Shashank Singh brings us his second submission for our Fellowship series. In this guest post, he looks at a topic we’ve often discussed on this blog in the past – The Hollywood to Bollywood script ‘diffusion’. You can view Shashank’s first submission here.
Trend and Standard for judging infringement in ‘adaptation’ of movies
Off late, Bollywood has been drawn towards remaking movies or re-releasing them with slight manipulation. They have also been accused of “heavily borrowing” scripts from Hollywood movies. Through this blog post I would discuss the issues surrounding ‘adaptation’ of movies and the recent trend which has seen a rise in litigation, contrary to the previous position wherein the producers ignored the infringements.
Movies fall under the definition of a ‘cinematograph film’ under § 2(f), and the copyright is held with the ‘author’ who is the producer of the movie. If any movie that has not already entered the public domain, has to be remade, the person wanting to do so has to enter into a licence with the ‘author’ under §30. This is because the author is given exclusive rights for ‘adaptation’ of the motion picture under §14. In India, adaptations are very common especially due to the diverse regional markets. For instance, Aag (2007) and Ghajini (2008) were a remake of Sholay (1975) and Ghajini (2005) respectively. Such adaptations within India are generally done through valid license agreements. However, such licensing agreements are not very common when Bollywood movies adapt scripts from Hollywood movies. There are numerous examples of this. Recently, the plot in Dhoom 3 (2013) was suspected to be similar to that of The Prestige (2006). Also, Krishh 3 (2013) was seemingly inspired from the X-Men (ongoing series). Previously, commercially successful movies like Partner (2007), Raaz (2002) and Karz (1980) are adaptations of Hollywood originals like Hitch (2005), What Lies Beneath (2000) and The Reincarnation of Peter Proud (1975) respectively. (For a more comprehensive list click here)
Under intellectual property law, it is not a settled principle that copyright cannot be sought for “ideas, procedures and method of operation” and can only extend to expression of ideas. Thus, in X-Men the idea of existence of mutants cannot be copyrighted, but the expression of particular mutants displayed in the movie can be copyrighted. Then also, in many cases the dividing line between the two is thin enough to arouse controversy.
The differentiating factor- “ordinary observer” test
In R.G. Anand v. Delux Films the court incorporated the “ordinary observer” test wherein they held that “one of the surest and the safest test 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”. This standard was first observed in US, in the case of Daly v. Palmer. In effect, the test holds that if an ordinary viewer reasonably concludes on comparison that the works are similar the infringement can be established if no license for the same has been obtained. R.G. Anand further emphasised on the intention of the parties to copy and for establishing the same, not only the material similarities, but also the broad dissimilarities must be looked into. It also took into account that where the theme is same but its presentation is different, subsequent work becomes “completely new” and violation cannot be established. This test evolved in Twentieth Century Fox Film Corporation v. Zee Telefilms where, the courts held that the infringement should be substantial and to assess this, the alleged parts must first be considered individually and then in totality to judge the similarity. They further held that determination substantial infringement has to be decided by its quality rather than by its quantity.
The recent trend
Initially, the Hollywood producers never sought to enforce their copyright due to negligible overlapping audience. In recent years this has changed with Hollywood now seeing India as a profitable market for their products. In 2008, the producers of Hitch contemplated suing the producers of Partner. Apart from copyright infringements, the Bollywood has also been accused of trademark infringement in Warner Bros. Entertainment v. Harinder Kohli. Here, the defendant was accused of trademark infringement by using ‘Hari Puttar’ as the protagonist in his movie without licensing for the same from the owners of the world renowned trademark ‘Harry Potter’. The similarities did not end there; the backdrop of the motion picture also had striking similarities with respect to ‘magical’ storyline. However, the court ruled in favour of the defendants due to the ignorance of the appellant to approach the court in time despite being aware of the alleged infringement for four years before initiation of proceedings.
While such litigations can serve impetus for increased licensing, in light of the available judicial precedent it looks highly unlikely that infringement can be established. This is because of the added melodrama, dance sequences and other substantial changes mitigate violation as these changes create “completely new” works. However, considering the litigations have just begun, one cannot rule out a change in the position of the courts.
(For more on the issue click here)