Copyright

Kriti: “Creation” or Copy?


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On the 22nd of June, a short film named “Kriti” was released on YouTube amongst much pomp and flare. Kriti is a psychological thriller directed by Shirish Kunder, and stars Manoj Bajpayee and Radhika Apte. The film crossed over a million views on YouTube within two days of its release

However, on 24th June, a Nepali filmmaker, Aneel Neupane put up a plea on Facebook, alleging that Kriti was a copy of his short film, BOB! According to Neupane, he shot the film in 2015 and uploaded it to Vimeo about 7 months ago for a closed circle circulation. In his post, Neupane wrote that while he was flattered that the Indian film industry was imitating the work of Nepali filmmakers (it’s usually the other way round), he was upset that Kriti got more attention, and better sponsorship, whereas he himself had to shoot his film on a shoestring budget. Watch BOB here.

Responding to this, Kunder has claimed that he shot Kriti in February 2016, whereas BOB was released on YouTube in May, 2016. He further claims that he did not have access to the private Vimeo link and any similarity is a mere “co-incidence”. This is not the first time that allegations of plagiarism have been made against Kunder. His 2012 flop venture “Joker”, starring Akshay Kumar was also criticized for being heavily inspired from a number of Bollywood and Hollywood movies.

While the claims of either filmmaker are yet to be verified, and it is unclear how Kunder could have had access to BOB, it is certain that the similarities between the films are rather suspicious. Both protagonists suffer from schizophrenia, and doubt whether certain women in their lives actually exist. The opening shots of the films are almost identical; both take place in a psychiatrist’s office, with emphasis on the framed certificates and awards adorning the walls. However, the endings of the films are very different.

13516560_1044462418952717_5304899679923199320_nMeanwhile, according to reports, Kunder has sent a legal notice to Neupane claiming that he has not infringed his work; he alleges that in fact, the script of Kriti has been doing rounds for quite some time, and if any similarity exists, it was Neupane who copied Kunder’s work! Kunder has even sought an unconditional apology from Neupane for making defamatory remarks.

As of 29th June, “Kriti” has been removed from YouTube due to Neupane’s copyright claims. Further, fresh allegations against Kunder have come to light. Is it alleged that the poster of Kriti is copied from the poster of a 2015 Japanese horror movie, Gekijô rei or “Ghost Theater”.  (image from here)

Legal Questions [Warning: Spoilers ahead]

Firstly, the question arises: Is this a mere similarity in general theme or is it a substantial copy? As we know, there is no copyright in ideas, but only in their expression. In Zee Telefilms Ltd. vs Sundial Communications Pvt. Ltd., the court held that even though idea per se is not copyrightable, the concept of an idea may be protected, especially if it original and highly developed. In my opinion, here, the similarity goes beyond the general idea or subject matter as the scenes are similar, and so are the characters. While schizophrenia is often depicted in cinema, the plotline is substantially similar in that both protagonists murder their girlfriends under the false impression that they are merely figments of their own imagination. This concept is neither a cliché nor a commonly used theme in cinema.

Secondly, would the lay observer’s test be applicable here? This test was laid down in R.G. Anand v Delux Films and Ors. According to it, if after viewing both works, an unmistakable impression is made upon the mind of the viewer that the subsequent work is a copy, infringement shall lie. After I viewed both the films, I did see startling similarities between the two. I could immediately associate one with the other.  That being said, I do not think either BOB or Kriti can be said to be a “copy” of the other in the true sense of the term. At best, one can be considered “heavily inspired” from the other.

Thirdly is it relevant whether Kunder had access to Neupane’s work, or vice versa? This is known as the proof of access test. Since direct evidence of copying is rarely available, the courts take into account the circumstantial evidence of the defendant’s access to the plaintiff’s work. In this case, the question of access is tricky and each filmmaker must prove that he had no access to the other’s work and came up with the plot independently. This test has been discussed in Twentieth Century Fox Film v Zee Telefilms Ltd. & Ors, which we’ve previously covered here.

Fourthly, is it relevant that the movie was released on YouTube to be viewed freely and there was no “commercial exploitation” of the work? In my opinion, this shall not be very relevant, although it is not likely that heavy damages can be demanded. This is primarily a question of moral rights and reputation. This situation cannot be covered by the fair use doctrine. Reference may be made to online piracy, where the infringer is held liable even if he uploads the copyrighted work without any expectation of profit.

However, since this is more a question of asserting moral rights than commercial rights, it is unlikely that this case will see its day in court. However, if it does, it would be interesting to see how this battle of pointing fingers plays out!

(Images from here and here)

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Vasundhara Majithia

Vasundhara Majithia is a fifth year student at National Law University, Jodhpur and a Senior Content Editor at the Journal of Intellectual Property Studies (JIPS). Intellectual property was introduced to her in her third year and she hasn’t quite gotten over it since. Her interests include an eclectic mix of Intellectual Property, Trade laws, Constitutional law, and commercial laws. When not frantically blogging, she can be found nose deep in fiction, researching serial killers, or cooking to escape hostel food.

3 comments.

  1. Harshavardhan Ganesan

    Just curious, is the term “heavily inspired”, used in the legalease sense here? Is there a difference legally, between “copied from”, “heavily inspired”, “based on” etc?

    Reply
    1. Harshavardhan Ganesan

      And just adding onto that, is the term “commercial exploitation” denoting whether the viewers pay to watch the audio-visual depiction, or whether the filmmaker/producer receives any money for his work? This can occur in the case of uploading something onto YouTube, where it is free viewing, but the filmmaker can still profit through ads etc.,

      Reply
      1. Vasundhara Majithia Post author

        Sir, I thank you for your query. To clarify, I did not use the term “heavily inspired” in a legalese sense. I have not come across this phrase in any order/judgement. However, the courts have often drawn a distinction between a copy and works that use similar plots/themes. Here, the idea/expression dichotomy comes into play. As the courts have reiterated time and again, there is no copyright over ideas. Hence, in cases of infringement, the courts try and determine whether the expression was reproduced (thereby making it a copy) or whether certain themes/ideas were similar (thus being an inspiration). In the case of Barbara Taylor Bradford v Sahara Media Entertainment Ltd., the Calcutta High Court said,
        “Therefore, even if the plot is copied, the person who copies it, be it consciously or unconsciously, must also weave into the plot sufficient creations of his own imagination and literary skill, to make the work his own and not a copy of the work which might have inspired him in the first place.”
        In this judgement, the court takes the example of Satyajit Ray’s “Ganashatru” which was “inspired by” Henrik Ibsen’s “An enemy of the people”. The central story of both the works is the same. With respect to this, the court said,
        “A superficial examiner would say from a comparison of the play and the movie, that the film has been copied. That might be the reaction of the layman, no doubt. But it is not a copy, according to the copyright lawyer. Although the central theme is the same, it is but an idea. The idea is novel and no doubt the idea is central to the creation of a dramatic conflict.”
        Further, your query about the commercial exploitation aspect played on my mind as well when I was writing this post. I viewed both the videos several times and did not come across any advertisements in either. Hence, to the best of my knowledge, the filmmakers did not stand to make any profit from their work.

        Reply

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