We’re pleased to bring to you a guest post by Shivam Kaushik, analysing the Telangana High Court’s order granting an interim injunction restraining the release of the film ‘Jhund’ in October this year.
Shivam is a 5th year law student at Banaras Hindu University, Varanasi. He’s previously also written guest posts for us, titled ‘Copyright and Webinars: Ownership, Licensing and Fair Use’ , ‘Govt’s Draft Model Guidelines on Implementation of IPR Policy for Academic Institutions – A Critique‘, ‘Reengineering of the Requirement of Disclosure of Foreign Applications by the 2019 Patent Manual‘ and ‘Are Orbital Transfer Trajectories Patentable?‘
‘Jhund’ Injunction Order: Copyright and Personality Rights in a Real Life Stories
In October this year, the Telangana High Court in Super Cassettes Industries Pvt. Ltd. (T-Series) & Anr. v. Nandi Chinni Kumar & Ors. passed an interim injunction restraining the release of the movie ‘Jhund’ due to potential copyright and personality right infringement. An appeal against the order of injunction passed by the High Court was also dismissed by the Supreme Court last month, without hearing the case on merits. This post examines the Telangana High Court’s decision which deals with copyright and personality right over real-life events and the life story of a person.
The case pertains to one Akhilesh Paul (Defendant No. 1), who was once a petty criminal but later became the captain of the Indian team in the 2010 Homeless Football World Cup. That team led by Defendant No. 1 was coached by Vijay Barse (Defendant No. 2). Thereafter, Defendant No. 1 got into a ‘Life Story Rights Agreement’ with the Plaintiff Nandi Chinni Kumar and also issued a ‘No Objection Certificate’ along with a ‘Declaration Letter’ granting Plaintiff the exclusive right to make a biopic/ feature film on his real-life story. The Plaintiff, after some improvisation in the life story, got a script registered with the Telangana Cinema Writers Association. Meanwhile, T-Series/ Super Cassettes (Defendant No. 3) decided to make a biopic on the life of Defendant No. 2 titled as ‘Jhund’ (‘Film’). When the Plaintiff got wind of it, he sought injunction contending that he holds copyright over the true-life story and life events of the first Defendant.
High Court’s Decision
The High Court came to the conclusion that there are distinct similarities in the plot, depiction, the life and story of the protagonist of the Film with the registered script of ‘Slum Soccer’ (para 109 of the decision). The Court restrained the release of the film holding that the Plaintiff has shown a strong prima facie case as to the existence of a right and also a prima facie case as regards infringement (para 110).
The Court based its decision on two grounds. First, the admission of Defendant No. 3 where he admitted giving an amount to Defendant No. 1 to obtain rights to incorporate the character of 1st Defendant in the film. This monetary transaction was made after Defendant No. 1 had already assigned the same ‘exclusively’ to the Plaintiff. The Court reasoned that it cannot be doubted that Defendant No. 1 shared his life story with Defendant No. 3 which he had already shared with the Plaintiff too. Thus, there is a ‘a probability’ that the ideas, expression, manner, arrangement, additions or embellishment made by the Plaintiff to the life story events of the Defendant No. 1 came to the knowledge of Defendant No. 3 (paras10 & 89).
The second ground that the Court relied upon to support its conclusion was the ‘right of publicity’ of Defendant No. 1. The Court concluded that Defendant No. 1 is, prima facie, a celebrity sportsman therefore as per the dictum of the Delhi High Court in Titan Industries v. Ram Kumar Jewellers (2012) Defendant No. 1 has a commercial and proprietary interest in the profitability of his name or photograph. The Telangana High Court, relying on the right of publicity ruled that since the right of publicity of Defendant No. 1 was exclusively assigned to the Plaintiff, it appears that Defendant no. 3 prima facie violated it by making the movie (paras 95 & 96).
The line of reasoning adopted by the High Court apparently seems unfeasible and erroneous. The first reason adopted by the Court appears to be too remote and far-fetched in light of the landmark judgment of the Supreme Court rendered in R.G. Anand v. Deluxe Films (1978), a judgment which the High Court has itself referred to in its decision. Similarity in plot, depiction, life and the life and story of protagonist is insufficient to constitute infringement. In R.G. Anand, the Supreme Court has lucidly elucidated that there can be no copyright in an idea, subject matter, themes, plot, 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.
Even if for the sake of argument it is assumed that Defendant No. 1 did share the broad contours of the embellishments that the Plaintiff has made in his script to the life of Defendant no.1 and Defendant No. 3 incorporated them in his movie, the same cannot be called as infringement until the defendant’s work is a ‘literal imitation’ of the copyrighted work with some variations here and there, and the viewer after having seen both the works gets an unmistakable impression that the subsequent work appears to be a copy of the original as held in R.G. Anand. That the film’s story could be a substantial and material copy of the Plaintiff’s script is a near impossibility. Defendant No. 3 specifically pleaded before the Court that they had no access to Plaintiff’s script and it never was Plaintiff’s case that Defendant No. 3 had access to his script.
The second ground for grant of injunction also does not stand to scrutiny. The Plaintiff’s case was that his copyright in respect of the true-life story events of the Defendant No. 1 has been infringed and surprisingly, there is no submission on record (in the Court’s decision) of Plaintiff invoking/ dealing with personality rights. Despite this, the Court came to the conclusion that Defendant No. 3 violated Defendant No.1’s right of publicity, which had been assigned to the Plaintiff.
The right of publicity is not codified in India but grounded in several court decisions. Courts have regularly held that the publicity right arises from the right to privacy (also dubbed as the right to be let alone) and only the individual can profit from indicia personal to him/ her. Although, there exists an exception apropos life story, carved out by the Supreme Court in the landmark case of R. Rajagopal v. State of T.N. (1994) wherein it held that there exists a right to publish life story insofar as it appears from public records without the consent of the person concerned. In such case, no concern of right to privacy arises; presumably because the information is no more private to the individual. This implies that only that which is not on the public record cannot be revealed. In the case at hand, it could be argued that the life story of Defendant No. 1 received heavy publicity when his life story was showcased in an episode of popular TV show ‘Satyamev Jayate’ and it became a part of public record, eroding the element of privacy and the publicity rights in it.
The Telangana High Court’s decision is a rare one discussing the critical question of copyright and personality rights in real life stories. The reasoning adopted by the Court in holding that copyright can exist in life stories looks unconvincing to me. Additionally, the decision does not even fit well in the broader puzzle of copyright jurisprudence. By essentially holding that facts already in public domain continue to be a proprietary concern, the decision unreasonably expands the scope of copyright and personality rights. The decision takes copyright protection a step further from the ‘expression’ dimension towards the ‘plot, story and idea’ dimension (just not there yet).