Copyright

Producers of ‘Youngistan’ accused of infringement


21044_1  According to Bollywood Hungama, PepsiCo. sent a legal notice to the producers of the upcoming movie ‘Youngistan’ alleging copyright infringement of its tagline – “Yeh Hai Youngistan Meri Jaan”.  Livemint, in its report dated 20 February 2014, stated that PepsiCo had now moved court claiming trademark violation. According to the report, PepsiCo sought a permanent injunction against the release of the movie, which is expected to hit theatres on 28 March 2014. Also, the matter has been listed for further hearing on 24 February 2014. As evident from above, while one report cited copyright violation, the other cited trademark violation. In spite of my best efforts, I couldn’t obtain the trademark registration details of “Yeh Hai Youngistan Meri Jaan” from the registry. I am, therefore, making some prima facie observations regarding this claim in the light of Delhi HC judgment in India TV v. Yashraj Films (August, 2012). The aforesaid judgment held that the principle of de minimis non curat lex (“de minimis”) applies in copyright law as a valid defence to a claim for copyright infringement. Amlan covered this judgment here. Assuming the veracity of the reports, I am inclined to doubt the tenability of the claim in the light of the aforesaid Delhi HC judgment. I cannot, however, arrive at a conclusive opinion in the light of incomplete facts. My intention, therefore, is to flag the de minimis principles and make certain prima facie observations.

The Delhi HC judgment in India TV v. Yashraj Films is a significant judgment in copyright law. The judgment went a long way in ironing out the creases and defining the contours of de minimis principle. As held by the Court, “the Rule of Law loses its meaning if it does not run close to the Rule of Life. Trivial prima facie violations of copyright are commonplace…Three features of the Copyright Law are largely responsible for this. First, any type of work that is fixed and contains even a modicum of creativity is copyrightable. Second, copyright attaches to these works automatically without the need for registration. Third, the statutory rights of copyright owners are wide. Thus, every photograph taken by a tourist which includes an advertisement or an artwork would technically be a copyright violation.  Even singing Happy Birthday at a restaurant would be a copyright violation. Absent fair use, all these people would be violating the law.” (Paragraphs 52 and 53). Further, “It is not in society’s best interest to adjudicate these copyright disputes because ultimate compensation paid would not justify public expenditure in the adjudicatory process.” (paragraph 54)

The principle of de minimis enjoys certain advantages in copyright law viz; i) the fair use concept is a bad theoretical fit for trivial violations; ii) de minimis  analysis is much easier; and iii) de minimis  determination, being less time consuming, is in everybody’s interest. The judgment set out the factors commonly considered by courts in applying the principle: (i) the size and type of the harm; (ii) the cost of adjudication; (iii) the purpose of the violated legal obligation; (iv) the effect on the legal rights of third parties; and (v) the intent of the wrongdoer 

Presently, I can only comment upon the first factor viz; the size and type of the harm. It is alleged that “Youngistan” was copied from “Yeh Hai Youngistan Meri Jaan”.  It is pertinent to note that the Delhi HC, in the aforesaid judgment in India TV v. Yashraj Films, held that the use of mere five words from a song having five stanzas (some of which are repeated twice in the song) was considered to be a trivial harm. The judgment recognized the confusion regarding the role of de minimis in the substantial similarity analysis. The judgment, however, did not dismiss the substantial similarity test altogether even though it decided to use de minimis, as applied in other areas of law, in case of copyright law. I am, therefore, of the view that the substantial similarity analysis can be a useful tool (though not a decisive tool) in analysing the first condition. As held, “Courts have identified two types of substantial similarities: (i) Comprehensive non literal similarity; where Courts have strived to identify the “fundamental essence of the structure” and it being copied, even where specific expression is not copied.  (ii)  Fragmented literal similarity, in which bits of specified expressions are copied, but the overall structure is not. It is in the latter, that Courts have employed de minimis; holding that substantial similarity is present only if the amount of literal expression copied is more than de minimis. Thus, de minimis used in these cases is simply the opposite of “substantial similarity” i.e. to say that the use is de minimis  is to say that the alleged infringing work  is not substantially similar to the original.” (Paragraph 25)

If “Youngistan” can be proved to be the fundamental essence of the advertisement “Yeh Hai Youngistan Meri Jaan”, PepsiCo may have a case. I am inclined to perceive it as an arduous task. I am inclined to perceive the instant fact situation as more a case of fragmented literal similarity. Presently, I cannot comment upon other factors in the light of incomplete facts. For instance, if the storyline of Youngistan is directly upon the theme of the advertisement, it may tilt the balance in favour of PepsiCo – as it is relevant for discerning the intention of the wrongdoer. I can, therefore, only opine that the (alleged) mere copying of “Youngistan” is not enough – if this allegation has to be taken to its logical (legal) conclusion. .

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Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

2 comments.

  1. AvatarRajesh

    As the tagline or the word Yongistan are not registered trade marks, cant Pepsi move initiate trade mark passing off action?

    Reply
  2. AvatarShashank Mangal

    Regarding trademark dispute, even if it is assumed that Youngistan is a registered trademark, it must have been registered under under class 32 (non-alcoholic drinks) or class 35 (.Advertising) which is not enough for suing the movie producers as movie is an entertainment service under class 41. Also, youngistan is not a well known trademark anyway. And if pepsi has registered it under all the classes then also an application under s. 47 may lie for non use with respect to class 41.

    Regarding copyright, i agree with the de minimis principle and think that word monopoly is the last thing we should go for.

    Reply

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