Ghajini vs Fudgini: Whither Originality?

The claims in both these suits are not entirely clear to me. Are these related suits (the Mumbai and Chennai ones) or are they separate? Is the Mumbai suit a copyright infringement claim or just one for breach of contract? Sample these paragraphs from this news item:

“Justice P.R. Shivakumar of the same court had Tuesday stayed the Hindi film’s release after A. Chandrasekaran, the producer of the original Tamil film of the same name, filed a suit alleging that the producers of the Hindi remake had “fabricated documents to claim ownership over the remake rights”.

Earlier in the day, Justice S.B. Karnik of the Bombay High Court said the film can be released as scheduled but also asked director A.R. Murugadoss to file an affidavit Friday clearing his stand.

Mumbai firm KBC Pictures in its complaint said Murugadoss had signed an agreement with it in 2004 for re-making the hit Tamil film in Hindi. Thus, the company claimed, the Hindi film was in violation of their contract.”

Can any of our readers more familiar with this case enlighten us on these intricacies?

If it is indeed a copyright claim, it is rather paradoxical that the Tamil producer very conveniently forgot that he had copied the same theme from Memento, a Hollywood movie. Pot not only calling the kettle black but dragging it all the way to court to demonstrate that it is indeed black!

To place this issue within the larger framework of copyright issues pertaining to Bollywood generally, please see this article here.

GHAJINI or FUDGINI: WHITHER ORIGINALITY ?
By Nikhil Krishnamurthy

With a population of over one billion people, it always surprises me that some film-makers seem incapable of original thought.

My post this week is occasioned by the recent rumblings about the similarities between the Aamir Khan starrer Ghajini and Christopher Nolan’s movie Memento starring Guy Pearce.

The last time I can remember such a discussion about lifting film plots is when the Salman Khan starrer Partner was compared with Hitch, starring Will Smith and Eva Mendes.

It seems to me that when people are defending the subsequent editions they are unaware of what our Supreme Court stated as far back as thirty years ago in the case of R. G. Anand v. Delux Films, (1978) 4 SCC 118.

For the sake of clarity, let me reproduce, verbatim, the rules that the Supreme Court laid out in that decision.

“52. 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 copyright 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[s] 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 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, a 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 original play, violation of the copyright may be said to be proved.”
[Emphasis mine]

I saw Memento for the second time yesterday, to refresh my memory. If one wants an excellent summary of the plot, see here, provided you don’t mind spoilers.

Now I haven’t seen Ghajini, (and nor am I keen to, as most times I have tried to watch a Bollywood movie in the recent past, I have been sorely disappointed) and so cannot comment on whether it is a copy of Memento. The last disaster I tried watching was Drona, and the one before that, Partner, purely out of curiosity to see how closely the plot followed Hitch.

Before that I watched a class act called Awaara Pagal Deewana starring Akshay Kumar. Maybe people aren’t aware, but there is a ten minute frame-to-frame rip-off of a famous fight scene in the Matrix when Neo and Trinity go to rescue Morpheus from a building. I am not joking – please watch it for yourselves. You will think they cut that bit directly from the Matrix and pasted it into the film. Oh, and I forgot to mention, the impression I got after watching the movie, was that it was lifted straight from The Whole Nine Yards (with a lot of unnecessary embellishment in the form of song and dance sequences, etc.).

Bheja Fry is supposed to be a remake of Diner de Cons, le (The Dinner Game). I haven’t seen either so won’t pass judgment, but do note that this appears to be the “general” impression. [Remember what the Supreme Court said.]

I have to say at this juncture that I don’t hate Bollywood. I have seen and been entertained by excellent Bollywood fare in the past. I watched Rock On recently and was pleasantly surprised. Nothing over the top, excellent performances by all the actors, realistic, all in all, a well made film. Most importantly, it was original. What I hate is when I start to watch a film and it turns out to be a poorly made copy of some other film. If you’re going to copy something then at least do it right. [Note: this is NOT legal advice.]

The counter argument I get is that Hollywood does the same, so why can’t Bollywood ? A common example cited is Martin Scorcese’s The Departed, a really fabulous movie in my opinion. I had seen the Hong Kong film Infernal Affairs some years before The Departed was released and had no doubt in my mind that The Departed was an adaptation. [Incidentally I thought Infernal Affairs was even better.] But before one accuses Martin Scorcese of plagiarism, being the well-known Director he is, I think one must pause for a moment and ask whether it is possible that he had acquired the rights to make an English adaptation of Infernal Affairs from the original right-owner. At least one website seems to indicate that the rights had been purchased by Hollywood.

Can we say this with certainty for Awaara Pagal Deewana or Partner ?

What is the impression one gets after seeing both films, if one has seen the previous Hollywood films ?

Is not the addition of song and dance sequences and some random characters with some random side stories just mere surplusage intended only to puff up the film, which when stripped bare of all extraneous matter, is a cinematographic reproduction or adaptation of the original script.
By the rules laid down by the Supreme Court above, will this not amount to an infringement even under Indian law ?

Some films go a step further and are an amalgamation of scenes, situations and plot lines lifted from various different foreign movies. If one is interested in seeing a very comprehensive list of Bollywood films that are supposed to be rip-offs of foreign films, see here. That has got to be the most comprehensive list I have seen in this context.

Memento was released in the year 2000, when digital cameras were not as ubiquitous as they are now. The protagonist in that film suffers from anterograde amnesia and his memory lasts only for 15 minutes, after which he forgets everything that has happened. He is trying to find and kill his wife’s murderer and due to the fact that he has a very short span of memory, depends on tattoos, notes and photographs taken with a Polaroid ™ camera in order to remind him and keep him focused on his goal.

In Ghajini, the situation appears to be the same except that the protagonist is trying to find and kill his girlfriend’s killer. In fact, though the movie has been released at the end of 2008, when even every other cell-phone has a fairly decent digital camera, Aamir Khan insists on taking photos with a Polaroid ™ camera as a memory aid. Why can’t he use a digital camera ? Was this film set in 2000 ? Earlier ? Does the hero have a fetish for Polaroid ™ snaps ? Who can say ?

Another interesting thing is Aamir’s interview where he insists that Ghajini is not a copy of Memento. He states in a couple of places that A. R. Murugadoss had “heard” of Memento but wrote the script even before he actually “saw” Memento.

It is curious then that the script-writer chose the Polaroid ™ camera as an aide-mémoire when digital cameras were widely available even in 2005 when the Tamil version was released. What is also interesting is that the protagonists in both films have tattoos on the same place on their respective chests to remind them that their respective wife/ lover was killed. Murugadoss must be psychic !

What’s more, it appears that the producer of the Tamil version of Ghajini sued the producer of the Hindi film claiming copyright infringement (!) and successfully obtained an interim injunction before the release of the Hindi version ! It appears that the injunction was lifted and the Hindi movie has now made it to the big screens. This just gets better and better.

Interestingly, the following URL contains a similar analysis of all the similarities of the Tamil Ghajini with the original Memento, not unlike the way the Supreme Court performed its analysis in R. G. Anand’s case. See for yourself. I must warn readers that this site is rather acerbic in its criticism so watch out. Reading this, it would appear that Murugadoss actually saw and copied elements of Memento before he “wrote” his “original” script – the coincidences seem too many, even for a psychic. Would that make the Hindi Ghajini an adaptation of an adaptation ?

Let me stress again what the Supreme Court stated –
(i) 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.

(ii) One of the surest and the safest test[s] 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 clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

(iii) If the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.

It seems to me that the three-Judge Bench of the Supreme Court laid much emphasis on the viewers’ impressions to determine a copyright violation. In that case, public opinion has to count for something. Perhaps, and in order to be objective, SpicyIP should start a market survey to determine if one movie is a copy/ adaptation of another. Maybe Ghajini is a good place to start, and the reader can familiarise himself with the rules of the Supreme Court in this regard. Maybe a poll can be started with respect to other movies as well, both past and future (see the URL mentioned above for a list of movies to dissect).

Again, I haven’t seen Ghajini so I cannot state my impression. It is entirely possible that the two movies are different and that, as Aamir maintains, Ghajini is “inspired” by Memento. What I cannot understand is why details in both films are seemingly identical in many respects. This brings me back to my point about having original thought. I think Bollywood has proved time and time again that it can produce the best of them without outside help. So why copy ?