Copyright

HOLLYWOOD v. BOLLYWOOD – ‘PARTNER’ IN CRIME


SPOTTING THE THIN RED LINE BETWEEN CULTURAL BORROWING & COPYRIGHT INFRINGEMENT

I am not quite sure as to how Bollywood got its name; my favourite theory is that after decades of copying/borrowing Hollywood storylines, scripts, screenplays the Bollywood industry, in a bid to acknowledge their Western gurus as their sources of inspiration, sought to name themselves after their gurus. Indeed a fitting guru-dakshina! For those uninitiated to the world of Bollywood – it’s a term used to describe the popular film industry based out of Mumbai. Bollywood is NOT the same as the Indian cinema industry. Just as there are 21 other official languages, mentioned in Schedule VIII to the Constitution, apart from Hindi, there are also several vibrant, highly creative regional film industries such as the Telugu, Tamil and Malayalam film industries which give their Bollywood cousins a run for their money.

One common thread running through all these industries is their propensity to copy/borrow certain scripts, whole plots and sizeable chunks of screenplays from each other and from Hollywood. The latest allegation against Bollywood is that its blockbuster Salman Khan/ Govinda Partner is a copy of Will Smith/Kevin James Hitch. The ET reported that Sony, the copyright owners of Hitch have planned to sue the producers of ‘Partner’ for $30 Million dollars in the USA/UK. The India Today carried an informative piece in its previous issue outlining various movies which either copied/borrowed from foreign movies: Hey Baby/Three Men and a Baby (Hollywood), Zinda/Old Boy (Korean), Murder/Unfaithful (Hollywood) etc. etc. Tollywood or the Telugu movie industry is not far behind. As my father told me they have been copying from Hollywood for the last 50 years: Mackenna’s Gold was remade into Monagallaku Monagudu, OSS – 117 was remade into Goodachari 116 and Parent Trap was remade into Laetha Manasulu. Nobody has been sued so far though. This is however going to change. Sony’s decision to sue the producer’s of ‘Partner’ is not all that shocking given the fact that Sony is seeking to enter the Indian cinema market in a big way. The recent laugh riot, Loins(not lions!) of Punjab, was a Sony production. As a part of its strategy Sony intends to remake its Hollywood hits in local Indian languages and is obviously miffed that Indian producers are copying/borrowing their scripts. In all fairness to the Indian industry it has awoken to the law of copyright and has started buying rights to the films that it is remaking the most prominent being the buying of rights for My Cousin Vinny – which has already been discussed on SpicyIP. They have also woken up to violations of their copyrights. Bappi Lahiri has reportedly won a suit for copyright infringement in Los Angeles last year. (Yes! He was suing for copyright infringement and not being sued.)

Now to come to the crux of the matter – the law of copyright. The law of copyright as you all must know, does not protect ideas it only protects the expression of those ideas. For example the now run of the mill ‘boy falls in love with girl’ story has been around since the times of Laila-Majnu and Romeo Juliet. The basic idea of this story will not be copyrighted until it is converted into an expression i.e. until it is written down in a particular story line and in a language, which is when it is granted a copyright protection. The question of copyright infringement comes up when the alleged infringer copies the substantial expression of the idea as expressed by the original writer. In a movie it is usually determined as to whether or not a movie has been copied/borrowed frame by frame with similar settings and characters. If the similarities are substantial the Court will hold that copyright infringement has indeed occurred. Therefore every time somebody makes a movie, XYZ, of a ship sinking it cannot be considered a copyright infringement of Titanic unless XYZ has copied for instance the sets, the storyline and the script of Titanic. The idea of a ship hitting an iceberg is for the common knowledge of mankind, the difference between Titanic and XYZ is how, differently, they have expressed this common idea.

The matter however does have its own connotations in the Indian movie industry. A Hollywood movie which is copied will have to be substantially altered for an Indian audience, beginning with the language. For example Partner includes several jhatak-matak dance numbers which Hitch did not have. The only way the producers of ‘Partner’ will be held liable for infringement is if several of the match-making sub-plots have been copied scene to scene, from Hitch into Partner that is not only has the idea been lifted from Hitch but also the expression of that idea on celluloid. Therefore the various plots to entrap the leading lady in Hitch have to be reproduced in Partner exactly as they were, for a case of copyright infringement to be proved.

Larger issues to be discussed are the rationale of copyright itself and whether or not iti serving its purpose. Historically viewed the law of copyright evolved in the 18th Century under the Statute of Anne. At that time the Statue of Anne was revolutionary – a copyright term of perpetuity had been limited to a copyright term of 14 years and for the first time the law, expressly, vested in the author the copyright. The Preamble of the Statute of Anne read

An act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such copies

Clearly copyright was an ends to a means; it was a means to promote innovation and therefore the legislature sought to balance the issue of copyright with the greater good of the mankind by limiting the copyright to a 14 year time period. Today in India Section 26 of the Copyright Act provides a 60 year term for copyright protection of Cinematographic Films. There is a clear shift towards protecting the author’s rights in the current copyright regime. The balance has shifted in favour of the copyright owner.

The question therefore is how do we view the law of copyrights; do we construe these rights in the strictest Lockean notions of property or do we strive to achieve a balance or should we just got for the super-liberal commons based approach where everything is licensed under a creative commons license. We are so used to the dominant narratives of the law of copyright that we very often forget to question its rationale. Does the copyright law in the world fulfill the goals of its parent statute – the Statute of Anne – does it provide an incentive to authors and artists to create and enrich our cultures or does it stifle creativity?

I have no answer but look forward to a discussion on SpicyIP. For those interested in the Myths about Copyright please do read this brilliant paper, by the same name, authored by the venerable Lawrence Liang along with Atrayee Mazumdar and Mayur Suresh, all graduates of NLSIU.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

2 comments.

  1. AvatarMars

    Prashant,

    Before posting my comments, would like to point out an anamoly in your posting; at the end of every sentence couple of characters are “missing”. I have noticed this in Opera (Fedora) and IE both.

    Would like to draw your attention to the speech by Thomas Macaulay on the issue of copyright.

    http://www.baen.com/library/palaver4.htm

    Summary : Via the text of the speech, we are provided an insight to the 19th century English mindset with regard to this topic.

    /Ram

    Reply
  2. AvatarPrashant Reddy

    Thank you for the link to the speech Ram. About the post itself I did notice the anomaly that you pointed out and I tried to repost it but its just repeating itself. The last post came out alright and I used the same browser – Mozilla. Any idea how to correct it?

    Reply

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