Copyright

Blast from the Past: Krishna Sobti v. Amrita Pritam


In this post, we revive an earlier series initiated by Devika titled “Blast from the Past”. Read here, here, here and here.

No discussion of Indian literature is complete without the mention of Amrita Pritam and Krishna Sobti, two towering creative personalities. These women represent a new generation of women in literature, unafraid of speaking their mind, and unapologetic about portraying female sexuality. Both wrote of the horrors of partition, of politics and religion. Here, we take a trip down memory lane and examine the 27 year long saga of rivalry between these two giants.

Background  

In 1979, Krishna Sobti, a prominent Hindi writer published a novel “Zindginama”, a tale of the dominant elements of agrarian life in Punjabi during 1900-1918. The novel described the life (Zindgi) and time (nama) of Punjab during these years and not the life of any one individual. This book won wide acclaim and even received the Sahitya Academy Award for Hindi in the year 1980.

In 1983, Amrita Pritam, also a Sahitya Academy Award and Gyanpeeth recipient authored a novel called “Hardutt ka Zindginama” in the Punjabi language. This novel gives a life account of Shri Hardutt, an obscure Punjabi freedom fighter who was the only Indian revolutionary to serve a sentence of imprisonment in Siberia.

Both these novels had been widely translated in several Indian languages. On publication of Pritam’s novel, Krishna Sobti filed an application in the Delhi High Court for grant of ad interim injunction against Amrita Pritam and her publishers directing them to delete the word “Zindginama” from the title of the book “Hardutt ka Zindginama”.

Contentions

The Plaintiff claimed that the term “zindgi” is feminine and the word “nama” is masculine and bringing together of two words is an “odd construction” in violation of linguistic convention and thus, the term has been coined by the plaintiff. It was also argued that due to the acclaim received by the novel, the term has acquired a secondary meaning to be associated with the plaintiff alone and the plaintiff has got copyright in the same.

Further, the counsels for plaintiff argued that the impugned title “Hardutt ka Zindginama” in Punjabi, and its translations in Hindi and Urdu and likely to be confused with “Zindginama”, the novel of the plaintiff and prospective readers may be deceived into buying the defendant’s book. Thus, the plaintiff made claims of passing off and copyright infringement.

Questions before the Court

The first question the court considered was whether there can be a copyright in the title of a book. The second question was whether the title “Hardutt ka Zindginama” was being passed off as the novel “Zindginama”.

Interim Order of the Court

To answer the first question, the court looked into English case law and held that it was not necessary to record any finding as to whether there can be a copyright in the title of the book as the real question was whether there was any infringement of the copyright of the plaintiff, assuming her to be so having copyright in that title as part of her work. The court was of the prima facie view that there was no infringement of the copyright of the plaintiff as the titles and subject matter of the books were obviously different. The name of the defendant, a renowned writer, was prominently displayed on the cover.

As to the second question, the court held that “the position regarding the case of the plaintiff for passing off action is rather worse than the infringement action as brought out by the plaintiff.The court felt that the adoption of a certain title might make it a trade mark, to be used exclusively by the author. However, it held that the adoption of the impugned title by the defendant was true to the subject matter i.e. it was the life story of Hardutt and there was no colourable imitation.  Hence, the readers would not be misled or deceived by the impugned title and there was no question of passing off.

The Delayed End of the Saga

This peculiar case has been called many things, but whether we call it a battle of egos or a jealous rivalry, this feud between India’s literary powerhouses was the first of its kind. After the above orders were passed, a protracted trial was held wherein Amrita Pritam produced evidence to prove that “Zindginama” was not used for the first time by the plaintiff and she had heard the word in her childhood. In support of this, the renowned journalist and writer Khushwant Singh deposed as a witness in the case and stated that the expression was used in the Persian language. He further testified that a Persian and Arabic scholar had used the term way back in 1932 and that Guru Gobind Singh’s biography was also called Zindaginama. As Singh recounted later, this testimony earned him the wrath of Krishna Sobti, who reportedly exploded in the High Court, shouting, “Your Honour, don’t believe a word of what he said. He belongs to the same mafia of rich writers”!

Surprisingly, the case files and original manuscripts of the two novels went missing during the transfer of the case from the Delhi High Court to the Tis Hazari court which were never recovered. However, after a 27 year long copyright war, the ADJ in 2011 dismissed the plea on the basis of Khushwant Singh’s testimony alone. The ADJ here found that the words “zindagi” and “nama” were not living creatures and could not be discerned by gender; nama is a popular suffix used in several words such as “mohabbatnama” and “saffarnama”. Hence, the court held that the title “Zindaginama” was not the original literary work of the plaintiff and the trial concluded in favour of Pritam nearly six years after her demise.

Conclusion

In this case, the Delhi High Court in 1984 did not clarify the issue of copyrightability of titles in its interim order. Even though the High Court noted that the title of the book “may” be considered to be trademark, it assumed that copyright lies in the title as part of the novel for the purposes of determining infringement and instead focused on whether there was infringement of the plaintiff’s copyright.

On the other hand, the ADJ correctly reasoned that since the term “zindaginama” did not involve any creativity, the plaintiff could not claim to own or hold the copyright to this title and therefore, no infringement can be said to have taken place. The position of law has been clarified. The Supreme Court in the 2015 judgement of Krishika Lulla and Ors. Vs. Shyam Vithalrao Devkatta and Ors. has conclusively held that no copyright shall subsist in the title of a literary work, unless the title itself can be considered to be a literary work and involve some originality in thinking.

The curtains of this case have been drawn, but 32 years on, it is still remembered to divide the Indian literary clan into two camps. In Krishna Sobti’s own words, It lasted so long that it became a joke.

Image from here.

Avatar

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.

One comment.

Leave a Reply

Your email address will not be published.