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.
Meanwhile, 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!