The Bombay High Court vide its order dated May 22, 2020 refused to grant any ad-interim reliefs to the plaintiffs Sameer Wadekar and Mahesh Gosavi in their copyright infringement claim against Netflix, Red Chillies, director and writer of the Series, where the plaintiffs claimed that the web series infringed their screenplay ‘Vetaal’ which was intended as a Marathi feature film for which they had acquired a copyright registration in 2015 and which they had registered with the Screenwriters’ Association in March 2018. Read order here.
The Plaintiff claimed that he came upon a YouTube video which was sent to him by a friend one Pratik Meshram which is when plaintiff was convinced that in the 146 seconds of Youtube video of a web series titled BETAAL, it was a copy of plaintiff’s copyright. The Plaintiff further claimed that he found at least 13 similarities in this 146 second trailer of the web series. The Plaintiff alleged that the Defendants have depicted in many different manners plaintiff’s work but the defendants’ projection is similar to copyright of plaintiff.
When asked by the court as to how would the Defendants particularly the author of the series have known about the story of the Plaintiff, the Plaintiff informed the court that he had shared his work with many known producers out of which one Wilson Louis had few contacts in Netflix.
The Court rejected the ad-interim reliefs on the following grounds:
- Except for plaintiff saying that Wilson Louis told plaintiff no.1 that he has some contacts in Netflix, there is nothing else to show any link with defendant. The judge observed “Therefore, I find it difficult to believe that so called original story written by plaintiff, can be copied by somebody else.”
- Delay and laches-the promotional materials of the web series were out on 16th and 17th July, 2019 across print and online publications which described the storyline of the web-series and that the Plaintiff’s ignorance of the same did not help his case as these were available in public domain.
- The Court noted word that the word `Betaal’ originates from `Vetalam’ relevant in Hindu Methodology. Everybody would have read the stories of Vikramaditya where a Vetaal would ask him a question and also tell him if he opens his mouth to speak, VETAAL will fly away and that if he does not answer despite knowing the answer, his head will explode. The beliefs associated with VETAAL is that it has super-natural powers with great prowess.
Betaal is an upcoming Indian fictional horror web television series based in a remote village that serves as the battleground between British Indian Army officer Betaal, his battalion of zombie redcoats, and the Indian police. The series is written & directed by Patrick Graham and co-directed by Nikhil Mahajan. The series produced by Red Chillies Entertainment and would be streaming on Netflix from May 24, 2020.
The order unfortunately fails to disclose details of the similarities alleged by the Plaintiffs in the suit to ascertain whether the Plaintiff was claiming similarities only in the idea or the detailed treatment. In any case, it would not have been possible for the Plaintiffs to know the entire treatment of the story merely on the basis of the trailer.
This is not the first instance in which such cases have been filed by writers at the eve of the content’s release. Courts have in almost all such cases ruled in favour of the defendants except where the Plaintiffs have been able to establish breach of confidentiality.
Here it a timeline of few such similar cases:
|Bala||Kamal Kant Chandra||The Plaintiff claimed that the film ‘Bala’ infringed his story “WIG”, which pertained to the social ridicule faced by a person experiencing premature balding and the undue importance placed by the society in assessing the worth of a person. The Plaintiff alleged that, based on the said story written by him, the Defendants have made a film named ‘Bala’. The Bombay High Court however declined to grant any ad-interim reliefs since the party which would be most affected by the stay i.e. the distributors, Reliance / Jio Studios were not made party to the suit.|
|Chhapaak’||Rakesh Bharti vs Fox Star Studio & ors||Rakesh Bharti, a writer, has approached the Bombay High Court claiming that he is the original author of the acid attack survivor’s story on which the film is based and should be given credit as one of the writers of the film. In the suit, Bharti claims that he conceived the idea/script for the movie and tentatively titled it Black Friday. He also got it registered with the Indian Motion Pictures Producers’ (IMPPA) in February 2015. In his plea, Bharti claims that the release of the movie should be stayed until he is given due credit as one of the writer of the film and an expert should be appointed to compare his script with that of ‘Chhapaak’.|
|Mission Mangal||Radha Bharadwaj vs Ellipsis Entertainment Media LLP||A copyright infringement suit was filed before the Bombay High Court by Radha Bharadwaj against Ellipsis Entertainment Media, Cape of Good Films, Fox Star Studios India and actress Vidya Balan alleging violation of the copyright in her original screenplay shared by her with Atul Kasbekar in 2016 for the purpose of funding her film. Radha Bharadwaj film, “Space MOMs” focusing on the women engineers working on the Mangalyaan mission has been recently completed and she alleged that efforts towards production of Mission Mangal were being expeditiously undertaken to adversely affect the commercial prospects of her venture. The Court refused to grant any ad-interim reliefs.|
|Mohenjodaro||Akashaditya Harishchandra Lama v/s Ashutosh Gowarikar
|Plaintiff claimed that he had written the script titled Mohenjo Daro and in early 2003 had sent his script to Ashutosh Gowarikar (Def. 1) through Mr. Saluja and that the defendants’ film ‘Mohenjo Daro’ infringed copyright in his works.
No injunction granted. Costs imposed on Plaintiffs.
|Fan||Mahesh Vaijnathrao Doijode vs Yashraj Films Pvt. Ltd
|The Plaintiff claimed that he has a copyright in a registered story script of a literary work titled “ABHINETA” which was registered with the Film Writers Association on 29th April, 1997. The Plaintiff alleged that the Defendant’s Film titled “FAN” infringed the copyright vested with the Plaintiff. No ad-interim reliefs on account of Delay.|
|Manjhi-The Mountain Man||Narendra Mohan Singh alias Mr. Sanjay Singh & Anr vs Ketan Mehta & Ors
|The Plaintiff filed a case against the release of the film “Manjhi – The Mountain Man” directed by the 1st Defendant, Ketan Mehta. The Plaintiffs claimed infringement of copyright in the 2nd Plaintiff’s script and breach of confidence. The Plaintiffs contented that they had shared an early “basic” screenplay of the film with the 3rd Defendant, Mahendra Jakhar, who was being credited with having written the script on which the film was based. The Court , after going though both the scripts, was not persuaded that that the injunction sought by the Plaintiffs should be granted or that the Plaintiffs had made out a sufficient prima facie case for the grant of these reliefs or that the legal tests to establish a breach of confidence or infringement of copyright were satisfied at all. According to the Court, the Plaintiffs’ screenplay seemed extremely rudimentary. The Court observed that it was a skeletal outline of the beginning of a narrative. The visualizations in the Plaintiff’s screenplay were not yet fully realized as against the Defendants screenplay which the Court found to be a much more substantial work with a considerable amount of detail in regard to shot selection, scène, camera work, visuals and dialogue. The Court further observed that the film itself by no means was a shot-by-shot adaptation of the 3rd Defendant’s script. It seemed to have been based on that script but differed from it markedly.|
|Dhoom 3||Mansoor Haider vs Yash Raj Films & Ors
|The Plaintiff claimed that the Defendants’ film Dhoom 3, infringed the Plaintiff’s copyright in his script “ONCE”. In the suit, the Plaintiff sought an order that he should be given credit in the titles of the film. The Court concluded that the two works were entirely different, each original in its own way.The Plaintiff could not prove the submission of the script at the Defendant’s office. The Court concluded that the claim by the Plaintiff for copying the themes, elements or the motifs or the scenario did not amount to copy of the Plaintiff’s work. Therefore the court held that the Plaintiff has no right against the work of the Defendant. The Notice of Motion was accordingly dismissed. To discourage persons like the plaintiff from “taking their chances” in making frivolous cases of this king, the court also awarded against the Plaintiff in the token amount of Rs.1.|
|Bhootnath Returns||Sushant Supriya vs N Tiwari & Ors
|The plaintiff claimed the heart of the movie, the trailer, was the complete adaptation of his literary work. The plaintiff referred to nine expressions from the trailer of the movie, and said they have been copied from short story ‘Bhoothnath’ of the writer published in 2007 in Hindi magazine ‘Aaj Kal’. The Plaintiff sought for permanent injunction restraining the Defendants, their partners or proprietor from infringing the copyright of the Plaintiff in the literary character Bhoothnath, from screening the trailer of the film ‘Bhoothnath Returns’ or releasing the film or parting with the satellite or DVD or internet rights for the film. The court rejected the interim application of the Plaintiff. It perused, analyzed and compared the brief synopsis of the script of the film and the trailer with the story ‘Bhootnath’ written by Sushant Supriya (plaintiff) and concluded that there could be some resemblance between the plaintiff’s story and the film as they both relate to ghost, but there were no substantial similarities between the two.|
|Shaadi ke Side Effects||Sakshi Punjabi vs Mrs Shobha Kapoor & Ors
|The Plaintiff had filed the Suit, inter alia, seeking direction to the Defendants to depict the name of the Plaintiff in the credits of the film “Shaadi Ke Side Effects” and for permanent injunction restraining the Defendants from releasing the suit film. The Plaintiff created a concept which was expressed in a synopsis/concept note including core theme, characters, introduction, set-up titled “Just adjust” based on the trials and tribulations of an urban married couple, and registered the same with the Film Writers Association, Mumbai. The Court held that it is trite law that there can be no copyright in a theme or an idea. Where the same idea is being developed in a different manner, certain similarities are bound to occur. After going through the synopsis and storyline of the Plaintiff, the script of the film submitted on behalf of Defendant No. 6, the similarities and dissimilarities between the work of the Plaintiff and the suit film and the propositions set out by the Hon’ble Supreme Court in the case of R.G. Anand, the Court was prima facie of the view that the Plaintiff failed to establish that the Defendants have breached any of the rights of the Plaintiff as alleged. The Court further held that the Plaintiff had not only failed to make out a prima facie case for grant of urgent ad interim relief in her favour, but the Plaintiff was guilty of gross delay on her part in approaching the Court i.e. one day prior to the release of the suit film and therefore the balance of convenience is also completely in favour of the Defendants and against the Plaintiff. Ad-interim reliefs were hence rejected to the Plaintiff.|
|Krrish 3||Uday Singh Deshraj Rajput
|The suit was filed by the Plaintiff for a decree and order that the Plaintiff is the owner of the script and screen play of the film Krrish – 3 and that the Defendants are not entitled to use the script and the screen play for Krrish – 3 or any other film. The Plaintiff also sought a permanent injunction restraining the Defendants from exhibiting in any manner the film Krrish – 3 or any part thereof, the story of which he alleged to be infringed by defendant No.2. The Plaintiff also sought damages for infringement of his alleged rights and for passing of his story in the sum of Rs. 2 crores.
The Court rejected the ad-interim application of the Plaintiff. The Learned Single Judge was of the view that the Plaintiff has approached the court with a completely bogus case. He pointed out the discrepancies and contradictory statements given in the Plaintiff’s Advocates Notice and the Plaint. He observed that the bona fides of the Plaintiff’s case is therefore seriously in doubt and no ad-interim relief could be granted. He also pointed out that the film was to be released on 1st November, 2013 for which the Defendants had spent to the tune of Rs. 140 crores and that the film was in news since the last one and a half years and hence there was gross delay by the Plaintiff in approaching the court. The Learned Judge also held that in the event of the Plaintiff establishing his claim at the time of the hearing of the Notice of Motion and/or the Suit, the Court could always pass appropriate orders and could also consider the case of the Plaintiff for damages against the Defendants, which was estimated by the Plaintiff in the sum of Rs. 2 crores.
The Plaintiffs filed an appeal before the division bench of the Bombay High Court.
Held: The division bench of the Bombay High Court upheld the Single Judge’s order and rejected the prayer of the Plaintiff. The Division Bench also observed that while the Plaintiff claimed that he had met Mr. Rakesh Roshan, during the said period Mr. Roshan was out of India. The Court therefore held that when the movie is duly censored and certificate of exhibition issued and in such a case where the wrong was compensable in terms of money, they were not inclined to prevent release of the film.
|Ghanchakkar||Dhirendra Kumar …Plaintiff
|The suit was filed by the Plaintiff for a declaration that the plaintiff is the exclusive copyright holder with respect to the story “Maal Kahan” and the Defendants had adopted and/or used that story for their movie titled Ghanchakkar”. The Plaintiff had also taken out a Notice of Motion seeking urgent ad interim reliefs restraining the Defendants from releasing their film. The Defendants contended that the story/ script based on which the film “Ghanchakkar” was made by the Defendants was registered with the Film Writers’ Association i.e. much before the story of the Plaintiff “Maal Kahan” was registered.
The Court after going through the story written by both parties concluded that there were substantial differences between the concept of the Plaintiff and the work of the Defendants. Except for the aspects of amnesia and robbery there was nothing common between the two stories. The Court also held that since the Defendant’s story was registered prior to the Plaintiff’s story, the question of Defendant using the Plaintiff’s story does not and could not arise. The Plaintiff had failed to make out a prima facie case of infringement of his copyright as alleged. The Court found the balance of convenience and the issue of irreparable injury in favour of the Defendants and thereby rejected the application for urgent ad-interim reliefs. The Notice of Motion was disposed of on July 5, 2013 as the movie had already released in the prayers in the notice of motion therefore became infructuous. On July 22, 2013, the suit was dismissed for want of prosecution.
|Nautanki Saala||Radhey Shayam @ “Raaj”
|Plaintiff sought urgent ad-interim reliefs i.e. an order restraining the Defendants from releasing the cinematograph film “Nautanki Saala”. The Plaintiff claimed to be the owner of the copyright in the literary work i.e. the story named “DASTOOR (a Wrong Step)” which was registered with the Film Writers Association in 2008 and further alleged that the film “Nautanki Saala” was made by the defendants using the story of the movie “DASTOOR (a Wrong Step)”, thereby breaching the plaintiff’s copyright. The Defendants contended that the movie “Nautanki Saala” was the remake of a French movie originally titled “Après Vours”. The agreement for acquiring the remake rights between LPF LES Films Pelleas and Ramesh Sippy was executed on 01-06-2012 for a consideration of Rs. 4 crores was submitted by the Defendant. The Court observed that it was not the Plaintiff’s case that he had at any time narrated his story to the Defendants. Instead the Plaintiff had mentioned in his plaint that he had approached and narrated the film story to various producers, directors and production houses without naming any single producer, director and production house. The Plaintiff further confirmed that he had no objection to the release of the film if the scene pertaining to the theatre in the film “Nautanki Saala” is changed to a restaurant scene on which the Court observed that it showed that the Plaintiff was claiming that the defendants have breached the Plaintiff’s alleged copyright on the basis that the Defendants have shown the scene pertaining to the theatre from his story, which by no stretch of imagination could be treated as breach of copyright of his story. As the plaintiff did not disclose any cause of action and the balance of convenience was not in favour of the plaintiff the application for ad-interim relief was rejected.|
The Supreme court had laid down the cardinal principles of copyright infringement in the matter of RG Anand vs Deluxe Films:
- 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 copyright work.
- Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
- One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing 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.
- Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
- Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
- As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
As can be seen from the timeline above, film production houses and platforms are prone to such kind of claims where some individuals claim to have sent a copy of their script to the producers. While courts have not entertained such matters in the past, it is important that the production houses/platforms/ studios have some strict procedures in place for acceptance of scripts from unknown parties. Release letters, rejection emails, etc. are some methods of resolving this menace. From a writers’ perspective, it is not advisable to randomly share your script copy. Sign proper non-disclosure agreements before sharing your script to any other party.
Image source: here