Calcutta High Court
Vipul Amrutlal Shah vs Shree Venkatesh Films Pvt. Ltd. & Ors on 10 August, 2009
Author: Patherya
Bench: Patherya
GA No. 2064 of 2009
CS No. 219 of 2009
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
VIPUL AMRUTLAL SHAH
VS.
SHREE VENKATESH FILMS PVT. LTD. & ORS.
For Petitioner : Mr. S. N. Mookherjee, Sr.Advocate with Mr.Ranjan Bachawat,
Mr. R. Bhattacharyya, Mr. S. Roy Chowdhury, Mr. S. Sengupta,
Mr. Aniket Agarwal, Ms. Anshumala Bansal
For Respondent No.1: Mr.Sudipta Sarkar, Sr.Advocate with Mr.Tilak Bose, Ms.
M. Bhattacharyya, Mr.Debnath Ghosh, Mr. S.B.Chakraborty For Respondent No.2: Mr. Soumya Roy Chowdhury For Respondent No.3: Mr.Anindya Mitra, Sr. Advocate with Mr.Jishnu Chowdhury, Mr. A. Bose.
BEFORE THE HON'BLE JUSTICE PATHERYA DATED : 10. 8. 2009 THE COURT : In a suit for infringement of copyright in "Namastey London" (Hindi film) an interim application has been filed for interim reliefs.
The case of the petitioner is that the suit is based on five causes of action - infringement of the cinematographic film, infringement of the literary works, infringement of the dramatic works, infringement of the author's special right and passing off action. The petitioner is the producer-director of reputed Hindi 2 films. Under the banner Block Bluster Movie Entertainers the Hindi film was released. The story concept was conceived by the petitioner while the screen play and script was created by Suresh Nair and Ritesh Shah. By assignment the said screen play and script was assigned in favour of the petitioner who has become the owner of the copyright in the literary and dramatic works. By virtue of such copyright in the literary works and dramatic works the petitioner is entitled to exclusive right to exploit and reproduce the work under the copyright laws of India.
By an arrangement the copyright in the said film vests in the proforma respondents and the petitioner and the proforma respondents are joint owners of the copyright. The said film was released on 23rd March, 2007 and was a box office super-hit. On 22nd July, 2009 the petitioner came to know that based on a similar story line of the Hindi film, a Bengali film "Poran Jaey Joliya Re" (Bengali film) was to be released on 24th July, 2009. A request was made to Ms. Jaya Banerjea who had seen the Hindi film to watch the Bengali film. On seeing the said film Ms. Jaya Banerjea informed the petitioner that the said Bengali film was a substantial copy of the Hindi film and forwarded a comparative analysis of the two films.
On 30th July, 2009 the respondents' representative held a meeting with the petitioner in Bombay and offered Rs. 5 lacs for 3 obtaining a retrospective licence. Inspite of such offer neither the representative nor the respondents have contacted the petitioner.
As the petitioner has a copyright in the literary and dramatic works including the cinematographic Hindi film and the respondent by copying the story line and plot of the Hindi film has infringed the petitioner's copyright in the Hindi film. Hence the instant application has been filed and orders sought.
The film was released on 24th July, 2009 and unless the film was released no action could have been brought. Reliance is placed on 2003 (2) Copyrights and Trade Mark Reporter 16. It has been admitted in an interview with the actor of the said Bengali film that comparison with the Hindi film were inevitable. All points of similarity cannot go unnoticed between the two films. The reviews by various films critics also described the Bengali film as "copy paste cinema". For all the said reasons order be passed as sought.
Counsel for the respondents submits that the Bengali film was running in 110 Cinema halls on 24th July, 2009 in the State of West Bengal. The exhibitors and distributors have not been made parties and as third party right has intervened no order of injunction be passed without making them parties or hearing them. The commercial 4 impact of an order of injunction on the Bengali film must also be considered.
The original author of the Hindi film were Nair and Shah. The petitioner has alleged assignment, but no assignment in writing has been produced. Therefore, ownership of copyright as pleaded is not valid. In fact by an arrangement the copyright vests in the proforma respondents and as the petitioner and the proforma respondents are joint owners, one of the joint owners cannot maintain an action for infringement of copyright. The statements made in paragraphs 25 and 35 of the petition must be tested on the anvil of Section 14 of the Copyright Act, 1957 (1957 Act).
There can be no copyright in idea. The theme of the Hindi film is not an original theme but is similar to the theme in an earlier Hindi film "Purab Paschim". The 117 scenes of the Bengali film has no similarity to the scenes in the Hindi film. The film has not been copied and as there can be no copyright in ideas, it is only when the idea is translated into literary works i.e. a tangible form that copyright exists. The storyline though similar will not amount to infringement of copyright. Reliance is placed on Gregory Wilford Commission report in para 2.08 Narayanan 3rd edition, 27 Patent and Trademark Cases 81 and 1998 FSR 394.
The conduct of the petitioner must also be examined and for such purposes downloads from the Internet in respect of 5 "Benjamin Button" is relied on. Successful films of the respondent in the past are 'Chokher Bali' and 'Raincoat'. It has been alleged that a representative of the petitioner watched the Bengali film on 3rd August, 2009 but no ticket of the cinema has been produced nor has it been averred when the film was seen. The analysis made is a comparative analysis and mentions similar scenes but does not say that the scenes are ditto. Therefore, the analysis of Jaya Banerjea is not correct. Out of the 117 scene only some have been compared. Scenes 6, 7, 9 and 11 do not find place in the Bengali film. In scene 8 the characters are dissimilar. In the Bengali film many characters have been excluded while some have been included "Choton" and the elder brother of the actress are absent in the Hindi film. The fight scenes are also absent in the Hindi film. Harry is a villain in the Bengali film while Charlie is no villain in the Hindi film. Harry and Anna get close to each other as Harry has taken a bet and the intention of Harry is to win the bet and not to marry Anna. This is not so in the Hindi film where Charlie wants to marry Jasmeet.
The elder brother is Anna's guru who influences her life style. There is no elder brother in the Hindi film. Therefore, the Bengali film and Hindi film are not similar either in story line, concept or central theme.
6
The meeting of 30th July 2009 was in respect of the movie Waqt and has nothing to do with the Bengali film.
Counsel for the petitioner in reply submits that the film Waqt was released in 2004 and no dispute with regard to the film is pending. Therefore the question of meeting the petitioner for the said film is baseless. The distributors and exhibitors are agents of the producer, as will be evident from Section 51(b)(ii) of the 1957 Act. Section 14(d) of the 1957 Act deals with the meaning of copyright. The decision reported in 1998 FSR 394 is based on Section 16(1)(a), 16(2) and Section 17(4) of the English Act and therefore was a decision vis-à-vis the sections of the English Act. As held in 2003(2) Copyright and Trademark Reporter 16 it is not necessary that the copy must be identical but the similarity in concept and substantial reflection is the test. It is admitted that there is no copyright in idea but in the expression of that idea in a cinematographic film will give rise to copyright. It will be incorrect to contend that once a cinematographic film is made the literary work will merge into such film. Section 2(y) of the 1957 Act defines "work" and includes within its purview "literary works" and "Cinematographic film" as separate and independent to each other. There is no bar to maintaining action by one of the joint owners as will appear from Atkins Court forms Vol. 12 p.425 para 12. In fact the joint 7 owners have issued authorisation by letters. Under Section 57 of the 1957 Act the petitioner is entitled to exercise the author's special right.
In reply Counsel for the respondent submits that Section 57 is not applicable to the petitioner and will be restricted to the author and on assignment no such right will accrue to the assignee. No case of passing off has been made out. (2003) 2 Copyright and Trademark Cases has no application as the idea was disclosed in confidence in that case.
Reliance is placed on 28 Patent and Trademark Cases 474. For the proposition that newspaper reporting ought not to be relied on reliance is placed on AIR 1969 SC 1201.
Having considered the submissions of the parties R. G. Anand's case reported in AIR (1978) SC 1613 [R.G. Anand -vs- Deluxe Films & Ors.] lays down certain tests. One of the tests is the opinion of a viewer also known as the lay observer's test. Therefore, the Court undertook to view the Bengali film and thereafter viewed the Hindi film. From a viewing of the Bengali film the unmistakable impression created is that the story line of both the films substantially and materially is the same. The peculiar and dramatic high points of the Hindi film are copied and nothing original can be attributed to the respondents' film. The deviation, if any, is minor and inconsequential. It is true that 8 the petitioner has no copyright in the idea but in the expression of such idea. The petitioner therefore as a producer is an author under Section 2(d)(v) of the Copyright Act, 1957 and has a copyright in the expression of the ideas. Sections 2(y) and 13(i)(a) and (b) of the 1957 Act recognize "cinematographic film"
and "literary works" as separate and independent works. Therefore, the doctrine of merger has no application.
Section 18 of the 1957 Act permits an assignment and as pleaded in paragraph 7 of the petition the screen play and script was assigned to the petitioner. Such assignment is to be in writing and although the assignment has not been annexed or produced the contents of the plaint at this stage is to be taken as true and correct unless a fact contrary is shown. No contrary fact has been shown or produced and thereby the petitioner has exclusive right under Section 14(d) of the 1957 Act in the Hindi film. This day Counsel for the respondents seeks to submit a print out from the Website of Eros International to evidence that Eros International has acquired all rights in the Hindi film on a global basis. On a reading of the said document handed to Court it appears that Eros International acquired global distribution rights in the Hindi film. Therefore, the petitioner continues to have exclusive right under Section 14(d) of the 1957 Act in the said Hindi film.9
An attempt was made to place the writings on the back flap of the cover of the Hindi film but the writings were so tiny that it was unreadable nor was any attempt made by the respondents to get the same typed and placed before Court.
The respondents have no copyright in the Hindi film either by assignment or otherwise and the Bengali film inasmuch as it is substantially and materially a copy of the Hindi film, the respondents have infringed the petitioner's copyright in the Hindi film.
The plea of delay and intervention of third party interest is irrelevant in view of the fact that the respondents from the time of making of the Bengali film were aware of its film being substantially and materially a copy of the Hindi film. Distributing such a film by the respondents was a risk taken by them and the plea of right of exhibitors and distributors intervening cannot be accepted as they are persons appointed by the respondent producer.
The word "copy" has not been defined in the 1957 Act. Therefore, recourse was taken to the meaning in New Shorter Oxford dictionary which defines "copy" as to "imitate or follow the example of another or others rather than creating something original". Assuming all the substantial and material parts of the Bengali film are removed the remaining parts will hardly 10 constitute the story line of the Bengali film but will be stray unconnected incidents and will not be seen as a film.
Vis-à-vis "Purab Paschim", the Hindi film at the highest can be said to be plagiarism but not infringement of copyright. No action was also brought by the makers of the said film against the petitioner. Therefore it was known to the makers of "Purab Paschim" that there was no infringement of copyright.
The decisions cited prima facie are not applicable to the facts of this case. The English decision of (1998) Fleet Street Reports 394 deals with the specific Section of the English Copyright Act wherein "copying" has been defined. The Bombay decision reported in 2003(27) PTC 81 has given a narrow meaning to copying and has held "reshooting" to amount to copying but did not consider by reshooting all that was being done was to adopt a means, for the expression of the dramatic works and arrangement, substantially and materially.
For all the said reasons as the petitioner has an exclusive copyright in the Hindi film and the Bengali film infringes such right, the petitioner is entitled to an order in terms of prayer (b) of the Notice Motion. The restraint order is also extended to the release of the Bengali film abroad by grant of global rights or otherwise and by broadcasting the same in cable, satellite television or any other form or mode till 12 11 weeks. The respondents are directed for purposes of preservation of the original print of the Bengali film to keep the same sealed for safe keeping for final hearing of the suit.
Directions are given for filing affidavits.
Affidavit-in-opposition be filed within four weeks from date; affidavit-in-reply, if any, be filed within two weeks thereafter. Matter to appear in the list eight weeks hence.
Counsel for the respondents prior to passing of this order sought to submit that by letter dated 6th August, 2009 documents mentioned in the said letter were called upon to be produced. From the copy of the said letter it appears that the same was received at 4.40 p.m. on 6th August, 2009 i.e. after the hearing was over. Therefore, no notice is taken of the said communication exchanged between the Advocates of the respective parties.
Prayer for stay made is considered and refused. All parties concerned to act on a xerox signed copy of this order on the usual undertakings.
( PATHERYA, J. ) 12 pa