Introduction
On 8th October 2023, NRI author George Thundiparambil filed a lawsuit against the team behind the novel “Barroz – Guardian of D’ Gama’s Treasure”, asserting that both the novel and forthcoming 3D film of the same name, infringed on his copyrighted work MAYA. The lawsuit has been filed in the a district court in Kerela, and the suit seeks to declare Barroz as an unauthorized adaptation of the petitioner’s book MAYA and requests an injunction to prevent the movie’s release.
The petitioner initially issued a legal notice in July to Punnoose, T.K. Rajeev Kumar, Mohanlal, and Antony Perumbavoor, but the defendant had dismissed the claim, prompting him to escalate the issue legally.
The petitioner claims that a detailed comparison between the two works reveals strong similarities in theme, storyline, and character dynamics that go beyond coincidence. In the petition, it was noted that the defendant, despite denying familiarity with the book MAYA, mentioned details which were unique only to the book, thereby posing questions on the defendant’s claims of originality.
We will have a look at this petition and analyze the various claims, after which we will see the potential impact, looking at similar rulings in the past over infringement of copyright.
The Petition
In his petition, the petitioner asserts his rights under Section 17 read with Section 2(d) of the Copyright Act, 1957 over his 2008 novel MAYA. The petitioner’s novel draws from a myth about the ghostly character Kaappiri Muthappan. This character is believed to be an African slave guarding the treasure of his Portuguese master who was killed by his master before he fled for Portugal on the belief that the slave’s spirit would guard the treasure till a descendant of the master arrived and received it.
This aspect of the character is in public domain and no one can claim copyright over it, however, it was submitted that plaintiff’s treatment of this mythical idea, and development and expression of it into a storyline is unique and copyright protected.
The petitioner explained that his unique interpretation, centering on Maya, the rightful heir, an 18-year-old girl who interacts with the ghostly character oKaappiri as the rightful heir, as only she can see him with the naked eye, is creatively distinct and legally protected. He contends that MAYA’s storyline, narrative arc, and original treatment of the myth elevate it beyond mere folklore and grant it copyright protection.
Alleged Access to the Novel
The petitioner describes how he shared a copy of the novel MAYA in 2016 with artist Anil Dayanand, who indicated it might be passed on to filmmakers, including T.K. Rajeev Kumar and the defendant. However, he was not aware of any developments as the petitioner is a resident of Germany.
Later, in June 2024, the petitioner learned that the defendant were producing a film titled Barroz. Upon finding the novel upon which the film Barroz was being made on Navodaya Studio’s website, he found extensive similarities with the novel MAYA. These included the central myth, character dynamics, and plot, which he argues were adapted without his permission under the pretext of being an original work by the defendant.
After initial attempts to verify potential infringement were met with evasive responses from the defendant, the petitioner issued a legal notice on July 24, 2024. The defendant’s reply to the legal notice denied any infringement, offering additional chapters of Barroz, but the petitioner asserted that these closely mirrored his novel MAYA’s storyline and themes.
It is alleged that while the defendant claimed his work was independently inspired, he indirectly referenced details specific to the novel MAYA. The petitioner has submitted that the first defendant could not have known that Vasco da Gama was the master of the black slave in Maya unless he had read the novel, suggesting prior knowledge.
The petitioner argued that the defendant’s claims of having conceived the story in 1980 were attempts to justify using the novel MAYA’s copyright
Similarities
In his petition, George Thundiparambil details striking similarities between his novel MAYA and Jijo Punnoose’s Barroz: Guardian of D’ Gama’s Treasure, suggesting that the latter copies significant themes, characters, and plot elements from MAYA.
A few of them are reproduced here briefly for our readers:
| A major event (Gama Celebrations) is happening in Fort Cochin in Maya. In the first chapter itself, a banker arrives in Fort Cochin to assume office. His bank is sponsoring the great event organised by the government. The banker is accompanied by his daughter Maya and wife. | A major event (Casino Investors Meet) is happening in Goa in Barroz. In the first chapter itself, an investor arrives in Goa to participate in the meet. The investor is viewed as a “top cat” by the government. The investor is accompanied by his daughter Theresa.
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| The banker, daughter and wife are housed in a colonial mansion named Chartered House. The house has a conference room. Much of the action in the story happens in this mansion. | The investor and daughter are housed in a colonial mansion named D’ Gama Mansions. The house has a conference room. Much of the action in the story happens in this mansion.
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| The entry in a diary of the book:
“Something very strange happened this afternoon. I saw this man, …. Stranger than the sight was the fact that nobody else saw him. There was no way anybody could have missed him, he was right there in the open, sitting casually on top of a wall, looking maybe a bit bored.”
Soon Maya realises he is a ghost |
A similar passage in the book:
“While slowly walking out, she notices another bored person in the hall … he is perched on a high window sill …. his conduct in the hall is quite strange for a doorman. But there is something stranger here . . . nobody else seems to mind his poor etiquette.” Soon Theresa realises he is a ghost. |
| There are diverse characters in the novel other than Kaappiri and Maya, but one very important character in the novel is Maya’s father, Balachandra Menon, who is a senior banker and deeply involved in the event, the Gama Celebrations, as its chief sponsor. | There are only five main characters in the novel according to the author of Barroz. Other than Barroz and Theresa, one very important character in the novel is Theresa’s father, Ron Madhav, who is a top bidder for the Casino in the Investors’ Meet in Goa. |
| Maya kisses the ghost goodbye at the end of their interaction, leading to the ghost’s last farewell. | Theresa kisses the ghost goodbye at the end of their interaction, leading to the ghost turning into dust.
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| An epilogue at the end of Maya leaves ambiguity about the reality of the ghost. The reader finds out from Maya’s last diary entry that several people don’t believe in the reality of the ghost. But then Maya points out the presence of gemstones in her bottom drawer of her table, suggesting to the reader that Kaappiri was real. | An epilogue at the end of Barroz leaves ambiguity about the reality of the ghost. The psychiatrist pronounces that the “Ghost Barroz was the figment of her imagination”. He replaces an earring he appropriated from Theresa in the previous chapter in a showcase in the library of the mansion where it joins its mate. This earring, being part of the treasure guarded by Barroz, was found by Theresa from the cellar where she took leave of Barroz. Though the psychiatrist is unaware of it, the presence of the earring suggests to the reader or viewer that Barroz was real.
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The detailed comparisons further reveal parallel settings and character actions. In both novels, each girl spots a mysterious figure early in the story who others are unable to see, realizing the figure is a ghost. The ghost’s character, appearing initially bored, becomes ecstatic upon discovering that the girl can perceive him, leading to a similar celebratory interaction.
Through these specific similarities in structure, narrative elements, and characterization, Plaintiff argues that Barroz reproduces the “unique expressions” of MAYA, and he seeks a legal injunction to prevent the film’s release.
Appeal
The plaintiff asserts that while common elements like ghosts and events are not inherently unique, the specific combination and arrangement in MAYA create a distinctive narrative structure that is copyrighted. Key points of the plaintiff’s argument include:
- Plot Structure: The arrangement of events which is the protagonist’s arrival, introduction of the ghost, their relationship, and central conflict and its resolution is uniquely crafted and closely mirrored in Barroz.
- Character Dynamics: The interaction between the protagonists and the ghost is central to both stories. The relationships are expressed similarly, the identification of the girl as an heir, and the development of their unique bond, which is not common in ghost stories.
- Context and Setting: Each novel is framed around a significant event, influencing the narrative’s progression and adding depth.
- Family Involvement: The familial relationships and their reactions to supernatural elements in both stories add unique layers to the narratives, further linking the two works.
- Historical Elements: Both narratives incorporate historical contexts that enrich the storyline and connect past events to the present.
- Resolution and Epilogue: Both novels conclude with the protagonist saying goodbye to the ghost, leading to a resolution that leaves the ghost’s reality ambiguous but hints at its truth through physical objects (jewels in “Maya” and an earring in “Barroz”).
The plaintiff emphasizes that treatment or expression of the Kappiri myth has been copied and employed in the alleged novel Barroz in the same manner as in plaintiff’s novel Maya, thus infringing on his copyright.
The plaintiff therefore requested the court to grant a formal acknowledgment that the novel of the first defendant, and the corresponding film Barroz, produced by the defendant, are infringing adaptations of the plaintiff’s copyrighted work, MAYA. The plaintiff also requested for an order of injunction, and an order to pay costs and damages.
Copyright Infringement – The Jurisprudence
This case sparks the debate on what can be considered as copyright infringement. To what extent, can one take inspiration of a book written by someone else, and give their own version of stories, expressions, or events written in such book. Or in short, what is the thin line between taking inspiration, and copying altogether?
Various precedents exists in Indian copyright law to help us identify the factors considered by Courts to answer this question. A few of them are discussed below:
Substantial Similarity
While explaining the contours of what can constitute as copyright infringement, in the context of dramas and plays, the Court in RG Anand v. Delux Films[1] had held that a writer or a dramatist produces a drama as a result of his great labour, energy, time and ability. If anyone tries to copy it, it is not necessary that the alleged infringement should only be an exact or verbatim copy of the original, but a resemblance with the original is sufficient to indicate that it is a copy.[2]
The Court explains that to assess if copyright infringement has occurred, it’s not enough to consider whether the defendant used the original idea. The Court must also examine if they copied the original’s structure, arrangement, and scenes, with only minor changes or embellishments. If the defendant’s work is essentially a reworded or copied version of significant portions of the original, it counts as plagiarism.
However, the Court also advises that if the defendant has transformed the original into a new form, tone, or style that brings fresh life to the idea, then it does not amount to copyright infringement.[3]
But the most important test given by the Court in RG Anand for copyright infringement was the test to determine if: “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.”[4]
While quoting the case of RG Anand, the Court in Shivani Tibrewala v. Rajat Mukherjee[5] explained and clarified that the Plaintiff does not need to show that the entire work was copied; copying the substance or kernel (the central part) of the Plaintiff’s work can still amount to copyright infringement. The key question is whether, if the substance or kernel is removed from the Defendant’s work, would the work of the Defendant still stand on its own? The comparison of both works should be made as a whole, not by dissecting them into small, unoriginal parts. When works share a common theme or subject, some similarity is natural. However, what matters is the way the subject is treated and expressed and not the idea itself.
The Court further said that it’s the quality of what’s copied, and not the quantity, that determines whether the work, or a substantial part of it, has been infringed. Minor differences added to the infringing work should not be deliberate, and if they are trivial changes made to hide copying, they might not disprove the finding of substantial copying.[6]
Test of Extraction
Another precedent which comes to my mind is Shamoil Ahmed v. Falguni Shah.[7] The unique way in which the Court explained the process to arrive at the conclusion whether something is an infringement stood out in this case. This case revolved around copyright infringement in the story of “Singardaan” committed by the defendants in their own web series by adapting the plot, key elements and characters. This is similar to what is being alleged here.
The Court noted that a useful approach to copyright analysis is the concept of “extraction.” In creative works like stories, an idea is expanded into a theme, then a plot, and finally a complete narrative through characters and settings. These combined elements give the story substance. If the court strips away these elements, it will eventually reach the basic idea, which doesn’t qualify for copyright protection. A Court’s role is to determine at which point this stripping exposes the unprotectable idea. Any work can be reduced to increasingly general patterns; at some point, what remains is simply the idea, not protectable expression. The Court must decide where to draw this line, distinguishing between protectable expression and unprotectable ideas based on its informed judgment of the work.
This test of “extraction” was applied by the Court herein as follows:
- first was stripping the plaintiff’s story Singardaan down to its core plot and storyline—Brijmohan’s acquisition of a vanity box that transforms his wife and daughters.
- second was stripping the story further in abstraction, i.e., removing specific details like religious identities, the riot setting, and even the vanity box itself, until only the general idea remained, which is: a story where an object causes behavioral change.
The first part was deemed copyrightable being an original and unique expression, and any copying would be infringement, while the second part was deemed a non-protectable idea.
The Court, therefore, reiterated that analysis of whether copyright was infringed requires examination of the contours of the well-known Idea v. Expression dichotomy, which comes from the rule that Copyright does not protect ideas, but only the unique expression of an idea.
Scenes-a-Faire doctrine
Scenes a faire is a French term that means to a scene that is to be made, or a scene that has to be done. It generally means under Copyright Law that certain scenes cannot be protectable or copyrightable because they are mandated by or are customary to a particular genre. Without using such scenes, those ideas could not be represented.
The doctrine was first recognized in Cain v. Universal Pictures Co.,[8] where the Court found that a scene in which a couple takes shelter from a storm in a church, and engages in certain activities, was not unique enough to be protected by copyright. The idea of taking shelter from a storm in a church was regular and as old as the time when churches had came into existence. He explained that these elements, known as “scènes à faire“, were typical and almost inevitable in such a setting.
This doctrine was discussed by the Karnataka High Court in NRI Film Production Associates (P) Ltd. v. Twentieth Century Fox Film Corporation,[9] wherein the respondent argued that traffic jams, disruption of communication, dazzling effects of the nuclear missiles are hackneyed subjects of every scientific fiction and “Scenes a Faire” which carry no copyright.[10] While discussing the doctrine of Scenes a Faire, it was held that the so called unique features of E.T.M. like President’s involvement in war, the picturisation of effects of war, the presentation of concept of spaceship, energy shield could at the best be called an idea, but not a precise defined expression to confer copyright.
The picturisation of blasting of nuclear missiles, disruption of communications, traffic jams are nothing but “scene a faire” commonly found in scientific fictions. The Court noted in several English movies, the confrontation of aliens with the men on the earth and the spaceship energy shields are the ideas evolved several decades ago and there is nothing special of the idea. Therefore, taking reference of the case of RG Anand it was held that there cannot be any copy right over the ideas, theme, and the plot, or else it would hinder the growth and development of literary genius.
Importantly, the Court noted that the portrayal of scenes like nuclear attacks, traffic jams, and disruptions can vary widely, due to different photographic treatment of the same from person to person, therefore a film adaptation of a script would not inherently resemble another. Such photographic treatment would itself constitute a copyright.[11]
Access to Work
Access to work is an important point to be considered to further the case of copyright infringement in a given case. Generally in copyright law, “access to work” means that the alleged infringer had the opportunity to view, read, or otherwise experience the original work before creating their own.
In the above case of NRI Film Production Associates, the Court had also given its observations on question of access to work. The question of access can be inferred or proven directly. However, if there is no similarity between works, access is legally irrelevant. The appellant therein had cited the California Court of Appeal case Barsha Henry v. MGM[12] to argue that access can be inferred. In this California Court of Appeal case, Irwin Telbargh associated with production of film “High Fever” had an occasion to read the film script “A Dog at Risk” earlier to the production of “High Fever”. Therefore the possibility of access was held to be matter of inference.
Stressing on the importance of proving access to work, the Court in Shivani Tibrewala (referred to above) said that although access to the plaintiff’s work is not essential to grant relief in a copyright infringement case, it is one of the factors that the court must take into consideration while granting reliefs. Without access to the Plaintiffs work the degree of proof required to establish an allegation of copying is much higher on the Plaintiff.[13]
Conclusion
The points discussed above will be crucial for the Court’s assessment as it navigates the complexities of this copyright infringement case. Each factor will help shape the Court’s approach to determine if the use of substantial elements from the original work crosses the line into infringement.
Given the use of central characters and plot from the original work, as we can see from the similarities that have been pointed out, this case has the potential to establish clear guidelines on when substantial use and constitutes copyright infringement. We have already seen that it is not necessary for the entire work to be copied for copyright infringement, copying the substance of another work could still be considered as copyright infringement.
Further, while access to the original work is not mandatory, it remains relevant; without it, the plaintiff bears a higher burden of proving copying, which access already has been alleged in this case. However, according to the principle of the scènes à faire doctrine, some elements are unprotected by copyright as they are essential to certain genres. Therefore, the question of copyright infringement is still uncertain.
The Court’s ruling here could set a valuable precedent, helping creators navigate intellectual property boundaries and discouraging frivolous claims. By establishing standards for analyzing similarities, it would strike a balance between protecting creativity and allowing openness in genre storytelling.
In today’s film industry, where accusations of script copying are common, this decision could help reduce incentives for copying. By setting a bar for analyzing similarities in two works, the ruling could filter out any ill intended frivolous cases, and would help allow legitimate copyright claims to be taken seriously.
End notes:
[1] RG Anand v. Delux Films, 1978 AIR 1613.
[2] Para 15, Ibid.
[3] Para 45, Ibid.
[4] Para 46, Ibid.
[5] Shivani Tibrewala v. Rajat Mukherjee, (2020) 2 AIR Bom R 156.
[6] Para 21, Ibid.
[7] Shamoil Ahmed v. Falguni Shah, AIR Online 2020 Bom 552.
[8] Cain v. Universal Pictures Co., 47 F.Supp. 1013 (1942).
[9] NRI Film Production Associates (P) Ltd. v. Twentieth Century Fox Film Corporation, ILR 2004 Kar 4530.
[10] Para 14, Ibid.
[11] Para 23, Ibid.
[12] Barsha Henry v. MGM, Court of Appeal California, the Second District Division II.
[13] Para 32, Supra 5.
Image generated on Dall-E
