Madras High Court
Vinod K. Sharma vs Rickyy Bahl" To Any Person
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
O.A.Nos.917 and 918 of 2011 in C.S.No.756 of 2011 VINOD K. SHARMA,J.
The plaintiff / applicant has filed O.A.Nos.917 and 918 of 2011, under Order 39 Rule 1 & 2 of the Code of Civil Procedure r/w Order XIV, Rule 8 of the Original Side Rules, praying therein as under:
i) O.A.No.917 of 2011 - To grant interim injunction restraining the respondents 2 to 5 from releasing the release prints of the file "LADIES V/S RICKYY BAHL" to any person.
ii) O.A.No.918 of 2011 To grant interim injunction, restraining the respondents, agents, servants, representatives or any other persons acting on their behalf in any manner infringing the exclusive copy rights of "Nan Avan Illai" in Tamil and "WOH MAIN NAHI" in Hindi.
2. The plaintiff / applicant is a renowned producer and distributor, having name and fame in film industry and has produced many cinematographic films and also a distributor of films. The plaintiff produced a Tamil feature film titled "Nan Avan Illai", after securing the rights from the creator and producer Mr.K.Balachander and Dr.Kamala Selvaraj under the agreement dated 30.11.2006 and released the film in Tamil on 20.04.2007, starring Jeevan, Nameetha, Malavika, Sneha, Keerthi Chawla, Jothimayi, which was directed by Selva. The film proved to be a super-duper hit.
3. It is the case of the plaintiff / applicant that in order to remake the above said film in Hindi version, the plaintiff also purchased the original rights of the film "WOH MAIN NAHI" vide agreement dated 03.01.2008. The plaintiff, thus, is copy right owner of film "Nan Avan Illai" in Tamil and "WOH MAIN NAHI" in Hindi. The plaintiff, after securing the above said copy right, issued a public notice in the leading magazine to bring to the notice of the general public that the plaintiff was the absolute copy right holder of film "Nan Avan Illai" in Tamil and "WOH MAIN NAHI" in Hindi.
4. The further case of the plaintiff is that he was shocked and surprised to see the promos in TV and advertisement of the defendants' forth coming film "LADIES V/S RICKY BAHL". The case of the plaintiff is that the very promos itself reveals that the said film is nothing but a remake of the plaintiff's film "Nan Avan Illai" in Tamil and "WOH MAIN NAHI" in Hindi. "LADIES V/S RICKY BAHL". It is pleaded case of the plaintiff that it has been reliably learnt that the story pattern, sequences, narration and other incidents are similar to the plaintiff's copy right version films and that the defendants were attempting to release the film "LADIES V/S RICKY BAHL" on 09.12.2011 to get unjust enrichment, which will cause heavy loss to the plaintiff and would amount to infringement of the copy right.
5. It is also the case of the applicant / plaintiff that a legal notice was issued on 16.11.2011, to which a reply has been received. On the pleadings referred to above, the plaintiff / applicant seeks prayers reproduced herein above.
6. The defendants have filed counter raising objection that the suit is not maintainable, as the suit for copy right infringement can only be maintained upon showing of actual infringement and not on the basis of conjectures and surmises. The stand in the counter is that the suit does not disclose any cause of action and the suit has been filed on the basis of promos of the film to come to the conclusion that the film is based on the plaintiff's film. It is the case pleaded in the counter that the does not disclose what copy right protection have been infringed.
7. It is also the stand of the respondents that under Section 14(d) of the Copyright Act, 1957, the exclusive rights vested in the owner of a cinematographic film are;
i)to make a copy of the film, including a photograph of any image forming part thereof,
ii)to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; and
iii)to communicate the film to the public.
8. The stand of the defendants is that the plaintiff / applicant does not allege violation of any of the above said right. In the pleadings, reliance is placed on the judgment of the Hon'ble Bombay High Court in the case of Star India Pvt. Ltd. vs. Leo Burnett (India) Pvt. Ltd., (2003) 2 BCR 655, wherein it has been held that infringement of a cinematographic film per se reproduced such as is the case with video / CD/ cable piracy etc. Thus, there is no prima facie case of infringement, which may entitle the plaintiff to interim injunction.
9. It is the case of the defendants that the assignment deed relied upon by the plaintiff is confined to the remake and dubbing rights in languages Tamil, Telugu and Kannada, which does not give right in Hindi. Whereas assignment deed dated 03.01.2008 shows that the plaintiff has been given right to remake / reproduce the film one time in Hindi, therefore, it is not open to the plaintiff to claim that he is the absolute copyright owner of the film "WOH MAIN NAHI". It is further stated in the counter by placing reliance on the judgment of the Hon'ble Supreme Court in the case of R.G.Anand vs. M/s.Delux Films, AIR 1978 SC 1613, 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 case is confined to the form, manner and arrangment and expression of idea, by the author of copyrighted work, therefore, plaintiff cannot claim copyright over story matter of the films.
10. On merit, the stand of the defendants / non applicants is that the film "LADIES V/S RICKY BAHL" is an entirely distinct film from "Nan Avan Illai" with significant distinction in themes between the two films:
"Naan Avan Illai"
"Ladies vs. RICKY Bahl"
The lead male character marries 4 different women and leaves them thereafter.
The lead male character does not play the love or marriage game and all the cons are planned depending upon the person.
The core of the film is the courtroom drama where the main male lead character is caught and is presented in front of the women he has married.
There is no court room drama and the lead male character does not get caught.
The cops catch the main lead in the very beginning of the movie and then the women characters are called in to identify him.
There is no such scene.
The women don't know each other and only meet at the hospital for identification purposes. The women never voluntarily search for the male character.
The women somehow get in touch with each other, and devise a way to find the male character and con him instead of handing him over to the police.
The lead male character is a romantic and the movie is primarily based on his romantic trysts.
The lead character is a cold calculated con-man for WOHm the entire matter is akin to a game and his primary objective is to make money.
The lead male character gets killed in the end.
The lead male character does not get killed in the end.
11. It is pleaded case that in order to succeed, the plaintiff is required to show that literary work alleged to have been infringed must have been reproduced verbatim or substantially, resulting in an impression in the minds of the viewers that the original and the reproduction are the same. It is also pleaded case that there is no averment that any actual copy right or script of the original Tamil film has been copied. It is also stand of the defendants / non applicants that the plaintiff is guilty of suppression of various material facts and that the plaintiff's film "Nan Avan Illai" as well as the earlier film "Nan Avan Illai (1974)" are based on a Marathi play titled "Toh Mee Navhech" authored by Acharya Prahlad Keshav Atre, therefore, in absence of plaintiff, showing how the makers of the original film had obtained from Acharya Prahlad Keshav Atre in the literary work being script of the play titled "Toh Mee Nahvech" and the present suit is not maintainable.
12. That in fact the Marathi play itself, it was based on a real life incident involving a person named Madhav Kazi, a handsome youth, who had duped several girls from wealthy families with promises of marriage and in fact married seven of them under different names and guises, who was finally arrested and tried in Court. It is pleaded in the counter that the Hon'ble Bombay High Court in Indian Express Newspapers (Bombay) Pvt. Ltd. vs. Jagmohan Mundhra, AIR 1985 Bom.229, was pleased to hold that there cannot be any copyright in an event which has actually taken place, therefore, the relief claimed is against well settled principles of law.
13. It is also pleaded case of the defendants that the plaintiff in the garb of suit for copyright is claiming the absolute monopoly over any story line where a main cheats one or more women using his charm, which is a common enough them and there cannot be any copyright protection over its theme. Reliance of this pleading is placed on the Hon'ble Supreme Court in the case of R.G.Anand vs. M/s.Delux Films, AIR 1978 SC 1613 and also judgment of this Court in Chatrapathy Shanmugham vs. S.Rangarajan, S.A.No.114 of 2004, decided on 28.09.2011, laying down that there is no copyright protection for themes, plots and story lines. The protection is only for the expression and this is in copyright theory known as the idea-expression dichotomy. It was due to this reason that on the same story line, number of films / plays has been made in several languages.
14. That a case of infringement cannot be made out unless upon showing of substantial similarity between the original work and the allegedly infringing work. The plaintiff has failed to show any such similarity. It is also pleaded that contrary to popular notion, the art of writing a script is highly structured with emphasis on a few key points. As a thumb rule, in the initial portions of the script will be found the HOOK, being that part of the script that grabs the attention of the viewer and pull him into the film. This is followed by the "MINI CRISIS" and leading into the "DILEMMA". DILEMMA is followed by the REACTION to the DILEMMA, then the "FIRST REVERSAL", at which point the characters are drawn deeper into the DILEMMA, the "TENT POLE" where passive characters become active or vice versa, the "SECOND REVERSAL" where it is reaffirmed as to what the story is all about, and finally the LOW POINT OF ACTION, being the place from where the main character has to rise up. Even to arrive at a finding of prima facie infringement, an expert comparison between the script of the original work and the script of the allegedly infringing work is a prerequisite. If there are considerable dissimilarities between each of these ingredients as found in the original, and the allegedly infringing work, then there is no question of infringement even on a prima facie basis. This also explains why it is imperative that the plaintiff should have filed before this Hon'ble Court the script of its Tamil film "Naan Avan Illai" and the Hindi film "Woh Main Nahi". The plaintiff is disentitled from demanding that the defendant may preview its film without the plaintiff first coming out clean with the script of its film. The nuances of the plaintiff's script are absolutely essential when undertaking a comparison between the two works.
15. The plea is that the contention raised includes serious complicated question of fact, which can be gone into at the time of trial and not at the stage of interim injunction. It is also the stand in the counter that underlying them of the film "LADIES V/S RICKY BAHL" is the original idea conceptualized by Mr.Aditya Chopra, who is a story and script writer of this film, which is an independent creation, thus, it is pleaded that there is no prima facie case in favour of the plaintiff / applicant. Reliance is placed on the judgment of the Hon'ble Delhi High Court in the case of Biswaroop Roy Choudhary vs. Karan Johan, 2006 (33) PTC 381, holding therein that when the defendant has completed the production of the film and is ready to release it for commercial exploitation is a factor, which would always deter the Court from granting injuctory relief.
16. That defendant no.1 has invested Rs.28 Crores in making and marketing the film and various third party rights, including satellite, extra-terrestrial rights, overseas theatrical rights, VCD / DVD rights have been created and in case any injunction is granted, it would cause irreparable loss to the defendants. It is also the case that no evidence has been led to show the attempts made by the plaintiff to remake the film in Hindi. On facts, the averments made in the plaint are denied.
17. The basic stand is that there is no violation of copyright and that there is no similarities between two movies. It is also case that there is no violation of copyright in the cinematographic film under Section 14(d) r/w Section 51 of the Copyright Act, 1957, being not a remake. Thus, it is asserted in the counter that the plaintiff has neither prima facie case nor balance of convenience is in favour of the plaintiff.
18. However, nothing has been shown that any irreparable loss would be caused to the plaintiff / applicant. In order to determine the similarities between the films, six Advocates were appointed to see both films, i.e. "Naan Avan Illai" and "LADIES V/S RICKY BAHL" to file their report. It is surprising that the set of Advocates nominated by the plaintiff reported in favour of the plaintiff. Whereas the Advocates nominated by the plaintiffs reported against the stand taken by the plaintiff.
19. The report filed by M/s.Sandeep Bagmar, M.V.Swaroop & Ananth Padmanabhan, Advocates, shows the following comparison between the two films:
"III. Comparison between the two films:
3.1There are considerable and material differences between various aspects of the two films such as the characterisation of the hero, the development of the plot, the narrative technique, all the other characters and their characterisation, the lines in the films, the genre itself, the motive and purpose of the hero's actions, the delving into the background / past of the hero, and the overall treatment.
3.2The major points of comparison, thus highlighting the differences between these films, are given in the form of a table below:
"Naan Avan Illai"
"Ladies vs Ricky Bahl The crux of this film revolves around denial of his identity by one man The crux of this film revolves around a con man who never denies his identity but gets a kick out of continuing the con act. In fact, he even confesses in a particular scene that he is a con man, and has a ring back tone that suggests this.
The core of the film is the courtroom drama where the main male lead character is caught and is presented in front of the women he has married There is no court room drama and the lead male character does not get caught.
The lead male character marries 4 different women and leaves them thereafter The lead male character does not play the love or marriage game and all the cons are planned depending upon the person. He never even abuses his women physically, as is clearly mentioned by one of the three girls.
The film delves at length into the background of the lead male character as the police investigation is closely interlinked with the courtroom drama.
The police is not ever in the picture in this film, and there is no delving at all into the background of Ricky Bahl and what prompted him to resort to a life of conning.
The lead male character is an anti-hero of sorts and there is no transformation in his character till the very end.
The lead male character falls in love with Ishika the con woman and there is a strong transformation in his character at the end.
The cops catch the main lead in the very beginning of the movie and then the women characters are called in to identify him.
There is no such scene.
The women don't known each other and only meet at the hospital for identification purposes. The women never voluntarily search for the male character The women get in touch with each other, and devise a way to find the male character and con him using the on woman instead of handing him over to the police.
The lead male character is a romantic and the movie is primarily based on his romantic trysts. This is also mentioned by some of the characters while delving into his background.
The lead character is a cold calculated con-man for whom the entire matter is akin to a game and his only objective is to make money. He never physically desires his 'targets', as made clear by Dimple towards the end.
The hero's characterisation is very strong and none match up to him.
The heroine / con woman is shown as a strong character, especially towards the end of the movie when the hero actually falls in love with her.
The lead male character gets killed in the end.
The lead male character does not get killed in the end.
The sequences where the hero cons each of the women whom he ultimately marries are mentioned in detail above, and substantially differ from the conning sequences in "Ladies vs. Ricky Bahl"
The sequences where the hero cons each of the women are mentioned in detail above, and substantially differ from the ones in "Naan Avan Illai"
The narrative technique of this movie is guided entirely by the courtroom drama, with the story emerging in flashback through the words of witnesses.
The narrative technique of this film is linear except for one small flashback sequence, and as already mentioned above, this is no courtroom drama.
The characterisation of the hero in this movie is as a man with lot of vices and yet a heart of gold. He is also shown to resort to might when required.
The characterisation of the hero in this movie is as a con man with no physical desire for the women he cons, but he is not shown using might (no action sequences at all in the film) or doing charitable activities.
The hero uses the assistance of a character named Napoleon to convince all the women about his fake identity.
The hero does not use any such tactics except with the central character herself, who anyways knows that he is a fraudster, and feigned trust in Shankar in order to con him.
20. Whereas the report filed by Mr.Mohammed Rafi, Mr.Remesh and Mr.Nazeer Ahmed, Advocates, reads as under:
"(3) SIMILARITIES:
(1)In both the movies, the story line, plot and the main theme is that the hero is a con man who cons may women and grabs money.
(2)The following 3 incidents are common in both the movies:
(a) Property deal: The Hero pretends to be a owner of the property and sell the property, takes money and ran away by which deceives the heroine, which is the main scene in both the movies namely Nan Avanillai and Ladies Vs. Ricky Bahl.
(b) Painting: A very big episode of art gallery of Hussain. The names are identical in both the movies with the regard to the painting work and the hero cons one of the heroine by falsely declaring that he is a great painter and sells away a duplicate painting and extract money which will prove to be a duplicate at a later scene.
(c) Business: Common episode of business development screened in both the movies that both of them becoming partner in opening business to con each other which will be very pertinent in both the movies.
(3)In both the movies, the affected, disappointed and deceived heroines jointly rebel against the con man hero and take revenge for his high handedness.
(4)In both the movies, while tracing the whereabouts of the hero, who elopes after coning, using the media net work, television and cell phones to locate the identity, which is very common.
(5)In both the movies, one character helps the hero for coning all the ladies namely Shankar in Ladies Vs. Ricky Bahl and comedian Mayilsamy in Nan Avanillai.
(6)In both the movies, one of the victim of the coning shall develop love on the hero.
(7)The hero's character and heroine' character are very same and similar with the regard to the coning and taking revenge.
(8)The centre plot and character of the hero is a con man, cons may women and grabs their money through various modus operandi, which is the core theme in both the movies.
(9)In both the movies, the hero changed his name from character to character and place to place, which is very common and identical.
(10)The film devolves at length in main character namely the hero cons all the women by changing his name, religion and cheats.
(11)The lead role after coring everybody and after getting stabbed, transforms himself and ask pardon from God in "Naan Avan Illai" whereas in Ladies Vs. Ricky Bahl, the con man transforms himself and get married to one of the heroines.
(12)In both the movies, the deceived women get together and wholeheartedly try to take revenge on the corn hero.
(13)The hero and heroines character are very same and similar in both the movies."
21. Learned counsel for the applicant referred to the assignment agreement dated 30.11.2006 with regard to Tamil, Telugu & Kannada Re-Make & Dubbing Rights of "Naan Avan Illai". He also referred to the assignment deed with regard to the film "Woh Main Nahi", to assert that the plaintiff has absolute copyright to maintain the film. It was vehemently contended by the learned counsel for the applicant that number of situations shown in the movies are identical, which shows that the applicant is entitled to injunction prayed for.
22. In support of this contention, learned counsel for the applicant placed reliance on the judgment of the Hon'ble Supreme Court in the case of R.G.Anand vs. M/s.Delux Films, AIR 1978 SC 1613, wherein the Hon'ble Supreme Court was pleased to lay down as under:
"45. Thus, the position appears to be that an idea, principle, theme, or subject matter or historical or legendary facts being common property cannot be the subject matter of copyright of a particular person. 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. Where two writers write on the same subject similarities are bound to occur because the central idea of both are the single but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek-Roman and British mythology or legendary stories like Mer chant of Venice, Hamlet, Romeo Juliet, Jullius Caesar etc. But the treatment of the subject by Shakespeare in each of his dramas is so fresh, so different, so full of poetic exuberance. elegance and erudition and so novel in character as a result of which the end product be comes an original in itself. In fact, the power and passion of his expression, the uniqueness, eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him. It will thus be preposterous to level a charge of plagiarism against the great play-wright. In fact, thoughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of the dramas constitutes a master-piece of English literature. It has been rightly said that "every drama of Shakespeare is an extended metaphor". Thus, 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 y there. Indeed, if on a perusal of the copyrighted work the defendant's work appears to be a transparent rephrasing; or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved. Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.
23. Reliance was also placed on the judgment of the Hon'ble Rajasthan High Court in the case of Fateh Singh Mehta vs. O.P.Singhal and others, AIR 1990 RAJASTHAN 8, wherein it has been laid down as under:
"The word "original" from S.13 does not mean that the work must be the expression of original or invented thought. The originality in literary work which is required by S.13 relates to the expression of thought. Much depends on the skill, labour knowledge and the capacity to digest and utilise the raw materials contributed by the others in imparting to the product the quality and the character which those materials did not possess and which differentiate the product from the materials used. The compiler of a work in which absolute originality is of necessity excluded is entitled, without exposing himself to a charge of piracy, to make use of preceding work upon the subject, where he bestows such mental labour upon what he has taken, and subjects it to such revision and correction as to produce an original result. The question whether there has been an infringement of copy right depends on whether colourable imitation has been made.
Where the thesis submitted by a teacher for obtaining Ph.D. Actually reproduced verbatim some paras from the thesis for dissertation submitted by a student who had obtained Master's degree on that dissertation and the said teacher, applicant for Ph.D. was a guide for the student, the grant of injunction by the Court passed in favour of the student who had obtained Master's degree, against the University from conferring Ph.D. on his guide on the basis of said thesis would be justified. Injunction was provided as one of the remedies under the Act for any infringement of copyright. Moreover, there was report of professor and Head of Department of Mechanical Engineering and principal of College of Engineering stating that the said thesis contains several reproductions from the thesis of the plaintiff student. In such a case, mere resolution of the Research Board, Faculty of Engineering at its meeting warning the applicant for Ph.D. for not making due acknowledgements in his thesis of the material reproduced from the thesis of the plaintiff and asking him to submit the revised copy of thesis indicating due acknowledgments at proper places will not be material for the reason that no licence had been granted u/S.30 of the Act by the owner of the copyright in favour of him nor there was assignment copyright nor its relinquishment by the plaintiff. Case law discussed."
24. Reliance was also placed on the judgment of this Court in the case of The Daily Calendar Supplying Bureau, Sivakasi vs. The United Concern, AIR 1967 MADRAS 381, wherein it has been laid down as under:
"For the purpose of infringement of copyright, an exact reproduction or copy is not necessary. What is essential is to see whether there is reproduction of substantial part of the picture. There can be no test to decide what a substantial part of a picture is. As long as the mind is able to form on an examination of the two pictures that basically and in substance one is a reproduction of the other, further modifications or variations will not alter the effect of infringement. There might be and there will be obvious differences deliberately introduced to avoid a possible change of infringement. A bad copy does not cease to be a copy. If the court, on a consideration of all the relevant circumstances and a comparison of the plaintiffs' picture and the infringing comes to the conclusion that the defendants' picture was consciously copied from the work of the plaintiff, that would be sufficient to hold that copyright is infringed.: 1895 AC 20 (25) and AIR 1961 Mad 111 and AIR 1961 Mad 114 and (1848) 3 Story U.S.Rep.768, Rel.on.'Law of Copyright' by Copinger, page 148, Ref."
25. The contention of the learned counsel for the applicant / plaintiff was that once concept is same, there are number scenes, which are similar. It is proved that the applicant is having prima facie case, therefore, balance of convenience is in favour of the applicant that he is likely to suffer irreparable loss and injury if the injunction is not granted.
26. Learned Senior Counsel for the defendants on the other hand vehemently contended that the idea, if any, is driving from the Marathi drama "To Mee Navhech", meaning "That's not me". The contention of the learned Senior Counsel for the respondents was that this, having been based on the original incident, cannot give any copyright to the applicant / plaintiff to claim any copyright. Learned Senior Counsel for the respondents also contended that the situation in both cases are quite different and referred to the dissimilarities, as pointed out in the counter as also the report of the Advocate Commissioners, reproduced above.
27. A strong reliance was placed by the learned Senior Counsel on the judgment of the Hon'ble Supreme Court in the case of R.G.Anand vs. M/s.Delux Films (supra), to contend that the allegations of the plaintiff do not make out prima facie case. The contention of the learned Senior Counsel for the respondents was that reading of the judgment shows similarities here or similarities there is not sufficient to constitute violation of copyright unless imitation made by defendants is substantial. That imitation will be a copy which comes so near to the original as to suggest original to the mind of every person seeing it. In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant that will be sufficient to constitute a violation of the copy-right. That there is no prima facie case, balance of convenience or irreparable loss to the plaintiff.
28. On consideration, I find that the applicant has failed to make out a case for grant of interim injunction. The Hon'ble Supreme Court in the case of R.G.Anand vs. M/s.Delux Films (supra), was pleased to lay down the following proposition of law:
"46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
1. 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 copyright work.
2. Where the same idea is being developed in a different manner, it is manifest 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 defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to 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.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing 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.
4. 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 violation of copyright arises.
5.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 infringement of the copyright comes into existence.
6. As a violation of copyright 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.
7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour 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, violation of the copyright may be said to be proved."
29. When the facts of this case is considered in the light of authoritative pronouncement by the Hon'ble Supreme Court, it is to be held that the applicant cannot claim copyright of idea. In an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such case is confined to the form, manner and arrangment and expression of idea, which is not the case here. The pleaded case and argument raised shows that it is the same idea, which was developed, therefore, some similarities cannot make out a case of violation of copyright.
30. In order to succeed, it was for the plaintiff / applicant to show that the spectator or the viewer get an unmistakable impression that the subsequent work appears to be a copy of the original, which is not the case either pleaded or proved. In this case, admittedly besides similarities, there is also material and broad dissimilarities, which prima facie shows that there is no infringement of copy right, therefore, suit filed by the applicant / plaintiff prima facie does not show infringement of copy right.
31. Consequently, no other conclusion than the one that the applicant / plaintiff has failed to make out prima facie case, can be arrived at. The applicant / plaintiff, in the event of success finally, can always claim damages, therefore, the balance of convenience is certainly in favour of the defendants / non applicants, as he has already produced the film and is ready for release.
32. For the reasons stated above, finding no merits in these applications, O.A.Nos.917 and 918 of 2011 are ordered to be dismissed, but with no order as to costs.
33. However, it is made clear that anything stated herein above be not taken it to be final expression on merit of controversy in this case. It will be open to the parties to lead evidence in support of their respective stand, at the time of final disposal of the suit. No costs.
25.01.2012 Index: Yes Internet: Yes ar VINOD K. SHARMA,J.
ar Pre-Delivery Order in O.A.Nos.917 and 918 of 2011 in C.S.No.756 of 2011 25.01.2012