Copyrightability of Titles: A Definitive Supreme Court Ruling

The issue of IPR protection for titles (film, music etc) is something that we have often discussed on SpicyIP (We had a guest post on copyright protection for film titles- available here, Anubha discussed trademark protection for song titles here). But today, we bring to you the Supreme Court ruling pronounced yesterday by the bench of Justice Lokur and Justice Bobde in Krishika Lulla v. Shyam Vithalrao Devkatta on this very issue. The Supreme Court has held that generally, there would not be any copyright protection for titles of literary works. Such protection can only be claimed in exceptional circumstances, where the title itself was of an inventive nature.

desi-boyz-25aThe facts in Lulla were thus: The respondent wrote a synopsis of a story named ‘Desi Boys’, which was circulated through email to two other persons. The respondent then saw promos of a film named ‘Desi Boyz’ which was subsequently released throughout India on 25. 11. 2011. The respondent now claims that the appellants had infringed upon his copyright in the title ‘Desi Boys’ through their film. It must be noted that the respondent has neither viewed nor made any claims with respect to the film infringing upon his copyright in the story ‘Desi Boys’.

The issue for determination was whether copyright subsists in the title of a literary work, ‘Desi Boys’ in this instance. The Court noted that S. 13 of the Copyright Act, 1957 provides protection for original literary works. The Court stated that a mere title cannot be considered a ‘work’ as it was incomplete in nature. The term ‘work’ refers to the main content and not the title. Moreover, it noted that there was nothing literary about or original in the title ‘Desi Boys’ which is composed of two commonly used words in India. Therefore, the Court held that the title ‘Desi Boys’ cannot be considered a literary work and that no copyright would subsist in it under S. 13, Copyright Act, 1957.

Moreover, the Court referred to precedent from the Madras and Delhi High Courts as well as foreign Courts which evidenced the well- settled position that there can be no copyright in the title of a work. The Supreme Court therefore, held thus: “We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R said “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention” or as observed by Copinger (supra). In the present case we find that there is no copyright in the title “Desi Boys” and thus no question of its infringement arises.

Therefore, the Supreme Court has now definitively held that there can be no copyright protection for titles of works under normal circumstances. This is a correct approach, according to me, as copyright ought not to be used to obtain a monopoly over common expressions and thus stifle multiple forms of expression.

PS: The problems associated with granting IPR protection to common expressions, was discussed in the context of trademarks, by Justice Gautam Patel, available here. It is a well- reasoned judgment of the Bombay High Court that deals with this issue in detail.

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