Singardaan Copyright Case: Bombay HC’s Novel ‘Extraction’ – Substantial Similarity Test

We’re pleased to bring to you another guest post by our Fellowship applicant Anupriya Dhonchak, analysing the Bombay High Court’s interim order in a recent copyright infringement suit filed by a story writer against a web series ‘Singardaan’. This post is a follow-on to Arun’s earlier post on this decision.

Anupriya is a 4th year law student at National Law University, Delhi. Her earlier posts on the blog can be viewed here, here and here.

Singardaan Copyright Case: Bombay HC’s Novel ‘Extraction’ – Substantial Similarity Test

Anupriya Dhonchak

Recently, the Bombay High Court in Shamoil Khan v. Falguni Shah held that copyright protection subsists in the theme, plot and story line constituting the essence of a literary work (see Arun’s post on this decision here). The plaintiff wrote a story titled ‘Singardaan’ in Urdu which was published in a literary magazine in 1993, translated in Hindi in 1994 and subsequently also published in the plaintiff’s own collection of short stories in 1996. He alleged that the defendants’ web series under the identical title, ‘Singardaan’ launched on the App ‘Ullu’ and available on YouTube copied his story’s plot, narrative, characters and title. He sought damages as well as a temporary injunction restraining the defendants from telecasting the web series.

Analysis

Previously, while discussing the case, Arun noted that this order highlighted difficulties in thematic protection and was at odds with precedent. He expressed concern that deeming the theme itself to be copyrightable expression would be a significant expansion of the scope of copyright protection. I argue that one way of dealing with this is to construe the ratio of the case to be strictly applicable to the material facts relevant therein. This is because the Court noted that the ‘theme’ of a literary work, used in the general sense of the word to refer to an abstract central idea, was considered to be uncopyrightable by the Bombay High Court in XYZ Films v. UTV and the Supreme Court in R.G. Anand v. Delux Films. However, the Court in Shamoil Khan has admittedly used ‘theme’ in a rather different sense to refer to the story line, central idea and character trajectory expressed together, which was sophisticated enough to merit copyright protection. In fact, ‘theme’ was used to refer to the rather developed story line of a Hindu man taking away a Singardaan (vanity box) from a Muslim sex worker in a brothel to his home during communal riots and its use by the women at his home leading to changes in their behaviour was expressed sophisticatedly enough to warrant protection.

For the first part of its inquiry, the Court tried to distinguish the protectable, fleshed out expression from the abstract idea in the plaintiff’s story. In doing so the Court did not really engage in a dissection but only provided one illustration regarding the commonness and unprotectability of the idea of the use of an artefact or belonging, which typically when separated from its actual owner, has the potential to change the behaviours or lives of people who subsequently possess it. It noted that this idea in itself was free to be used by anyone provided they contextualised it within a different story line than that of the plaintiff.

I imagine that at least some of the thematic similarities in the two works regarding encounters with a sex worker and the outbreak of communal riots can hardly be called original. Multiple writers in India and Pakistan such as Saadat Hasan Manto and Khushwant Singh have written stories around this theme. Even post-independence, memories of the bloody history of partition of India and continuing strife between Hindus and Muslims has been used to politically incite riots rendering any semblance of communal harmony fragile. The literary preoccupation with this trope may have something to do with providing visibility to those at the margins. The heightened vulnerability and strength of the sex worker in times of political turmoil and violence such as riots proves to be a site that repeatedly captures the imagination of the audience and creators alike. Thus, it is akin more to a stock device than copyrightable expression. However, the plaintiff’s story line which was allegedly copied in this case was considerably more sophisticated than this. In fact, it was the uniquely creative combination of situations and stock devices which is protectable as an arrangement on the whole instead of the unprotectable ideas that constitute it.

For the second part of the inquiry, qua the defendants’ copying of a substantial part of the plaintiff’s story, the Court held that the web series contained all the essential parts of the story. It came to this conclusion noting that it would have been obvious to anyone who had read the story that the web series was only an adaptation of it. This is somewhat similar to the conclusion suggested by Arun of referring to the “total concept and feel” of the works from an average lay observer’s viewpoint (as per the United States Court of Appeal, Second Circuit in Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc.)

This also risks significant expansion of the scope of copyright protection since the ordinary viewer is tasked “with the impossible task of comparing only protected expression in determining substantial similarity without engaging in any thoughtful dissection or analysis of the work.”. It risks over protection because in coming to a conclusion that the web series is obviously an adaptation of the story, the ordinary viewer (as opposed to an expert) is likely to be influenced by concerns of unfair competition and free riding by the defendants on the plaintiff’s work. However, copyright law is not concerned with unfair competition but only with taking someone’s protectable original intellectual effort without authorization.

Further, the Court was also incorrect in its reasoning that the differences drawn up by the defendant between their web series and the plaintiff’s story were not crucial because they constituted ‘mere embellishments’ whereas the story line of the plaintiff was the ‘life and blood’ of the web series. This is because the ‘life and blood’ of the web series is irrelevant to a finding of substantial similarity and copyright infringement. Even if the web series had used the story as an ancillary trivial part of a larger plot whose ‘life and blood’ was something else, if the Court has concluded that the story used was a substantial part of the plaintiff’s copyrightable expression (as it had in this case), it would still result in a finding of infringement. It is pertinent to note Justice Learned Hand’s famous observation here, “[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.” This also shows that instead of any studied dissection or expert opinion, the court proceeded on a general overview based on an average lay person’s point of view regarding the two works instead of a studied dissection which has the potential to result in broad findings, risking over protection.

Conclusion

Finally, the good thing about this order is the Court’s candid acknowledgement of the difficulty in the ‘delicate task’ of applying the idea-expression dichotomy in practice, ultimately based on a value judgment of the right degree of abstraction. These ambiguities can risk over protection and are likely to be interpreted to the disadvantage of less powerful parties who don’t always have the wherewithal to make their constructions prevail. Thus, as suggested here, it might make sense to remedy the vagueness of substantial similarity tests by informing them with fair use considerations and IP first principles of tolerating monopolies only when and insofar as they incentivise dissemination and creation, including creation of new works by downstream users.