Copyright Trademark

Guest Post: “Adaptation” of movies


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

bollywood_6133_1Off 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)

3 comments.

  1. AvatarSundakka

    Ghajini (2005) itself is an unofficial remake of Memento.

    This is apart from the Desi remakes across languages. A Quick search on wikipedia yields ~1250 remake movies across Indian movie industries which have an ariticle on the site. There could be atleast 1250 more which don’t have an article. We can safely assume atleast 40% of them are ‘illegal’ remakes without contractual agreements that are imitations in the name of inspiration.

    Milliblog has an extensive collection of music piracy in Indian film music again bordering on the same thin line of adaptation.

    Its a joke that film lobbies have successfully lobbied to suck state resources for ‘Video piracy cells’ in state police when they themselves are ‘pirates’ of first order.

    Reply
  2. AvatarKanupriya Singh

    I note that you have tried to establish in the Article that the Producer of the Film is by virtue of being the author of the Film entitled to license the adaptation rights to create a remake of the Film. As mentioned by you, “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″.

    As an author of a cinematograph film, the producer is entitled to the following rights under Section 14 of the Copyright Act:
    (i) to make a copy of the film, including a photograph of any image forming part thereof;
    (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
    (iii) to communicate the film to the public;

    When a cinematograph film has to be adapted, its actually the copyright in the underlying literary and dramatic works (story, script, screenplay, dialogues etc.) that is licensed to create a new cinematograph film. It is usually understood in Bollywood (unlike Hollywood where sometimes writers enter into option purchase agreements for creation of one film only) that the copyrights in the underlying literary and artistic works are owned by the Producer of the Film, hence adaptation rights are issued by the Producer. But, in my opinion it is not adaptation of the cinematograph film, since that right is not available under section 14 of the Copyright Act.
    In light of the new amendments and its retroactive applicability, it will be interesting to see if these licenses are continued to be issued by the Producers or a registered copyright society since the proviso to section 33 clearly states that ..”business of issuing in granting licenses in respect of literary, musical, artistic and dramatic works …..shall only be carried out through a copyright society duly registered under this Act”.

    Reply
  3. AvatarTanveer Verma

    I agree with Kanupriya. It is the underlying story in the movie which would be adapted and not the cinematograph as such. And hence for the purpose of adaptation, a license from the author of the story/ the owner of the literary element of the story, needs to be taken. However, it is alltogether a different thing that in practice, generally, the producer of the movie gets the copyright in the literary element assigned to himself.
    For a further understanding of various copyrightable elements in a work, you may refer to my blogpost here: http://iitlawblog.blogspot.in/2014/01/types-of-copyright-in-comic-book-and_4072.html

    Reply

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