Bombay High Court
Radha Bharadwaj vs Ellipsis Entertainment Media Llp And 3 ... on 9 August, 2019
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
nmcd534_2019.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL NOTICE OF MOTION NO. 534 OF 2019
IN
COMMERCIAL IP SUIT NO. 243 OF 2019
Radha Bharadwaj ... Plaintiff
V/s.
Ellipsis Entertainment Media LLP & Ors. ... Defendants
----
Mr.Zal Andhyarujina with Piyush Raheja, Karan Bhide, Pratik Pawar
and Siddhesh S.Pradhan I/b. J.Sagar Associates, for the
Applicant/Plaintiff.
Mr.Sharan Jagtiani with Ms.Komal Joshi, Jayraj Nair, Rohan Mathur
and Ms.Aditi Bajaj I/b. ALMT Legal, for Defendant no.1.
Mr.Navroz Seervai, Senior Advocate a/w. Ashish Kamat, Ameet Naik,
Ms.Madhu Gadodia, Megha Chandra, Vikramaditya Chavan, Devashish
Tiwari I/b. Naik Naik & Co., for Defendant no.2.
Mr.Ravi Kadam, Senior Advocate with Dr.Birendra Saraf, Sanjay
Kadam, Rashmin Khandekar, Apeksha Sharma, Sanjeel Kadam, Sayalee
Rajpurkar I/b. Kadam & Co., for Defendant No.3.
Mr.Dharam Jumani with Parag Khandhar i/b. DSK Legal, for Defendant
No.4.
----
CORAM : G.S.KULKARNI, J.
DATE : 9th August, 2019 P.C.:
1. As the regular Court by an order dated 6 August 2019 has expressed its inability to take up this suit, the present notice of motion has been mentioned before this Court as an alternate Bench, to be 1/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc taken up for hearing, as to ad-interim reliefs. The urgency as set out on behalf of the plaintiff is that the movie/film in question namely "Mission Mangal" (for short the "said film") is stated to be released on 15 August 2019.
2. This is a plaintiff's Notice of Motion filed in a copyright infringement suit. The plaintiff is before the Court with a case that defendant Nos.2 and 3, in the manner as set out in the plaint, are infringing the copyrights of the plaintiff in respect of a registered script/screenplay titled "A Most Auspicious Journey" owned by the plaintiff and registered in the United States of America, in producing the said film "Mission Mangal". The plaintiff has contended that the script of this movie being produced by defendant nos. 2 and 3 is strikingly and substantially similar to the theme, idea and concept as contended in the plaintiff's script. It is stated that following special features as contained in the script of the plaintiff can be seen in the teaser and the trailer issued by defendant nos. 2 and 3:
(i) There are ordinary women achieving extraordinary filed;
(ii) Central character is a male scientist who has put together the teams.2/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 :::
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(iii) The central character who is a fictional character;
(iv) There is a emphasis of Hindu tradition and Indian culture;
(v) There is a GSLV starting point;
(vi) There is a competition with NASA which was purely
fictional.
3. It is contended that all these similarities can be instantly seen from the teaser & trailer as issued by defendant nos. 2 and 3. It is the plaintiff's case that the plaintiff had entered into a Confidentiality/Non-Disclosure Agreement with defendant no. 1 on 20th April, 2016 with defendant No.1, so as to share the script with an intention that a movie can be produced in association with defendant no. 1. Also a Memorandum of Understanding to that effect came to be entered on 22 nd December, 2016. The plaintiff contends that when the said agreements were subsisting, so that the further course of action could be finalised, defendant no. 1 shared the script with defendant no. 4 and accordingly defendant no. 4 has received knowledge of the theme and concept of the plaintiff's script. It is contended that defendant no. 1 and defendant no. 4 in a collusive action appeared to have breached the confidentiality of the 3/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc plaintiff's script and has exploited the plaintiff's script to be copied by the scriptwriter Mr. Jagdeeshan Damodaran, who now has associated with defendant nos. 2, 3 and 4 for production of the film in question "Mission Mangal". The case of the plaintiff is that defendant no. 1 has unauthorizedly disclosed the plaintiff's script to defendant no. 4. To support this contention, the plaintiff refers to correspondence between the plaintiff and respondent no. 1 and their representatives.
4. On the above background, the plaintiff has prayed for the following reliefs in the Notice of Motion:
a) pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to pass an order of injunction restraining the Defendants, by themselves or through their agents, servants, directors, partners, employees, associates and/or associate/group concerns or entities etc. from, in any manner infringing the copyright of the plaintiff in the said registered script/screenplay titled "A Most Auspicious Journey" owned by the plaintiff bearing registration No. PAU 3-836-410, or any substantially similar or modified/altered version thereof, in the production of the movie "Mission Mangal" or any other movie, TV serial, play etc.
b) pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to order and direct Defendant nos. 2,3 and 4 to disclose and furnish the copy of the script and screenplay which forms the basis of their production "Mission Mangal" to the plaintiff and/or to any other fit and proper person as may be appointed by this Hon'ble Court for the purpose of comparing the 4/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc said script with the plaintiff's said script.
(c) ad-interim reliefs in terms of prayer clauses (a) & (b);
(d) for costs of the notice of motion;
(e) for such further and other reliefs as the nature and
circumstances of the case may require."
5. Learned counsel for the plaintiff in supporting the
contentions, has drawn my attention to a tabulation indicating the similarities stated to be substantial similarities in the scripts which is on the basis of teaser/trailer. In support of his contentions that this is a clear case of breach of infringement of the plaintiff's copyright, learned counsel has placed reliance on the decisions of this Court in
(i) Zee Telefilms Ltd. vs. Sundial Communications (P) Ltd., 1; (ii) Urmi Juvelar Chiang vs. Global Broadcast News Ltd. and Anr. 2 and the (iii)Judgment of Single Judge of Madras High Court in Vodafone India Limited v R. K. Productions Private Limited, Chennai and others3
6. On the other hand, the case of the defendants in short is that the plaintiff's contentions of any copyright infringement are totally unfounded. It is contended that there is no breach of any copyright, 1 2003 (5) Bom. C.R. 404 2 2008 (2) Bom. C.R. 480 3 2012 SCC Online Mad. 41 5/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc as the scriptwriter Mr. Jagdeeshan Damodaran has himself undertaken the entire exercise of visiting ISRO and on information received from his research has penned down a different concept which has no similarities whatsoever to the plaintiff's works.
Affidavit of Mr. Jageeshan Damodaran is also placed on record. There is also an affidavit of Mr. R. Balkrishnan (Mr. Balki) placed on record, who has also denied the case of the plaintiff and contended that Mr. Jagdeeshan Damodaran had approached him in January 2017 with a concept of agreeing a film "Mars Orbiter Mission". He has stated that he had heard the concept and same had appealed to him and decided to proceed further and agreed to involve himself in association with Damodaran to develop a concept in screenplay, as he and Damodaran has been professionally associated in the past. He has stated that storyline/script titled as Mangal Mahila Mandal was prepared and registered with screenwriters association on 6 th September, 2018. He has further stated in his affidavit that how he approached defendant no. 2 for porduction of the suit film.
7. On behalf of defendant no. 4 it is contended that she is an actress and in the ordinary course of her profession, she comes across several scripts. It is her contention that she is unnecessarily 6/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc dragged into the suit. It is stated that there is no material against her for the plaintiff's to contend with certainty, that she has in any manner shared any information in regard to the script of the plaintiff.
8. Mr. Jagtiani, learned counsel for defendant no. 1 would contend that his client is not concerned with the film. He has drawn my attention to the reply affidavit on behalf of defendant no. 1, who has denied the plaintiff's case that there is any action taken on the part of defendant no. 1 to unauthorizedly share the script with defendant no. 4. Mr. Jagtiani would submit that no case of breach of confidentiality is made out in the plaint.
9. Mr. Seervai, learned senior counsel for defendant no. 2 would submit that the script of both the parties is not available before the Court and thus there is no question of the Court considering granting any relief, on the premise that there is infringement of copyright of the plaintiff. It is submitted that the plaintiff at all material times was aware that defendant no. 2 is producing the film "Mars Orbiter Mission" and more particularly from the time of filing of the present suit in November, 2018. It is submitted that the 7/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc plaintiff was also aware that that the movie was announced to be released on 15th August, 2019 at the time of filing of the suit itself. The submission of Mr. Seervai is that there is gross delay on the part of plaintiff to be entitled to the discretionary reliefs as prayed for. On the ground of delay, Mr. Seervai would point out that in September, 2018, the plaintiff was aware about the said movie being produced by defendant no. 2. The suit was filed on 19 th November, 2018. It was moved for the first time on 20 th January, 2019 and at the behest of the plaintiff, it was adjourned to 18 th February, 2019. It is submitted that on 15 th April, 2019 an amendment application came to be moved and it came to be granted on July, 2019. Mr. Seervai would, therefore, submit that there is a clear indication that the plaintiff was never serious about the suit.
10. Mr. Seervai would also point out that the averments as made in the plaint and the averments as made in the amended plaint would clearly show that the plaintiff is trying to change its case even in respect of alleged infringement of copyright. It is accordingly contended that the plaintiff has in fact now shifted its stand in the suit on the basis the developments which have taken place during the pendency of the suit. To support this contention, Mr. Seervai 8/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc has referred to paragraph 14 and paragraph 32D(c) of the plaint to show that there is clear shift in the case of the plaintiff in regard to the basic theme of plaintiff's own script. It is contended that the plaintiff has never placed the script on record, when complaining of a breach of copyright.
11. Mr. Kadam, learned senior counsel for defendant no. 3 would submit that there is complete legal misconception on the part of the plaintiff and which is fatal to the reliefs as prayed for in the present Notice of Motion. Mr. Kadam would submit that there is no material before the Court that the alleged breach of copyright can be considered to form an opinion even prima facie that there is infringement of plaintiff's copyright in respect of her script. It is submitted that infringement of copyright is required to be understood in the context of Section 14 which defines "copyright" and in the context of Section 51 which provides for infringement of a said copyright. It is submitted that in the present case, the concern would be in respect of literary work, namely, of a movie/script. It is submitted that in the present case, Mr. Jagdeeshan, owner of the script is not a party to the present suit. In absence of a necessary and proper party, a relief of infringement of 9/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc copyright is being prayed by the plaintiff. Mr. Kadam would next contend that in the absence of scripts of both the parties being before the Court, no ad-interim reliefs on a Motion seeking injunctory reliefs can be granted. It is submitted that the presence of the works before the Court is necessary in the context of said provisions of Copyright Act, as the only endeavour of the plaintiff would be to show any reproduction of her works in the works of Mr. Jagdeeshan, author of the work and who is the first owner and consequently of the movie in question being produced by defendant no. 2 in breach of any copyrights of the plaintiff. It is submitted that this basic elements not being present, the plaint itself ought to have been rejected.
12. Mr. Kadam would submit that the copyright principles are well established and no case of any breach of the copyright by the plaintiff is made out considering to the settled principles. Mr. Kadam in this context has referred to the decision of United States District Court, C.D. California in Livia MILANO vs. NBC Universal, Inc. 4.
4 584 F. Supp.2d 1288 (2008) 10/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc
13. Mr. Andhyarujina, learned counsel for the applicant/plaintiff in rejoinder would submit that the script was sought to be made available to this Court by the plaintiff. He submits that same was also offered to the defendants, however, the defendants have refused to receive the plaintiff's script. He has referred to the correspondence in this regard which is mainly, letters dated 14 th June, 2019, 7th August, 2019. He, however, submits that by letter dated 22nd June, 2019, defendant no. 2 has refused to provide the copy of the scripts to the plaintiff. It is submitted that even Mr. Balki has not offered to provide the script. It is submitted that a cause of action has clearly been established for an ad-interim relief to be granted in favour of the plaintiffs, in as much as the whole conduct of the defendant is to defeat the copyrights of the plaintiff. Mr. Andhyarujina would submit that the defendants have no answer to the peculiar dramatic slant as contended in the script of the plaintiff and which is the very theme of the movie in question of defendant no. 2. In responding to Mr. Seervai's argument that there is delay in the plaintiff's prayer for this relief, it is submitted that although on 29th January, 2019, this Court (Coram :S.J. Kathawalla, J.) had directed that the Notice of Motion itself to be heard for final disposal on 18th February, 2019, that cannot be accepted to be 11/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc rejection of ad-interim reliefs on the Notice of Motion. It is contended that the subsequent order dated 16 th July, 2019 passed by this Court (Coram : K.S. Shriram, J.) would indicate that Notice of Motion was to be heard for ad-interim relief. It is submitted that in any case the delay would not defeat the injunction in copyright matters. He has submitted that there are apparent contradictions in the case of Mr. Jagdeeshan and Mr. Balki, hence there is sufficient material for this Court to hold that prima facie case for injunction has been made out in the plaint.
14. I have heard the learned counsel for the parties. I have perused the averments in the plaint, Notice of Motion and the affidavits and the documents on record.
15. At the outset, it needs to be noted that when the Court is concerned for grant of any injunctory reliefs, the consideration of the Court is to apply the three basic principles namely of the plaintiff making out a prima facie case, of a balance of convenience being in favour of the plaintiff and the test of irreparable prejudice and injury being caused to the plaintiff. It is on these principles the present Notice of Motion would require to be considered. 12/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 :::
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16. Admittedly the suit was filed on 19th November, 2018. What would weigh with the Court is that the plaintiff at all material times even prior to the filing of the plaint was aware that the said film was being produced by defendant no. 2 which according to the plaintiff had an element of infringement of plaintiff's copyright. The plaintiff was also aware that the film was to be released on 15 th August, 2019 (see paragraphs 23 and 24(d)(vi) on page 11 of the plaint). The plaintiff was also aware that none of the defendants are the persons who have written the script of the movie "Mangal Mission". The basic defect in the plaint cannot be overlooked that the writer of the script Mr. Jagdeeshan who is the owner of the script is not a party to the suit. In these circumstances, Mr. Kadam would be correct in relying on the decision of Livia MILANO v. NBC UNIVERSAL, INC., et al. (supra) where the Court has recognized following principles:
"B. COPYRIGHT PRINCIPLES [1] [2] [3] Copyright law protects an author's interest in an original work that has been fixed in a tangible medium that allows it to be "perceived directly or with the aid of a machine or device." 17 U.S.C. 102(a); see generally Feist Publicatins, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358(1991). Copyright law does not protect *1294 ideas themselves, but rather the expression of those ideas. Feist, 499 U.S., at 362, 13/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc 111 S.Ct. 1282 (compilation of unprotectable facts may gain protection through selection and arrangement); Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir.2002) (citing Kouf v. Walt Disney Pictures & Television, 16 F. 3d 1042, 1045 (9th Cir.1994). Unprotectable elements include general plot ideas and "scenes a faire," which are scenes that flow naturally from unprotectable basic plot premises and "remain forever the common property of artistic mankind." Id. On the other hand, "protectable expression includes the specific details of an author's rendering of ideas, or "the actual concrete elements that make up the total sequence of events and the relationships between the major characters.'" Id., citing and quoting from Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985).
[4] [5] [6] These basic principles of copyright law provide the foundation for a copyright infringement claim. To establish copyright infringement, a plaintiff must show that: (1) she owns the copyright; and (2) defendant copied or infringed protected elements of the work. Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir.1990); 4-13 Melville B. Nimmoer, et al., Nimmer on Copyright 13.01 (2005) ("Nimmer"). Absent direct evidence of copying, proof of infringement involves fact-based showings that (1) the defendant had access to the plaintiff's work; and (2) the two works are "substantially similar." E.g., Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072, 1076 (9th Cir.2006) (citing Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000). Where a high degree of access is shown, courts require a lower standard of proof for substantial similarity. Swirsky v. Carey, 376 F.3d 841 (9th Cir.2004) (citing Bolton, 212 F. 3d at 485).
[7] [8] In determining whether two works are substantially similar on summary judgment, the court employs the "extrinsic test," which objectively measures the "articulable similarties between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events." Rice, 330 F.3d at 1174 (quoting Kouf, 16 F.3d at 1045). In applying 14/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc the extrinsic test, the court "compares, not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters." Funky Films, 462 F.3d at 1077 (quoting Berkic, 761 F.2d at 1293). Courts "must take care to inquire only whether the protect[a]ble elements, standing alone, are substantially similar." Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002) (citations and internal quotation marks omitted) (emphasis in original); see also Nimmer 14.03 ("[A]n essential element of an infringement case is that 'plaintiff must show that defendants' works are substantially similar to elements of plaintiff's work that are copyrightable or protected by the copyright.' When similar works resemble each other *1295 only in those unprotected elements, then defendant prevails.") (citation omitted and emphasis in original).
Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir.1985), provides helpful guidance on this point, In Berkic,a case that compared two works involving the murder of healthy young people for the purpose of removing and selling their organs to wealthy older people in need of organ transplants, the Ninth Circuit plainly stated:
No one can own the basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.
Id. Thus, in Berkic, even though the plot lines revealed "a certain gruesome similarity," that similarity in expression did not give rise to a viable infringement claim because the plot line itself was not protectable. Id. Later decisions have emphasized this point, admonishing trial courts to distinguish between the protectable and unprotectable material because only similarlity in protected material will give rise to a claim for 15/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc infringement. Funky Films, 462 F.3d, at 1077 (9th Cir.2006) (citing Cavalier, 297 F.3d at 822).
17. These are the principles recognised even in several decisions of the different High Court and Supreme Court.
18. In the present proceedings, when the Court is considering the Application for an ad-interim relief, certainly the argument of delay would be a valid argument. It is quite apparent that the plaintiff with all bundle of facts to her knowledge waited for so long to bring a position that the scripts are available to the Court so that any issue on copyright infringement can be looked into even for the purpose of interlocutory application. However, it appears that the plaintiff wasted valuable time in entering into correspondence in that regard. Today the situation is that the basic material of which copyright infringement is being asserted by the plaintiff is not before the Court. The plaintiff cannot run away from these basic deficiencies. It is thus, obviously difficult for the Court to ascertain as to how even a prima facie case of copyright infringement can be considered.
19. If the plaintiff's case is only on the basis of teaser/trailer and any comparative analysis on the basis of this material is being made out 16/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc without the Court looking at the actual works (script) to reach even to a prima facie conclusion to a copyright infringement, it would trading on a dangerous path. The Court granting injunctory reliefs on such considerations is unacceptable and would lead to serious consequences.
Certainly the Court cannot overlook that during all these times from the filing of the suit, the plaintiff permitted the defendants to proceed on the basis of their script, complete their production of the film, create third party rights and take all possible steps to release the film on 15 th August, 2019. Any injunction which would be granted would result in a serious prejudice being caused to defendant nos. 2 to 4.
20. Mr. Andhyarjuna's submissions referring to the decisions (supra) to contend that there are substantial and strikingly similarities, certainly cannot be accepted in as much as in all these cases, the material for considering breach of copyright was before the Court. Even in considering the reliefs in Notice of Motion on first principles, the Court cannot overlook the very basis and the foundation on which such relief can be granted in a copyright infringement action.
21. The alternate case of Andhyarujina that the defendants should be directed to deposit in this Court a substantial amount by referring to an 17/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 ::: nmcd534_2019.doc order dated 27th February, 2017 passed by the learned Single Judge of this Court in Wadia Movietone Private Ltd. vs. Vishal Bharadwaj & Ors.5 also cannot be accepted in the facts and circumstances of the case. In the said case, the court was of the opinion that an injunction ought to be granted and only as a condition for the injunction not to operate, the Court in the facts of the case thought it appropriate to direct the defendant to deposit the amount. Certainly this is not the situation in the present case. Thus, this request of Mr. Andharujina cannot be accepted.
22. The upshot of the above discussion is that the plaintiff has failed to make out a prima facie case for grant of an ad-interim relief, also the balance of convenience is in favour of the defendants, for the reasons as discussed above.
23. Accordingly, the prayer of the plaintiff for ad-interim relief is rejected.
24. Notice of Motion is made returnable for hearing after 8 weeks.
(G.S.KULKARNI, J.) 5 2017 SCC Online Bom 6434 18/18 ::: Uploaded on - 09/08/2019 ::: Downloaded on - 10/08/2019 03:51:33 :::