (2008) 1 SCC 1.
[iii] David Nimmer, Nimmer on Copyright Vol III, (1963).
[iv] K.R.Ravi Rathinam v. The Director General Of Police, 2014 SCC OnLine Mad 11982.
[v] The Copyright Act, 1957, § 2(h).
[vi] The Copyright Act, 1957, § 2(a)(i).
[vii] The Copyright Act, 1957, § 14(a)(vi).
[viii] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
[ix] Mansoob Haider v. Yash Raj Films Pvt. Ltd. & Others, 2014 (59) PTC 292.
[x] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).
[xi] Vinay Vats v. Fox Star Studios India Pvt. Ltd., CS(COMM) 291/2020.
[xii] Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah, 2009 SCC OnLine Cal. 2113.
[xiii] MRF Limited v. Metro Tyres Limited, (2019) SCC OnLine Del 8973.
[xiv] Star India Private Limited v. Leo Burnett (India) Pvt. Ltd, 2003 (27) PTC 81 Bom.
[xv] Xyz Films LLC And 2 Ors v. UTV Motion Pictures/UTV Software, 2016 SCC OnLine Bom 3970.