The Bombay High Court, in its recent judgment in Mansoob Haider v. Yashraj Films Pvt Ltd, refused to grant interim injunction against release of “DHOOM 3” via satellite broadcast. The judgment reaffirmed the principles laid down by the Supreme Court in R.G. Anand v. M/s. Delux Films & Ors. This post shall focus on the principle of law involved in this case. At the outset, I would like to commend Justice G.S. Patel for his clarity of thought which is reflected in this judgment.
Background & Judgment
The Plaintiff is the author of the film script “ONCE”. It is claimed that the recently released film “DHOOM 3” infringes the Plaintiff’s copyright in the aforesaid script. The Plaintiff sought an order asking for credit in the titles of the film and interim injunction against release via satellite broadcast. The film was already released in December 2013. It was also released in various other media and forums for which the Plaintiff did not obtain any injunction. According to the Plaintiff, the script was handed over to the Defendant in early 2010 for their perusal which was later used by the Defendant for “DHOOM 3” without the consent of the Plaintiff.
Principle of law
I shall first set out the broad contours of the scripts of “ONCE” and “DHOOM 3”.
“ONCE” – “There are two sons, one of whom is adopted. One son suffers from a disability wherein he has only three fingers. Their father (the putative father of one of the two sons) was a magician. The natural son resents his parents doting on the adopted son. One son is a successful crime novelist. The father is killed. The natural son attempts to “frame” the adopted successful son by contriving a series of murders that follow almost exactly those described in his crime novels. A police detective and his assistant attempt to track down the real killer. The identities of the two brothers are confused. A telling wound on one is not seen on the other. The script culminates…… in an exchange between two brothers.”
“DHOOM 3” – “A magician in American has twin sons…Their father is also a magician. He commits suicide because a bank refuses to defer repayment of his dues. The film moves ahead by several years (also said by the Plaintiff to be a feature common to his script). Several decades later the bank is repeatedly robbed. An inspector and his assistant from India attempt to capture the thieves. It is then later revealed that the thief has a twin, and that the two twins together have been robbing the bank, and using the money to revive “the Great Indian Circus” that was once their father’s dream. In this film too, a wound on one brother is not seen on the other. Despite an attempt to drive a wedge between them, the two brothers remain united to the end.”
The Court was of the view that the two rival narratives unfold differently. There are certain undeniable commonalities. For instance, there is a magician who has two sons who resemble each other or are twins. But they are not themselves entirely original conceptualizations or expressions. Each of these is a well known, recurrent and common theme in literature and cinema. Further, “….the Plaintiff attempts a dissection of the rival narratives and on that basis claims that there has been plagiarism. Now in assessing this contention, I do not believe it would be correct to look at every single small item as set out. For example, the Plaintiff contends that one of the similarities is “the cop and his assistant go to the place and wait at the place where the robbery is going to happen to catch the magician’s son (bank thief)”. This is in the movie. The corresponding portion of the script, according to the plaint, is exactly the same except that bank thief is replaced by murderer. There are several such examples. Even on first principles, it is not possible to accept this formulation. Any person can draw such parallels and then say that the rival work is an infringement. But it needs to be shown that these various ingredients are in themselves original. The example I gave is one of several. It is of the species known as scene a faire, logical consequences of common actions or sequence of events that must necessarily follow from a common theme.”
The Court rightly relied on the Supreme Court judgment in R.G. Anand v. Delux (“R.G. Anand”) which is the settled legal position. I shall summarise the relevant ratio decidendi of this important SC judgment:
a) There can be no copyright over idea. Following the same logic, there can be no copyright over subject matter, themes, plots or historical or legendary facts. However, one can enjoy copyright over the form, manner, arrangement and expression of an idea.
b) When the sources of two expressions are common, similarities are bound to occur in them. “In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal limitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.” Further, “where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.”
c) The judgment set out an intrinsic test for determining copyright violation i.e whether or not 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.
d) As violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence.
Applying the principles in R.G. Anand, the High Court rejected the application for grant of interim relief. The Court held as follows: “It has been accepted as a matter of law that the identity between the two works must be substantial. The appropriation must be of a substantial or material part of the protected work. Infringement exists when a study of the two works plainly shows that the answering defendant’s work is a transparent reproduction (or translation into another medium) of the plaintiff’s protected work. Coincidence or similarity may be due to one or more of several factors. Mere chance is only one of them. They may both have a common inspiration or source. To claim copyright in the expression of an idea, one must be careful not to attribute copyright protection to the narration or use of what I will call standard or stock incidents such as those that abound in everyday life, history and traditional fiction. For instance, in order to establish that a particular scene from a particular film is set in Bombay, a film-maker may choose to show a view of the CST Railway Station. The fact that he has done so does not mean that no other film-maker can do so. That level of protection would be absurd and would result only in stifling creativity. That is not the intention of copyright protection law. What the law protects is originality. It may be originality in the expression of one particular idea or in the juxtaposition of a series of ideas, but these must be shown to be not only original but also to have been copied in order for an action to succeed. Where, on the other hand, it is demonstrable that the two works are materially different in what they intend to portray and the manner in which they do it, the coincidence of certain elements, especially if they be of the ‘scene a faire’ variety, will not constitute copyright infringement. Here, the very idea of the two works is different; so is their premise, their story line, their plot line. On the R.G. Anand tests, the Plaintiff must fail.”
The Court held that the Plaintiff failed to meet the requirements for grant of interim relief namely prima facie violation of copyright, irretrievable injury or prejudice and balance of convenience. The Plaintiff couldn’t prove, in the light of the film having been released widely already, how its present proposed distribution via satellite will in any way prejudice the Plaintiff any further. Moreover, the Plaintiff couldn’t prove that the script was seen by the Defendant. Further, the Court took adverse note of the discrepancies in the stand taken by the Plaintiff at various stages (like the discrepancies between the plaint and rejoinder filed before the Court) and his delay at various stages for pressing the claims.
The judgment re-affirmed the principles laid out in R.G. Anand. Further, there can be no copyright in elements that constitute scene a faire genre. It is a French word which means “scene to be made” or “scene that must be done” connoting a scene in a book or film customary to the genre. For example, a robbery followed by a chase will fall under scene a faire.
The Plaintiff lost out on all the vital issues: a) couldn’t prove that the Defendant had access to his work; b) failed on intrinsic test; and c) couldn’t prove that there was substantial and material overlapping or commonality of the original elements in the plaintiff’s work. As the Court observed, “the Plaintiff had an additional burden to show how the release of the film on television channels via satellite broadcast will so prejudice him that an injunction must be granted.” This judgment reflects only a prima facie evaluation of the facts in hand. Even then, this is definitely a major setback for the Plaintiff. As violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence. Therefore, the Plaintiff may consider conducting a legal due diligence at this juncture before deciding on the future course of action.