We have in the past covered innumerable instances of copyright infringement allegations brought against Bollywood movies either from major Hollywood studios or producers in the south. To bring yourself up to speed, read about the My Cousin Vinny dispute here, the Knockout dispute here and here, the Ladies v Ricky Bahl controversy here, the Ghajni-Memento controversy here, or the Hitch-Partner dispute here.
The latest to be added to the list is UTV’s recently released mega hit Baaghi, last heard it had raked in 100 crores at the box office. The Bombay High Court in XYZ Films v UTV (order passed on April 21, 2016) held that UTV was not liable for copyright infringement.
Before we dig in to the legal aspects, a brief background would be useful. The case essentially involves two films, The Raid: Redemption and Baaghi. The Plaintiffs (XYZ and two others) contended that the whole of the movie, The Raid: Redemption has been copied and compressed into the last twenty minutes of Baaghi. The Plaintiffs contended that once they saw the trailer of Baaghi, they were alarmed by the similarities between their film and Baaghi and filed a case for copyright infringement. For those of you who have already seen The Raid: Redemption and would like to compare for yourselves, the trailer of Baaghi is available here.
And for those of you who haven’t seen Raid: Redemption (warning: its all guts and gore), the movie is about a group of policemen entering a tall multi storied building to defeat the criminal overlord who controls the building from the 15th floor. To get to him the police team have to defeat criminals at every floor of the building, especially defeat two of his best and trusted henchmen. The Plaintiff alleged that this concept, is unique to the film and has been copied in Baaghi.
As has been held in numerous similar cases, which have been discussed on this blog, Justice Patel held that it is the expression of an idea and not the idea alone that is copyrightable. The Plaintiff could not claim copyright over a ‘central theme’ or ‘concept’.
“I must agree with this view that there is, generally speaking, no copyright in the central idea or theme of a story or a play. It subsists in a combination of situations, events and scenes which, working together, form the realization or expression of that idea or theme. If this combination is totally different and yields a completely different result, the taking of the idea or the theme is not copyright infringement. To my mind this would seem to apply almost exactly to the case at hand.”
Bollywood and Copyright Infringement
It is nearly impossible to prove copyright infringement in Bollywood movies particularly because any Bollywood movie has to generally follow a specific format which entails the song and dance routine and any story needs to be substantially altered to fit into that mold. As Prashant argues here, the only way a producer can be held liable for infringement is if several sub-plots of the movie have been copied scene to scene, i.e. not only has the idea been lifted but also the expression of the idea and given the Bollywood movie format this would be nearly impossible to prove in most cases.
The development of the ‘average viewer’ test
In RG Anand v Delux Films, (1978) 4 SCC 118, the Supreme Court laid out the basic principles to keep in mind while determining whether a copyrighted work has been infringed. We had previously discussed the guidelines here in connection with the Ghajini/Memento controversy. One of the principles for determining copyright infringement laid down was the opinion of the viewer, the court had held:
one of the surest and safest tests to determine whether or not there has been violation of copyright is to see if 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
Though, it is rare to find Indian courts upholding copyright infringement in Bollywood movies, there have been a few instances where the courts have found prima facie infringement.
In Zee Telefilms Limited v Sundial Communications Private Limited, 2003 (5) Bom CR 404 (which was also cited in the Baaghi case) the court drew a distinction between an ‘idea’ and ‘concept of an idea’. The court stated that merely because some of the components of the story are common or in public domain, the concept or idea does not become incapable of protection.
The court laid down two tests to determine copyright infringement
One, what is the impression created on the average viewer; and
Two, The substance/kernel assessment test- that involves assessing the impact of the infringing portion on the rest of the work. If the work can stand without it, then no copyright infringement has occurred but if the copied portion is so integral to the entire work that if it were expunged the rest of the work would become meaningless then copyright infringement is said to have occurred.
Justice Patel while applying the above test stated that the fight sequence at the last twenty minutes cannot be said to constitute the ‘kernel’ of Baaghi. The ‘kernel’ of Baaghi in fact was filial duty, of fighting for one’s love against all odds. Everything else is secondary, and none of this is even remotely suggested in The Raid: Redemption.
While Justice Patel’s observation is true, I think what he has compared instead of the infringing work itself is the ‘kernel’ of the story line. I think it is undisputed that the story line of Baaghi and Raid are completely different. The question really is, is the fight sequence in the last 20 minutes of the movie so integral to Baaghi that without it the movie would cease to make any sense? The answer is probably subjective.
I’ve seen both the movies and am not a fan of either. The Raid is much too gory for my liking and Baaghi though a little silly is entertaining enough. Baaghi doesn’t have anything novel going for it that you haven’t seen before. I watched both the movies first and then read the judgment and I watched Baaghi before Raid. While I was watching Baaghi, I kept trying to predict which part of the movie could perhaps be the infringing part and I have to say the only portion that seemed like it could have been copied were the last 20 minutes in which Tiger Shroff breaks in to the multi storied building to kill the villain. The last 20 minutes in fact appeared to be the only novel part of the movie and sure enough they also formed the crux of the copyright infringement case (although, apparently the rest of the movie is also a remake of a south Indian movie, Varsham).
I don’t think the last 20 minute fight sequence was so substantial to the story line of the movie that had it been expunged the rest of the movie would have ceased to make sense, even if the villain had not been housed in the multi storied building and the fight had taken place somewhere else it wouldn’t have made much difference to the movie, but I sense it might have made a difference to the makers. One look at the trailer of the movie and you realize that the entire movie was being marketed on the basis of the action sequences in the last 20 minutes of the movie. Clearly that last 20 minute fight scene was integral to the makers since it formed an important basis of their marketing strategy. The allegedly infringing scenes formed the very basis on which crowds were being pulled in to watch the movie!
In Twentieth Century for Film Corporation v Sohail Maklai Entertainment Private Limited, 2010 in granting an injunction in favour of the Plaintiffs against the film Knockout, the Bombay High Court held that it is the quality of the copied work and not the quantity that determines infringement. Therefore, even though the allegedly infringing work constitutes only 20 minutes of Baaghi, surely that shouldn’t make a difference.
But perhaps we will need to wait for the next copyright judgment to deal with this. Isn’t one of the intentions of copyright law itself to promote creativity? All that the makers of Baaghi have done is shown us a creative way of avoiding copyright infringement by remaking one three quarters of a south Indian movie along with one quarter of an Indonesian-Hollywood movie and there you have it same idea, different expression but no creativity.
Finally, shouldn’t a large production house like UTV be held to a greater degree of responsibility, can they really claim to be ignorant of movies like Raid and if they do that wouldn’t that indicate a larger malaise within the movie industry?
Image from here