Copyright

Eeej Aal Well?


(Disclaimer: The first 6 paras (about 422 words) are off-topic)

Imagine the plight of a 6 year old having to suffer a burly guy sitting next to him in a movie hall who’s laughing his head off, stopping embarrassingly short of rolling in the aisles. To add to the kid’s woes, his parents care a hoot about his plight and it’s dark all around except for the light from the movie screen and mobile phones.

I don’t know who the kid is and probably he will never ever want to know the burly guy, but I just hope I didn’t give the poor kid a life-long phobia of cinema halls (is there a term for this? Oh yes- Theatrophobia)

The reason for my unintentionally deplorable behaviour was the movie which is obviously the toast of the season- 3 Idiots, reminding each one of us of those notorious days back in college, not too far in the past and yet seemingly distant enough to use the clichéd phrase good ‘ol days. The movie’s so infectious that not a single soul in my circle could resist discussing it for the last week; so much so that I felt like the only idiot who hadn’t seen 3 Idiots.

So yesterday i.e. on New Year’s Eve, I made up my mind and told myself that come what may, Mission 3 Idiots had to be accomplished by the end of the day even if it meant I had to go through hell and high water (which for most people living in the National Capital Region is synonymous with traffic!) to cover a distance of hardly a mile.

And, my friend was late (as usual!), but then this day I was driven by a sense of purpose and the end, on this day of all the days, certainly seemed to justify the means, so I just collected my ticket without a smidgen of compunction (my friend had informed me as I was on my way, that he had booked e-tickets for both of us…) and bull dozed my way into the movie hall.

And then, for the next 3 hours, the poor kid next to me had to sit through a non-stop laugh riot and even if he had been wailing, his desperate cries for help were lost in the all-engulfing din that the audience created. After the movie, I patted myself and said the day was well spent, promising a revisit soon enough. Once back home, I turned on the Idiot box to find almost every channel running news about the movie- needless to say, statistics and plaudits galore. Kudos to the makers of the film for helping us end the year on a cheerful note and for making a fleeting mention of patents in the movie (Spoiler Alert: A character in the movie Phunsuk Wangdu holds 400 patents, ahem…what about commercialization?)

But somewhere in all this celebration, no one had seen the inevitable pinch of hemlock on its way to spoil the film’s party…

Within a matter of hours, from the success of the movie, the attention had dramatically shifted to something much more salivating for the media- public accusations of non-attribution or atleast innocuous attribution hurled by Chetan Bhagat (the author of Five Point Someone, the book on which the movie is allegedly based) at the makers of the movie and ugly scenes of confrontation between Vidhu Vinod Chopra (the producer of the movie) and a journalist at a press conference. Naysayers might say that IP has reared its ugly head once again.

Nay! Lack of awareness and respect, and disdain for IP have reared their grotesque heads is what we would say.

But before we jump to conclusions or prejudge anyone, let’s take a look at the facts:
1. Chetan Bhagat’s Five Point Someone is arguably one of the most popular books written in English by an Indian author and enjoys a cult status among its readers.

2. Though written after Sandipan Deb’s The IITians and the Dilbert series on IITians in the US, Bhagat’s book, although fictionalised, can be credited for single-handedly making the campus life of students at IITs familiar to and popular among the public.

3. Those who have read the book and watched the movie will certainly relate to the setting, specific instances from the book, the characters and the pranks- the standard of the common reader comes into picture.

4. The makers admitted having read the book- access comes in here

5. The director of the movie has reportedly stated that the book could not be replicated in toto in the movie and so the screenplay had to be adapted to suit cinematic and thematic imperatives- adaptation of a copyrighted work/derivative works

In light of these facts, it is strange that some members of the lead cast in the movie have gone to the extent of stating in public that the author’s allegations are mere publicity stunts and there is no truth in his statement about 60-70% of the movie being based on the book.

On the face of it, it seems that lack of prominent credits is the primary issue. But this cannot be seen in isolation because for a work to qualify as a derivative work, it must be substantially based on the original copyrighted work. Prof.Nimmer explains it beautifully where he broadly defines derivative works to include adaptations of the copyrighted work. According to him, if the subsequent work is not substantially based on the original work, then it is not a derivative work.

A test may be applied here: if the subsequent work cannot stand on its own in the absence of the original and it has to necessarily develop on the substratum in the original, then it must be treated as a derivative work.

Creation of a derivative work, as we know, too falls within the bundle of rights vested in the copyright holder. Why is this so? This is because if the derivative work were to be created without the consent of the copyright owner of the original, the derivative could be accused of substantial infringement.

Further, for vestation of copyright in the derivative, it too must satisfy the criterion of originality. Therefore, in addition to consent, the derivative work must be original as well. Absence of even one of these criteria deprives it of a copyright.

Quite a few cases hold that in the absence of consent, the creator of the derivative work is guilty of infringement, however he may prevent others from copying his original contribution to the work.

Consent does not seem to be an issue in the 3 Idiots controversy, but can 3 Idiots be called a derivative of Five Point Someone? Stated otherwise, is the movie substantially based on the book?

We’ll wait for the plot to unravel…(or as Aamir’s chaddi buddy SRK would say “Picture Ab Baaki Hai Mere Dost”)

and by the way, Happy New Year MMX!!!

(Image from here)

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18 comments.

  1. AvatarAnonymous

    What exactly is the legal issue in this controversy? The author has got paid as per contract, he has also been acknowledged in the rolling credits. At the end of the day it seems to be a bruised ego.

    At the most he may assert his moral right to paternity under Section 57 of the Copyright Act.

    Comments?

    Reply
  2. AvatarJ. Sai Deepak

    Thanks Gautam, I think Clause 4 of the Agreement is relevant to this controversy which states that the author would be credited in the following manner:

    Based on The Novel
    Five Point Someone
    by Chetan Bhagat.

    Bests,
    Sai.

    Reply
  3. AvatarJ. Sai Deepak

    @Anon:
    You are right, the issue has more to do with moral rights. Though the credits mention Chetan, the purpose is defeated when the movie makers make it a point to reiterate at a progressively increasing pitch that the movie is hardly based on the novel and go a step further with the lead actor accusing the author of publicity mongering without even reading the book. So i think Chetan has a point.

    Bests,
    Sai.

    Reply
  4. AvatarJ. Sai Deepak

    @Anon 3:48 PM:
    Again, its not just a question of credits. The point here is that the initial hype surrounding the making of the movie was because people were made to believe that it would be a screen adaptation of Chetan’s novel and there’s no denying that the initial interest in the movie was generated to a large extent because the audience awaited with bated breath to see the movie’s stars plays the characters so hilariously fleshed out in the book. Now that the movie’s raked in the moolah along with critical acclaim, the movie makers have decided to cast the author away like a used tissue and are trying to justify the success of the movie solely on the basis of its screenplay and star power. I think one couldn’t ask for a more clear cut case of “money power”.

    Bests,
    Sai

    Reply
  5. AvatarAshish

    As I have already said in my blog, the question is whether the writer is being given appropriate credits?

    to add more on this the contract also says “…to accord credit to the author in the rolling credits of any audio-visual moving image software(of any format in any media or medium) produced by the producer…”

    and the trailer also produced by the same producer doesn’t have any credits… is this not a violation of contract?

    Reply
  6. AvatarSneha

    Sai,

    I had a query, though it is completely unrelated to the controversy at hand.

    If you read clause 2 of the Agreement which defines the Rights that have been exclusively assigned, it appears it is wide enough to cover any future adaptations in any form in any medium of the novel. For eg – an adaptation in the form of an animation movie.

    What would be your opinion on the language of this clause? I understand that only Chetan Bhagat’s can tell us whether he intended to assign such a WIDE range of rights. However, could this widely worded clause also indicate a lack of drafting skills/IP knowledge in Chetan’s lawyer who, in my opinion, should have specified the rights in more detail?

    Regards
    Sneha

    Reply
  7. AvatarHekT0R7875

    The moment the film 3 Idiots was based on the characters of the book, Five Point Someone, the author Chetan Bhagat is entitled to rightful credit. Already under a legal contract the makers of the film might not have done anything legally wrong, but ethically yes.
    How much credit give to Chetan Bhagat is Rightful?

    Obviously being mentioned and acknowledged after Junior artists is wrong. But I suppose a special mention at the start of the movie would have been better.

    All the claims made by the producer and cast of the movie that this was a publicity stunt by Chetan Bhagat is simply stupid. What exactly do they think that Chetan Bhagat wants publicity for? For a book that’s been in publication for 5 years? He gets enough publicity in my opinion when people know that the movie is “loosely” based on his book.

    And the matter of the numbers, where the movie makers claim no more than 2-5% and just the fact that there are more than 10 – 12 acts in the movie that’s from the book is good enough claim by Chetan Bhagat followers of more than 50%. Though the numbers are purely debatable. But 2-5% is purely nonsense, what are they comparing the book with? same dialogues? same words?

    To end this from my side, neither side is at fault Legally. We can’t drag them to court for this issue. But ethical injustice is what Chetan Bhagat’s got out of this mess.

    Reply
  8. AvatarJ. Sai Deepak

    Hey Sneha,
    Actually it may not be an unrelated query because if Chetan has such serious issues with not being credited sufficiently for the movie, I find it difficult to rule out the possibility of a controversy with any other future adaptation of the novel.

    As for the clause 2 of the Agreement, usually the rights acquisition clause of such contracts detail the kind of adaptations such as sequel, remake, stage play so on and so forth. In addition to such a clause, contracts also have New Exploitation Rights clause where they talk of rights being applicable to future modes of distribution and transmission. But more importantly, what Chetan could have done was restrict the rights of the producer only to adaptation of the screenplay and not of the novel as a whole because according to the present clause the producer gets rights to any kind of adaptation of the novel, and not just the screenplay.

    Why? the answer to the following questions tell you why:

    1. Imagine you are the author of a novel
    2. You give rights to the producer only with respect to the screenplay which is the first derivative of the novel
    3. If the producer decides to further adapt the screenplay and make a first derivative of the screenplay, would he need your permission? In other words, is the first derivative of the screenplay necessarily the second derivative of your novel thereby making your consent necessary?

    Look forward to hearing from you.

    Bests,
    Sai.

    Reply
  9. AvatarJ. Sai Deepak

    Dear Hektor aka Vikas,
    In a way you have helped me address a standard point that seems to crop up in issues such as this. A cynical approach to the whole controversy could be “What’s the big deal? There’s no such thing as bad publicity and either ways both sides gain out of all this free attention,why are we breaking our heads over this??”. Let’s assume that this is true and both sides are indeed making money out of this controversy,but does that in anyway detract from the merits of the issue at hand? I don’t think so because from the material we have so far, it does appear that Chetan has a decent shot if he decides to go to Court.

    Also, there seems to be this common opinion that this issue is just about ethics and so legally Chetan does not have a recourse. Fortunately for Chetan, moral rights under Section 57 of the Copyright are meant to address situations like these where despite economic rights being settled, the author’s work or the right over his work is undermined.

    So rest assured, our attempts are to look at this issue from a legally rational angle, notwithstanding our moral proclivities.

    Bests,
    Sai.

    Reply
  10. AvatarSneha

    Hey Sai,

    I completely agree with the First-Second Derivative work question you have raised and that is exactly what my worry is as well. If in the future, Vidhu Vinod Chopra does decide to exploit his “original” screenplay of 3 Idiots, will Chetan Bhagat have a substantial case of infringement?

    I agree that there is not only an ethical but a legal issue involved as well (read Moral right). However, I also had something else to ask – If we read the contract, the credit is in the form of 4 lines with double spacing, name of the novel in AllCaps and Bold an Chetan’s name in Bold. Whereas in the film, all the text has been places in one line without any bold text of allcaps? Can this not be a contractual violation as well?

    Awaiting your answer,
    Regards
    Sneha

    Reply
  11. AvatarJ. Sai Deepak

    Hey Sneha,
    Since Chetan has assigned adaptation rights of the Novel, i dont think Chopra can be accused in the future of substantial infringement by making future derivatives either of the screenplay or the novel.

    As for the style of the credits, I think you are right and there is literature supporting this. There’s this book called The Moral Rights of Authors and Performers written by Elizabeth Adeney where she cites certain UK decisions which hold that credits to authors or directors must be prominent and reasonable. This standard seems normative, but atleast in the instant controversy it is clear that the rolling credits do not seem to measure up to this standard.

    Again, some might say that we ought to look for Indian decisions first before we seek “inspiration” from foreign judgments. So apart from the Amarnath Sehgal v. UOI (2002)case, which Mr.Basheer has cited his post, the other prominent case is Mannu Bhandari v. Kala Vikas Pictures Ltd. which dates back to 1986. In that case, in the contract between the parties, it was agreed as follows:

    “That proper publicity will be given to you as the author of the said story in all credits (Commercial and other publicity)”

    The Court in para 11 held thus:

    “The fact that Mannu Bhandari is the author of the story is to be published in all the credits. This is for giving due recognition to the reputation of the author. The
    word “credits” in the parlance of show business means recognition of credit-worthy actions of all those who have participated in making the show business a success.”

    So this judgment seems to help Chetan’s case, unless an attempt is made to distinguish it on facts since Chetan’s Contract with Chopra is not as clear about credits as the contract in this judgment. I hope this helps.

    Bests,
    Sai.

    Reply
  12. AvatarSneha

    Sai,

    I beg to differ with you on the point that Chetan’s contract is not clear about the credits issue. The heading of the clause is “Credit to th Author” and even in content, they very specifically talk about crediting the author in the rolling credits.

    My main argument is: –

    1. the very fact that Chopra has taken a separate copyright from Chetan shows his credit-worthyness in terms of the judgment you mentioned

    2. further, the form in which Chopra agreed to give him credit under the contract is very prominent and visible however the final output in the movie’s rolling credits actually gets lost.

    Is this not a blatant contractual violation where Chopra agreed one FORM of credit and delivered another FORM (forget the moral rights or credit-worthyness issues for a moment)

    Regards
    Sneha

    Reply
  13. AvatarShamnad Basheer

    Sneha,

    I looked closely at the placement and I think you may be right. Since the form of placement was not complied with, perhaps Bhagat could argue that even contractually, there was no complaince.

    Thanks for pointing us to this interesting factor.

    Reply
  14. AvatarJ. Sai Deepak

    Sneha,
    You are right, but where do we differ? My point on Bhagat’s contract not being elaborate was in comparison with the publicity clause cited in the Mannu Bhandari judgment. But on credits, I did refer to Adeney’s point on prominence and reasonableness. It only complements your point on contractual non-compliance by Chopra since the very purpose of mentioning the title in the credits clause in caps is to make it prominent. So though, I come from the point of view of an established principle applied in such cases, and not a contractual angle, where do we contradict each other?

    Bests,
    Sai.

    Reply
  15. AvatarSneha

    Sai,

    You stated – “…since Chetan’s Contract with Chopra is not as clear about credits as the contract in this judgment”

    I apologise for misunderstanding the use of “credit” by you as rolling credits instead of publicity. My mistake… 🙂

    Regards
    Sneha

    Reply

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