The movie Lootcase was recently released on Disney+ Hotstar with considerably positive reviews. However, one day prior to its release the Delhi High Court heard a petition filed by Mr. Vinay Vats seeking interim injunction on the release of the film owing to a copyright infringement claim. The court dismissed the application and declined to grant the injunction. Interestingly, the plaintiff’s claim was based on similarities as apparent in a trailer released by them in 2011 and the trailer of the film Lootcase. The court, thus, had to consider the question of protectability of the theme of a movie, a issue recently in focus due to the Bombay High Court’s decision in the Singardaan case discussed previously on the blog here and here. It is in this context that I analyse the court’s order in the Lootcase dispute on the issue of copyright protection and also its stance on last minute injunctions.
Facts
The plaintiff is the writer of the film Tukkaa Fitt that was completed in 2012 but has not yet been released. However, a trailer of the movie was uploaded on social media websites including Youtube as can be seen here. The official trailer for the movie Lootcase was released on July 16, 2020, and can be seen here. Based on this trailer the plaintiff argued that there were “substantial similarities between the plot of … Lootcase and his script”.
Copyright Protection Based Solely on Trailer of a Film
In the instant case, the court noted that the Plaintiff’s script was never available in the public domain and that “public knowledge of which is being sought to be attributed on the basis of a trailer, for a film which never saw the light of day”. Accordingly, the only element of plaintiff’s work based on which a claim of infringement could be assessed was the trailer of the movie. Given that trailers generally capture only a part of expression of the movie, it is important to note the dicta of the court in R.G. Anand v. Delux Films (‘R.G. Anand’) where the court noted as follows:
“There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.”
As per this, no copyright can exist in mere ideas, themes, or plots of any copyrighted work. It, thus, needs to be assessed whether the defendant had copied the expression of the plaintiff’s work or merely the general theme of it. At this juncture it must be noted that while the Bombay High Court in Singardaan appears to accord protection to the theme of a work, as Anupriya rightly points out, “‘theme’ was used to refer to the rather developed story line”. ‘Theme’ in its general sense to refer to the central idea was held not to be copyrightable.
With the above backdrop, I turn to the similarities in the two works. After watching both the trailers, I believe that the only major similarity between the two of them is that they involve a bag of money lost by a gangster and found by a common man. Apart from this commonality of the abstract theme, there does not appear any similarity in the expression. Rather, based on the trailers, the way both the works express this general theme is significantly different. For instance, Tukkaa Fitt involves experiences of three men with the money, with the female protagonist also attempting to con them. Lootcase, on the other hand, focuses on a middle class man with a family including his wife and his son. In any case, the mere possibility of holding an entire movie to be infringing anyone’s work judged solely by a trailer sounds like an absurd proposition. The hypothetical that a movie with a runtime of 132 minutes can be made based solely on a less than 3-minute trailer sounds highly stretched. This could have led to an infringement only if parts from the trailer were directly lifted and placed in the movie which is not the case here.
Despite the above direct argument, possibly in order to be full proof, the court also goes through the plaintiff’s script to determine if there were any similarities with Lootcase. The only possible reason for doing so would be if there was an allegation against the defendants that they somehow gained access to the plaintiff’s script. This, however, appears to be missing in the instant case. Nonetheless, after going through the script, the court noted that there were considerable differences between the script and the film. Moreover, in relation to the common broad theme, the court rightly highlighted that this “plot idea is as old as the hills” and that it was not the “exclusive province of the plaintiff”. After conducting this analysis, I believe the court arrived at a correct decision to protect the idea-expression dichotomy and the principles laid down in R.G. Anand. A contrary decision would have been against the long standing tenets of copyright law and the welfare theory, and would lead to overprotection.
An interesting hypothetical here would have been if the plaintiff had filed an infringement claim against merely the trailer of Lootcase as against the entire film. In that case the element of absurdity as I mention earlier would have been eliminated and the focus would have solely been on a comparison of the two works. However, the result would still possibly have been the same. While Tukkaa Fitt’s trailer focuses more on the turn of events after the three men find the money, Lootcase’s trailer barely touches upon the movement of money, focusing more on the backstory of the protagonist finding the bag of money and a comical NatGeo punchline. The similarities would again in the broad theme and unprotected. In any case, an action against the trailer would not have achieved much gain for the plaintiff anyways, which is why this issue was not raised.
Last Minute Injunctions
In addition to the discussion concerning the infringement of rights, if any, the court also was averse to grant the interim injunction on the last minute approach of the plaintiff. It highlighted the defendant’s arguments claiming that the promos of Lootcase were in public domain since June 2019 and its story had been covered in print media since September 2019. Even otherwise, the court noted that as the trailer was launched on July 16, 2020, there was “no justification for the plaintiff having approached this Court on the eve of the release of the film” and considered it an example of “misuse of the judicial process”. It cited the Bombay High Court decision in Dashrath B. Rathod v. Fox Star Studios India Pvt. Ltd. (‘Dashrath Rathod’) (covered in an amusing piece by Prateek here) discussing these last minute tactics seeking to pressurise a favourable result, and how neither balance of convenience nor irreparable injury can be ruled in favour of the plaintiff. Based on this rationale, the court rightly refused to grant the injunction against Lootcase “twenty-four hours before it is due for release”.
Interestingly, Akshat Agrawal in his post on IPRMENTLAW has highlighted three more instances of such last minute tactics employed by petitioners and similar rationales adopted by courts. As J. Patel rightly came down heavily in Dashrath Rathod against these last minute injunctions, this facet of using intellectual property to stifle free speech is particularly worrying. The instant case involved a big banner production house that was able to assemble a strong team of lawyers to argue its claim at such short notice. In a hypothetical scenario, however, if there exists disparity in the bargaining powers of parties weighing against the defendant, such a defendant would be in a precarious situation. They might be compelled to enter into a settlement with the plaintiff in such cases to avoid greater loss owing to the possibility of an injunction on the release. This becomes even more problematic in light of the courts’ reliance on the word of the larger party in some cases while granting interim reliefs (I had highlighted one such instance here). In this backdrop, it is good to see the courts giving greater focus on the elements such as balance of convenience or irreparable harm that are necessary for securing interim relief which are usually given a mere lip service in application.
