Guest post: Jannat 2 – Producers far from Angelic

We bring you another exciting guest post by Kruttika Vijay on copyright issues arising from the movie Jannat 2.

The facts of the case, Kapil Chopra v. Kunal Deshmukh, could well be the plot of any successful Hindi movie. [editor’s note: The case is available here]

Spoiler alert!

A young scriptwriter narrates script to a well known film house. The film house shows interest in the script. And then there’s silence. A year later, there are promos of a new movie (Jannat 2) by the same well known film house. The young scriptwriter thinks it might be based on his script, and is assured that it’s not. Turns out it may well may be, and the young scriptwriter sues. In the David v. Goliath battle before the Court, David loses Round #1. In the end however, David triumphs. The end.

If however, you’re of a more legal bent of mind [☺] rather than a film buff, the issues in the case were as follows:

A. The Plaintiff asserted that there was a breach of confidence.

The Defendant argued that the Plaintiff had forced the Defendant to take the script, and despite there being no interest shown. Based on the facts at hand, the Court held that the defendant had no defence, and there was complete breach of confidence by the Defendants. According to the Court, the evidence of text messages and e-mails showed that the Defendants created an atmosphere which encouraged the Plaintiff to hand over his script to the Defendant.

B. The Plaintiff argued that the Defendant’s movie Jannat 2 infringed the copyright subsisting in his script.

At first brush, the Judges seemed to agree that after reading the script, the movie seemed to have several similarities with the characters and specific scenes in the movie.

The Defendant however argued that the movie did not infringe for three specific reasons. First they argued that the movie was ready in December 2010 and therefore, the script used for the movie Jannat 2 was written by another script writer (Shagufta Rafique) much before the full script of the Plaintiff was ready in August 2010. As proof, the Defendant relied on a post on their blog dated 14 November 2009 which talks about actor Sanjay Dutt possibly acting in the movie).

At first glance, these seem like excellent arguments to make, and indeed defeat the arguments of the Plaintiff. Except. The Court found that both of these defences were based on false or misleading documents. (1) Even though the movie was allegedly ready by December 2010, the agreement between the allegedly “original script writer” and the Defendant was signed only on 31 January 2011! (2) The blogpost, which appeared to be the strongest evidentiary proof for the Defendants was dated 2009, but in fact referred to movies released or releasing in 2012 starring actor Sanjay Dutt.

These attempts by the Defendant to rely on false documentation was taken very seriously by the court which stated “We are of the opinion that annexing these documents was an attempt on the part of Defendant No.1 to mislead the Court. We place on record our strong disapproval at the conduct of Defendant No.1. Though such conduct may warrant an action for perjury, in view of the appeals made by the learned counsel, we refrain ourselves from doing so…. As we have noted in the beginning itself, the greed and deceit which often form plot of a bollywood film, are manifest in the real life conduct of the Defendant Nos.1 and 2 themselves.” Yikes.

After that, the defence went pretty much downhill. The Court very quickly dismissed the idea-expression dichotomy by holding that the similarities between the script and the movie may have been general themes, but several important sequences, defining traits of the characters and scenes from the movie were clearly lifted from the script.

Interestingly, one of the other defences was that the movie was not copied from the Plaintiff’s script but was inspired by one of two Korean movies – “Infernal Affairs” (pleaded in the reply to the injunction application) or “Bloody Ties” (referred to at the stage of arguments). The Court said Infernal Affairs was nothing like the movie Jannat 2, and referring to the movie Bloody Ties was an afterthought by the Defendant.

Apart from this, the Court also refused to allow Defendant No. 3 to broadcast the movie via satellite television. They understood that money had been paid for the licensing of these rights, but declared that the Plaintiff could not be made to further suffer blatant infringement at the cost of the business dealings of erring Defendants. They stated that in this case, Defendant 3 had the right to sue the other Defendants for breach of contract etc.

They therefore awarded the Plaintiff an interim injunction and dismissed any attempt by the Defendant to stay the order.

Observations

An interesting aspect of the case, that I had never heard, is the parallel decision by the Dispute Settlement Committee of the Film Writers’ Association. I do not believe that this organization is a judicial authority, but both the Plaintiff and the Defendant appeared before this body and the DSC found there to be an violation of the rights of the Plaintiff and awarded the Plaintiff Rs.9,62,066.70. This was also mentioned in the judgment, and relied upon by the Court as having persuasive value.

The only question to my mind is why did the Defendant argue that they were inspired by either one of the Korean movies? They were released in 2002 and 2006, and with this sort of clear admission made, the Korean producers can easily sue the Defendants.

Other than that, on the facts discussed in the case, the judgment seems well-reasoned and well written. In my opinion, with the strong language of the Court, it may be a difficult case for the Defendant to overturn on appeal – if they choose to ever file one.

 [editor’s note: The case is available here]