Karnataka High Court
Rajiv Menon vs Dr M P Somparasad on 9 April, 2025
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NC: 2025:KHC:15136
RFA No. 1589 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO.1589 OF 2014 (IPR)
BETWEEN:
1. RAJIV MENON S/O LATE KK. MENON,
AGED ABOUT 51 YEARS,
R/AT #19, (OLD NO.11),
6TH MAIN ROAD, R.A PURAM,
CHENNAI-600 028.
2. RAJIV MENON PRODUCTIONS,
A PARTNERSHIP FIRM,
HAVING ITS OFFICE AT NO.19,
(OLD NO.11), 6TH MAIN ROAD,
R.A PURAM, CHENNAI-600 028.
REP. BY MR.RAJIV MENON.
...APPELLANTS
(BY SRI SHREYAS JAYASIMHA, ADVOCATE)
Digitally signed by
AND:
SUMITRA
SHERIGAR
Location: HIGH
DR. M P SOMAPRASAD,
COURT OF
KARNATAKA S/O MR. M K PRABHAKARAN,
AGED ABOUT 64 YEARS,
APARTMENT NO.12, MANTRI ALTIUS,
NO.17, RAJ BHAVAN ROAD,
BANGALORE-560 001.
...RESPONDENT
(BY DR. ADITHYA SONDHI, SENIOR ADVOCATE FOR
SMT. B V NIDHISHREE, ADVOCATE FOR C/RESPONDENT)
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RFA No. 1589 of 2014
THIS RFA IS FILED U/SEC. 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 06.08.2014 PASSED IN
O.S.NO.1940/2013 ON THE FILE OF THE XVIII-ADDL. CITY
CIVIL JUDGE, BENGALURU, DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, THROUGH VIDEO CONFERENCING AT
KALABURAGI BENCH, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE C M JOSHI
Index
A. FACTS AS PER PLEADINGS 3
B. THE ISSUES 16
C. ARGUMENTS BY APPELLANTS 18
D. ARGUMENTS BY RESPONDENT 35
E. THE LAW GOVERNING THE ISSUES 52
F. POINTS FOR CONSIDERATION 82
G. REG IA FOR ADDITIONAL EVIDENCE 83
H. THE TRIAL COURT'S FINDINGS 84
I. ANALYSIS AND CONCLUSIONS 94
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RFA No. 1589 of 2014
CAV JUDGMENT
Being aggrieved by the judgment and decree passed in O.S.No.1940/2013 dated 06.08.2014 by learned XVIII Additional City Civil Judge, Bengaluru City, (CCH 10, hereinafter referred as 'Trial Court'), the defendants are in appeal before this Court.
2. The parties would be referred as per their rankings before the Tribunal for the sake of convenience. A. Facts as per pleadings:
3. The plaintiff filed the suit against the defendants seeking following reliefs:
"a) To declare that the plaintiff alone being the absolute sole & exclusive copyright holder of the Book, "MS-A Life in Music" written by T.J.S.George and being the owner and copyright holder of the script produced at annexure-G to the plaint titled MS and Bala and alone is entitled to produce a cinematographic Film on the life of Late M.S.Subbalakshmi;
b) By way of a permanent injunction to restrain the defendants or their agents, assignees, nominees or any person acting on their behalf or claiming through them, from infringing the sole and exclusive rights of the plaintiff to produce a cinematographic film on the life of late M.S.Subbalakshmi, based on the book 'MS-A Life in -4- NC: 2025:KHC:15136 RFA No. 1589 of 2014 Music' written by T.J.S. George and the script produced at annexure 'G' to the plaint titled 'MS and Bala'
c) By way of mandatory injunction restrain defendants or their agents, assignees, nominees, or any person acting on their behalf or claiming through them from producing / directing a cinematographic film on the life of late M.S.Subbalakshmi without prior permission from the plaintiff.
d) Direct the defendants to deliver to the plaintiff, all the materials which is in his possession including the script regarding the cinematographic film on the life of late M.S.Subbalakshmi and File suitable affidavit to that effect.
e) Direct the defendants to pay the plaintiff a sum of Rupees 1,00,00,000/- (Rupees One Crores) as damages for having infringed the copyright of the plaintiff on the cinematographic film on the life of late M.S.Subbalakshmi and as the defendants have committed breach of confidence.
f) To grant of costs; and
g) to grant such other relief/s as this Hon'ble Court may deem fit to grant under the circumstances of the case, in the interest of justice and equity."
4. The brief facts to seek above reliefs are as below:
a) The plaintiff contended that he is a highly reputed Producer/Executive Producer in the World of Cinema. The plaintiff is not only a Film Producer but also a well established Businessman, with his business spread across many fields. He -5- NC: 2025:KHC:15136 RFA No. 1589 of 2014 has also produced some international movies with crew from USA, Denmark, UK etc. He is also a State and National Award winner for the movies he has produced.
b) Defendant No.1 is a Cinematographer and a Director and defendant No.2 is a Partnership Concern owned and run by defendant No.1. The plaintiff and defendant No.1 were acquainted for the past 12 years. The plaintiff in January-
2012 approached defendant No.1 with an idea to make a film on the life and achievements of late Dr.M.S.Subbulakshmi (hereinafter referred to as 'MS' for short) based on the Book "MS-A Life in Music" (hereinafter referred as 'the Book') written by Mr.T.J.S.George, who is a Senior Journalist and Editorial Adviser of the New Indian Express and was conferred with Padmabhushan award in the year 2011 in the field of Literature. Mr.T.J.S.George advised to write a Biography of late Dr.M.S.Subbulakshmi, who was a great Carnatic Vocalist, who was the First Musician to receive Bharath Rathna Award. She had also received various other awards which were of repute.
c) The plaintiff after reading the Book 'MS-A Life In Music' written by Mr.T.J.S.George approached him and -6- NC: 2025:KHC:15136 RFA No. 1589 of 2014 expressed his desire to produce a Cinematographic Film based on the said Book. He also obtained the consent of Mr.T.J.S.George and the copyright to produce the film was assigned to him without any reservation and limitation.
d) The plaintiff wanted the best team of Technicians and Artists and therefore, made preparations for the same. He also approached defendant No.1 to direct his Film because of the trust the plaintiff reposed in him. The plaintiff and defendant No.1 had discussions at length and defendant No.1 after reading the Book had expressed opinion that the idea could be for a documentary but not a feature Film. After much discussion and after seeing the additional material and information collected by the plaintiff, defendant No.1 was excited and showed eagerness to involve in the Film. Several finer aspects were also discussed between them with an understanding of confidentiality. The plaint narrates several finer aspects of the Film.
e) In January-2012, the plaintiff approached Mr.Satish P. Chandra (PW.2), the Managing Director of Global Tech Park -7- NC: 2025:KHC:15136 RFA No. 1589 of 2014 Private Limited, Bangalore, for financial assistance and he agreed to finance the Film to the tune of Rs.10 Crores.
f) In February-2012, the plaintiff and defendant No.1 decided to contact Dr.Girish Karnad, a highly acclaimed Writer to write the Script of the Film. Accordingly, they met Dr.Girish Karnad, who agreed to write the Script and paid a sum of Rs.1,00,000/- as advance. Thereafter, on 25.02.2012, Dr.Girish Karnad returned the amount expressing his inability to write the Script due to personal inconvenience. Then defendant No.1 persuaded the plaintiff to allow him to write the Script also, apart from directing the Film. With reluctance, the plaintiff agreed and during February-2013, Dr.Girish Karnad informed the plaintiff the reason for backing out from writing the Script that it was due to 1st defendant's insistence that the Script should give importance to the character of Ms. Balasaraswati, who was a reputed Dancer and contemporary of Dr.M.S. Subbulakshmi, which would in essence deviate from main idea agreed between the plaintiff and defendant No.1.
g) The task of writing the Script was entrusted to defendant No.1 and the plaintiff tried to reach defendant No.1 -8- NC: 2025:KHC:15136 RFA No. 1589 of 2014 many times but the efforts went in vain till April-2012. The plaintiff learnt that defendant No.1 tried to bypass the plaintiff and had contacted Mr.T.J.S.George to grant permission to produce and direct the film based on the Book 'MS-A Life in Music'. After persisting demands, on 25.07.2012, the plaintiff received a copy of the second draft of the Script from defendant No.1 and after discussions, defendant No.1 agreed that he will not deviate from the ideas of the plaintiff.
h) On learning that defendant No.1 is going ahead in casting the Actors and selecting the Crew for the Film without proper authorization and consent from the plaintiff, he sent an e-mail to defendant No.1, which was replied by defendant No.1 on 13.09.2012. The plaintiff came to know through an article in Times of India Newspaper, Bengaluru Edition, that defendants are making a Film on the life of MS with an estimated cost of Rs.70 Crores.
i) The plaintiff was shocked by the same. Since the plaintiff had already announced that he would be making a Film on MS as far back in the year 2010 and has made several preparations and investments in that regard, he felt that there -9- NC: 2025:KHC:15136 RFA No. 1589 of 2014 is infringement of his rights and therefore, was constrained to file the suit seeking the above mentioned reliefs.
5. On being served with the summons, the defendants appeared through the counsel and filed written statement. They took up following contentions:
a) Defendant No.1 is an Indian Cinematographer and Film Maker of repute with several commercially successful films, documentaries and publications under his belt. He set up defendant No.2, a Partnership Firm in the year 1987, for the purpose of furthering his business in film production.
b) Defendants are neither aware about the copyright owned by Mr. T.J.S. George in respect of the Book "MS- A Life in Music" nor that the rights in the same was assigned to the plaintiff. They are also unaware of the meetings between the plaintiff and Mr. T.J.S. George in this regard. Even if any such assignment of the copyright is there, it would only confer the right upon the plaintiff to create an adaptation based on the Book, but does not grant monopoly over the life and story of late MS. The defendants were not desirous of making a Film based on the Book written by Mr.T.J.S. George on the life of
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 late MS, unless the defendants were also granted the copyright in it.
c) The plaintiff and defendant No.1 being avid followers of MS and defendant No.1 being a Carnatic Music aficionado, was interested in the idea of making a film based on the life of MS, when contacted by the plaintiff in January 2012. After discussion, he found that the book is better suited for making a documentary than a commercial film. Defendant No.1 had expressed his idea of fictionalizing the story to make it more appealable to the present generation and making it more contemporary and artistic creation. Though there was some discussion with respect to biopic being made on MS adapting the Book, no concrete understanding and/or commitment was reached either orally or in writing between the parties. There was no such offer also by either of the parties. Therefore, there is absolutely no such contract entered into between the plaintiff and the defendants for making a Film by adopting the Book written by Mr.T.J.S.George. It was only an exchange of ideas and exploring the possibilities of making a biopic.
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d) The defendants are unaware of any research made by the plaintiff on the life of MS, but defendant No.1 conducted his own independent research on MS and other doyens of Dance and Music fraternity, pursuant to his interest in the idea. All research was made by defendant No.1 at his own expense and he has spent around Rs.4.00 lakh for logistical purposes to conduct such research.
e) The discussions between the plaintiff and the defendants do not create any rights in favour of the plaintiff and as such, they are irrelevant. It is denied that defendant No.1 had persuaded the plaintiff to let him write the script for the film, but on the other hand, it was the defendant No.1, who volunteered to write the script upon withdrawal of Mr. Girish Karnad who had previously agreed to write the script.
f) There cannot be any copyright for an idea. The copyright for the depiction in any form, on life of late MS in any form also cannot be claimed by any person. If at all, there are any rights in favour of the plaintiff, they are restricted to the Book and not upon and every script inspired by the life of late MS. Defendant No.1 is well within his rights to commence the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 work on a script that is independent of the Book and one that he is inspired to write. Admittedly, the plaintiff rejected the Script of defendant No.1 on the ground that it is not based upon the Book and therefore, defendant No.1 could not have been in breach of the plaintiff's copyright as alleged. In fact, defendant No.1 wished to create a story of two women, which was in turn inspired not only by the life of MS, but also by her close friend and renowned dancer late Balasaraswati.
g) It was the idea of defendant No.1 to make a Film depicting contemporary story of two women and their struggle, friendship and success, which shall not only be inspirational, but also strike a distinct cause amongst the film watching community, whereas the Book dealt with the life of MS alone.
h) It is denied that defendants had casted any Actors, selected any Crew, Music Composers and Technicians at the behest of the plaintiff. Defendants had only commenced identifying potential Artists to corroborate on the Script, consequent upon the plaintiff's refusal to be associated with the Script written by defendant No.1, since it was substantially
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 different from the story line of the Book written by Mr.T.J.S. George.
i) It is stated that while the defendants were exploring the possibility of collaborating with the plaintiff, he has allowed the plaintiff to read his Script so that plaintiff could give his view. While defendant No.1 was away on some other assignment of film making, the Personnel Assistant was in touch with the plaintiff until the preliminary draft of the Script was ready, but however, he ceased to be in touch with the plaintiff consequent upon the plaintiff refusing to work with defendant No.1.
j) The similarities in the impugned Script and the plaintiff's idea as pointed out by the plaintiff are nothing but actual events/incidents from the life of MS which are available in public domain. It is submitted that, it is axiomatic that historical/legendary facts are not subject matter that fall within the ambit of protection under Copyright Law.
k) The communication of the defendant to the plaintiff's e-mail dated 20.09.2012, confirmed that the Script is not based on the Book and this clearly shows that the Script is
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 not based upon the Book written by Mr.T.J.S. George. Therefore, there is no infringement of any copyright of the plaintiff in whatsoever manner.
l) The defendant have set up a counter claim contending that defendant No.1 being acclaimed Cinematographer and Film Maker, and a Carnatic Music aficionado, had the idea of making a Biopic of MS and other Artists of the Devadasi Community. Inspired by the stories and friendship of MS and Balasaraswati, he decided to make a Biopic on a larger canvas. Defendant No.1 assumed the challenge of writing a Script based on the idea of showing successful emerging artists from Devadasi Community, when Mr. Girish Karnad, had withdrawn from the project for personal reason. Therefore, the Script written by defendant No.1 is an independent work and it tells the story of struggle and fortitude of two friends born into a non main stream community, who tasted success and experienced acceptance into the pantheon of Classical Arts through their divergent views on art, love and life.
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m) The discussions of the plaintiff and the defendants revolved around above subject. Defendant No.1 was shocked to learn that the plaintiff has instituted the instant suit alleging infringement of his copyright on the impugned Script, which is written by defendant No.1.
n) Claiming that the Script is an independent work of defendant No.1 and there is no contract of plaintiff and defendants in whatsoever manner, the act of the plaintiff in filing the suit is with malafide intent to cause damage and harm to the defendants.
o) It is contended that due to the act of the plaintiff, which is a complete abuse of process of law, the research by defendant No.1 was halted pushing him to several set backs, delay in commencement of recording music for the film and wastage of financial resources. On the above grounds, the following counter claim is made by the defendants:
"(i) dismissing the suit of the plaintiff, by imposing exemplary costs on the plaintiff; and allowing the following counter claims raised by the Defendants;
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(ii) declaring that the Defendant No.1 is the author and consequently the sole copyright owner of the script titled 'MS and Bala';
(iii) of permanent injunction restraining the plaintiff and/or his agents/associates/employees/ acquaintances/business partners from using the Defendant No.1's script, 'MS & Bala' and producing a film therefrom under the Plaintiff's banner and/or the banner of one of the plaintiff's agents/ associates/ employees/ acquaintances/ business partners without the prior consent of the Defendant No.1;
(iv) of permanent injunction restraining the Plaintiff and/or his agents/ associates/ employees/ acquaintances/ business partners from distributing and/or divulging the Defendant No.1's script 'MS and Bala' to any of the plaintiff's agents/ associates/ employees/ acquaintances/ business partners without the prior consent of the Defendant No.1.
(v) any further orders as this Hon'ble Court may deem fit and proper in the interest of justice and equity."
B. The Issues:
6. On the basis of the above pleadings, the trial Court framed the following issues:
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 "1. Whether the plaintiff proves that he being the sole and exclusive copyright holder of book 'MS- A life in Music' written by Mr. T.J.S.George and being the owner and copyright holder of the script 'MS & Bala' is entitled to produce Cinematographic film on the life of M.S Subbalakshmi?
2. Whether the plaintiff proves that the defendant No.1 received all the confidential information on the life of M.S Subbalakshmi in order to write script and direct film on the life of M.S Subbalakshmi and committed breach of confidence?
3. Whether the defendant No.1 proves that he is the owner of the script 'MS & Bala' on the life of M.S Subbalakshmi and he is entitled for the relief as sought in the counter claim?
4. Whether the plaintiff is entitled for the reliefs as sought for?
5. What order or decree?"
7. The plaintiff was examined as PW1, Satish P. Chandra was examined as PW.2, Mr.T.J.S. George was examined as PW3 and another witness was examined as PW.4 and Exhibits P1 to P20 were marked on his behalf. On behalf of the defendants, defendant No.1 was examined as DW2 and Mr.
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Girish Karnad was examined as DW1 and Exhibits D1 to D10 were marked in evidence.
8. After hearing the arguments, the Trial Court answered Issue Nos. 1, 2 and 4 in the affirmative and issue No.3 in the negative and decreed the suit as prayed by the plaintiff and dismissed the counter claim.
9. Being aggrieved by the judgment of the Trial Court, defendants are in appeal before this Court.
10. The respondent/plaintiff has appeared through his counsel. The Trial Court records have been secured.
11. The arguments by learned counsel Sri Shreyas Jayasimha, for the appellants/defendants and by learned Senior Counsel Sri Aditya Sondhi on behalf of Smt. B.V.Nidhishree, for respondent/plaintiff are heard.
C. Arguments by Appellants:
12. At the outset, the learned counsel appearing for the appellants/defendants Sri Shreyas Jayasimha, submits that the trial Court has combined the issues No.1 to 4 and has given reasons together, which itself is flawed. It is contended that it
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 should have taken the issues separately. Therefore, it has landed in a perspective which is not in accordance with law. He submits that the copyright protection is only in expression of the idea, but not the idea itself. It is contended that the plaintiff and the defendants had a discussion in respect of the Cinematographic Film on the life of MS and the plaintiff had given the Book written by Mr. T.J.S. George to the Defendants. Later, they together went to the DW.1 - Girish Karnad for writing the Script. He could not write the Script. Thereafter, defendant No.1 on his own wrote the Script after extensive research, which is an independent work. He submits that under the Indian Copyright Act,1957, the ideas per se are not copyrightable, but only the expression including the literary device such as dialogue, characters, sub-plots are copyrightable. The plaintiff is claiming copyright in Script, which is admittedly written by defendant No.1, despite the lack of contractual relationship between the parties.
13. It is contended that the Script is admittedly written by defendant No.1 and it is an expression of his idea and perception of the life and achievement of MS. The Copyright Law does not permit plaintiff to appropriate himself to the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Script written by the labour and skill of defendant No.1. It is submitted that the landmark judgment of the Apex Court in the case of R.G. Anand vs Deluxe films and others [(1978) 4 SCC 118], has laid down the principles on which the Copyright in respect of a Script and Film would be governed. It is submitted that the facts and historical events are not copyrightable. It is contended that the prayers sought in the plaint by the plaintiff itself are untenable and beyond the scope of the reliefs that could be claimed under the Indian Copyright Act. In the sense, the plaintiff is claiming title and ownership in a Cinematographic Film on the subject matter of life and achievements of MS. It is submitted that the facts cannot be protected under the Copyright Law. It is, therefore, open to the public to discover such facts and exchange the ideas freely.
14. The plaintiff although claims to have shared confidential information with the defendants, he fails to demonstrate in terms of evidence, what are those confidential information, which were shared since, the Book written by Mr. T.J.S. George was already in public domain, with the Books written by few other Authors also. It is submitted that the plaintiff has admitted certain scenes including that of the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 opening scene in the Script was not conceived by him and the same is historical event. The actual fact of the scene is the historical fact and the manner and the expression in the Script is distinct from the version depicted in the Book by the plaintiff. It is contended that the facts which were uncovered through the extensive research by the plaintiff are not entitled for protection under the Act, in favour of the plaintiff. Further, he submitted that the Author's original expression or description of the facts may be subject of the copyright, but not the facts themselves. The Act provides that one can copy elements that are not original from the prior Author's work including the facts or materials in the public domain. He submits that it is an established principle that use of such element should not unfairly appropriate author's original contribution. The defendants have the right to use the fact in any biography on the subject matter and use that information whether correct or incorrect in the own literary work.
15. He further contends that the copyright protection does not extend to the News, Events, Facts or Ideas, which are subject of news report, Books in the public domain, such as, the Book written by Mr.T.J.S. George, 'MS- A Life in Music'. Hence, the plaintiff cannot seek protection under the Copyright
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Law. It is submitted that a rendition of historical facts, being explanatory or hypothetical are not copyrightable because historical facts and events are in the public domain.
16. The second Author of a work devoted to the historical subject may make a significant use of the prior work, but should not bodily appropriate or plagiarize the expression of the prior work. It is submitted that the Book i.e., biographical works are personal histories and the two biographies of one individual can be similar in the content, but may differ in the expression. Therefore, a Biographer is entitled to copy right protection of his or her literal form of expression if it exhibits its originality. It is also submitted that the Copyright Law also does not protect the historical facts irrespective of the effort in obtaining the same and the protection of the rights under the Copyright Law extends only to the expression of the factual incidents and the historic figures and not the incidents and the people in itself. Pursuing this line of argument further, it may rightly, moreover, lawfully be concluded that the similarities between the appellants' work and the contents of the Book are merely factual and historical in nature and therefore, it does not amount to an infringement of the copyright.
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17. The next submission by the learned counsel for the appellants - defendants is that the Script is not an adaptation of the Book. But the Script is an original fictional work inspired by the facts. Elaborating on this contention, he submits that the testimony of PW.3 Mr. T.J.S. George, shows that he failed to answer Whether the Script is based on the Book? When the Author himself has not included many details of the people and the life of MS as presented in the Script, and when he has admitted to not knowing the name of the niece of Mr. Sadasivam, who run the household at Kalki Garden and further states that he knows very little about Balasaraswati, and the Script having focused on Balasaraswati in almost as much detail as it does on MS and therefore, it is incorrect to suggest that the Script is based on the Book. He vehemently submitted that the Script is not an adaptation of the Book. He further submitted that the appellants at no point in time met Mr. T.J.S. George (PW.3) and for any reason had any discussion with him. Defendant No.1 had shared preliminary Script with the plaintiff for his thoughts and inputs and later the plaintiff had
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 communicated his disagreement with the contents of the Script by categorically stating in his e-mail that the Script is evidently different from the Book. Thereafter, he refused to work with defendant No.1. He points out that the Script is the result of defendant No.1's intellectual labour, research and hard work. The plaintiff has not played any role in the research and has categorically admitted that he has not produced any material before the Court to show that he did any research on the life of MS. In fact, the plaintiff claims that he is the assignee of the copyright in the Book written by Mr.T.J.S. George and he having admitted that the Script is not an adaptation of the Book written by Mr.T.J.S. George, nothing remains in the suit and the trial Court has failed to appreciate this statement of the plaintiff.
18. It is contended that the plaintiff has admitted the proposition that defendant No.1 must have done some research in writing the Script, since the plaintiff had engaged him to write the Script. This statement of PW.1 itself would suffice that there is no document to demonstrate any contractual
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 relationship between the parties, much less the formal engagement. It is contended that the differences between the Script and the Book have been brought out on many occasions including the timelines of the events. It is contended that the subject matter of the dispute in the present case is with regard to the ownership of the Script and is beyond the scope of the present dispute to deliberate the ownership of the Script, on the basis of the copyright vested in the Book. He submits that at no point of time, the defendants have received any confidential information regarding the life of MS, from the plaintiff and all such information which the plaintiff claims was already available in the public domain. Therefore, reiterating the contention that the idea of bringing a Cinematographic Film on life of MS cannot be a copyrightable subject, but the expression alone could be the copyrightable subject, he submits that the admission of the plaintiff that the Script is not in consonance with the Book would inevitably should have resulted in the dismissal of the suit.
19. Elaborating on this point, he submits that the Book and the Script differ in more ways than one. He contends that the Script is neither a derivation of the Book, nor it draws any
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 inspiration therefrom. It is pointed out that the opening scene as allegedly visualized by the plaintiff from what depicted in the Script is drastically different. Therefore, it is evident that there is no merit in the contention that the plaintiff's ideas were borne in mind while giving shape to the Script of the Appellants.
20. He submits that defendant No.2 is not a necessary or proper party. It is submitted that the inclusion of defendant No.2 in the suit in the absence of any cause of action, is arbitrary. Therefore, the suit is flawed.
21. His next contention is that there is no contractual relationship between the parties. It is submitted that the intention of appellant No.1 for having written the said Script was to be able to direct a film and he further submitted that defendant No.1 was not contractually or otherwise legally obligated to seek the plaintiff's prior permission before casting the actors for the Film, for which the defendants had full freedom. When the plaintiff vide e-mail dated 13.09.2012 had admitted that the Script is not based on the Book and that the essence and theme of the Script is not what the Book depicts,
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 there was no reason for the plaintiff to approach the Court and seek an injunction. He points out that there are no commercial terms that were discussed and there was no contractual relationship between the parties. It is submitted that the plaintiff has categorically stated in his e-mail dated 15.02.2012 that he requested the defendants to share the Script with him and also goes on to state that, the first draft of the Script written by the defendant No.1 and the contents of the Book are drastically different. Therefore, it cannot be utilized for the plaintiff's Film. The plaintiff was unhappy with the inclusion of the character of Balasaraswati in the Script and admitted that such inclusion would significantly deviate from the essence of the Book. Therefore, he rejected the Script. The Script was shared with the plaintiff merely to understand and explore the possibility of working together and cannot be treated as grant of license or an agreement to make a cinematographic work based on the plaintiff's alleged rights under Section 14 (4) of the Indian Copyright Act 1957.
22. He submits that the provisions under Section 14 of the Indian Copyright Act, are not applicable to the case on hand. He submits that the provisions of the Act under Section
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 14 do not apply under the facts and circumstances of the instant case, for the simple reason that the Script is not an adaptation of the Book and is based on extensive research and study conducted by defendant No.1. The plaintiff has expressly admitted that the inclusion of character of Balasaraswati in the Script deviates from the central idea of the Book, but goes on to claim his non-existent rights on the Script by saying that it is a product inspired by the Book. It is submitted that there is no evidence before the trial Court to demonstrate any information much less the confidential information, which was provided to the defendants by the plaintiff in writing the Script. The cross- examination of the plaintiff proves beyond doubt that the plaintiff has not shared any such confidential information. Even then, the trial Court holds that such confidential information should not have been used by the defendants. He further submits that the magnitude of the contradiction in the evidence placed on record by the plaintiff before the trial Court are glaring reflection of the lack of merit in his case. It is pointed out that the plaintiff has failed to show that there is any substantial similarity which may be a basis for infringement and there are no such instances where the Script is virtually identical with the Book. He submits that the subject matter is
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 the story of life of late MS, where it becomes painfully difficult to distinguish two works based on the same story, thereby calling for party claiming copyright infringement to prove the imitation which makes the two works virtually identical. Therefore, the plaintiff has failed to establish any virtual similarity between the Book and Script before the Trial Court.
23. He further submits that the rights of the plaintiff, if any, can extend only upto the rights conferred upon him by virtue of the alleged assignment of right to utilize the Book. There is no any question of holding the right of the Script written by defendant No.1. It is contended that the defendants have also stated that, for facts and the life of MS, he had also relied on the two biographies i.e., (1) Ode to Nightingale (Laxmi Vishwanathan, 2003) and (2) M.S. Subbulakshmi, The Voice Divine (Roopa, 2002). Therefore, the mere existence of the copyright in the Biographies does not give its authorized licensees or assignees, the right to claim the copyright on all the subsequent expressions of the ideas on MS. The Biographies were written prior to the Book written by Mr. T.J.S. George and the expression and style of writing varies from Author to Author. Similarly, the Script is also another
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 expression of the idea, and is not based on the Book of the plaintiff. He further submits that the defendants' right to exploit thier contractual capacity by utilizing the resources available in the public domain cannot be restricted. The fact that multiple Biographies exist on the same subject matter written by the different Authors and the similarities that are bound to arise therein must be taken into account. Therefore, every similarity cannot be a copyright infringement under the Copyright Law. It is submitted that defendant No.1 is well within his rights to commence work on the Script i.e., independent of the Book, and the input for which drawn from extensive research undertaken by him.
24. He further submits that there can only be so many distinguished approaches and manners of developing a work on renowned persons. The premise of the subject matter being so specific and fundamental, leave very little room for variance in the output. Any similarity as alleged by the plaintiff is solely attributable due to the subject matter and not due to any imitation or adoption by appellant No.1 while preparing the Script. It is contended that the similarities between the Book and Script, if any, are merely incidental as they deal with same
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 subject matter and the factual aspects of the life of MS. Therefore, a difference must be drawn in the approach adopted by each party and that the similarity in the Script and the plaintiff's ideas are nothing but actual events, incidents and ideas from the life of MS, that are available in the public domain. It is further submitted that both the works differ substantially in the style, story telling and effect and it ought to be strictly considered that, neither the plaintiff has proved that the script bear substantial resemblance to the Book, nor it was written by the plaintiff. Therefore, the question of his rights in the Script does not arise at all.
25. Coming to the evidence on record, he submits that there is no evidence to show that the contents of the newspaper article were indeed statements of the defendants. He had only commenced identifying the potential Artists to collaborate on his script, consequent to the plaintiff's unequivocal refusal to be associated with the script. Therefore, that cannot be a ground to say that defendant No.1 is preparing the Film based on the Book. He points that defendant No.1 was never entrusted with or engaged by the plaintiff to write a Script and neither he had received any consideration in
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 this regard. Therefore, there are no contractual obligations between the parties. Absence of any consideration is an indication that there was no contract between the parties.
26. Coming to the contents of the Book and the Script, he submits that the Script emphasizes and revolves around the life of two women from the community of traditional performers i.e., the Devadasi and their inspiring struggle to gain recognition in the contemporary World of Music that was evolving in the independent India and more importantly, their pioneering efforts to expand the frontiers of their art to the South India.
27. Therefore, he contends that the approach of the Script is totally different as it involves the life of the Balasarswati also. In his extensive arguments, he has listed out several instances in the Book and the Script to show that they have a totally different approach. Therefore, he contends that the script written by defendant No.1 largely varies from that of the Book inasmuch as he has incorporated the characters otherwise than late MS. The Script differs from the Book, since
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 the Book has no essence or proper theme as it is a biography. He submits that the plaintiff's rights are limited to making a Cinematographic Film based on the Book of Mr. T.J.S. George, 'MS- A Life of Music' and nothing thereafter. Whereas, the Script written by defendant No.1 extends beyond the Book and it incorporates the life and struggle of Balasarswati also. It is submitted that the Script is not reproduction of the contents of the Book, but a diligently researched and uniquely conceptualized product. Therefore, it cannot attract the application of Section 14 of the Indian Copyright Act, 1957. The Script is titled as 'MS & Bala', but the Book is 'MS-A Life in Music', which does not involve the life of the Balasarswati in any way.
28. He further contended that the thrust of the Script is on the life of MS and Balasaraswati and he has enlisted the comparison of the Book and the Script to demonstrate the same. He also submitted that if any part of the Script is similar to the Book, that part may be redacted or expunged or removed. The role of Balasarswati is totally missing in the Book. Therefore, the perspectives of the Book and Script being different, there was no reason for the trial Court to decree the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 suit. He reiterated that the plaintiff had shared the Book with the defendants and the Book was already in public domain. Defendant No.1 wrote the Script by making his own research and it is only the facts which are narrated in the Book that were in public domain, for which, no copyright exists. Therefore, there being an admission by the plaintiff himself that the Script is not the depiction of the Book, he had disagreed to engage with the Cinematographic Film, the trial Court totally erred in holding that the suit deserves to be decreed. He points out that Para No.15 of the impugned judgment is totally perverse and therefore, it cannot withstand the scrutiny of the Court.
29. In support of his arguments, the learned counsel appearing for appellants/defendants has relied on the following decisions:
1. R.G Anand v. Delux Films1
2. N.T Raghunathan and Another v. All India Reporter Ltd.2
3. Barbara Taylor Bradford v. Sahara Media Entertainment Ltd., 20033
4. Mattel, Inc. v. Jayant Agarwalla,4
5. Eastern Book Company v. D.B. Modak,5 1 (1978) 4 SCC 188 2 1957 SCC OnLine Bom 162 3 SCC OnLine Cal 323 4 2008 SCC OnLine Del 1059
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6. Rediff.com India Ltd vs E-Eighteen India6
7. XYZ Films v. UTV Motion Pictures7,
8. Institute For Inner Studies Vs Charlotte Anderson8
9. Indian Express Newspapers (Bombay) Pvt. Ltd. v. Dr. Jagmohan Mundhara,9
10. Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd.10
30. The learned Senior counsel appearing for the respondent/plaintiff Sri Aditya Sondhi, has argued in extenso.
His first submission is that there were Eleven compelling reasons that weighed with the trial Court in passing the impugned judgment in favour of the plaintiff. He enlists the Eleven compelling reasons in the following manner:
1. The defendants have admitted that Mr. T.J.S George is the Author of the Book 'MS- A Life in Music';5
(2008) 1 SCC 1 6 2013 SCC OnLine Del 2747 7 2016 SCC OnLine Bom 3970 8 2011 SCC OnLine Del 3887 9 1984 SCC OnLine Bom 256 10 2003 SCC OnLine Bom 344 11 2010 SCC OnLine Bom 1577
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2. There was no intention of the defendants to make the Film prior to the plaintiff approached the defendants with an idea of making a Film on the life of MS in the year 2012 and shared the Book with the defendants;
3. The defendants do not question the assignment of the copyright in favour of the plaintiff by Mr. T.J.S. George in respect of the Book;
4. The independent evidence led by the plaintiff shows that the defendants were desirous of having a Script written based on the Book and in paragraph 14 of the judgment of trial Court, the trial Court has come to the conclusion that the Plaintiff and the defendants had an ad-idem to make a Film on the Script based on the Book which is at Ex.P16 and therefore, they paid a sum of Rs.1,00,000/- to Mr Girish Karnad, the DW1. He submits that the evidence of DW1 clearly shows that the plaintiff and the defendants had approached him to write a Script based on the Book, but it was he who planted an
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 idea that the film has to be fictionalised in order to make it commercially viable;
5. The defendants failed to prove their contention that the substantial portions of the Script was taken from the third party sources and not from the Book. He contends that the defendants had taken the assignment of writing the Script on the basis of the Book and therefore, he could not have deviated from the contents of the Book and as such the contention of the defendants that they relied on the Book written by Mrs. Lakshmi Viswanathan on Late MS, is an afterthought. He contended that the appellants- defendants nowhere in the written statement have mentioned that the Script is based on the Book written by Mrs.Lakshmi Vishwanathan. It is submitted that the defendants failed to discharge their burden of proof to show that certain parts of the Script is substantially from the other Authors and in the cross-examination the defendants admit that they have not produced any independent material to substantiate that the parts of the Script are based on
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 independent material of the 3rd parties. He argues that it is deemed that there is an infringement when the appellants-defendants sought to use the plaintiff's copyright in the Book to write a Script without the respondent-plaintiff's permission and to the exclusion of respondent-plaintiff. Once it is deemed to be an infringement, the onus shifts to the appellants -defendants and they must show through independent evidence that this Script is substantially based on some independent material in the public domain. They have not been able to discharge even an iota of that burden. The e-mails marked at Ex.P6, Ex.P8 and Ex.P9 which were exchanged between the plaintiff and the defendant No.1's Personal Assistant indicate that the defendant No.1 was making corrections to the Script and that the defendants would soon courier the same. Therefore, the fact that the plaintiff had engaged the defendants to Write the Script based on the Book of Mr. T.J.S George, is established.
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6. The learned Senior counsel submits that the average spectators test has been applied by the trial Court in coming to the conclusion. In para 16 of the judgment the trial Court without relying on any self serving comparisons by either party has independently applied its mind to the Script and the Book to come to the conclusion that they are not entirely different. The trial Court has discharged the average spectators test and has come to the conclusion that the vision of the appellants- defendants is not to the effect that the Script is beyond the Book. Therefore, when such a finding is reached by the trial Court, it clearly establishes that there was an infringement. The differences in the Script and the Book cannot be stressed much since the differences between both are immaterial. He argues that once it is shown that the essence of an idea has been shared with somebody and that person, based on that material, goes on to make a Film, then if the substance is based on the Book given to him, copyright violation is attracted. If the ordinary man has read the Book
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 two years back and watched the Film today and if he thinks that the Film is based on the Book then the threshold is crossed and as such, there is a copyright infringement made out. He further submits that the trial Court has compared both works and found that there is enough similarity and granted the injunction.
7. The adaptation of the Book to the Script is considered by the trial Court in paragraph 17 of the impugned judgment. It is contended that an adaptation of the Book into a Film does not mean that the Film has to be, line by line or para by para verbatim reproduction of the literary work. That can never happen with an adaptation, because the Manuscript and the Script are written in different forms. Further, the trial Court rightly held that the adaptation of work without the Author's or assignee's permission amounts to copyright infringement.
8. What was shared with the appellants by the plaintiff was a Book but not an idea. It is contended that it is settled law that there exists no copyright in an idea
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 but when an idea is given in extenso fleshed out and given to someone it becomes intellectual property worthy of protection. In paragraph 18 of the impugned judgment, the trial Court after going through the evidence came to the conclusion that the plaintiff has not only given the idea to write the Script on MS but has also given the Book to the defendants to write the Script for the movie on the life of MS.
9. In paragraph 19 of impugned judgment, the trial Court has rightly come to the conclusion that the Script is not the independent work of the defendants and it is an adaptation of the Book and therefore, the infringement is made out.
10. He further submits that in paragraph 19 of the judgment, the trial Court comes to the conclusion that the plaintiff has taken the consent from the Author of the Book and also the family members of Late MS as per Ex.P17 and Ex.P17A. Therefore, the plaintiff has become the absolute copyright holder of
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 the Book and the trial Court rightly held that the defendants received all the confidential information about the life of MS to write the Script and to direct the Film from the plaintiff and committed breach of confidence by proceeding to make a film on his own, based on the Book.
11. It is contended that judgment of the trial Court is well reasoned and balanced and the appellants - defendants have contended that the prayer in the plaint was generic and hence, it was a blanket injunction. It is submitted that the trial Court after comparing the Script and the Book and the law on the point has passed a cogent and reasoned judgment and therefore, there is no reason to hold that the judgment is perverse.
31. The other grounds urged by the learned counsel appearing for the plaintiff/respondent are that, the assignment of the copyright under the framework of law envisaged under the Copyright Act, 1957, is admitted by the defendants. It is submitted that Author of the Book 'MS-A life in Music' was
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Mr.T.J.S.George and he has assigned his rights in the Book to the plaintiff and this aspect is not in dispute. It is contended that even if there is an assignment, the first owner of the copyrighted work also has a certain privileges under Section 17 of the Copyright Act. Therefore, the right to make a Cinematographic work is recognized independently of the assignment. The moment Cinematographic work overlaps with the pre-existing literary work, in which, the copyright subsists, Section 13(2)(a) of the Copyright Act, 1957, prevails over the proviso in Section 17 and therefore, the copyright subsists with the Author of the original literary work. The statute makers were conscious of the fact that, once the Book becomes the basis for a Film then the copyright of the Book also extends to such Cinematographic work.
32. It is contended that the plaintiff had shared the Book with appellants/defendants. In the present case, the plaintiff as an assignee of the copyright of the Book 'MS-A life in Music', had shared the Book to the defendants and there were repeated interactions between the parties. It is contended that the respondent/plaintiff objected to portions of the Script written by defendant No.1 and instead of honouring the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 objections raised, he chose to proceed with making of the Film, excluding the plaintiff himself. Therefore, this is not a case of a person independently choosing to make a Film based on the person's life, where coincidentally, the person's life also has a Book made. Based on the facts and evidence, it is clear that the Book has been shared with the defendants by the plaintiff.
33. He states that there was no intention for the defendants to make a Film on MS prior to the sharing of the Book. There is no evidence by the defendants to show that they had done any independent research on the life of MS to write the Script and it was only after the plaintiff shared the Book, written by Mr.T.J.S.George, that the defendants got an idea and the Script was written based on the Book shared by the plaintiff. This shows that the intention of defendant No.1 was that, there was no idea for him to make a Film based on the life of MS and if such intention was there, there was no necessity for the defendants to share the Script with the plaintiff.
34. He further submits that when the Book was shared by the plaintiff with the defendants, the Script became a collaborative project between the appellants/defendants and
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 the respondent/plaintiff and such collaboration is admitted by defendant No.1 in his cross-examination. In furtherance of such collaborative Project, they had approached DW.1-Dr.Girish Karnad, but for personal reasons, he could not write the Script. Therefore, admittedly, the Script was to be drawn up on the basis of the Book, which defendant No.1 has done in the form of the Script. It is also submitted that the existence of an agreement is immaterial, if there is a violation in the copyright of the Book as rightly opined by the trial Court.
35. He further argued that DW1 states in his deposition that, as per his knowledge either M.S. Subbulakshmi or Balasaraswati have not given any interviews and further states that he might have read about them in the articles. The Book has several references to Balasaraswati in the life of MS and it is also admitted on record that it was the DW.1, who had suggested the inclusion of Balasaraswati in the Script, as such, inclusion would further add the dramatic dimension to the narrative and make the Film commercially viable. This inclusion may be best considered as an expansion of the mentions made in the Book and an addition to the Script and not the transformation of the Script itself. In this regard, he relies on
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Section 57 of the Copyright Act, which recognizes Author's Special Rights, which are loosely termed by the Courts as moral rights in a literary work. It is in this background that the testimony of PW.4 has to be looked into. He further contends that, there is no evidence of independent research by appellant No.1/defendant No.1 and therefore, he has based the Script on the Book. It is contended that defendant No.1 has volunteered to write the Script as he could foresee that it would kindle his creativity and it is this ingenuity on the part of the defendants, attempting to create a defence after the injunction was granted when the matter is subjudice. It is submitted that defendant No.1's creativity was kindled by the Book, not by the discussion and therefore, in the absence of any research being made by him and details of such research having not stated in his pleading, the evidence in that regard is to be eschewed. He further contends that the Script was sent by defendant No.1 to the plaintiff in April-2012 and thereafter, the defendants were in talks with actress Vidya Balan to play the role of MS. This was the main reason for the plaintiff to file the present suit. It is contended that till April-2012, defendant No.1 had no reason to say that he is venturing into a research on the life of MS and
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 he is writing a Script to make a Film. The learned counsel appearing for the plaintiff relies on certain admissions made by the defendant in his cross- examination.
36. He further submitted that the Script is substantially based on the Book. In this regard, he states that PW.3 being the Author of the Book himself has stated that the life of MS was strictly controlled by her husband, Mr.Sadasivam and thus, very little information about her personal life was available in the public domain. The articles in the public domain majorly dwelt on the beauty of her music, and it was only after her husband, Mr.Sadasivam died in the year 1997, that the restricted information could be accessed again. It had taken 10 years of extensive research for PW.3 to paint a comprehensive picture of MS's early life, family details, personal risks undertaken by her, events that led to her marriage and the high points of her career, in the Biography. At the time of publication of the Book and when the respondent/plaintiff shared the Book with the defendants, there was no other authoritative source of information on the life of MS.
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37. Learned counsel appearing for the respondent/plaintiff mainly has brought to the notice of this Court the following 03 instances which are directly taken from the Book onto the Script:
1. The first instance is that the Script opens with MS losing her voice just before the UN concert and the same event is mentioned in Page 208 of the Book.
2. The second incident is that the Book reveals MS running away from home, taking a train to Madras, the same is made use in the Script.
3. The third instance is that, the Book narrates how the mother of MS i.e., is Shanmugvadivu enraged by her daughter's escape, asks her son to go to Madras and bring her back, and subsequently, how rowdy's attempt to forcibly take MS away and thereafter, Mr.Sadasivam with his friends from the film industry, organize fake Policemen to drive away the rowdies.
38. These 03 instances are sufficient to say that the defendants had taken the exact instances narrated in the Book and that itself would be sufficient to hold that there is violation
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 of the Copyright Law. He contends that the Script contains all the essential elements of the plaintiff's Book, theme, plot and storyline and if one has to read the Book, then read the Script, it is very clear that the Script is an adaptation of the plaintiff's Book. The similarities are also so close to show that there are substantial material aspects of the copyrighted material in the defendants' Script.
39. He further reiterate that defendant No.1 was given the Book, not just the idea, to write the Script and as an idea is a notional concept in the vacuum which cannot exist in itself, the details were given to the defendants in the form of the Book and they have been fleshed out in the form of a Script. He submits that PW.4, is the grandson of MS, and he contacted the defendants on various occasions, but his calls were not returned. It is stated by PW.4 that when the litigation began, the defendants had approached PW.4 and he declined to say anything as the matter was subjudice. The testimony of PW.4 would show that Book on M.S. by Mr.T.J.S.George covers various aspects of the life of M.S. and that the defendants had never approached him or his mother to seek the consent to make a movie independently. He also states that though MS
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 was a public figure, she was known to many people in the public, but as far as her personal life was concerned, it was known to the people who were close to her only. Therefore, he contends that only after death of Mr.Sadasivam, certain information about the MS could be gathered, especially, the letter correspondence between MS and G.N.Balasubramanian. Under these circumstances, he contends that the admissions made by the defendant in the cross-examination is a clear indication of the fact that he had used all the instances which are fleshed out in the Book.
40. Lastly, he submits that the defendants' defence is an afterthought. He contends that the defendant engages in writing a detailed e-mail as per Ex.D5 on 15.03.2013 to the plaintiff, few days after, the Trial Court passes an injunction against the defendants vide order dated 11.03.2013 and the said unsolicited e-mail comes after 6 months of delay as a reply to the mail dated 13.09.2012 i.e., Ex.P8.
41. Therefore, he summarises that all the depositions, point to the same facts that defendant No.1 having taken over the position of the Script writer in the collaborative project with
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 the plaintiff was bound to fulfill his obligations under the implied contract, whereas, he, for reasons best known to him, violated the mutually agreed obligations, without informing the plaintiff, the owner of the copyright or taking consent of the family of the MS, went on to make an independent Film on his Script, which is substantially based on the Book by Mr.T.J.S.George. Therefore, the trial Court has rightly ordered payment of a sum of Rs.5,00,000/- towards the damages and costs of Rs.2,57,560/-. On these grounds, the respondent/plaintiff has sought for dismissal of the appeal.
42. The learned Senior Counsel appearing for respondent/plaintiff has placed reliance on the following decisions:
1. R.G Anand v. Delux Films12
2. Shamoil Ahmad Khan v. Falguni Shah and Others13,
3. Zee Telefilms Ltd. v. Sundial Communications Pvt.
Ltd.14
4. Amar Nath Sehgal v. Union of India15, 12 (1978) 4 SCC 188 13 2020 SCC OnLine Bom 665 14 2003 SCC OnLine Bom 344 15 2005 SCC OnLine Del 209
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5. Barbara Hager v. ECW Press Ltd., Dallas Williams and General Distribution Services Limited16,
6. IBCOS Computers Ltd. And Another v. Barclays Mercantile Highland Finance Ltd. And Others17
7. Francis Day & Hunter Ltd and Another vs Bron and Another18.
8. Sheldon v. Metro-Goldwyn Pictures Corporation19
9. Anil Gupta and Others v. Kunal Dasgupta and Others20,
43. Before venturing into the questions raised by this Court, let us examine the law on the point. E. The Law governing the issues:
44. The judgment of the Apex Court in the case of R.G. Anand (supra) is rendered in the backdrop of the copyright 16 (1992) 2 F.C. 287 17 (1994) F.S.R 275 18 (1963) Ch. 587 19 81 F. 2D. 49 (1936) 20 2002 SCC Online Del 250 ; ILR (2002) 1 Del 250 21 2012 SCC Online Bom 1302 ; (2013) 1 Mah LJ 343
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 infringement that was alleged in respect of a play and a cinematographic film. The Apex Court in para 45 and 46 lays down the principles and the propositions that emerged from the various cases which were cited before it. Para 45 and 46 read as below ;
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 same 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 Merchant of Venice, Hamlet, Romeo and Juliet, Julius Ceasar 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 becomes an original in itself. In fact, the power and
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 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 playwright. In fact, throughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of his dramas constitute a masterpiece 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 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 different form, different tone, different tenor so as to infuse a new life into the idea of the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 copyrighted work adapted by him. In the latter case there is no violation of the copyright.
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 copyrighted 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 defendant's 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 see if the reader, spectator or the viewer after having read or seen both the works is
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 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, 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
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 original play, violation of the copyright may be said to be proved."
(emphasiss supplied)
45. The judgment of the Apex Court in the case of N.T Raghunathan and Another v. All India Reporter Ltd. (supra), basically pertains to a copyright violation reporting in the law journals. Having found that there is verbatim copying in the head notes in the notes of the cases, an injunction was granted by the Bombay High Court.
46. In Barbara Taylor Bradford (supra), the Calcutta High Court in Para 108 has stated as below:
"108. This is a matter of quite some importance. Adaptation of a book in copyright law has a special meaning. Basing the work on another's copyright work, so as to cause an infringement must relate to a certain type of 'basing', which comes sufficiently within the prohibitions of the copyright law. What is 'basing' something in ordinary parlance, what is adaptation in ordinary parlance, is not 'basing' something according to copyright law understanding, and is not necessarily adaptation within the meaning of section 2 of the Copyright Act of 1957. Nobody claims, or submits, that Sabir was or is an expert in copyright law and his conversation, if it contains
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 technical copyright law words, should be read as giving those words the copyright law meaning, and not the meaning of ordinary people (extraordinary if you like) engaged in the film trade. Accordingly, the statements of Sabir that the serial was based on the book and that they Indianised it or revised it, are matters of absolutely no importance. The assessment whether there has or has not been an adaptation is an assessment for the Court to make and it is a mixed question of law and fact. It has to be done on a comparison of the materials and the Court can be relieved of this task if and only if some defendant should on some occasion walk into Court and say that he will happily suffer a decree involving infringement, short of such an admission of liability itself, nobody's statement about adaptation or even copying, can be accepted at face value, because a copy of a copyright work is a technical thing, and quite difficult to determine."
(emphasiss supplied)
47. In the case of Mattel, Inc. v. Jayant Agarwalla, (supra), the Delhi High Court had an occasion to deal with a case involving the infringement of Trademark. In Para 29, it was observed as below:
"29. The objective of Copyright law is to protect the original literary, dramatic, musical and artistic
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 works, cinematograph films, sound recordings, broadcasting rights and/or performers' rights. The object of Design Law, on the other hand, is protection of the features of shape, configuration, pattern, ornamentation, or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms by industrial process or means, whether manual, mechanical or chemical, separate or combined which in the finished appeal to and/are judged solely by the eye, but does not include any trade mark or property mark or artistic work. "Copyright" is defined in Section 2(c) of the Designs Act to mean exclusive right to apply a "design" to any article in any class in which design is registered. "Copyright" in Section 14 of the Copyright Act is defined to mean an exclusive right to authorize the doing of any of the acts as prescribed therein. Section 15 of the Copyright Act precludes the subsistence of Copyright in the Design which is registered or is capable of being registered as a "design" under The Designs Act, 1911".
48. In the judgment in Eastern Book Company v. D.B. Modak,(supra) which was again in respect of the copyright violation of the head notes of the judgments in the law journals, the propositions of law regarding violation of the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 copyright was held in Para 57 of the judgment rendered by justice Naolekar, as below ;
"57. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non- obvious, but at the same time it is not a product of merely labour and capital. The derivative work
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author".
(emphasiss supplied)
49. It is pertinent to note that the above propositions have to be considered in the light of the factual matrix of the case. Evidently, except the case of R.G. Anand (supra), all other matters were in respect of the infringement of the text of the documents or other forms which were in crystallized form. In the case on hand, evidently, the facts involved are in respect of adaptation of the Book to a Script, which is not yet converted into a Cinematographic Film.
50. In the case of XYZ Films LLC and Ors. v. UTV Motion Pictures/UTV Software Communications Ltd. and Others, the matter involved was in respect of an English Film and a Hindi Film. It was found that the Film Baaghi violates the copyright. In paras 31 and 32 of the judgment, it was stated as below;
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 "31. Dr. Saraf relies on a decision of the Federal Court in Australia13. This is a very interesting decision. It came up in Appeal from a judgment of the Supreme Court of Victoria granting interlocutory injunctions restraining the Appellants from infringing the respondents' copyright in a novel, screenplay and film. The appeal was dismissed. Of the two films in question one was the well known film Jaws. The other film was called Great White. The argument was that both were genre films based on the idea of a monster menacing a community, in this case a killer shark. There are some portions of this decision that merit extraction.
Counsel for the appellants submitted that both films, 'Jaws' and 'Great White' are genre films based upon the idea of a savage monster menacing a community. Each is a film about a killer shark terrorizing human beings and it was said that neither film was entitled to protection as there is no copyright in that general idea.
The difficulties involved in severing films into parts which are capable of characterization as original works and other parts that are not is obvious. Indeed, it is the subject of only limited exploration by the laws of this country and the United Kingdom. We were referred to certain decisions of United States' courts where this question has been considered from time to time and we have
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 found those cases helpful in resolving the questions before us. In general, there is no copyright in the central idea or theme of a story or play however original it may be; copyright subsists in the combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme. If these are totally different the taking of the idea or theme does not constitute an infringement of copyright.
Of necessity certain events, incidents or characters are found in many books and plays. Originality, when dealing with incidents and characters familiar in life or fiction, lies in the association, grouping and arrangement of those incidents and characters in such a manner that presents a new concept or a novel arrangement of those events and characters. We accept that where a story is written based on various incidents which in themselves are commonplace a claim for copyright must be confined closely to the story which has been composed by the author. Another author who materially varies the incidents and characters and materially changes the story is not an infringer of the copyright. If a literary or dramatic work is not wholly original there is no copyright in the unoriginal part so as to prevent its use. Additional factors may fall for consideration where the alleged infringement is by cinematograph film.
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 ......
The primary Judge correctly realised that two questions were involved in the resolution of what is the major issue; namely, the degree of objective similarity between the appellants' film and the respondent's novel and screen-play and, given sufficient objective similarity, whether copying was established. In relation to the question of copying, the appellants sought to show that the inspiration for the film 'Great White' came partly from the imagination of its producer, Dr. Tucci, and partly from a book by one Ramon Bravo called 'Carnada' which is published only in Spanish.
.........
The comparative exercise which his Honour undertook was central to his decision. He considered that there was such a marked degree of similarity between the two films that there was an inescapable inference of copying and that the respondent had an excellent chance of success at the trial. The strength of his views in relation to the similarity between the two films influenced the attitude which he took to much of the evidence, including expert evidence, and to the appellant's denial of copying, most of which was held to be inadmissible.
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Much criticism was levelled by the appellants at the approach which his Honour took to such evidence and at the inference of copying which he drew. Whilst our own viewing of the films did not instill in us the same degree of conviction that his Honour felt, we are not persuaded that his Honour was wrong.
Further it seems to us that it was not only open to his Honour to place the emphasis which he did upon his view of the similaritites between the two films but was the appropriate course for him to take in the particular circumstances in which he was placed with an application for interlocutory relief. Similarly it was appropriate for him to adopt the attitude which he did to the evidence upon which he placed no reliance whether or not such evidence is admissible or may be accepted at the trial.
His Honour's findings in respect of these matters to which we have referred have not been shown to be incorrect. Similarly we are of the view that the attempt by the appellants to dissect the films and to exclude from consideration stock scenes and banal events were of little value to the proceedings before his Honour in the circumstances as he found them. He faced a broader question which was not to be resolved by the drawing of fine distinctions.
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 No doubt numerous factors, including differences of sequence and of dialogue, aspects of idea or theme which lack originality and various other matters were all properly to be considered, at least subconsciously but only as part of a process of forming an overall impression as to the originality of the respondent's novel, screen-play and film, the originality of the appellants' film, the extent of similarity or disimilarity and whether or not there was copying.
It is no part of this Court's function to seek to identify isolated points in the expression of his Honour's reasons in respect of which minds might differ in order to substitute some other view for that which was clearly open to the primary Judge.
32. In my view, these quoted portions do not actually assist Dr. Saraf at all. To the contrary, they seem to be against him. The Plaintiffs' copyright does not subsist in any so-called 'central' theme or concept. It subsists only in a particular realization of it; and if that is not copied, and the rival work is wholly different, there is no infringement. I must agree with this view that there is, generally speaking, no copyright in the central idea or theme of a story or a play. It subsists in a combination of situations, events and scenes which, working together, form the realization or expression of that idea or theme. If this combination is totally different
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 and yields a completely different result, the taking of the idea or the theme is not copyright infringement. To my mind this would seem to apply almost exactly to the case at hand. As the Australian Court said another author who materially varies the incidents and character and materially changes the story is not an infringer of copyright.
51. In the case of Rediff.com India Ltd vs E- Eighteen.com (supra) it was alleged that the features of the two portals were identical and the latter had copied from the former. Evidently, the Delhi High Court relied on the judgment in the case of R.G. Anand (supra) and came to the conclusion based on the fact and circumstances of that case.
52. In the case of Institute For Inner Studies Vs Charlotte Anderson (Supra), it was a matter where a technique of healing was involved, namely pranic healing, and again the tests for comparison were discussed and the Delhi High Court came to the conclusion that the derivatives of ancient yoga technique cannot be claimed under copyright law.
53. In the case of Indian Express Newspapers (Bombay) Pvt. Ltd. v. Dr. Jagmohan Mundhara, (Supra) a
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 story which had appeared in the newspaper was to be televised in the form of a cinematographic film and the privacy of a person was involved in the matter. Ultimately, the Bombay High Court had directed to delete some portions of the film which would infringe upon the reports, which were published in the Indian newspaper.
54. In Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd (Supra), the similarities in the Film Kanhaiya and Krish Kanhaiya was brought before the Court. Again, the Bombay High Court held that, there were similarities and in Para 24, it was observed as below:
"24. It is undoubtedly true that the law does not recognize property rights in abstract ideas, nor is an idea protected by a copyright and it becomes copyright work only when the idea is given embodiment in tangible form. When an idea is given embodiment in a tangible form it becomes subject of common law property rights which are protected by the Courts at least when it can be said to be novel and new. The present case is not a case of a mere idea. The plaintiffs have developed this idea into various concept notes including a pilot, which are at Exhs. 'B' and 'C' to the plaint viz. concept notes;
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 character sketches, detailed plot of first episode and ten episodic plots. Therefore, the submission of the learned counsel for the defendants that the copyright was claimed merely in an idea is unacceptable".
It is pertinent to note that it also relied on the judgment in the case of R.G. Anand, (supra).
55. The judgment in the case of Twentieth Century Fox Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. (Supra), rendered by the Bombay High Court was in respect of the Film, 'Phone booth' and 'Knockout', theme of which were identical. It was pertaining to a temporary injunction and finding that the theme as well as the plot being the same, an order for a temporary injunction was made out.
56. The learned counsel appearing for the plaintiff/respondent has also relied on the judgment in the case of R.G. Anand (supra), which was relied by the learned counsel for the appellants. He has also relied on the judgment in the case of Zee Telefilms Ltd (supra). Apart from these two, he relied on the judgment in the case of Shamoil Ahmad Khan v. Falguni Shah and Others (Supra), wherein the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 criteria for the grant of injunction was discussed and in Paras 13 and 19 it was observed as below:
"13. In a written work of art, such as the story with which we are concerned here, a germ of an idea is developed into a theme and then into a plot and then final story with the help of characters and settings. It is a combination of all these elements which give a body to the work or a substance to it. If one goes on stripping the final work of these various elements, one may finally come to the bare idea or abstraction which no longer enjoys copyright protection. The task before the court is essentially to find out at what point such stripping lays bare the unprotectable idea. This was expressed succinctly in the US case of Nichols v. Universal Pictures Corp., 45 F. 2d 119 (1930) in the following words:
"Upon any work, and especially upon a play, a great number of patterns of increasing generality fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 his "ideas," to which, apart from their expression, his property is never extended."
Where to draw the line is of course, for the individual court to decide and in doing so it must perforce impose its own value judgment, by applying its knowledge of a subject matter to a specific expression of that subject. Everything above this line is a matter of expression capable of copyright protection and everything below is unprotectable. xxxxxxxxxxxx
19. The Defendants' work does prima facie seem to me to be having similarities of a fundamental or substantial nature in respect of the mode of expression adopted in the copyrighted work of the Plaintiff. These fundamental or substantial aspects are (i) the protagonist being a Hindu, whilst the prostitute a Muslim; (ii) the prostitute prizing her "Singardaan", i.e. vanity box or dressing table, as her family heirloom passed on to her by her ancestry; (iii) the protagonist coming into possession of the 'Singardaan' during communal riots; (iv) the protagonist bringing it home; (v) his wife and daughter being attracted to it and using it; (vi) the appearance, the mannerisms and behaviour of the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 womenfolk becoming more amorous, enticing and inviting in a manner which befits a prostitute. There may be some dissimilarities between the two works, but so far as these fundamental or substantial aspects are concerned (and these can only be described as matters of expression), they are clearly copied by the Defendants. The copy is a substantial and material one. The spectator or viewer of the later work (i.e. the Defendant's web series), having read the Plaintiffs story, is likely to be of an opinion, nay, an unmistakable impression, that the later work (i.e. the Defendants' work) appears to be a copy of the original (i.e. the Plaintiffs work). There is an arguable case of piracy and it has a reasonable prospect of succeeding".
57. Then he relied on the judgment in the case of Amar Nath Sehgal v. Union of India(Supra), pertaining to a piece of sculpture and in Paras 54 to 56 of the judgment, it was observed as below:
"54. It has to be noted that as originally enacted. Section 57 of the Copyright Act, 1957 was very widely worded because of the fact that the words "would be prejudicial to his honour or reputation"
which found mention in sub Clause (b) of sub Section (1) of Section 57 were not qualifying sub Clause (a)
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 of sub Section (1) of Section 57. Further, the words "any other action" which found mention in sub Clause (b) implied that the action could be other than a claim for damages or a claim for injunction. Post amendment, as the section stands effective from 10.5.1995, the legislature has restricted the right of the author to claim damages or to seek an order of restrain. Further, proof of prejudice to the author's honour or reputation has been made the sine qua non for claiming damages.
55. However, the various declarations by the international community in the conventions noted above, lift the moral rights in works of Art if the same acquire the status of cultural heritage of a nation. India is a signatory to the conventions and it would be the obligation of the State to honour it's declarations.
56. There would therefore be urgent need to interpret Section 57 of the Copyright Act, 1957 in its wider amplitude to include destruction of a work of art, being the extreme form of mutilation, since by reducing the volume of the authors creative corpus it affects his reputation prejudicially as being actionable under said section. Further, in relation to the work of an author, subject to the work attaining the status of a modern national treasure, the right would include an action to protect the integrity of the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 work in relation to the cultural heritage of the nation."
58. The judgment in the case of Barbara Hager (Supra) deals with the copying of 16 major passages from a chapter of the book of the plaintiff in a work by the defendants. The judgment rendered by J. Vancouver in the Canadian Court, the Court has laid down the following the tests to find out whether there is any infringement of the copyright which are which are as below:
"a) the quality and quantity of the material taken;
(b) the extent to which the defendant's use adversely affects the plaintiff's activities and diminishes the value of the plaintiff's copyright;
(c) whether the material taken is the proper subject-matter of a copyright;
(d) whether the defendant intentionally appropriated the plaintiff's work to save time and effort;"
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59. The judgment of IBCOS Computers Ltd. (Supra) rendered by The High Court of Justice, Chancellor Division, laid down, "It is of course true that copyright cannot protect any sort of general principle, such as the principle of drawing a hand to show how to vote, but it can protect a detailed literary or artistic expression. Thus in the case of an exhaust pipe it was said that the copyright was protecting the engineering principles which went into its design. Nevertheless there was copyright in the drawing and the copying of the drawing (via the medium of an exhaust pipe made from it) amounted to an infringement. This was so even though there was also a copying of the engineering principles that went into the original design. Thus Oliver L.J. said in British Leyland v. Armstrong:
What the plaintiffs seek to protect is not the idea of an exhaust system, but their monopoly in the drawings of this particular exhaust system, the salient feature of which is the flow-line into which months of research have gone, and for the embodiment of which the drawings, taken together, form a complete set of working instructions.
The question in every case is no doubt, whether a given three-dimensional object "reproduces" the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 substance of the two-dimensional drawing or drawings, but I can see see nothing in the Act which justifies a distinction being drawn, so far as the ambit of "reproduction" is concerned, between drawings which are purely functional, and drawings which have some aesthetic appeal. I can find no context at all for giving the word some different and more extended or restricted meaning according to the intention of the author, or the emotional response of the beholder.
To my mind that passage is inconsistent with Judge Baker's statement, which was not supported by any counsel before me. The true position is that where an "idea" is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the "idea" is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the "idea") of a novel or play can certainly infringe if that plot is a substantial part of the copyright work. As Judge Leamed Hand said (speaking of the distinction between "idea" and "expression"): "Nobody has ever been able to fix that boundary and nobody ever can."
It should be noted that the aphorism "there is no copyright in an idea" is likely to lead to confusion of thought. Sometimes it is applied to the question *292
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 of subsistence of copyright (is there a "work" and if there is, is it "original"?). Sometimes it is applied to the different question of infringement (has a substantial part been taken?). That is not to say that the expression has no use: for instance if all a defendant has done is to copy a general idea then it does not matter whether there is copyright in the plaintiff's work, or whether the plaintiff owns that copyright."
60. The judgment in the case of Francis Day and Hunter Ltd. And Another Vs. Bron and Another, supra, deals with a case where the Musical work of the plaintiffs titled "In a Little Spanish town" published in 1926 was alleged to be copied by a musical work of the defendants in the year 1959. The Court of appeal in England accepted the argument which runs as follows:
".... In the course of an argument which, for my part, I found convincing, he submitted that in considering whether there has been reproduction, so as to constitute an infringement within the Act, it is wholly irrelevant to in-quire whether any copying has been conscious or subconscious. It is for this reason, he modestly suggested, that the textbooks are silent on the subject of subconscious copying. Mr. Skone James
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 presented his argument in four propositions which, if I understood him correctly, may be summarised as follows: (1) In order to constitute reproduction within the meaning of the Act, there must be (a) a sufficient degree of objective similarity between the two works, and (b) some causal connection between the plaintiffs' and the defendants' work. (2) It is quite irrelevant to inquire whether the defendant was or was not consciously aware of such causal connection, (3) Where there is a substantial degree of objective similarity, this of itself will afford prima facie evidence to show that there is a causal connection between the plaintiffs' and the defendants' work; at least, it is a circumstance from which the inference may be drawn. (4) The fact that the defendant denies that he consciously copied affords some evidence to rebut the inference of causal connection arising from the objective similarity, but is in no way conclusive."
61. It is pertinent to note that nowhere the defendants have contended that there is subconscious copying. He claims that the script is his own creation and it contain the historical facts. Therefore, this judgment may not be of any help to the plaintiff.
62. The judgment in the case of Anil Gupta and Another Vs. Kunal Dasgupta and Others, supra, rendered
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 by Delhi High Court deals with the TV show Swayamvar and Shubh Vivah. A concept note of Swayamvar was shared with defendant and after three years the defendant came with the TV show Shubh Vivah, which in fact, was based on the concept of the plaintiff in Swayamvar. It was held that there was violation of the copyright of the plaintiff and the defendants were restrained from televising their serial Shubh Vivah.
63. In the case of Kapil Chopra Vs. Kunal Deshmukh and Others, supra, the defendant had persuaded the plaintiff by creating an atmosphere of friendliness to handover the script and later the script was used in complete breach of confidence and since the plaintiff had registered his Film with the Film Writers Association, it was held that a case for injunction was made out. Obviously, the facts are different. Therefore the principles cannot be imported to the case on hand.
64. In the case of American Home Products Corporation v. Mac Laboratories Pvt. Ltd and Another, it deals with the question involving Section 18 of the Trademarks Act, and by referring to the case of State of Bombay vs
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Pandurang Vinayak Chaphalkar, it was observed that "when a statute enacts that something shall be deemed to have ben done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion."
65. In the case of Sheldon v. Metro-Goldwyn Pictures Corporation, the copyright infringement of the picture play Letty Lynton was alleged to have infringed the plaintiff's copyrighted play "Dishonored Lady", the U.S Circuit Court of Appeals observed as below "We have often decided that a play may be pirated without using the dialogue. Xxxxxx Were it not so, there could be no piracy of a pantomime, where there cannot be any dialogue; yet nobody would deny to pantomime the name of drama. Speech is only a small part of a dramatist's means of expression; he draws on all the arts and compounds his play from words and gestures and scenery and costume and from the very looks of the actors themselves. Again and again a play may lapse into pantomime at its most poignant and
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 significant moments; a nod, a movement of the hand, a pause, may tell the audience more than words could tell. To be sure, not all this is always copyrighted, though there is no reason why it may not be, for those decisions do not forbid which hold that mere scenic tricks will not be protected.. The play is the sequence of the confluents of all these means, bound together in an inseparable unity; it may often be most effectively pirated by leaving out the speech, for which a substitute can be found, which keeps the whole dramatic meaning. That as it appears to us is exactly what the defendants have done here; the dramatic significance of the scenes we have recited is the same, almost to the letter. True, much of the picture owes nothing to the play; some of it is plainly drawn from the novel; but that is entirely immaterial; it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate. We cannot avoid the conviction that, if the picture was not an infringement of the play, there can be none short of taking the dialogue."
66. Obliviously a play which was copyrighted was adopted to a picture -play i.e a cinematographic film and the expressions and the scenes were directly found in the film. In
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 such circumstances the above observations were made. In the case on hand, the visual effects cannot be anticipated from the script.
F. Points for consideration:
67. After hearing the arguments by both the sides, the following points arise for consideration:
(i) Whether the Script written by defendant No.1 titled 'MS & Bala' is in pursuance of the understanding between the plaintiff and the defendants to write Script based on the Book 'MS-
A Life in Music'?.
(ii) Whether the Script at Ex.P7 contain and depict expressions of the Book at Ex.P16 and thereby violates the copyright of the plaintiff?
(iii) Whether the Trial Court is right in concluding that Ex.P7-Script violates the plaintiff's Copyright in the Book 'MS-A Life in Music' produced at Exs.P7 and P16?
(iv) What order?
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NC: 2025:KHC:15136
RFA No. 1589 of 2014
G. Reg IA for Additional Evidence:
68. During pendency of this appeal, the
respondent/plaintiff has filed an application under Order XLI Rule 27 of CPC (IA No.1/2017) seeking to produce a Comparative Table containing a comparative tabulation of the Book 'MS- A Life in Music' and the Script, 'MS & Bala'. The affidavit of the respondent/plaintiff contended that he has prepared an illustrative comparative tabulation of the Book as well as the Script and it clearly brings out the substantial similarities between the Book and the Script. It establishes that the Script is almost entirely based on the Book, and he was unable to produce the same earlier, despite the due diligence as the matter was referred to Mediation in the interregnum. Therefore, there being a need to produce the said document, he may be permitted.
69. The said application was opposed by the appellants/defendants contending that such a Table could have been produced by the plaintiff during the pendency of the suit. He has not made out any sufficient ground for the production of the additional material and therefore, the same be rejected. It
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 is contended that the said contention of the respondent/plaintiff does not come within the purview of the Provisions of Order XLI Rule 27 of CPC and therefore, the same be dismissed.
70. But, However the IA was allowed on 3-8-2017 by this Court with an observation that the chart is meant to assist the Court in deciding the case. Hence the said IA does not remain for consideration in this appeal. The said chart is considered as part of the arguments of the respondent. H. The Trial Court's findings:
71. Before going to the analysis and conclusions in the matter, it is necessary to observe that the judgment of the trial Court, in fact, do not consider the actual events or the sequences which have been depicted in the Book and the Script. The conclusions of the trial Court in the impugned judgment may be found from Para 12 onwards. In Para 12, 13, 14 and 15, the observations of the trial Court are as below:
"12. Let me go through the evidence both oral and documentary placed on record by the plaintiff and the defendants and the decisions relied upon by the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 learned counsels on both sides. Perused the evidence both oral and documentary placed by both plaintiff and the defendants in the light of the principles laid down in the decisions relied upon by both the learned counsels. PW1 who is no other than the plaintiff has reiterated the averments of plaint. The evidence of PW1 is to the effect that the plaintiff and first defendant known to each other and both are in film industry. On going through the cross-examination of PW1 the defendants does not dispute the evidence of PW1 that plaintiff and first defendant known to each other. Therefore from the evidence of PW1 it could be construed that the plaintiff and the first defendant known to each other. PW1 has stated that the in month of January, 2012 after reading the book "MS - A Life in Music" a biography of late M.S.Subbalakshmi he approached first defendant with an idea intending to make a Cinematographic Film on the life and achievements of late M.S.Subbalakshmi. The evidence of PW1 further speaks that Mr.T.J.S.George is the author of the book "MS - A Life in Music" which is marked as Ex.P16. It is brought out in the cross-examination of PW1 that the book "MS - A Life in Music" has been in public
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 domain from 2004 onwards. On going through the entire crossexamination of PW1 it is nowhere denied by the defendants that Mr.T.J.S.George is the author of the book "MS - A Life in Music". Now, the evidence of PW3 is referred to avoid repetition.
PW3T.J.S.George has specifically stated that he is the author of the book "MS - A Life in Music". In the cross-examination, he admits that the book was published in the year 2004. As per the admission made by PW3 the book Ex.D1-Ode to Nightingale was published in the year 2003. The evidence of DW2 does not disclose that the first had an intention to direct a movie on the life of late M.S.Subbalakshmi or Balasaraswathi prior to 2012 based on the book Ex.D1. Reading the entire cross-
examination no worthwhile has been elicited by the defendants to support their contention and discard the evidence of PW3. Reading the evidence of PW1 and PW3 would go to show that Mr.T.J.S. George is the copyright holder of the book "MS- A Life in Music".
13. It is seen from the evidence of PW1 that the plaintiff has acquired right over the book of Mr.T.J.S.George on 6.6.2012 by written license.
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 The agreement said to have been executed between PW1 and PW3 on 6.6.2012 is marked as Ex.P5. The evidence of PWI and PW3 speaks that the plaintiff obtained license from the author of the book "MS - A Life in Music". It is seen from the cross examination of PW1 and PW3 the defendants have not seriously questioned the license given to plaintiff by the author Mr.T.J.S.George. Thus, the evidence of PW1 and PW3 proves the execution of Ex.P5 in favour of plaintiff. Ex.P5 evident that the plaintiff acquired all the rights vested with the author Mr.T.J.S.George of the book "MS - A Life in Music". The plaintiff proved the fact that he acquired copyright over the book by assignment.
14. It is seen from the evidence of PW1 that he and first defendant have engaged Mr.Girish Karnad to write a script based on Ex.P16. The evidence of PW1 further indicate that an amount of Rs.1,00,000/- was also paid to Mr.Girish Karnad, but Mr.Girish Karnad gone back for his personal reasons from writing the script for Cinematographic Film and returned the amount to the plaintiff by sending Ex.P3-e-mail on 29.2.2012. It is to be noted that Mr.Girish Karnad who is examined as
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 DW1 did not deny the engagement of writing script based on the book Ex.P16. The evidence of DW2- first defendant also indicate that Mr. Girish Karnad was engaged to write a script for the film based on the book Ex.P16. The evidence of PW2 also supports the case of the plaintiff that Mr.GirishKarnad was engaged to write a script for the film only on the book Ex.P16. Thus reading the evidence of PW1, PW2, DW1 and DW2 together it is clear that the plaintiff was proposed to write a script based on the book Ex.P16 to do justice to the book written by Mr.T.J.S.George. It is to be noted that the plaintiff alleged that DW1 gone back from assignment due to the insistence of first defendant to write a script by including Balasaraswathi. It is be noted that DW1 gave go bye to the allegations made by the plaintiff against DW1. DW1 has specifically stated that he was unable to write script due to his personal reasons. Therefore, the allegation made by the plaintiff against the first defendant is improbable. However, that may be a ground for the first defendant to say that the plaintiff is not trustworthy.
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15. It is the contention of the plaintiff that on persuasion by first defendant he engaged him to write a script based on Ex.P16. On going through the oral evidence of PWI and DW2 it is clear that the first defendant taken up a job of writing script for the Cinematographic Film on the life and achievements of late M.S.Subbalakshmi. No doubt there is no agreement bet-ween plaintiff and the first defendant in respect of writing of script. The first defendant is one of the person who approached Mr.Girish Karnad to write a script based on Ex.P16. The first defendant who having knowledge about the engagement of Mr.Girish Karnad ought not to have taken contrary stand. The first defendant having taken the assignment of writing script could not have deviated from the contents of the book "MS - A Life in Music". The first defendant produced Ex.D1 the book on late M.S.Subbalakshmi written by Lakshmi Vishwanathan to show that the script is his invention based on Ex.D1. Ex.P6, Ex.P8 and Ex.P9 are the e-mail exchanges of plaintiff and first defendant. Perusal of Ex.P6 the e-mail sent to the plaintiff by the personal assistance of first defendant indicating that first defendant is making corrections in the script and will be soon couriered. Looking to the contents of Ex.P6 it is clear that the plaintiff engaged first defendant to write a script. If
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 he is not engaged he could not have sent a mail to the plaintiff. Therefore, the contention of the first defendant that he has no obligation to write the script as per the plaintiff cannot be accepted."
72. The trial Court further observes that
(a) in the cross-examination of PW1, it has been brought out that, 'MS- A Life in Music' has been in a public domain from 2004 onwards and on going through the entire cross-examination of PW1, nowhere, it is denied by the defendants that Mr. T.J.S. George is the Author of the Book. The evidence of PW3 reconfirms the same and PW3 Mr.T.J.S. George has specifically stated that he is the Author of the Book and he had assigned his rights in favour of the plaintiff.
(b) As per the admission of PW3, the book 'Ode to Nightingale' was published in the year 2003. The evidence of DW2 does not disclose that he first had the intention to direct a movie of the life of MS or Balasaraswati prior to 2012, based on the Book Ex.D1. i.e. 'Ode to Nightingale'.
(c) From the evidence of PW1 and the assignment letter dated 06.06.2012, the PW1 has acquired the copyright over the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Book of Mr.T.J.S.George to adopt the same to a Cinematographic Film. The agreement between PW1 and PW3 is produced at Ex.P5, which categorically authorise the PW1/ plaintiff to adopt the same to a film.
(d) From the evidence of PW1, it is clear that he and defendant No.1 had engaged Mr. Girish Karnad, DW1 to write a Script based on the Book, Ex. P16. The evidence of PW1 further indicates that an amount of ₹1,00,000/- was also paid to Mr. Girish Karnad. But Mr. Girish Karnad (DW1) had gone back on the same and he had returned the amount to the plaintiff as per the e-mail at Ex.P3. DW1 did not deny that he was engaged for the Script writing, but he for personal reasons, could not write the same. The DW1 has also admitted that he had written an e-mail to the defendants as per Ex.D4, also.
(e) The evidence of PW1 and DW2 show that defendant No.1 had taken up the job of writing the Script for the Cinematographic Film on the life and achievements of MS and there being no written agreement between the plaintiff and defendant No.1 in respect of writing the Script, it was the defendant No.1 who approached Mr.Girish Karnad, to write the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Script based on Ex.P16. The defendant having knowledge about the engagement of Mr.Girish Karnad, later has took up the assignment of writing the Script on his own which he could not have done. The Trial Court observes that the defendants could not have deviated his Script from the Book 'MS- A Life in Music'. Defendant No.1 has produced Ex.D1 Book, an 'Ode to Nightingale' written by Lakshmi Vishwanathan, to show that the Script is his invention based on Ex. D1 which he could not have done. But the Trial Court observes that he had an obligation to comply, towards the plaintiff.
(f) Ex. P7 is the copy of the Script written by defendant No.1 and sent to the plaintiff for verification and scrutiny. After going through the Script, the plaintiff has written an e-mail as per Ex.P8 to the defendants. The plaintiff expressed that he is not satisfied with the Script as the character of Bala is also included in the story and it will not do justice to the Book and requested to correct the same.
(g) After observing as above, at the fag end of Para 16, the trial Court holds that on going through Ex.P7,the Script and Ex. P16, the Book, it cannot be held that the Script is entirely
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 different from the contents of Ex.P16 and defendant No.1 nowhere stated that he had not referred to the Book Ex.P16 while preparing the Script.
(h) After holding so, the trial Court observes that the plaintiff not only gave the idea to defendant No.1, but also provided him the Book Ex.P16, to write the Script on the life story of late MS and as such, the idea which has been given to the plaintiff has to be read in a different context and not in "bold sense". Therefore, it concludes that the contention of defendant No.1 that idea cannot be protected under the copyright and the present facts and circumstances cannot be accepted.
(i) The plaintiff had taken consent of the Author Mr. T.J.S. George and the family members of MS as per Ex.P17 and 17A and if defendant No.1 is allowed to infringe the copyright, it would defeat the object of Sections 14 and 51 of the Act and therefore, the defendants shall have to be restrained from making the Film on the infringe Script written by defendant No.1 and after holding so, the trial Court decreed the suit.
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 I. Analysis and Conclusions:
Reg Point No. 1 and 2:
73. The exercise that needs to be done in finding out whether the Script violate the Copyright of the plaintiff in the Book involves the scope and advantages of prose narration versus a Cinematographic Film. The Books/Novels and Films offer their unique strengths. While Novels invite deep intellectual and emotional engagement through detailed narrative and introspection, Films captivate with immediate sensory appeal and collective cultural experience. The Books excel in revealing character's inner thoughts and feelings. Techniques like internal monologues, stream of consciousness writing, and third person limited perspectives enable authors to construct a direct line to a character's mind. This allows the readers to understand motivation, internal conflicts and reflections in a way that is challenging to replicate visually. The narrative voice in literature use rich, descriptive language create detailed pictures in the Readers mind. Authors can spread pages painting intricate landscapes, emotional states or subtle nuances, which invites the readers to actively imagine scenes and characters. Books often experiment with non linear
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 time lines, multiple view points and unreliable narrators. By weaving different perspectives and time lines together, authors can build layers of meaning and suspense that encourage readers to piece together the larger narrative puzzle.
74. However, the Cinematographic Films, rely on visual elements such as, framing, camera angles, editing, lighting, and colour to tell the story. Instead of describing character's internal thoughts, Films often show emotions through facial expressions, body language and visual symbolism. For example, a character's isolation might be conveyed through a wide shot with empty surroundings. The auditory aspects of Cinema is a powerful narrative tool, a well placed musical score can evoke emotions, signifies thematic element or foreshadow events. Sound effects and dialogue delivery also guide the viewer's interpretation of a scene providing an emotional context that is immediately felt. The Films editing process- cutting, transition effects and montage creates a rhythm that controls how the audience experiences time and tension. A rapid succession of the cuts can build urgency, while longer takes might allow viewers to absorb the gravity of a moment. This pacing is essential in shaping the narrative flow and
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 emotional beats. Films emphasise action over exposition. Unlike books, which can afford long passages of internal dialogue or descriptive narrative, films must communicate through what is visually and editorially present. This approach demands precision - every visual cue and sound bite must contribute meaningfully to the narrative.
75. While both mediums maintain their distinctive approaches, adaptation between them often require innovative shifts in narrative techniques. For instance, a Novel with intricate inner monologues might adopt by incorporating voice over narration or through expressive performances by actors to convey similar internal states. However, retaining the depth of interruption from a book within a film requires balancing direct exposition with visual artistry. In essence, Books use art of language to explore internal land scapes and layer narratives, while the Films harness the power of visuals and sound to create an immediate, immersive experience. Each method has its unique strengths, making the narrative techniques employed by both the mediums distinct, yet complimentary when they intersect.
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76. It is in this background that the Book and the Script need to be analysed. It is needless to say that the Script is only a skeleton of the Film and the visual and auditory effects need to be filled up. Then only, the real effect of the Film can be felt and an opinion can effectively formed as to whether one feels that the Film is an adaptation of the Book. Without visual and auditory components in the Film and only the Script being available is really a lacuna for comparison.
77. It is pertinent to note that some of the observations of the trial Court, appears to be flawed. As noted above from the gist of the submissions, the dispute revolves around what transpired between the plaintiff and the defendants, which led to writing the Script as per Ex.P7 and as to whether the Script violates the copyright of the plaintiff.
78. The first part of the submission is based on the testimonies of the parties, correspondences, e-mail exchanged between them. The trial Court deals with this aspect in length in paras 14 to 16 as observed above.
79. After going through the testimony, there can be no second conclusion about the inferences drawn by the trial
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 Court, so far as it holds that the plaintiff is an assignee of the copy right in the Book written by Mr.T.J.S. George. The facts that emerge from the evidence may be summarised as below:
(a) The plaintiff and the defendant No.1 had a discussion when the plaintiff invited the defendant No.1 with an intention of preparing a cinematographic film on the life of MS, based on the Book written by Mr. T.J.S. George. In that regard, he had roped in the financier, Mr.Satish P Chandra, PW2 and had obtained the consent from the daughter of MS. Subbulaxmi, Smt. Radha Viswanathan and her son Mr. Srinivasan, who is examined as PW3. After having discussions, the plaintiff and the defendant No.1 approached Mr. Girish Karnad (DW1) to write the Script and even an advance was also paid to him. However, DW1 expressed his inability due to personal reasons and backed off from writing the Script.
(b) Thereafter, there appears to be a lull between the plaintiff and defendant No.1, and the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 plaintiff went on insisting for the Script. However, defendant No.1 citing that he is engaged in shooting of a Film, postponed the same for several months. Thereafter, he transmitted the Script as per Ex.P7 to the plaintiff.
(c) After the plaintiff went through it, he expressed that the Script is not based on the Book. His e-mail on this aspect is very clear that the Script does not depict the true spirit of the Book written by Mr. T.J.S.George and it deviates from the theme and it is totally different. This difference of opinion between the plaintiff and defendant No.1 can very well be seen in the e-mail sent by DW1 to the defendants as per Ex. D4. In Ex.D4, DW1, Dr. Girish Karnad, has narrated as below:
"Dear Rajiv, Thank you for sending me the relevant parts of Dr Somaprasad's submission. Dr Somaprasad did indeed meet me on 19 February at the Bangalore Club and informed me of the developments on the film on M S Subbulakshmi. His statement that I told him that I was shocked by your behaviour and
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 considered it unethical is complete nonsense. In fact I told him that since Subbulakshmi was a real person of historical importance, there could be no monopoly on her life and that any one who was interested in using her life as a basis for film had the right to do so, so long as the script was independently written. Dr Somaprasad himself told me that everyone including his own son was advising him not to go to court on this issue and I clearly stated that I agreed with them.
His allegation that I was upset at the inclusion of Balasaraswathi's name in the script too is entirely baseless, since I knew Bala intimately, and at my very first meeting with you and Dr Somaprasad, it was I who suggested that bringing Bala's character into the narrative of MS's life would give it a whole new artistic dimension.
I withdrew from writing the script only for personal reasons of my own which had nothing to do with the film.
I should add that Dr Somaprasad told me that as the Producer of the film he would insist on the film opening with shots of Tirupati temple and then cutting to the Himalayas and then Madurai. I thought this beginning so silly that I could barely conceal my amusement. I felt no director of repute would touch the film if the Producer had such
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 clichéd ideas, although I did not of course express my reaction aloud to him.
Girish Karnad"
80. Thus, there were fundamental differences between the concept, which was envisaged by the defendants and the one proposed by the plaintiff. There cannot be any better expression of these differences than the letter written by DW1 to the defendants. This letter is admitted by DW1 in his cross- examination. There is no reason as to why the testimony of DW1 coupled with Ex.D4 cannot be believed. There is nothing to disbelieve the testimony of DW1, who was a reputed Writer with Jnanapeetha Award.
81. The above sequence of events clearly show that though, initially, DW1 had agreed to write the Script, due to the differences he backed off from writing the Script. The differences were to dramatise the storyline and bring in Balasaraswati into the Film with a major role to play, in fact, the Book does not refer to Balasaraswati much and her lifestyles, achievements etc., in detail. Though there is a
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 passing reference to Balasaraswati in the Book, the same is not so detailed and elaborate.
82. Though defendant No.1 contended that he had made extensive research on the life of MS, fails to take such contention in his written statement. The evidence led in the form of Exs.D1,2 and D9, which are the 3 Books which he states to have drawn in the details from, in preparing the Script, were not mentioned in the written statement. I have gone through these books also.
83. It is in the light of these facts and circumstances; let me proceed to examine the comparisons of the events which have been depicted in the Book and the Script. The version of the appellants, as per the Table which has been appended to the written submissions made by them is summarised below:
Sl Book Page Script
1 Book traces Madurai's 19 the film places her life in
influence's on MS's life ('M' context of her birth into
for Madurai, and the a Devadasi tradition, and
umbilical cord connection) traces her life not just as
a singer but as a
daughter, friend, lover,
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wife, mother, singer and
icon
2 Book delves deeply into 25 & There's not a mention of
Tamil Isai movement 26 it in the script.
3 The Book says MS sang 28 No mention of this either
Tamil songs, including in the film, although
compositions of Kalki Kalki is a prominent
Krishnamurthi. presence
4 15 Chapter The entire first 13-34 The film focusses fully on
chapter is an analysis of the personal and is a
how Madurai and Tamil sharper study into the
(language) shaped M.S. phenomenon that is MS.
The backdrop of the book, It starts with her at the
in tracing MS's life, seems peak, with losing her
to be musical tradition and voice, and going back to
orthodoxy. a curse, and to her
childhood, to Madurai,
whereas the daughter of
a Devadasi, and in a
country, in the thick of
the freedom movement,
she begins her musical
journey.
There is no mention of
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Sl Book Page Script
the mother teaching
students or having other
means of sustenance.
5 Chapter 2 The second 41 This is not dealt with in
chapter of the book is detail in the Book.
46
about subjects like musical
instruments, drama, the
kutcheri format, and there
is only a passing mention
of MS's mother.
6 Book talks about MS in Till 56 This is mentioned in
chapter 2, there's only a detail in the script.
fleeting mention of MS
7 There's very little of MS's 64-70 All of whom are
life, it is mostly about mentioned in the film
music and musicians
8 The accent in the book 66 The film highlights this
appears to be on the incident just as the
mother, on the musical incident of the cough
training. Even when MS is during the concert
caned in school it is not
treated as a turning point
9 MS cutting her first HMV 69 It is a more fraught and
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Sl Book Page Script
gramophone record is intense, the first step, in
mentioned and is highly the film, and the victory,
underplayed in comparison far more hard won
to the film.
10 The Book mentions that 73 The film shows it plainly.
MS was aware of the hard when she smashes the
realities of the Thambura on the head
environment she grew up of her assigned
in. 'husband' and makes
good her escape to
Chennai. There is little
ambiguity that MS is
aware about her destiny,
and she's not coy about
admitting it to Bala.
11 Book says 'stardom came 74 Film fleshes this out. The
to MS after her migration first trip, the meeting
to Madras, first under the with Sadasivam. The
auspices of meeting with Bala, the
Shanmugavadivu and then friendship, the
in defiance of her'. foundation for a future
flight. And then, when
she runs out of her
proposed "marriage", it
is to them that she goes
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Sl Book Page Script
to to Bala, to Sadasivam
and both help her.
12 The book discusses the 79 There no mention of any
Devadasi class, its history, and of this in the film. Only
traditions, reforms, famous 85 Veena Dhanamal and
artists of Devadasi descent BalaSaraswathi are
mentioned, in detail. And
they in fact central to
The book only talks about MS's story. Also, the
the women as torchbearers Devadasi tradition is
of the arts but not about shown for what it is, in
the helplessness their the film exploitative.
daughters might fell, as MS
does, when such an
unsavory custom becomes
her lot
13 Feud between Rukmini 90-91 No mention of this.
Devi and BalaSaraswathi
about Sringara rasa.
Talks about appropriation
of the arts by the upper
class.
14 There is ambiguity about 92-93 In the film, he is also a
MS's father, Pushpavanam freedom fighter,
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Sl Book Page Script
lyer or Subramania lyer something that again
influences his children,
particularly MS, a note
that's completely
missing in the book.
15 Kumbakonam Mahamaham 96 Far from the film's
is listed as the place she's version of Sadasivam
"discovered". toiling for her first and
every subsequent
recognition. When she is
with her mother, she's
only coughing in the
concert. And the one
time she sings, she's
greeted not with an
applause, but a stunned
silence
16 MS's introduction into MS is much indebted to
Veena Dhanam's family BalaSaraswathi for
seems socially sanctioned, accepting her when she
and they meet as equals was a nobody
17 In the Book there are по 110 The backstories of
interviews, but a film role (Chap Sadasivam and Kalki,
that he has in mind when ter 5) and Rajaji are nowhere
he chases her. on film.
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Sl Book Page Script
Interprets the first meeting The first meeting of MS
as love at first sight and Sadasivam, in the
film, is on a tram, when
he takes on a rowdy who
harasses her.
No mention of love at
first sight in the tram
scene.
18 MS's arrival in Madras, her 113 This is very differently
seeking help first at portrayed in the film.
Khaddar official's house,
In the film, his mother is
and then going, on his
an character.
advice, to Sadasivam.
In the book, his wife too is
just mentioned in a single
line.
19 Letters from MS to GNB 130- The film is clear that
the book has them writing 131 until then, she has no
to each other, and one romantic interest in
pouring out love and the Sadasivam, and only
other preserving it. But after their affair fizzles
while in the book there's out.
little to mention MS's
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Sl Book Page Script
position at that point.
20 This is missing in the Book 138 Mention is made of
mother, but that she is
unable to talk sense to
him, and goes to Kashi
and dies there. Previous
pages flesh out wife's
family
21 In Sadasivam marrying MS 146 In the film, their union is
is mentioned in the book, driven by other
and a big role at that. compulsions Sadasivam
being a widower, and the
The Balasaraswathi angle
wedding itself being
is completely missing from
convenience parties. one
the book
for of both
In the film, she is the
friend and confidante,
until much later when
things sour (in
Edinburgh)
22 The wedding is held up as 150 Not so in the script
the reason for Sadasivam's
loss of job at Ananda
Vikatan in the book.
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Sl Book Page Script
23 None of this is in the book, 151 The meeting with the
and there is an alternate Paramacharya is stylised
suggestion that Sadasivam and dramatised, a sort of
married a non-brahmin coup in the Kalki offices,
while still married to a in the film, where the
brahmin. Again, something couple fall at the sage's
that does not happen in feet and a photograph is
the book (the marriage taken and circulated.
takes place only after the The sage is later shown
first wife dies from to have ritual purifying
scorpion bite) baths.
24 In the chapter 'Comfort of 143 The film does not delve
conformism' the book talks on this aspect. In fact,
159
about the sanskritisation of the anecdotes in the film
MS. There are deep the learning of Sanskrit
incursions into sub-castes itself, to say the
and the couple's Suprabatham correctly -
acceptance in those is nowhere mentioned in
societies the book,
25 There is a line in the book 163 In the film, he's never
that says Sadasivam is no shown out of a job, only
longer employed after his that he runs into big
wedding. debts on them
26 Broaching the subject of 166 There are dialogues
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acting as Narada is treated where a very innocent
very diff in the film, to MS asks if she would
what it is in the book play the woman who
won back her Lord from
In the book, Sadasivam
Yama, and was
himself needs some
crestfallen to be told she
convincing. A diff point of
had to act as a male.
view, altogether.
27 The book talks about a 178 The film talks of her
Dravidian becoming an being a gawky and
Aryan, as it were, a mildly clumsy young
reference you do not really woman, even in the
find in the film. company of the greats
Nehru's dinner for
instance.
28 The Book has a glimpses of 179 The man's obsessions in
Sadasivam applying the the film seem centered
viboothi to his forehead around MS, and not so
obsessive. much himself
29 Kasturbha fund concerts 184 Absent in the script.
30 Singing an English hymn in 194 Absent from the film
the UN
31 The book makes it appear 195 There is only one such
as if MS was a fund-raising incident in the film which
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Sl Book Page Script
super-star, one who went is not mentioned in the
to great lengths (of course, book - of raising money
at her husband's behest) for the orphanage,
to support various causes. where the critic's child
lives. (The critic too is
wholly absent in the
book for the first 200
pages the only ones who
are mentioned are Sruti
magazine and some film
reviews, but not the
critic who could make or
break careers as it is in
the film)
32 Bhakti ideology - not 203- However, is fully fleshed
applicable to film in the 215 out, and centre-staged
form and content in the film, and there are
mentioned in the book. many references and
KuraiOndrumilla, a mentions to the song
footnote to the chapter. that MS was famous for
33 Life in the Kalki Gardens 221- These are very different
and her own personal 223 accounts to what it is in
style. the film, where choosing
a saree for her step-
daughters' weddings
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(both held together,
another element missing
from the book) is where
the MS Blue is
mentioned. And even
there, it is the tyranny of
Sadasivam that is
established, not so much
MS's personal style.
34 Food at Kalki Gardens, the 224 This is wholly absent in
hospitality, the people, the film.
coffee, Rajaji mentioned in
some detail.
35 In the Book the difficulties 231 In the film however,
at Kalki magazine the there are scenes begins
decline and fall, as it were, when the decline even
is attributed to when Krishnamurthy is
Krishnamurthy's death and alive, and the tyrant in
the subsequent Sadasivam orders him to
editorializing by Rajaji and write more (one pen in
Sadasivam's ineptness each hand quip)
36 Deals with a musician and 257 - Not relevant in the script a woman end at all.
37 The book is all about an The film explores her
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accepting, beatific and mind and the agonies
innocent lady, who just she goes through far
gracefully became a more honestly than the
brahmin wife and great book dares to.
singer.
84. So far as plaintiff/respondent is concerned, he has contended that the salient features which amount to copyright violation are as below:
Script Book
Page Events Page Events
1- -MS loses her voice before 208 -MS loss of voice occurred
152 the concert in NY, UN on the eve of her UN
Assembly. concert in 1996.
-MS recovers her voices -She meditated on her
because of a miraculous divine guide(....) and
cause suddenly found her voice
restored to her as she
seated herself on the
stage. She did no doubt
the miraculous nature of
her experience
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Page Events Page Events
5-7 -Her father is 91- For devadasis, there was
pushpavanam. 93 uncertainty surrounding
the male head of the
-He has a relationship with
family. They took a
another woman.
husband without
Shanmugavadivu is seen
necessarily becoming his
walking on the streets
wife.
where pushpavanam lived
with his wife and kids. There is a hypothetical
link between
-Pushpavanam dies at a
Shanmugavadivu and a
very young age.
man called Pushpavanam,
who was a singer. He Had
first official wife and
children with her.
Pushpavanam dies at a
very young age.
5-7 - MS started coughing in 66 When in class five,
fear... Subbulakshmi was beaten
by the Schoolteacher.
-Description of an
She fainted, after she
unfortunate event with The
regained consciousness,
Math teacher.
she developed an attack
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of Persistent cough.
8 The family sits together 63 The air in the homes of
and practices music. known musicians like
Shanmugavadivu most
have been fragrant
because they were virtual
music salons. (The 3
children) They lived
music.
8 As a kid, mother takes MS 68 Mother's early
to a small concert. assessment that her
daughter's forte lay In
singing proved correct.
She was little over 9
when mother asked her
to Sing at a gathering
{...}
11- Music evening at Veen 81 Veena Dhanam was a
13 Dhanammal's House. Her phenomenom of Carnatic
82
mother takes MS to sing music, but she had a
for Veena who is very issue during a public
exclusive and Perfectionist performance so she never
about her art. played in public before.
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She decides not to sell
her music. Brinda said
I don't listen to people who (....) she did not want her
sing for money music to be played in tea
stalls and barber shops.
12, Appearance of mother 81 -Women who developed
16- Jayammal, Grandmother spirit of independence
17 Veena, cousin Brinda, and great strength of
granddaughter Bala.. character. The best
among them were wise as
-Strong-minded and proud
well as proud.
characters
-Bala is described as a
-Opposed to sweet and
thought dancer who
quiet MS, Bala is
refused to suffer fools or
particularly restless and
let arrogant get away
rebel. MS is Fascinated by
with their intemperate
Bala's revolutionary ideas.
attitudes and behaviors
-They become close devadasi tradition.
friends.
-The Dhanam family
became MS lifelong
friends. With their
contrasting personalities,
MS and Bala became
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particularly close.
-MS reveled in their
company.
29 Bala is in love with 85 This situation suggests
Shanmugan, old and "Bala's enemy" Love life.
educated rich man (finance
Rukmini Devi Arundale
minister of india). She will
had a revolutionary
marry him.
personal life, by
marrying, at the age of
16,a 40 year-old
Englishman.
20 Sadasivam discovers 107 Sadasivam discovers [...]
Kalki's ability to write. Kalki's true vocation.
109
Sadasivam was quick to
understand the market
value of Krishnamurthi as
a writer.
21 Sadasivam works for SS 107- SS Vasan bought Ananda
Vasan, owner of Anantha 109 Vikatan, the publishing
Vikhatan magazine. phenomenon in 1928.
Kalki and Sadasivam
were his 2 first
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employees.
14- Shanmugavidu is rejected 109- Shanmugavidu notice
15 by the film industry. 111 something she doesn't
like his happening
22-
between her daughter
23
-While MS and mother stay and sadasivam. She
in their small house in doesn't like the Madras
Purawalkam, MS is film industry.
approached by sadasivam
-Veena Dhanam was
to be interviewed for the
rejected by the film
magazine. She
industry.
immediately attracted him.
According to some
Shanmugavidu doesn't
sources [...] Sadasivam
trust Sadasivam/people
fell in love with her since
from madras film industry.
she met her. Therefore,
Sadasivam decided to
personally handle both
editorial and marketing
operations of the feature.
24 Shanmugavidu has to use 84 -As a devadasi,
their art to give a living to Shanmugavidu was
33 111
her family. forced to use her art form
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as a mean of survival.
She is constantly worried 112
because of their financial [...] it did not take her
situation and she want to long to identity a rich
save the honor, the family Chettiar as a suitable
and her daughter by match for her daughter.
getting her a rich man. She asked Subbulakshmi
to move in with him
Shanmugavidu makes MS
without further ado.
sing for the Chettiar and
arranges a staying with According to a version
him. Rebel MS escapes provided by CP Sesadri,
from Subbulakshmi told her
Chettiar/Madurai/Family to mother that she did not
go to Madras. like the idea of moving in
with the Chettiar. Before
MS enters as a household
mother could take any
at Sadasivam's house.. a
further action.
Subbulakshmi removed
her ornaments, slipped
out of the house quietly
one night and hopped to
a train to Madras. The
fugitive from Madurai
started living at
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Sadasivam's house.
33 Abitha is really upset about 135 Wife Apithakuchambal felt
MS coming to stay at their oppressed and
35 140
house. She tries to despondent. The more so
45- persuade Saddasivam's she could not utter a
48 mother to send MS away. word about what was
going on.
MS helps with the family
cores and behaves really -The only person who
politely. dared to talk candidly to
Sadasivam was his aged
-Abithas is emotionally
mother.
defeated. She has to leave
her own house and goes to -MS was being helpful
her father's place. with the house and taking
special care of the kids.
Sadasivam wants Abitha's
jewels. She says the jewels A theory says, she died
are in her father's house when she was stung by a
and he assumes the father king scorpion while
already sold them. As he visiting her father's
says, Abitha's father is in a house.
financial crisis and he gave
-Apitha's father was in
the jewels to a lender.
financial crisis and sold
-Abitha dies killed by the jewellery that
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scorpion Sadasivam had given to
her daughter. Apitha was
scared of going back to
her house with
Sadasivam without the
jewellery.
He seemed insensitive.
36 Sadasivam fights to 95 Sadasivam fought to
convince Subramanyam to convince Subramanyam.
38
give MS a role in a film The director, to giving a
role to MS in the serial
novel Sevasadanam
41 Shanmugavadivu wants 114 He became more
her daughter back. Faux determined than ever to
policemen drive away keep what he called the
Shaktivelu, who came to Madurai Group at a safe
bring MS back distance from MS, There
were several attempts to
bring back MS. even a
kidnap... The came comic
relief in true filmic style.
Subranyam had some of
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his actors dressed as
policemen and stationed
outside MS house as a
deterred against would-
be kidnappers.
48 Shakunthala shooting spot. 127 Sadasivam sets up a
movie company of his
Hired by Sadasivam, MS
won. They choose
Dungan is the director to
Shakuntala as story for
make the film
the film. Ellis R. Dungan
Shakunthala.
was picked as the
director.
52- MS and GNB star in the 128- Sadasivam tried his best
55 movie together MS 131 to bar the entry of GNB
profoundly admires GNB. because of jealousy.
140
During Shakunthala shoot,
-If MS worshipped anyone
MS falls in love with him.
for his music it was
She writes him letters to
GNB[....] They were two
reveal her love.
musicians who had found
At one point GNB wants to in their art an
marry her. extraordinary bond.
Sadasivam feels insecure She made bold to write
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towards GNB and convince him letters...
and manipulates MS to
The discovery of this
stay away from him.
passionate love happened
through the letters that
the author shares at the
end of the book. GNB
lovingly preserved the
letters he received, which
was an indication of his
won feelings.
-According to GNB's
immediate family the
great musician was
serious enough to marry
MS in defiance of caste
and social barriers... This
didn't happen because he
discovers the corrupt
plans of Sadaivam and he
thought MS was also
involved
57 Small wedding of MS and 147 Sadasivam kept the
Sadasivam at the hillock arrangements low-key.
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temple Thiruneeramalai.
Small wedding of MS and
Photographs are taken.
Sadasivam at the hillock
temple Thiruneeramalai.
Photographs are taken.
He took his bride to
Tiruneermalai, a small
hilltop town in the distant
suburbs of madras. This
photograph wwe tounr in
Shanmugavadivu's
60 Sadasivam forces MS take 120 She was particularly
role as a man in the uncomfortable when
166
Savithri film to be shoot in Sadasivam first broached
calcutta. Sadasivam's the idea of appearing in
target: raise fonds to the film. Sadasivam's
create a new magazine persuasiveness might
with kalki have greatly influenced
her decision.
Rao made on offer to
Sadasivam for MS to act
as a male character in
Savithri. He accepted with
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a condition: the film
shouldn't be shot in
Madras. Rao agreed to
make the movie in
Calcutta.
The big satisfaction was
that money had been
found to launch Kalki...so
they could undertake the
journalistic literary
project they had mind.
66 Nehru: Who am I, mere 187 Nehru was chief guest.
prime minister before the On all the three
QUEEN of music occasions-he repeated his
overquoted "Who am I, a
mere prime minister
before the queen of
songs' compliment.
69 Death of Gandhi. The song 187 For nearly a year
played is Hari Turm Maro. thereafter [the death of
Ghandhi] she could not
even attempt to sing Hari
Tum Haro.
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58 Japanese bomb Madras. 172 Japanese plane did
appear over Madras and a
couple of bombs did fall
on the beach
71 Bala's financial problems. 91 Bala is a proud devadasi,
a victim of this cast.
75 At RKS funeral, Bala and
family are left Standing Economic security eluded
104
alone. her late in her life and
she had to face such
Bala too aftrons big
difficulties socially
problems to get her
daughter married. -She was reluctant to
pass her art on to her
only daughter because of
the rejections she had
gone through.
72,74 MS and Sadasivam 151 Sadasivam was getting
struggle to get the girls nowhere in his search for
79-
Married. a suitable boy for his
80
daughter Radha. A friend
Semmangudi advices the
suggested seeking the
family to ask for Mylapore
blessings of Kanchi. He
blessing to solve this
did and the effects were
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situation. beneficial.
Paramacharya: The girls Radha's marriage within
will be married Within three months of the visit.
three months.
In page 192, the name
Mylapore represented an
exclusive within Madras.
It was the place where
the Sadasivam lived in
the sixties, the network
they ascended to...
83 Radha's wedding. MS 218 Many pages of the book
dressed as a Brahmin explained how MS
222
makes sure everybody is personality soothed the
taken Care off. Brahmin elite class. She
presided over their world
at Kalki Gardens as
Hostess... .... Accorded a
status of high society
etc...
83 Appearance of 191 Semmangudi Srinivasa
Semmangudi in a scene lyer was a standing
where a singer is not well testimony to the
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payed... obstacles a Carnatic
musician faced.
100- Sadasivam financial crisis. 231 Labour problems
102 threatened to go out of
[...] the debtors are 234
control. Sadasivam took
waiting outside.
that as a personal affront
Problem: Clerk says the and responded with
magazine has lost His anger. [...] the company
editor. was facing serious
financial Problems.
Sadasivam has a choleric
temper. He reacts with -The fact remained that
rage and violence agains MS[...] was now without
the clerk And the workers. a home.
He cannot pay them.
Sadasivam loses Kalki
The Sadasivams have to gardens and moves to a
leave Kalki Gardens. small house in
Kotturpuram.
107 Montage of MS singing 234 [...] the house itself was
career continuing. Financial noticeably modest. MS
111 239
problems don't stop her... was happier in that
MS and Sadasivam keep house.
making charity concerts.
To lose Kalki Gardens,
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They are not interested in proved advantageous as
money. both Sadasivam and MS
could now pay Undivided
MS is happy in the new
attention to concerts and
and modest Kotturpuram
cause. She kept singing
house.
at many benefit
Good performances.... programs. Hey reputation
Every critic admires her.... and international fame
kept growing.
85. When we examine the above tabulations, it appears that both the parties are highlighting the points which are helpful for them. This Court must observe that the idea of making a Film on MS emanated from the meeting of the plaintiff and defendant No.1 and it cannot create a copyright in favour of the plaintiff on all Scripts that could be written or prepared by defendant No.1 on MS. As held by the Bombay High Court in the case of Shamoil Vs Falguni Shah (supra) where an illustration is also quoted from a US case, the idea do not have the copyright, but the expression does. The illustration in Para 13 is reproduced below:
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 "Upon any work, and especially upon a play, a great number of patterns of increasing generality fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended."
86. Where to draw the line is of course, for the concerned Court to decide and in doing so it must perforce impose its own value judgment, by applying its knowledge of a subject matter to a specific expression of that subject. Everything above this line is a matter of expression capable of copyright protection.
87. As noted above, I have gone through the entire Book as well as the Script. After such exercise being done by
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 this Court of reading a literary work of Mr.T.J.S. George and the appellant No.1, the following aspects emerge.
88. After reading the Book, one gets an idea on the life MS, her upbringing, education, excursions during her teenage; nature and relationship with her brother Shaktivelu, mother Shanmugavadivu; her performances in Kacheris and the concerts at Madurai and Kumbakonam, learning of the music and the practice regimen, which was followed in her house with her mother Shanmugavadivu; their journey and stay at Madras for a short while, where she comes in contact with Balasaraswati; the effort by Sadasivam to have an interview, offer for acting in a film, refusal by Shanmugavadivu and their return to Madurai; efforts of Shanmugavadivu to marry her with Chettiar, her resistance, leaving her mother and brother and escaping to Madras in a train and then taking shelter with Sadasivam. It is pertinent to note that the Book narrates that she had met Sadasivam while he attempted to record an interview for his Book 'Ananda Vikatan' during her initial stay at Madras. The mother of M.S. Subbulakshmi, Shanmugavadivu had not approved it and therefore, had refused permission to
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 MS to give an interview since Sadasivam was not having even a bicycle.
89. The Book depicts the Love of MS with G.N. Balasubramanian, domination of Sadasivam, his quick marriage with MS in a temple, MS meekly surrendering and accepting Sadasivam as her mentor and keeping Music as the core goal of her life, control and the fortress of Sadasivam on MS, right from costume to the Ragas, which are to be performed in Kacheris, everything was decided by her husband Sadasivam. The programs which are to be accepted by MS and Sadasivam acting as the Manager and controller of the life of MS, including the control of the compositions which are to be sung in those concerts are all depicted in the Book. In the storyline of the Book, her mother Shanmugavadivu, brother Shaktivelu, Rajaji, Kalki Krishnamurthy, Paramacharya of Kanchi, G.N. Balasubramaniam play certain prominent role. How their personalities influenced the life of MS are depicted. The Book refers to some contemporary Artists like Balasaraswati, her mother Jayammal and grandmother Veena Dhanam and to some extent, Arundhati, Rukmini Devi Arundale and others.
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90. When we read the Script, prominently the role of Balasaraswati takes the center stage along with MS. The storyline of the Script is that, MS, was poor in maths and there was an incident where the Maths Teacher later had to regret when MS had sung in Madurai Meenakshi Temple. The Script also mention that during the first visit to Madras along with her mother, while she was travelling in Tram, she meets Sadasivam. There is a cinematic fight scene where Sadasivam punches several blows to a rowdy who was in a tram. By the time he finishes the fighting, MS is nowhere to be seen. Then Sadasivam visits MS, offers her a role in film; Shanmugavadivu refuses; they return to Madurai. The mother of MS, Shanmugavadivu had taken her to a Chettiar (for a permanent relationship) and when expensive wardrobe was shown to her, MS had set an expensive saree ablaze with kuttuvilakku, a lamp. Later in the night, when the Chettiar came with an intention to have relationship with MS, she had escaped from the window and had boarded a train to Madras. The next morning Chettiar's head was found in broken Tambura. At Madras, she directly went to the house of Veena Dhanam and Balasaraswati.
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91. After a short interaction and stay with Balasaraswati, she came out of their house and then, she visits the house of the Editor of the Tabloid, who sends her to the house of Sadasivam. Thereafter, Sadasivam, retains her in his house, where certain issues arise. It is only thereafter that Sadasivam and MS start living together and then the wife of Sadasivam dies in her parental home due to a scorpion bite. These aspects, which take place in the house of Sadasivam, of course, are somewhat similar to the Book, but the Book lack finer details, but it dwells more on the contemporary situations which existed at that time. When Shanmugavadivu and MS were walking on the road, a procession was encountered and the father of MS had pretended that he doesn't know MS and Shaktivelu. These aspects, which are borne out of the Book, are not to be found in the Script. Therefore, from a careful reading, the difference can be listed as below:
a) The sequence of the events narrated in the Book are with reference to the Chapters. They are not sequenced on the time line. But in the script, the opening of the film is by the concert at UN. Then, the scene slips in to flash back and returns to the
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 concert after the interval. The placements of the scenes in a different chronology, though cannot be a reason to say that the script is different, it also disrupts the chronological order one may find in the Book.
b) The Book focuses much on the music and the life of MS. But the script focuses more on the life of MS and Balasaraswati. The life of MS is interspersed on many occasions in the life of Balasaraswati. The script lays thrust on the character of Bala to a greater extent than the Book. Character of Balasaraswati gains importance in the script. The chemistry of the friendship of MS and Bala may be extensively found in Ex.D1, D2 and D9 - Books.
c) The Book do not dramatize much. It indirectly makes the reader to think that there was developing an affinity between GNB and MS prior to her marriage with Sadashivam. The face off between MS and GBN found in the script is not there in the Book. The Book is subtle and leaves it
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 to the imagination of the reader to ponder whether there was an affinity developing between MS and GNB. But on the other hand, the script is direct and leaves no room to ponder. To some extent romanticism creeps in like any other commercial film.
d) In the Book the event of MS being caned in School ends up she developing a cough. But in the script the event stretches further to an event in temple, where the Teacher regrets caning MS.
e) Regarding Devadasi Custom the Book depicts it in traditional way. It brings forth the holistic roles of Devadasies in Temples of Southern India and the custom slowly moving towards prostitution without naming it. But however the script is more on contemporary meaning of Devadasi Custom. The script depicts ancient customs less, the recent past and contemporary one to a greater extent. The script highlights the said custom which underwent changes after the British Rule began and the States
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 support to the Temples depleted. In other words, the practice of Devadasies starting to have relationship with well to do persons of the society.
f) The emphasis of various events, characters that may be found in the script is not the same as one can find in the Book. Moreover, the script being a skeleton of the expression of the film, can only be said that it gets a full expression only after film is made. As noted above, a pantomime is one form of the expression and on certain occasions it may not be possible to say that it is adaptation of a prose story unless the story line remains the same.
g) Under these circumstances, when the script is loaded with certain facts which are found in the Exs.D2, D9 and D1 and when the fullest form of expression is yet to evolve, it is not possible to hold that a viewer of the film will get an unmistakable impression that it is an adaptation of the Book.
92. The Script, focus more on the role of Balasaraswati and her interactions with MS. As a friend who helped MS when
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 she was in distress, life of Balasaraswati with her wealthy husband is also depicted in the Script. Of course, the Script being like a skeleton of the dialogues of the Actors has some deviations from the picture one gets after reading the Book. For instance, MS and Balasaraswati meet for first time in the house at Madras and then when MS flees from Madurai, she goes to the house of Balasaraswti. Bala and M.S. huddled in the house, under the watchful eyes of the grandmother, Veena Dhanam, she ultimately leaves and goes to the house of Sadasivam. Script seldom refers to Rajaji, which otherwise we find extensively in the Book. Therefore, the Script being skeleton like structure can only take a shape when adapted into the celluloid, coupled with certain events. MS leaving Madurai and going to Sadasivam at Madras, ultimately marrying him after death of his first wife, then Sadasivam acquiring a Kalki garden, his relationship with Kalki Krishnamurthy and the publication of 'Anand Vikatan', friendship with Rajaji, praise by Pandit Nehru, concerts in UN and USA are all the facts which are in public domain. There cannot be any copyright on them. But the manner in which a person gets an idea after reading the Book, cannot be effectively and fully visualized on reading the Script,
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 for, the scenes are yet to fill up the celluloid. Claiming a copyright of an entirely fictional story and it being adapted to celluloid would violate the copyright would be simple. But when the story involves the life of a person, the historical facts being in public domain are intertwined with some of the fiction would be difficult to judge, that too, when the adaptation is not complete.
93. The perusal of Ex. P7 the script shows that some of the storyline in the Script is also taken from Ex.D1. Some of the events which may be found in Exs.D1 and D2 are also incorporated in the Script. Under these circumstances, it appears that though some of the instances which may be found in the Book can be found in the Script, but in its entirety, the Script is not based on the Book. It is precisely for this reason that the plaintiff had rejected the Script and he contended that, this cannot be a film based on the Book. Under these circumstances, the fact that Script is fully based on the Book written by PW3, Mr.T.J.S. George cannot be accepted. Of course, the factual aspects of the life of MS may be depicted there in the Script.
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94. It is also pertinent to note that the Script contain several instances and events which may be found in the Books at Exs.D1, 2 and 9. The Book at Ex.D9-The Madras Quartet, depicts the achievements of the four musicians of Madras. One among them is MS. The Ex.D2-is a Book on Balasaraswati. Though there is scanty reference to MS in the said Book, much of it is on the life and achievements of Balasaraswati. It do not throw any light on her personal life. Ex.D1 -Ode to a Nightingale by Lakshmi Viswanathan, also throws light on the events in which MS had participated, her acting in the Films - Sevasadanam, Meera and Shakuntalai. Much is not stated about the personal life. A cursory glance on these books by this Court leaves with an impression that some of the events in Exs.D1,2 and 9 are found in the Script also.
95. It may also be noticed that in Chapter 4 of the Book (page 90-91), Mr TJS George refers to an article by Dr Girish Karnad (DW1), who had described the personality of MS and Balasaraswati. The Script appears to be a further elucidation and expansion of the same, in greater detail.
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96. In the result, it can be said that the Script at Ex.P7 has the events which are found in Ex.P16, D1, D2 and D9. The script also has some scenes like any other commercial Film, like the hero fighting the rowdies and the heroine vanishing from the venue. Therefore, at this juncture, when the Script is in a skeleton form of the Film, it would be difficult to say that a person who reads the Book will get an impression that the Film to be brought on the Script at Ex.P7 is adopted from the Book- MS A Life in Music.
97. It may be true that a person who reads the Book MS A Life in Music, might not have read the book at Exs.D1 and D9. His impression may be, to some extent that the Film is based on the Book. It is for the reason that some of the events which are the facts available in public domain are found in the script also. However, if a person who has read Ex.D1, D2 and D9 and also the Book at P16, see the Film to be brought on Ex.P7 Script, his impression may be different. Therefore, keeping in mind the principles which are laid down by the Apex Court in the case of R.G. Anand Vs. Delux Films and others supra, especially, the third proposition in para 46, this Court comes to the conclusion that it is not possible to get an
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 unmistakable impression that the subsequent work appears to be the copy of the original.
98. The next aspect would be, whether there was any confidential information which was shared with the defendant No.1 by the plaintiff?
99. It is difficult to uphold this contention of the plaintiff. It is relevant to note that the Book was already in the public domain. Therefore, if a Script had to be written on the basis of the Book, obviously, the book was shared by the plaintiff with the defendant No.1. There is nothing which was confidential which had passed on from the plaintiff to defendant No.1. The plaintiff also do not mention anything specifically which is not written in the Book and which is not in the public domain, which he had given to the defendant No.1. It can be understood that if the storyline based on an idea was prepared in the form of a concept by the plaintiff, he had shared with the defendants, then obviously such concept was not in the public domain. Therefore, it may take the status of a confidential material which the defendant No.1 used for writing the Script. But in the case on hand, there is no such confidential
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 information which was shared by the plaintiff with defendant No.1. It is only the Book which was shared and contents of the Book already are in the public domain. Hence, the fact that plaintiff had shared certain confidential material with the defendant No.1. has no basis.
100. It is to be noted that there was no written agreement between the plaintiff and the defendants. The plaintiff had an Idea of making a Cinematographic Film based on the Book written by Mr. T.J.S. George and they together went to DW1-Dr. Girish Karnad. He obviously withdrew from writing the Script. Nowhere the plaintiff says that there was any agreement in respect of sharing either the costs or the profit from televising the film. It is also worth to note that except the testimony of PW1 there is nothing on record to show that the defendants had agreed to write the script based on the Book. Simply because the plaintiff and defendants together gone to Dr. Girish Karnad, asking him to write the Script, it cannot be concluded that the defendants had agreed to write the same Script which was entrusted to Dr. Girish Karnad. Evidently, the Script 'MS and Bala' is not based on the Book. Plaintiff never agreed to bring in Balasaraswati into the Film
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 with prominence. This may be found in the letter written by DW1 at Ex.D4. Therefore, there is no such causal relationship between the Script 'MS and Bala' and the Script which the plaintiff and defendants conceived and asked Dr. Girish Karnad to write. When the plaintiff states that the Script fundamentally deviate from the Book and therefore, he had differences with the defendants, nothing else is required to say that the Script 'MS and Bala' is in pursuance to the understanding between the plaintiff and the defendants. Therefore, the plaintiff cannot have any right in respect of the Script 'MS and Bala'. If the Script written by defendant No.1 was based on the Book, then it could have been said that the understanding between the plaintiff and defendants had culminated in the form of such Script.
101. For afore mentioned reasons, the point No.1 and 2 raised above are answered in the negative.
102. Sofar as the counter claim of defendant is concerned, nowhere the plaintiff stated that he is intending to make any Film based on the Script 'MS and Bala'. It is the case of the plaintiff that Script written by defendant No.1 is in
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 pursuance to the understanding between the parties and is based on the Book. When the plaintiff has not stated anywhere that he intends to use the Script 'MS and Bala', the question of seeking an injunction against the plaintiff do not arise. The defendants cannot seek a declaration when the claim of the plaintiff over such Script is negated by this Court.
103. It is pertinent to note that when the defendants did not plead in the written statement that the Script is based on their own research and different sources and when such originality of the work is not established, they are not entitled for a declaration at this juncture. Their evidence falls short of required pleadings.
Reg: Point Nos. 3 and 4
104. The trial Court holds that the defendants could not have deviated the script from the Book. It holds that the defendant no.1 could not have written the Script based on any other book than 'MS a life in Music'. Obviously there being no written agreement between the plaintiff and the defendants, and any such agreement having not been established, it was impermissible for the trial Court to hold that the defendant
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 No.1 could not rely on Ex. D1 to write the Script. Obviously the trial Court presumes that there was such an agreement since the Plaintiff and the Defendant No.1 had gone to Dr. Girish Karnad (DW1) to entrust him the writing of the Script. The meetings between the plaintiff and the Defendant and with Dr. Girish Karnad cannot be presumed to be an agreement between the Plaintiff and the Defendant. None of the correspondence between the plaintiff and the defendant show that the defendant No.1 had agreed to write the Script based on the Book. Rather it was the Plaintiff who went on insisting the defendant to send him the Script. Therefore the conclusions of the trial Court that, the defendant No.1 receiving the Book from the Plaintiff and holding discussion with him and others would amount to a commitment by the defendant are erroneous and lack any credence. The oral testimony of the DW2 falls short of such admission that there was an agreement between them.
105. This court has elaborately considered the judgment of the trial Court in part 'H' of this judgment. The last part of para 16 of the judgment of the trial Court appears to be bereft of valid reasons. In one single sentence, it holds that the Script
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 and the Book are not entirely different. But at the same time, the trial Court does not say what are those points which constitute copyright violation in the Script. It was expected from the Trial Court to narrate what are the aspects which violate the copyright. As first appellate Court, this court has elaborately considered what the trial court concluded in one sentence. Obviously the conclusion is not correct. The view taken is bereft of valid reasons. Therefore, the impugned judgment deserves to be set-aside. In the result, the point No.3 is answered in the negative.
106. Before parting, it is necessary to observe that this Court has considered the Script and the Book, which are at Ex.P7 and P16 and has come to the conclusion as above. The findings in this judgment are restricted to the Script at Ex.P7 only and that would not be applicable to any cinematographic film that may be produced on it. This is because, the film may have value additions of audio visual effects, which may import the scenes and scenarios depicted in the Book. With this observation, the appeal deserves to be allowed. Hence, the following:
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NC: 2025:KHC:15136 RFA No. 1589 of 2014 ORDER
1. The appeal is allowed.
2. The impugned judgment and award dated 06.08.2014 of the trial Court in OS.No.1940/2013 is hereby set aside. The suit stands dismissed.
All pending Interim Applications, if any, stand disposed off. Costs made easy.
Sd/-
(C M JOSHI) JUDGE tsn* List No.: 19 Sl No.: 1