Copyright

The "3 Idiots" Copyright Controversy: Will All End Well?


Sai Deepak did a wonderful post highlighting a key controversy that recently broke out between the makers of India’s most entertaining, yet thoughtful Bollywood flick of 2009 and the author from whose book the central plot was allegedly lifted; a movie that goes by the name of “3 Idiots”, but does not have the faintest trace of idiocy in either its script or execution.
Clearly one of the best movies to have been released this year, it demonstrates yet again that meaningful “message laden” scripts sans any mind numbing dance, song or fight sequences have a fair shot at tasting box office success! Needless to state, a lot of the success of this particular movie owed itself to a brilliantly conceptualised storyline and an amazingly punchy script.

As Sai points out in his post, the author Chetan Bhagat claims that the attribution (or rather the lack of it) to his book in the movie has been rather “unfair”. Having seen the movie (“3 Idiots”) and the book (“5 Point Someone”), I’m quite sympathetic to Chetan’s claims that he’s been “unfairly” treated. And I also think he may have an arguable case under Indian copyright law, since his book input has not been adequately “attributed”, but rather reduced to a paltry amount of 3-5%. Bhagat writes in his blog:

“Pre-release, the makers made press statements like the movie is only ‘very loosely’, ‘2%-5% inspired by the book’. After release, those who have read the book and seen the movie (and frankly, I think those are the only people who have the right to comment) find the film to be an adaptation of Five Point Someone. The setting, characters, plotline, dramatic twists and turns, one-liners, theme, message – almost all aspects that make up the story are from FPS. Yes, there are some changes, any adaptation requires that – but it is no way an original story.”

Examining the Key Facts/Issues

Let’s examine the specific facts (some of them appear well established; others contentious) and the various issues (both legal and moral) that they give rise to:

1. Bhagat entered into a contract with the production house (Vinod Chopra Films Pvt Ltd), under which he assigned all rights in any audio visual format of the book or its adaptation to the production house.

2. As consideration, Bhagat was to be paid a certain sum of money (totaling about Rs 11 lakhs or so). The facts appear to indicate that he was paid this sum in full and Bhagat does not contest this in his blog post either. So this is not really about the money.

3. Bhagat was also promised credit in the film. Since this clause (Clause 4) is critical, I reproduce it below:

“It shall be obligatory on the part of the Producer to accord credit to the author in the rolling credits of any audio-visual moving image software (of any format or form in any media or medium) produced by the Producer in terms of the exercise and execution of the Rights granted as under:

“Based on The Novel

Five Point Someone

By

Chetan Bhagat”

Although, as contractually promised, the credits right at the end of the film do mention the fact that the movie is based on the book by Bhagat, it crams up the attribution (“Based on The Novel Five Point Someone By Chetan Bhagat”) in one line, whereas the contract stretches out the entire attribution to 3 lines. Bhagat could therefore argue that even contractually, the form of placement was not complied with. This is buttressed by the fact that the credit at the end of the movie was so fleeting that even his mother missed it. Contrast this with the fact that the script writer, Abhijit Joshi was credited right at the start of the movie.

(nb: this point about the placement of the credit in the movie was brought to my attention by one of our readers, Sneha)

Of course, one might argue that Bhagat ought to have bargained for better placement of his “credit” in the movie; rather than as a mere rolling credit. But recall that at the time of negotiation of this contract, Bhagat was not as popular a writer. In any case, there is much to be said for the bargaining asymmetries between an individual author and a production powerhouse with ample financial and political muscle. So much for the freedom of contract.

Moral Rights and Lack of Attribution

4. Bhagat claims that in the pre-release publicity and even post the movie, the makers of the movie made statements to the effect that the movie was not really based on the book and that it was “original”. Most damagingly perhaps, the makers claim that the movie was only based on the book to a paltry extent of 3-5% .

If what Bhagat states is true, he has a decent case on moral rights against the makers of the movie. Section 57 of the Indian copyright act vests every author with the right to insist that their works be attributed to them. And this right exists independent of the “economic” right to exploit the work. In essence, the section states that “..independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim the authorship of the work … “

In other words, even if the economic rights are assigned away (and in this case, Bhagat assigned away his rights to any movie based on the book), the moral rights continue to vest in the author. The question now is: is it true that Bhagat’s book only contributed 3-5% to the movie. Or was the movie based substantially on the book?

Having read the book (that has now reached some sort of a cult status in certain circles) and watched the movie, I personally think the copying has been rather significant. And not a mere 3-5%! However, I must also state that Abhijit Joshi, the script writer (along with Hirani) packed in some brilliant new scenes and subplots whilst adapting the book theme. Therefore, what they created is also “original”, unlike what Chetan claims. However, their originality does not detract from the fact that they have also, in the process, lifted a significant portion of the plot, characters etc from the book. Therefore, the end product (movie script) could be rightfully said to be a product of joint authorship, involving Chetan Bhagat, Abhijit and Rajkumar Hirani.

Let’s examine the movie and book in closer detail.

Five Point Someone vs 3 Idiots (A Factual Comparison)

Based on my rather imperfect recollection, I’ve tried to highlight the key similarities and differences between the movie (3 Idiots) and the Book (Five Point Someone) below:

i) The setting for the story is a premier engineering college in New Delhi. While in the book, it is the world renowned Indian Institute of Technology (IIT), in the movie, it is titled the “Imperial College of Engineering”.

ii) The story revolves around 3 friends who make it to the Imperial College of engineering and their various trials and tribulations, starting with their initiation ceremony (referred to as “ragging” in India) by their seniors.

iii) The smartest of the lot is an “out of the box” non conformist thinker, who goes by the name of “Rancho” (played by the legendary Aamir Khan, a leading Bollywood star). Illustratively, he refuses to go by the bookish definition of “machine” and defines it loosely as anything that makes life easier for humans.

iv) The second of the three musketeers (Raju) is really poor and his parents have just about scraped together all their earnings to put him through engineering school. His father is paralyzed and requires hospital attention. He is therefore under tremendous pressure to score well in college, find a good job, and earn enough to get his sister married off etc.

v) The third friend is a very talented photographer (Farhan) but is in the wrong place (engineering college). I don’t recollect finding any references to this photography talent of Farhan in the book.

vi) In both the book and the movie, Farhan is the narrator of the story.

vii) On one particular occasion, the three musketeers go up to the terrace of their college (near a water tank) to elevate their spirits and end up thoroughly inebriated.

viii) The entire educational set up is geared towards rewarding students who learn by rote i.e those that do not question their professors or teaching methodologies, but blindly spew out class notes for their exams, something that most Indian institutions encourage even today. Rancho strikes a different chord and in the process incurs the wrath of the institutional powers that be. I personally felt that the movie highlights this aspect with greater impact than does the book.

ix) The head of the institution, whose rather long name is shortened to ‘Virus” deals mercilessly with what he perceives to be student infractions or weaknesses. His Hitler like attitude in foisting his rather conservative and austere value system on his children and students leads to his son committing suicide.

x) During the course of their studies, Raju cracks under pressure and tries to commit suicide.

xi) Rancho and friends steal the exam question paper from the Directors’ room and face the prospect of rustication. Luckily, they come away unscathed, since it turns out that Rancho got the keys from Virus’ daughter, with whom he shares a romantic relationship (jaise filmo main hota hain).

The differences between the movie and the book are:

i) While the book appears to center around Farhan (the 5 pointer, a reference to his rather average grades), the movie focuses more on the unconventional Rancho. Having said this, the book does glorify Rancho’s maverick nature and one could say that he is made out to be a hero of sorts.

ii) While the film has Rancho romancing the Director’s daughter (Piya), the book has Farhan doing so.

iii) The film portrays Rancho as generous boy who loves learning for the sake of learning and enters engineering college only to acquire a degree and hand it over (fraudulently) to the son of his dad’s boss. The book avoids this fraudulent act.

iv) The film shows Rancho turning out to become a world famous inventor at the end of the movie, with over 400 patents to his name. However, he is more of an informal innovator, and some of the inventions depicted in his remote and rather picturesque Ladakh open air lab were borrowed from NIF innovators. The book does not contain this inspiring ending.

v) The movie also ends with Pia finding Rancho in his innovation friendly Shangrila and slapping him for deserting her. The book misses out on this resounding ending.

vi) One of the funniest moments in the movie is a speech read out by Chatur Ramalingam, the polar opposite of Rancho, in that he is the typical conformist who cosies up to his professors and crams too hard. Rancho switches the speech and has Chatur spouting out nasty adjectives for the Director in his Hindi speech (a langauge he is not familiar with since he is born to expat parents). I can’t remember any references to such a speech in the book.

vii) Chatur vows to avenge his humiliation and wagers that in 10 years, he would have become highly succesful, while Rancho would be rotting in hell. The movie begins with Chatur returning from the US (where he leads a successful career, with beautiful apartment, voluptuous wife and Lambhorgini) and attempting to locate Rancho and his friends to demonstrate that he has indeed won the wager. He manages to locate the friends and get them to the college terrace,,but Rancho is nowhere in sight. In fact, even Rancho’s closest friends have lost touch with him after college as he gave them the slip. The hunt begins and Rancho is found…not rotting away but flourishing in the beautiful Ladakh as a world class inventor, with whom Chatur’s US company wishes to collaborate. The book does not contain any of these Bollywoody references.

viii) And lastly, though perhaps insignificantly, the names of all the characters in the book have been changed in the movie.

Given the space of his blog post, I’ve not listed out each and every similarity or difference between the book and the movie, but merely jotted down what i think to be the critical ones. I’m hoping that some of you reading this might offer to help out in the coming days by listing more such differences and similarities in the comments section.

Dishonesty?

I personally think its highly misleading and downright dishonest to claim that only 3-5% of the movie was taken, if at all it is possible to precisely quantify such factors. The net implication is that the rest of the movie script really originated from other authors, a proposition rather difficult to digest. To me, it appears that a significant portion of the book’s storyline, most of its characters and sub plots, including some dialogues were all reproduced in the movie. The fact that some new scenes and sub plots were added afresh to the movie does not detract from the fact that significant portions of the book were copied onto the movie in the first place. Therefore, the claim that the book only contributed 3-5% of the movie is blatantly false. On the contrary, Chetan could claim that the script borrows significant amounts of copyrightable elements from his book and he is therefore legitimately entitled to be treated as a joint author of this script. Consequently, the lack of appropriate attribution in favour of Chetan amounts to a violation of his rights to authorship guaranteed by section 57 of the Indian copyright act.

Even otherwise, by crediting the movie to the book as per clause 4 outlined above (albeit a fleeting credit right at the end of the movie that one was likely to miss), couldn’t one argue that the movie makers impliedly accepted that a significant portion of the movie was based on the book? Else, why would they need to credit at all? (though technically, one might argue that the contract demanded it, irrespective of whether or not significant book portions were taken).

The Public Vote on This?

Interestingly, there are a number of blog posts and other articles, where numerous commentators have expressed their disgust at such forthright copying of a substantial chunk of the book without due attribution. Some others have expressed the opposite view.

In that vein, we’ve also put up a poll on our blog to test what our readers (who’ve been lukcy enough to savour the movie and the book) think. As many of you may know, the key test in many IP cases hinges on the perception of the “reasonable” man or woman: do they think that the movie contains substantial portions of the book? If you have a view on this, do vote on our poll section (see top left hand corner of the blog home page).

Big vs Small: A Matter of Justice for All

Chetan should pursue this matter, not just for himself, but for every small artist or writer who ends up getting a raw deal from wily producers/publishers. Chetan notes in his blog:

“Soon, they started doing media promotions for the film, and kept me completely out of it (you’ll never find me in an interview with them). Crores was poured into publicity on shutting me out and cementing the fact that 3 Idiots is not based on Five Point Someone. However, the book had been read by millions of people and the FPS buzz just did not die down.

Ten days before the release, I was called into their office. They said ‘we should be friends now’. I said I am always up for friendship, and the success of the film is good for me as well. They also said, and I quote verbatim ‘even though this is an original film, we have given you a great credit, right upfront. After all, we love writers and a king should treat another king with respect. You are family’. I believed them.”

If what he claims is true, this is nothing short of treachery. And he must fight to vindicate his stand. If the haughty film makers fail to make amends and settle this matter in a fair manner, he should send out a legal notice to them demanding rightful attribution, failing which he must sue them in an Indian court. Indian courts have been very “activist” in their stand on moral rights, extending the scope of it to even works that were hidden away from the public eye (Amar Nath Sehgal vs UOI).

If perchance this matter reaches court and Chetan gets a judge sympathetic to the cause of authors and concerned about high handed treacherous practices of producers with a deep stranglehold on the industry, he could walk away with a robust order mandating appropriate attribution and heavy damages too.

But lets hope that better sense prevails over the film makers and that they turn out to be as principled as the hero that they fleshed out so inspiringly in the movie. And that this bitter fiasco end well. For, as the age old aphorism goes: “All’s well that ends well”.

And on that parting note, may I once again wish all our readers a terrific New Year ahead.

ps: Disclosure of Potential Conflicts of Interest

I am a die hard fan of Aamir Khan, having watched most of his movies since “Qayamat se Qayamat Tak”. Since he blazes the screen with his presence only once a year, its far easier to keep up with this star than the others in Bollywood who belt out a dime a dozen each year. My admiration for this fabulously innovative method actor stems not just from his emoting skills, but also his public persona which appears to depict an intelligent and socially sensitive human being. It therefore comes as a surprise to me that he would go out of his way to lash out at Chetan Bhagat, without so much as even having read the book! For an actor known for his perfectionist streak and eye for detail, this is rather startling.

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Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

29 comments.

  1. AvatarDr. Tabrez Ahmad

    A very good writeup that has provided some critical points of difference and similarity between Chetan Nagendra’s Novel 5 Points Someone and film 3 Idiots.I am also agree with the point that Chetan Nagendra has been disadvantaged by the producers as the copying is more than what was accepted by the producers of the film.So Chetan Nagendra may claim damages on the basis of infringement of moral rights of him

    Reply
  2. Avatarastha

    One another difference is that in the book the heroine is not involved with another boy but in the movie there are hilarious scenes of rancho saving the girl from what could very well be an unfulfilling relationship..

    Reply
  3. AvatarAnonymous

    Is it a good idea to encourage people to file civil law suits on ‘moral rights’? The Copyright Act is an economic legislation – if economic rights are violated, it makes sense to sue to allow them to recover their losses but allowing people to sue for moral rights when there is no economic damage per se, is a bad idea. It is a bad idea because it creates a strain on the system and countries like India where the judiciary is already under tremendous pressure. After all what is the end result of such litigation?

    Reply
  4. AvatarAnonymous

    I think, there is a speech towards the end of the book, which the narrator ‘dreams’ of delivering in some large function (perhaps the convocation), that attacks the Director in his role in the death of his own son.

    Reply
  5. AvatarSridhar

    Anonymous: I don’t think Chetan ever said he was never shown the script. He has always maintained that he was never shown the “final” script. While Mr. Hirani, shows an NDA and says that Chetan has seen the script – the key question is – which version of the script. May be it was one of the earlier versions.

    On a different note – this also reflects the pathetic state of the Bollywood in creating “Original” stories. If they can take a book and be “inspired” to create an adaptation and claim it as original – I can only say – shame on you.

    Reminds me of the c*p that we were fed when “Ghajini” was launched. That movie was of course “inspired” by “Memento” but – given that we added the standard Bolloywood, song and dance + melodrama + some characters/plot to fit into the Bollywood notion of a movie – it was claimed to be “original”.

    In summary – “Shame on you, Bollywood”.

    Sridhar

    Reply
  6. AvatarDr. Tabrez Ahmad

    Now in the Bollywood copying has become a common practice either the stories written by Indian authors or copying directly from Hollywood.Instead of copying they should concentrate on originality or atleast recognise and give respect to the original creators.

    Reply
  7. AvatarKabir

    I don’t think its just about the money. Though I believe in the notions that cinema should not trail behind literature. But Bollywood is famous for not giving credit to writers. They don’t give a damn to their creative input.

    And if, Chetan is right as he says, he sure needs the support.

    Reply
  8. AvatarShamnad Basheer

    Thanks Tabrez,

    I think you meant “Chetan Bhagat” and not “Chetan Nagendra”, who incidentally happens to be an NLS alum and London attorney.

    This “moral rights” case raises several interesting issues:

    Will the test here be the same as that for copying? In other words, absent permission from Chetan (through an assignment in this case), would the use of some aspects of the book amount to a “substantial” copying, enough to warrant a case of copyright infringement?

    And if the copying cannot be said to have been “substantial” enough to warrant copyright infringement, would a claim for the moral right to attribution still lie? How would the existence of the contract in such a case impact this determination?

    If a moral rights claim does not lie since the copying is not substantial, would a court still look to the 5% claim to determine if a “false” suggestion has been made. It must be noted that copyright law does not normally hinge on percentages–but on “qualitative” aspects of the takings.

    But for the purpose of argument, if Chetan can somehow prove that the taking was more than 5%, can he make a claim under some other law. Unfair trade practice, unfair competition, misleading claim, misleading advertisement etc etc?

    And lastly, my favourite point:

    Given that the book has achieved cult status, could it be said that the movie, by denying adequate attribution actually passes off the plot of the book as its own? In this case, assume the “reputation” and goodwill are in the “plot” of the book. And this plot was substantially copied in the movie. Would a passing off claim lie? Or would this be too much of a stretch of passing off principles? Also, would the existence of a potential copyright claim preclude such an alternative IP claim?

    Reply
  9. AvatarJ. Sai Deepak

    Sir,
    The character Chatur Ramalingam played by Omi Vaidya too is based on a South Indian character from the book who is a nine pointer. The book portrays him as someone who believes in learning by rote. Just as in the movie, Alok (Raju Rastogi) shares his room with this character albeit for a brief period of time and moves out when this character refuses to help Alok when his father falls sick (if my memory serves me right).

    Sai.

    Reply
  10. AvatarShamnad Basheer

    Dear Anon,

    Is your grievance against law suits based on moral right violations, when the statute expressly provides for such rights? Or is your grievance against the very existence of “moral rights” in the first place? The structure of your query seems to suggest the former–in which case, its a bit of a farce isn’t it–that when our legislators thought it fit to protect authors, you’re suggesting that courts dont waste their time doing so??

    Reply
  11. AvatarShamnad Basheer

    @ Minanath: excellent cartoon. Thanks.

    Also, thanks Kabir and the various other anons for your comments for your comments on this. I’m hoping that some of you would add more facts (on the similarities vs differences) to help sharpen the legal analysis.

    Reply
  12. AvatarAnonymous

    Dear Shamnad,

    Thank you for your response.

    I would like to clarify my earlier query – I was questioning the very rationale for including moral rights in the Indian Copyright Act? The U.S. is one country which does not have moral rights and for good reason – these rights has a weak economic rationale.

    I understand it is an emotive issue but still fail to understand the precise nature of the economic rationale for this right?

    It would be greatly helpful if you could point to Indian sources maybe some legislative debates explaining why this was included in the Statute.

    Anon

    Reply
  13. AvatarShamnad Basheer

    Dear Anon,

    You state:

    “The U.S. is one country which does not have moral rights and for good reason – these rights has a weak economic rationale.”

    Firstly, the US does protect moral rights to a limited extent, through VARA. Secondly, and more importantly, should we base all law making only on economic rationales. What about morality? Fairness? Justice? Shouldn’t these be legitimate ends to be pursued by law and law making? Or should our lens be a predominant economic one, ala the US?

    My reasons for supporting the moral right of attribution are to avoid the kind of unfairness that the Chetan Bhagat incident throws up. What the Chopra production house appears to be doing is to buy out the author and then completely negate the fact that he had anything to do at all with the creation!

    Authors share a special relation to their creations–and many see it as an extension of their personality. And I just think its grossly unfair to let economic forces divorce them from their creations and obliterate their status as authors!

    But all of the above arguments relate to the moral right to “paternity” or authorship. There is another moral right, albeit a more problematic one that often crops up in most of the case law i.e the moral right to integrity (to prevent any “unfair” treatment to the authors’ work).

    A recent article deals with some of the predominant rationales underlying moral rights protection, in so far as the moral right to integrity is concerned. See http://www.californialawreview.org/assets/pdfs/97-1/09Feb_Adler.pdf, The article advocates against such a moral right to integrity.

    But note that the above piece does not deal with the moral right to paternity–in fact, i am yet to find any compelling scholarship that argues against the need to have a moral right to paternity.

    Reply
  14. AvatarManish Garg

    This is very strange that has happened in spite of the fact that the producers of the film has an agreement with Chetan Bhagat before making this film. It is accordingly in the right spirit to give due acknowledgment to Chetan Bhagat since most of the portion of the movie is based on his novel..one good example of correctly acknowledging such works has been the movie Pareneeta where this movie is based on the author’s novel…how come that our producers have become so cheap for not acknowledging the work? Chetan must stand up for his moral rights and for the others so as to avoid such shameful incidence.

    Reply
  15. AvatarAnonymous

    Why Amair did not read the book? See below extract – source: http://timesofindia.indiatimes.com/entertainment/bollywood/news-interviews/Chetan-Bhagat-Aamir-is-powerful/articleshow/5408922.cms

    Aamir thinks you are trying to take away credit from the film’s writer Abhijat Joshi?

    I heard his comments. But then he says he hasn’t read the book. There’s no denying Abhijat has done the screenplay. What Abhijat has done with my book can only be known if you’ve read it. If Aamir is so concerned about Abhijat not getting the publicity he should let Abhijat talk. I very much respect Aamir. He’s the reason I thought the project would have a lot of integrity. I know for a fact he was told not to read my book because they told him it’d affect his understanding of his story. I was told it was a different script.

    Reply
  16. AvatarRajesh J Advani

    The plot of Paper Chase is completely different from that of Five Point Someone, and carries a completely different story. Please don’t distract by bringing up untrue statements

    Reply
  17. AvatarShamnad Basheer

    Dear Rajesh,

    This is an excellent resource you’ve created. Thanks. However, I notice that wiki has marked up the page for deletion. If you send me your email, I can get across some comments to you from one of my colleagues (who’s good at wiki stuff) to advise you on how to structure the wiki page etc. I looked for your email on your webpage etc but couldnt get it. do send it to me at shamnad[at]gmail.com

    Reply
  18. AvatarShamnad Basheer

    Dear Nikhil,

    I agree with Rajesh. the plot of paper chase (set at the harvard law school) is significantly different. the only similarity perhaps is that the protagonist falls in love with the daughter of a professor. on a related note, jay krishnan has a wonderful article on indian legal education titled after this book “professor kingsfield goes to india…”

    Reply
  19. AvatarRaj

    If you read Jurassic park novel and see the film, the novel itself is a screenplay to the perfect. The director just need to cut down to 2 hour movie. so he happily give the credit at the start of the movie. But in case of FPS, the director put on great effort to change it to the screen. so may be he isn’t comfortable with CB’s FPS getting attention more than it deserves. So they added his title at the end. That said, since the movie plot originated from the novel and some scenes from the book contributed for Screenplay, the producer could have just showed a proper credit and not claiming as original story.

    Reply

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