Bombay High Court
Gaurav K. Dave vs Mx Media And Entertainment Pte. Ltd. And ... on 30 June, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
928.IAL.20248.22 in COMIPL.20246.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 20248 OF 2022
IN
COMMERCIAL IP SUIT (L) NO. 20246 OF 2022
Gaurav K. Dave ... Applicant/Orig. Plaintiff
Versus
MX Media And Entertainment
Private Limited & Ors. ... Defendants
Mr. Hiren Kamod a/w Mr. Anees Patel, Mr. Ravindra Suryawanshi, Mr.
Arpit Choudhary, Mr. Krunal Mehta and Mr. Archis Bhatt i/b Bar And Brief
Attorneys for the Applicant/Plaintiff.
Mr. Rashmin Khandekar a/w Ms. Karishni Khanna, Mr. Sunil Zalmi, Ms.
Ekta Jhaveri, Ms. Shivani Talati i/b MZD Legal Consultancy for Defendant
No.1.
Mr. Ashish Kamath, Ameet Naik, Ms. Megha Chandra, Ms. Madhu
Gadodia, Mr. Sujoy Mukherjee i/b Naik, Naik & Co. for Defendant No.2.
CORAM : R.I. CHAGLA, J.
DATED : 30th JUNE, 2022
ORDER :
1 Mr. Kamod, learned Counsel for the Applicant/Plaintiff has moved this Court for urgent ad-interim relief stating that subject Web Series titled "Miya Biwi aur Murder" is being released on 01.07.2022 on Waghmare 1/17
928.IAL.20248.22 in COMIPL.20246.22.doc OTT platform. The trailer of the said Web Series is stated to have been uploaded on 21.06.2022 by Defendent No.1 on its You Tube channel which also revealed that all episodes of the said Web Series shall be available on the OTT platform on 01.07.2022. He has submitted that a perusal of the trailer of the Web Series makes it clear that the Respondents have utilized substantial material from the Applicant's original works, being the Scripts, referred to in the plaint as "Modern Times" (Script No.1) and "Bungalow No.69" (Script No.2). A cease and desist legal notice dated 23.06.2022 has been issued by the Plaintiff claiming copyright infringement by the Defendants' Web Series of the Plaintiff's Scripts and its underlying works.
2 Mr. Kamod has submitted that the First Script titled "Modern Times" was registered by the Plaintiff with the Screen Writer's Association on 09.01.2015. The Plaintiff further developed the "Modern Times" First Script so as to improve the existing version of the same and thereby developing a revised version thereof and same was registered in 2016 under registration No.249779 (R-17304). In paragraphs 21 and 22 of the plaint it is stated that the Plaintiff had narrated Script No.1 to one Ms. Tannishtha Chatterjee and had also shared a copy of Script No.1 (more particularly "Modern Times" Second Script) with Ms. Tannishtha Chatterjee by Plaintiff's e-mail dated 14.12.2016. The receipt was duly Waghmare 2/17
928.IAL.20248.22 in COMIPL.20246.22.doc acknowledged by Mrs. Tannishtha Chatterjee and this is borne out from e-mail dated 14.12.2016 sent to the Plaintiff. It is further stated in paragraph 22 that Ms. Tannishtha Chatterjee played a pivotal role in television Series called "Cartel" which was produced by Defendant No.2 and written by Defendant No.3. Mr. Kamod has submitted that this shows a clear nexus between Ms. Tennisatha Chatterjee and the Defendant Nos.2 and 3.
3 Mr. Kamod has further submitted that on 26.03.2019 Plaintiff's independently written story titled "Bungalow No.69" was registered with the Screen Writer's Association on 26.03.2019. The Plaintiff further developed the "Bungalow No.69" story into a full-fledged, detailed screenplay and registered the same with Screen Writer's Association on 18.01.2020. The screenplay was further improved by the Plaintiff and registered with Screen Writer's Association on 09.03.2020. 4 Mr. Kamod has referred to paragraph 23 of the Plaint wherein it is stated that Script No.2 has been shared with Actors and Producers as well as Owners of Talent Company and Creative Directors. Thus, access to the public was there. He has submitted that in any event the Plaintiff who is claiming relief of copyright infringement does not have to make out a case of access to the Defendants.
Waghmare 3/17
928.IAL.20248.22 in COMIPL.20246.22.doc 5 Mr. Kamod has submitted that the Plaintiffs "Modern Times"
(Script No.1) and "Bungalow No.69" (Script No.2) are clearly prior in point of time then the impugned work jointly developed by Defendant Nos.2 and 3. He has submitted that this is borne out from the affidavit in reply of Defendant No.2 where it is stated that Defendant Nos.2 and 3 jointly developed the Script/Screenplay then titled "Cheaters" (impugned work) in July, 2020 and August, 2020.
6 Mr. Kamod has submitted that the highlight of the Plaintiff's work in Script Nos.1 and 2 have been detailed in paragraph 19 of the plaint. He has submitted that comparison of the Plaintiff's work in the said Scripts with that of "Miya Biwi aur Murder" trailer has been set out for in Exhibit-K to the plaint. It clearly reveals that in the "Modern Times"
Script as well as in "Miya Biwi aur Murder" trailer, the lead characters are a married couple who have been married for a span of seven years. They are having a dysfunctional relationship. The lead married couple in both are having issues and arguments with each other leading to marital issues. There is an angle of extra marital affair in both, which takes the plot forward. In both, the person which whom the wife is involved with turns out to be a gang member of a feared crime lord (Panditji) in "Modern Times" and crime lord (Abbas) in "Miya Biwi aur Murder". He has referred to other similarities in the Script No.1 when compared with the Waghmare 4/17
928.IAL.20248.22 in COMIPL.20246.22.doc trailer and both involve the husband and wife being stuck with a dead body inside the house and not knowing how to deal with the situation. Both also concern the husband coming across belongings of the dreaded crime lord i.e. a bag full of money in "Modern Times" and drugs with high value in "Miya Biwi aur Murder" trailer. Both concern the wife stopping the husband from involving the police and thereafter the couple trying to figure out a way to dispose the dead body. The crime lord in both, is suffering from physical disability involving his leg and needs a support to stand. The crime lord in both is searching for his valuables and bringing him to the door step of the married couple. There is a similar phrase used by the crime lord in both which mentions the same tonality and character with minor tweak in the words. Thereafter there is chaos as multiple parties are involved.
7 Mr. Kamod has thereafter taken the Court to the similarity between the Plaintiff's Script No.2 - "Bungalow No.69" and the "Miya Biwi aur Murder" trailer which shows that in both the major part of the story is inside the couple's own house occurring over a period of one night. Both involve conflict starting with dead body inside the house having been killed. Both involve chaos as multiple characters like police, gangster involved at the couple's house. Both also involve dead bodies which keep piling inside the house and the couple not knowing how to Waghmare 5/17
928.IAL.20248.22 in COMIPL.20246.22.doc manage the piling dead bodies and the chaos inside the house. The couple is stuck inside their house with the mad chaos and need to deal with the situation together and survive the night.
8 Mr. Kamod has submitted that from this comparison between the "Modern Times" and "Bungalow No.69" Scripts of the Plaintiff with that of the Defendants' trailer "Miya Biwi aur Murder" shows that there is reproduction or substantial reproduction by the Defendants in their Web Series of both of the Plaintiff's Scripts. He has taken the Court through the trailer with an attempt to satisfy the Court as to the case of the Plaintiff.
9 Mr. Kamod has relied upon two decisions of the single Judge of this Court namely Shamoil Ahmad Khan vs. Falguni Shah and others 2021 (1) Bom CR 792 decided on 26.05.2020 and Beyond Dreams Entertainment Private Limited vs. Zee Entertainment Enterprises Limited , 2016 (5) Bom CR 266 decided on 25.03.2015. In Shamoil Ahmad Khan (supra) he has relied upon paragraph 20 where it is held that the theme, plot and story line are clearly expressions of the 'central' theme or concept. They contain sufficiently developed elements of expression or realization so as to have a life of their own for copyright protection. These elements are essential or fundamental to the story and are its life Waghmare 6/17
928.IAL.20248.22 in COMIPL.20246.22.doc and blood. Without them, the story would be robbed of its meaningful content. In the said decision, this Court has held that there is a case of actionable plagiarism. In Beyond Dreams Entertainment Private Limited (supra) Mr. Kamod has relied upon paragraph 20 where this Court has held that notwithstanding the variety incidents which give a certain different colour and complexion to the Defendants' work than the Plaintiff's copyrighted work, a totality of impression to be gathered is that by and large the former work is a copy of the latter. At the ad-interim stage, it is sufficient to note that the Plaintiffs have a statable case even of a breach of copyright and that the material in which they claim such copyright ought to be protected.
10 Mr. Kamod has relied upon the Division Bench decision of the Court Zee Telefilms Limited vs. Sundilal Communications Private Limited, (2003) 5 Bom.CR 404, in particular paragraph 10 thereof, in support of his contention that though this Court held that there can be no copyright of ideas or information and it is not infringement of copyright to adopt or appropriate ideas of another or to publish information received from another. It has been held that this is provided that there is no substantial copying of the form in which those ideas have, or that information has, been previously embodied.
Waghmare 7/17
928.IAL.20248.22 in COMIPL.20246.22.doc 11 Mr. Kamod has thereafter referred to the decision of the Supreme Court in R.G. Anand vs. Delux Films and others (1978) 4 SCC 118 which has also been referred to by the learned Counsel for the Defendants, wherein this Court has laid down in paragraph 46 of the said decision the propositions in a case where there was copyright infringement of the author in a play by the Defendants' impugned films. It has been laid down that violation of copyright in such cases is confined to the form, manner and arrangement and expression of the idea by author of the copyrighted work. Mr. Kamod has submitted that the law is well settled that the copyright can be in an expression of the idea as in this case the expression of the idea is in Script No.1 and Script No.2 of the Plaintiff who is author of the Scripts. He has submitted that from the trailer of the Web Series of the Defendants, it appears that the Plaintiff's copyright in the said Script and its underline workings have been infringed and accordingly its release requires to be stayed, considering that the impugned Web Series of Defendants is scheduled to release on the OTT platform on 01.07.2022.
12 Mr. Ashish Kamat, learned Counsel appearing for Defendant No.2 has tendered affidavit in reply dated 30.06.2022 which is taken on record. He has submitted that the cease and desist legal notice of the Plaintiff has been responded to by the letter addressed by Defendant Waghmare 8/17
928.IAL.20248.22 in COMIPL.20246.22.doc Nos.2 and 3 on 27.06.2022. Mr. Kamat has placed reliance on the decision of this Court in Shivani Tibrewala vs. Rajat Mukherjee and others (2020) SCC OnLine Bom 68 and in particular paragraph 32 thereof where it has been held that though access by the Defendants to the Plaintiff's work is not necessary for grant of reliefs in an action for copyright infringement, it is one of the factors that the Court must take into consideration while granting relief. Without access to the Plaintiff's work the degree of proof required to establish an allegation of copying is much higher on the Plaintiff. In that case, the Court had considered that the Plaintiff has shared Script of the film with some people from the film industry, however, the Plaintiff has been unable to show access of the same qua the Defendants. In fact, there was no direct allegation to that effect. The last evolution of the Script of the film has not even been shared by the Plaintiff or produced before the Court as the same is stated to be confidential. In that case, this factor was taken into consideration. The Plaintiff was held to have failed to make out a prima facie case of infringement of copyright by the Defendants in the Script of the Plaintiff as the Script of the Plaintiff's play was different from the Script of the Defendants' film with respect to certain key elements, which from a major portion of the Defendants' film.
Waghmare 9/17
928.IAL.20248.22 in COMIPL.20246.22.doc 13 Mr. Kamat has submitted that in the present case in paragraph 21 of the Plaint it is only stated that the Plaintiff had shared a copy of the Script No.1 with Ms. Tannishtha Chatterjee and the receipt was acknowledged by her. It is further stated in paragraph 22 that Ms. Tannishtha Chatterjee played a pivotal role in the television Series produced by Defendant No.2 and written by Defendant No.3. It is stated that this establishes nexus between Ms. Tannishtha Chatterjee and Defendant Nos.2 and 3. He has further referred to paragraph 23 of the plaint where it is stated that Script No.2 of the Plaintiff were shared with the persons mentioned therein who are Actors, Producers, Owner of Talent Management Company, line Producer, vide e-mails dated 13.05.2019, 19.08.2019 and 11.11.2019. It is further stated that the Script No.2 was also shared with creative Director and Producer subsequently vide e-mail dated 16.05.2020. However, there is no mention of the Defendants having access to either of the Scripts. He has submitted that when the Plaintiff has come with a case of access of the Defendants to the Plaintiff's work, this factor is required to be taken into consideration while granting relief as held in Shivani Tibrewala (supra). 14 Mr. Kamat has then taken this Court to paragraph 8.2.1 of the affidavit in reply which sets out the Script of the Defendants work namely Waghmare 10/17
928.IAL.20248.22 in COMIPL.20246.22.doc "Miya Biwi aur Murder". He has submitted that from this Script it shows that there are various differences with the Scripts of the Plaintiff, in particular, the wife Priya connecting to one Varun by signing up on tinder (an online dating site) and thereafter inviting him over to the house for a date whilst her husband was away for work. The husband Jayesh is a Police Officer who is out completing a task of raiding the premises of a famous drug lord, name 'Abbas' and is able to seize a box of fentanyl. The said Varun who comes over to Priya's house has come with an intention of duping her and confesses this plan to one Noor/Noori (his gay boyfriend). Further, Varun whilst at Priya's house consumes too much alcohol and dies of an overdose. The husband Jayesh is having an affair with house help Malati and their intimate scene inside Jayesh's car has been shot by a Hawaldar working as Jayesh's driver. Further, the house help Malati informs Jayesh that she is pregnant and does not want to terminate the pregnancy. An argument ensues and Malati falls down the staircase and is presumed dead. Thereafter, there are other scenes which are different from the plaintiff's Script and which are highlighted in paragraph 8.2.1 of the affidavit in reply.
15 Mr. Kamat has submitted that it is well settled that though there may also be common features in the Defendants' work when compared with that of the Plaintiff's such as a married couple having Waghmare 11/17
928.IAL.20248.22 in COMIPL.20246.22.doc dysfunctional relationship and their having affairs and dead bodies turning up in the house, these features cannot be a novelty and/or distinguishing feature. It is well settled in the decision of the Supreme Court in R.G. Anand (supra) that there can be no copyright in an idea, subject matter, themes, plots, etc. He has accordingly submitted that no case is made out for grant of ad-interim relief, particularly considering that there has been no substantial adaption by the Defendants in their Web Series of that of the Scripts of the Plaintiff.
16 Mr. Khandekar has also supported the submission of Mr. Kamat. In addition he has also placed reliance upon Shivani Tibrewala (supra) and in particular paragraph 4.3 read with paragraph 26 of the said decision. This Court has in the said decision held that the presence of common elements like a common plot line of unethical drug testing, a Court case, nationwide movement against the illegalities committed by the pharmaceutical company, the depiction of death of children as a result of drug testing, do not by themselves individually or taken together establish substantial copying. The difference between the rival works cannot be said to be trivial or inconsequential or deliberate as attempt to escape an allegation of copying. The differences are material and change the nature of the rival works. He has submitted that the Defendants Web Series "Miya Biwi Aur Murder" is materially different from the two Scripts Waghmare 12/17
928.IAL.20248.22 in COMIPL.20246.22.doc of the Plaintiff. He has further submitted that common elements like a couple married for seven years having a dysfunctional relationship as well as the involvement of a crime lord and dead bodies piling inside the house cannot by themselves individually or taken together establish substantial copy. He has further relied upon the decision of this Court in Mansoob Haider vs. Yashraj Films Pvt. Ltd., Order dated 20.06.2014 and in particular paragraph 19 thereof which has held that any person can draw parallels and then say that the rival work is an infringement. But it needs to be shown that these various ingredients are in themselves original. He has submitted that the Plaintiff in the present case has failed to show that the various ingredients of its Scripts are in themselves original. Accordingly, no case is made out for grant of ad-interim relief. 17 I have considered the rival submissions and had the benefit of being shown the trailer of the Web Series in respect of which the Plaintiff claims there is infringement of the Plaintiff's copyright in the said Scripts and underline work. I am of the prima facie view after seeing the Defendants' Web Series trailer that rather than there being similarities between the Plaintiff's Scripts and the Web Series, there are in fact dissimilarities. The Defendants' Script of their Web Series has been highlighted in paragraph 8.2.1 of the affidavit in reply of Defendant No.2. It has been held by this Court in Shivani Tibrewala (supra) that Waghmare 13/17
928.IAL.20248.22 in COMIPL.20246.22.doc differences between rival works cannot be said to be trivial or inconsequential or deliberate as an attempt to escape an allegation of copying. The differences are material and change the nature of the rival works. Further, it has been held that elements like common plot line do not by themselves or taken together establish substantial copying. 18 Further it is required to be considered that the Plaintiff has in paragraphs 21, 22 and 23 made averments with regard to access of its Scripts. In this context it is stated that the Script No.1 was shared with Ms. Tannishtha Chatterjee and Script No.2 to other Actors, Producers as well as an Owner of Talent Management Company and Creative Director in the years 2016 for Script No.1 and 2019-2020 for Script No.2 respectively. There is no explanation as to manner in which the Plaintiff had access to either of the Scripts other than stating in paragraph 22 with regard to Script No.1 of which Ms. Tannishtha Chatterjee is claimed to have had access that she had played a pivital role in television Series 'Cartel' produced by Defendant No.2 and written by Defendant No.3. On that basis it is alleged that there is nexus between Ms. Tannishtha Chatterjee and Defendant Nos.2 and 3. This link in my view does not establish any access by the Defendants of the Plaintiff's Script No.1. Regarding Script No.2 there is no case made out of the Defendants having any access to the Script. It has been held by this Court in Shivani Waghmare 14/17
928.IAL.20248.22 in COMIPL.20246.22.doc Tibrewala (supra) that though access by the Defendants to the Plaintiff's work is not necessary for grant of reliefs in an action for copyright infringement, it is one of the factors that the Court must take into consideration while granting reliefs. Without access to the Plaintiff's work the degree of proof required to establish an allegation of copying is much higher on the Plaintiff. In that view of the matter, in the present case the Plaintiff would have a much higher degree of proof required to establish the allegation of infringement of copyrighted.
19 I find from comparison of the Scripts of the Plaintiff with that of the Defendants Web Series, there are few common elements such as lead character being a married couple who are married seven years and having marital issues as well as involvement of crime lord and husband and wife being stuck with dead body and the husband finding the belongings of the dreaded crime lord. Further, the appearance of the crime lord at the house of the married couple. The crime lord having a physical disability involving his leg and needing support to stand, as well as the major part of the story being inside the house of the married couple over a span of one night. Further there being dead bodies found inside the married couple's house and the married couple not knowing how to dispose of the dead bodies which results in chaos. However, this plot at best has common elements like a common plot line but the Plaintiff has in Waghmare 15/17
928.IAL.20248.22 in COMIPL.20246.22.doc my prima facie view failed to show these elements or ingredients in their Scripts having any originality. The decision of this Court in Mansoob Haider (supra) relied upon by Mr. Khandekar is apposite. This common plot line and/or elements in the Plaintiff's Script are no way novel and in my prima facie view cannot establish substantial copying to give rise to a case of infringement of copyright.
20 It is well settled by the Supreme Court in R.G. Anand (supra) that there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts. In the present case in my prima facie view that Plaintiff has failed to make out a case of violation of copyright in the form, manner and arrangement and expression of the idea by the author of the copyrighted work, though the theme may be similar, it is treated differently so that the subsequent work is a completely new work. 21 The decisions relied upon by Mr. Kamod, are distinguishable on facts as in those cases the Defendants had direct access to the plaintiff's work and substantially adapted the plaintiff's work and in view of which this Court arrived at prima facie finding that there in fact had been infringement of the copyright of the plaintiff's work. 22 Thus, I am of the prima facie view that the Web Series of the Defendants namely titled "Miya Biwi aur Murder" cannot be considered to Waghmare 16/17
928.IAL.20248.22 in COMIPL.20246.22.doc be an infringement of the copyright of the Scripts and underlying works of the Plaintiff. Accordingly, no ad-interim relief can be granted restraining the Defendants from releasing the episodes of their Web Series on the OTT platform which as stated is scheduled to release on 01.07.2022. 23 Place the Interim Application for hearing as per CMIS date. Digitally (R.I. CHAGLA, J.) signed by WAISHALI WAISHALI SUSHIL SUSHIL WAGHMARE WAGHMARE Date:
2022.07.04 17:06:20 +0530 Waghmare 17/17