R.G. Anand v. M/s. Delux Films AIR 1978 SC 1613
Civil Appeal No. 2030 of 1968 decided on 18/08/1978
Headnote
(A) Copyright Act (14 of 1957) , S.51— Question whether there has been violation of copyright – Determination of – Principles and tests pointed out.
Per Fazal Ali, J. (Jaswant Singh, J. agreeing): 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.
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 defendant’s 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 see 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. 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 the clear and cogent evidence after applying the various tests.
Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved. Case law discussed.(Para 46)
Applying the principles enunciated above and various tests laid down to determine whether in a particular case there has been a violation of the copyright held on facts that the film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff. The treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage. After seeing the play and the film no prudent person can get an impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play, namely, provincialism is undoubtedly the subject-matter of the film along with other ideas also but it is well settled that a mere idea cannot be the subject-matter of copyright. Thus, the present case does not fulfil the conditions laid down for holding that the defendants have made a colourable imitation of the play.(Para 61 65)
Per R. S. Pathak, J.:- The question can arise whether there is an infringement of copyright even though the essential features of the play can be said to correspond to a part only of the plot of the film. This can arise even where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play. The relative position in which the principal actors stand may be exchanged or extended, and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play. All such matters fall for consideration in relation to the question whether the relevant part of the plot in the film is merely a colourable imitation of the essential structure of the stage play. If the treatment of the theme in the stage play has been made the basis of one of the themes in the film story and the essential structure of that treatment is clearly and distinctly identifiable in the film story, it is not necessary, for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established. In the attempt to show that he is not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so develop his own product that it covers a wider field than the area included within the scope of the earlier product, and in the common area covered by the two productions to introduce changes in order to disguise the attempt at plagiarism.(Para 66)
In another, and perhaps a clearer case, it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced. The court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation.(Para 66)
Anno: AIR Manual, (3rd Edn.), Copyright Act. S. 51, Notes 3 and 4.
(B) Constitution of India , Art.136— Case relating to copyright infringement – Concurrent finding of fact – Scope for interference in special leave appeal.
Per Fazal Ali, J.:- Where the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright, the Supreme Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, the court feels that the judgment of the courts below are absolutely correct.(Para 63)
Per R. S. Pathak, J.:- The Supreme Court is extremely reluctant to interfere with concurrent findings of facts reached by the Courts below.(Para 66)
Cases referred
Bobbs-Merrilll Company v. Isidor Straus and Nathan Straus [(1970) 210 US 339]. Para 17
Ladbroke (Football) Ltd. v. Nilliam Hill (Football) Ltd. [(1964 1 AII ER 465] Para 20
Corelli v. Gray [(1913) 29 TLR 570] Sargant, Para 21
Hawks and Son (London) Limited v. Paramount Film Service Limited [(1934) 1 Ch.D. 593] Para 22
Harman Pictures N. V. v. Osborne [(1967) 1 WLR 723] Para 23
Donoghue v. Allied Newspapers Ltd., [(1937) 3 All ER 503] Para 24
Judgement
S. MURTAZA FAZAL ALI, J. – This appeal by special leave is directed against the judgment of the Delhi High Court dated 23 rd May, 1967 affirming the decree of the District Judge, Delhi and dismissing the plaintiff’s suit for damages against the defendants on the ground that they had violated the copyrighted work of the plaintiff which was a drama called ‘Hum Hindustani’.
3. The plaintiff is an architect by profession and is also a playwright, dramatist and producer of stage plays. Even before Hum Hindustani the plaintiff had written and produced a number of other plays like Des Hamara, Azadi and Election which were staged in Delhi. The subject-matter of the appeal, however, is the play entitled ‘Hum Hindustani’. According to the plaintiff, this play was written by him in Hindi in the year 1953 and was enacted by him for the first time on 6th, 7th, 8th, and 9th, February, 1954 at Wavell Theater, New Delhi under the auspices of the Indian National Theatre. The play proved to be very popular and received great approbation from the press and the public as a result of which the play was re-staged in February and September, 1954 and also in 1955and 1956 at Calcutta . In support of his case the plaintiff has referred to a number of comments appearing in the Indian Express, Hindustan Times, Times of India and other papers.
4. Encouraged by the success and popularity of the aforesaid play the plaintiff tried to consider the possibility of filming it. In November, 1954 the plaintiff received a letter dated 19th November, 1954 from the second defendant Mr. Mohan Sehgal wherein the defendant informed the plaintiff that he was supplied with a synopsis of the play by one Mr. Balwant Gargi a common friend of the plaintiff and the defendant. The defendant had requested the plaintiff to supply a copy of the play so that the defendant may consider the desirability of making a film on it. The plaintiff, however, by his letter dated 30th, November, 1954 in-formed the defendant that as the play had been selected out of 17 Hindi plays for National Drama Festival and would be stage on 11th Dec. 1954, the defendant should take the trouble of visiting Delhi and seeing the play himself in order to examine the potentialities of making a film, and at that time the matter could be discussed by the defendant with the plaintiff.
5. The plaintiff’ case, however, is that some time about January, 1955 the second and the third defendants came to Delhi, met the plaintiff in his office where the plaintiff read out and explained the entire play to the defendants and also discussed the possibility of filming it. The second defendant did not make any clear commitment but promised the plaintiff that he would inform him about his re-action after reaching Bombay. There after the plaintiff heard nothing from the defendant. Sometime in May, 1955 the second defendant announced the production of a motion picture entitled “New Delhi’. One Mr. Thapa who was one of the artist in the play produced by the plaintiff happened to be in Bombay at the time when the picture ‘New Delhi’ was being produced by the defendant and informed the plaintiff that the picture being produced by the defendant was really based on the plaintiff’s play ‘Hum Hindustani’. The plaintiff thereupon by his letter dated 30th May, 1955 wrote to the second defendant expressing serious concern over the adaptation of his play into a motion picture called ‘New Delhi’. The defendant, however, by his letter dated 9th June, 1955 informed the plaintiff that his doubts were without any foundation and assured the plaintiff that the story treatment, dramatic construction, characters etc. were quite different and bore not the remotest connection or resemblance with the play written by the plaintiff.
6. The picture was released in Delhi in Sept. 1956 and the plaintiff read some comments in the papers which gave the impression that the picture was very much like the play ‘Hum Hindustani’ written by the plaintiff. The plaintiff himself saw the picture on the 9th Sept. 1956 and he found that the film was entirely based upon the said play and was, convinced that the defendant after having heard the play narrated to him by the plaintiff dishonestly imitated the same in his film and thus committed an act of piracy so as to result in violation of the copyright of the plaintiff, The plaintiff accordingly filed the suit for damages, for decree for accounts of the profits made by the defendants and a decree for permanent injunction against the defendants restraining them from exhibiting the film ‘New Delhi’.
8. The defendants, inter alia, pleaded that they were not aware that the plaintiff was the author of the play ‘Hum Hindustani’ nor were they aware that the play was very well received at Delhi. Defendant No. 2 is a film Director and is also the proprietor of defendant No. 1 Delux Films. The defendants averred that in Nov. 1954 the second defendant was discussing some ideas for his new picture with Mr. Balwant Gargi who is a playwright of some repute. In the course of the discussion, the second defendant informed Mr. Gargi that the second defendant was interested in producing a motion film based on ‘provincialism’ as its central theme. In the context of these discussions, Mr. Gargi enquired of defendant No. 2 if the latter was interested in hearing the play called ‘Hum Hindustani’ produced by the plaintiff which also had the same theme of provincialism in which the second defendant was interested. It was, therefore, at the instance of Mr. Gargi that the second defendant wrote to the plaintiff and requested him to send a copy of the script of the play. The defendant goes on to state that the plaintiff read out the play to the second defendant in the presence of Rajinder Bhatia and Mohan Kumar, Assistant Directors of the second defendant when they had come to Delhi in connection with the release of their film “Adhikar”. The second defendant has taken a clear stand that after having heard the play he informed the plaintiff that though the play might have been all right for the amateur stage it was too inadequate for the purpose of making a full length commercial motion picture. The defendants denied the allegation of the plaintiff that it was after hearing the play written by the plaintiff that the defendants decided to make a film based on the play and entitled it as ‘New Delhi’.
9. The defendants thus submitted that there could be no copyright so far as the subject of provincialism is concerned which can be used or adopted by anybody in his own way. He further averred that the motion picture was quite different from the play ‘Hum Hindustani’ both in content, spirit and climax. The mere fact that there were some similarities between the film and the play could be explained by the fact that the idea, viz, provincialism was the common source of the play as also of the film. The defendant thus denied that there was any violation of the copyright.
10. On the basis of the pleadings of the parties, the learned trial Judge framed the following issues:
1. Is the plaintiff owner of copyright in the play ‘Hum Hindustani’?
R.G. Anand v. M/s. Delux Films 73
2. Is the film ‘New Delhi’ an infringement of the plaintiff’s copyright in the play ‘Hum Hindustani’?
3. Have defendants or any of them infringed the plaintiff’s copyright by producing, or distributing or exhibiting the film ‘New Delhi’”
4. Is the suit bad for misjoinder of defendants and causes of action?
5. To what relief is the plaintiff entitled and against whom?
11. Issue No. 1 was decided against the defendants and it was held by the trial Judge that the plaintiff was the owner of the copyright in the play ‘Hum Hindustani’. Issue No. 4 was not pressed by the defendants and was accordingly decided against them. The main case however turned upon the decision on issues Nos. 2 and 3 which were however decided against the plaintiff as the learned Judge held that there was no violation of the copy-right of the plaintiff. The plaintiff then went up in appeal to the Delhi High Court where a Division Bench of that Court affirmed the decision of the District Judge and upheld the decree dismissing the plaintiff’s suit. The finding of fact arrived at by the learned trial Judge and the High Court have not been assailed before us. The only argument advanced by the appellant was that the principles enunciated and the legal inferences drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India. It was also submitted by Mr. Andley that the two courts have not fully understood the import of the violation of copyright particularly when the similarities between the play and the film are so close and sundry that would lead to the irresistible inference and unmistakable impression that the film is nothing but an imitation of the play. On the other hand, it was argued by Mr. Hardy counsel for the respondents that the two courts below have applied the law correctly and it is not necessary for this Court to enter into merits in view of the concurrent findings of fact given by the two courts. He further submitted that even on the facts found it is manifest that there is a vast difference both in the spirit and the content between the play ‘Hum Hindustani’ and the film ‘New Delhi’ and no question of violation of the copyright arises.
12. In order to appreciate the argument of both the parties it may be necessary to discuss the law on the subject, To begin with there is no decided case of this Court on this point, Secondly, at the time when the cause of action arose Parliament had not made any law governing copyright violation and the courts in the absence of any law by our Parliament relied on the old law passed by the British Parliament, namely, the Copyright Act of 1911. Sec. 1 sub-sec. (2) (d) defines ‘copyright thus:
(2) For the purposes of this Act, ‘copyright’ means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial partthereof in public, if the work is unpublished, to publish the work or any substantial part there of; and shall include the sole right. x x x x x x x
(d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered.
Section 2 provides the contingencies where a copy-right could be infringed and runs thus:-
2 (1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright does anything the sole right to do which is by this Act conferred on the owner of the copy-right.
It is, therefore, clear that the Act of 1911 defines ‘copyright’ and also indicates the various contingencies where copyright cannot be infringed. The statute also provides exceptions which would not amount to violation of copyright.
13. In the instant case the play written by the appellant falls within S. 1 (2) (d) because it is a dramatic work. The learned District Judge has rightly held that emotions like mere ideas are not subject to pre-emption because they are common property. Quoting from the law of copyright and Movie-rights by Rustom R. Dadachanji the learned Judge observed as follows:-
It is obvious that the underlying emotion reflected by the principal characters in a play or book may be similar and yet that the characters and expression of the same emotions be different. That the same emotions are found in plays would not alone be sufficient to prove infringement but if similar emotions are portrayed by a sequence of events presented in like manner, expression and form then ‘infringement’ would be apparent.
Similarly in the case of Hanfstaengl v. W.H.Smith and Sons [(1905) 1 Ch D 519] it has been held by Bayley, J. that “a copy is that which comes so near to the originals as to give to every person seeing it the idea created by the original.”
14. In Halsbury’s Laws of England by Lord Hailsham Fourth Edition the following observations are made:
Only original works are protected under Part I of the copyright Act. 1956, but it is not requisite that the work should be the expression of original or inventive thought for Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of literary work, with the expression of thought in print or writing There is copyright in original dramatic works and adaptations thereof, and such copyright subsists not only in the actual words of the work but in the dramatic incidents created, so that if these are taken there may be an infringement althought no words are actually copied. There cannot by copyright in mere scenic effects or stage situations which are not reduced into some permanent form.
Similarly, it was pointed out by Copinger in his book on Copyright 11th Edition that what is protected is not the original thought but expression of thought in a concrete form. In this connection, the author makes the following observations based on the case law:
What is protected is not original thought or information, but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use for the form in which the thought or information is expressed. The defendant must, to be liable have made a substantial use of this form; he is not liable if he has taken from the work the essential ideas, however original and expressed the idea in his own form, or used the idea for his own purposes.
The author also point out that there is no infringement unless the plaintiff’s playwrighted work has been actually used, so that it may be said that the latter work reproduces the earlier one. In this connection, the author observes as follows:-
A further essential matter and one which – rather strangely – is not any where precisely stated in the Act of 1956 is that there can be no infringement unless use has been made, directly or indirectly of the, plaintiff work.
15. Moreover, it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment: “Thou shalt not steal” which forms the moral basis of the protective provision of the Copyright Act of 1911. It is obvious that when a writer or a dramatist produces a drama it is a result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyrighted work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour. It is also clear that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in large measure, is sufficient to indicate that it is a copy. In Art. 418 Copinger states thus:-
In many case the alleged infringement does not consist of an exact, or verbatim, copy of the whole, or any part, of the earlier work, but merely resembles it in a greater or lesser degree.
In Art. 420 the author lay down the various tests to determine whether an infringement has taken place and observes as follows:-
Various definitions of ‘copy’ have been suggested, but it is submitted that the true view of the matter is that, where the court is satisfied that a defendant has in producing the alleged infringement, made a substantial use of those features of the plaintiff’s work in which copyright subsisted, an infringement will be held to have been committed, if he has made such use, he has exercised unlawfully the sole right which is conferred upon the plaintiff.
16. Ball in “Law of Copyright and Literary Property” page 364 points out that where the defendant materially changes the story he cannot be said to have infringed the copyright. In this connection, the author observes as follows:-
In such a composition the story is told by grouping and representing the important incidents in the particular sequence devised by the author whose claim to copyright must depend upon the particular story thus composed; and not upon the various incidents, which, if presented individually, without such unique sequential arrangement, would be common literary property, Consequently another dramatist who materially changes the story by materially varying the incidents should not be held to be an infringer.
It is also pointed out by Mr. Ball that sometimes even though there may be similarities between the copyrighted work and the work of the defendant they may be too trivial to amount to appropriation of copyrighted material. The author observes thus:-
When two authors portray in literary or dramatic form the same occurrence, involving people reacting to the same emotions under the influence of an environment constructed of the same materials, similarities in incidental details necessary to the environment or setting are inevitable; but unless they are accompanied by similarities in the dramatic development of the plot or in the lines or action of the principle characters, they do not constitute evidence of copying. They are comparable to similarities in two works of art made by different artists form the same original subject, and in the usual case are too trivial and unimportant to amount to a substantial appropriation of copyrighted material.
The author further says that unless there is any substantial identity between the respective works in the scenes, incidents and treatment, a case of infringement of copyright is not made out and observes thus:-
But there was no substantial identity between the respective works in the scenes, incidents, or treatment of the common theme; the court held that the plaintiff’s copyrights were not infringed by the defendant’s photoplays.
Dealing with the infringement of copyright of a play by a motion picture which appears to be an identical case in the present appeal, the author observes as follows:-
In an action for the alleged infringement of the copyright of a play by a motion picture, wherein it appeared that both authors had used life in a boys’ reform school as a background, but the only similarity between the two productions consisted of a few incidents and points in dialogue, such as one would expect to find in stories set against the same background, there was no infringement of copyright.
To the same effect are the following observations of the author:
Where the only evidence of similarities between two plays was based upon the author’s analysis and interpretation of an extensive list of “ parallel” from which he inferred that many incidents, scenes and characters in the alleged infringing play were adapted from the plaintiff’s copyrighted play, but no such resemblance would be apparent to an ordinary observer, it was held that the meaning or interpretation which the author gives to his literary work cannot be accepted as a deciding test of plagiarism; and that, in the absence of any material resemblance which could be recognized by an ordinary observation, each play must be regarded as the independent work of the named author.
17. Similar observations have been made in Corpus Juris Secundum Vol. 18 at page 139 where it is observed as follows:
An author has, at common law, a property in his intellectual production before it has been published, and may obtain redress against anyone who deprives him of it, or, by improperly obtaining a copy, endeavors to publish or to use it without his consent.
This right exists in the written scenario of a motion picture photoplay and in the photoplay itself as recorded on the photographic film. There is, however, no common-law literary property right in the manner and postures of the actors used by them in performing the play.
Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright of anything the sole right to do which is conferred by the statute on the owner of the copyright.
This view was taken by the U. S. Supreme Court in the case of Bobbs-Merrilll Company v. Isidor Straus and Nathan Straus [(1970) 210 US 339].
18. In the American Jurisprudence also it is pointed out that the law does not recognize property right in abstract ideas, nor is an idea protected by a copyright and it becomes a copyrighted work only when the idea is given embodiment in tangible form. In this connection the following observation are made:-
Generally speaking, the law does not recognize property right in abstract ideas and does not accord the author or proprietor, the protection of his ideas, which the law does accord to the proprietor of personal property.
In cases involving motion pictures or radio or television broadcasts, it is frequently stated that an idea is not protected by a copyright or under the common law or that there is no property right in an idea, apart from the manner in which it is expressed.
When an idea is given embodiment in a tangible form, it becomes the subject of common- law property right which are protected by the courts, at least when it can be said to be novel and new.
It was also pointed out in this book as to what constitutes colourable imitation. In this connection, the following observations have been made:-
“Infringement involves a copying in whole or in part, either in haec verba(sic) or by colourable variation …A ‘copy’ as used in copyright cases, signifies a tangible object which is a reproduction of the original work. The question is not whether the alleged infringer could have obtained the same information by going to the same source used by plaintiff in his work, but whether he did in fact go to the same source and do his own independent research. In other words, the test is whether one charged with the infringement made an independent production, or made a substantial and unfair use of the plaintiff’s work.”
“Intention to plagiarise is not essential to establish liability for infringement of a copyright or for plagiarism of literary property in unpublished books, manuscripts, or plays. One may be held liable for infringement which is unintentional or which was done unconsciously.”
Similarity of the infringing work to the author’s or proprietor’s copyrighted work does not of itself established copyright infringement if the similarity results from the fact that both works deal with the same subject or have the same common source
.…Nevertheless, it is the unfair appropriation of the labor of the author whose work has been infringed that constitutes legal infringement, and while identity of language will often prove that the offence was committed; it is not necessarily the sole proof; on the other hand relief will be afforded, irrespective of the existence or non-existence of any similarity of language, if infringement in fact can be proved.
“The appropriation must be of a ‘substantial or ‘ material’ part of the protected work … The test is whether the one charged with the infringement has made a substantial and unfair use of the complainant’s work. Infringement exists when a study of two writings indicates plainly that the defendant’s work is a transparent rephrasing to produce essentially the story of the other writing, but where there is no textual copying and there are differences in literary style, the fact that there is sameness in the tricks of spinning out the yarn so as to sustain the reader’s suspense and similarities of the same general nature in a narrative of a long, complicated search for a lost article of fabulous value, does not indicate infringement.”
19. We shall now discuss some of the authorities that have been cited at the Bar as also some others with whom we have come across and which throw a flood of light on the point in issue. Dealing with the question of similarities Lord Kekewich, J. in Hanfstaengl case [(1905) 1 Ch D 519] (supra) described various qualities of a copy and observed as follows:-
In West v. Francis [(1822) B & Ald. 737, 74]3 Bayley J. uses language coming, as Lord Wastson says, nearer to a definition than anything which is to be found in the books. It runs thus: “A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original … If it were altered thus – “a copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it”- the substance of the definition would be preserved and Lord Watson’s criticism would be avoided.
The learned Judge aptly pointed out that an imitation will be a copy which comes so near the original as to suggest the original to the mind of every person seeing it. In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant that will be sufficient to constitute a violation of the copy-right.
20. In the case of Ladbroke (Football) Ltd. v. Nilliam Hill (Football) Ltd. [(1964 1 AII ER 465] Lord Reid made the following pertinent observation:
“But, in my view, that is only a shortcut, and more correct approach is first to determine whether the plaintiff’s work as whole is ‘original’ and protected by copyright, and then to inquire whether the part taken by the defendant is substantial. A wrong result can easily be reached if one begins by dissecting the plaintiff’s work and asking, could section A be the subject of copyright if it stood by itself, could section be protected if it stood by itself, and so on. To my mind, It does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be.”
Lord Hodson expressed similar views at p. 475 in the following words:-
“The appellants have sought to argue that the coupons can be dissected and that on analysis no copyright attaches to any of their component parts and accordingly no protection is available in my opinion this approach is wrong and the coupons must be looked at as a whole Copyright is a statutory right which by the terms of S. 2 of the Act of 1956 would appear to subsists, if at all, in the literary or other work as one entity.”
This case clearly lays down that a similarity here or a similarity there is not sufficient to constitute a violation of the copyright unless the limitation made by the defendant is substantial.
21. In the case of Corelli v. Gray [(1913) 29 TLR 570] Sargant, J. observed as follows:-
“The plaintiff’s case is entirely founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may be due to any one of the four hypotheses – namely (1) to mere chance, or (2) to both sketch and novel being taken from a common source; (3) to the novel being taken from the sketch , or(4) to the sketch being taken from the novel. Any of the first three hypotheses would result in the success of the defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed.
Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one on which the proof is cumulative, I am irresistibly forced to the conclusion that it is quiet impossible they should be due to mere chance coincidence and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiff’s novel.”
Thus it was pointed out in this case where the aggregate of the similarities between the copyrighted work and the copy lead to cumulative effect that the defendant had imitated the original and that the similarities between the two works are not coincidental, a reasonable inference of colorable imitation or of appropriation of the labour of the owner of the copyright by the defendant is proved, This case was followed by the Master of Rolls in the case of Corelli v. Gray.
22. The case of Hawks and Son (London) Limited v. Paramount Film Service Limited [(1934) 1 Ch.D. 593] was whether a musical composition made by the owner was sought to be imitated by producing a film containing the said composition. An action for violation of the copy right was filed by the owner. Lord Hansworth, M. R. found that the quantum taken was substantial part of the musical copyright could be reproduced apart from the actual film. In this connection, Lord Hansworth observed as follows:-
Having considered and heard this film I am quite satisfied that the quantum that is taken is substantial, and although it might be difficult, and although it may be uncertain whether it will be ever used again, we must not neglect the evidence that a substantial part of the musical copyright could be reproduced apart from the actual picture film.
Similar observations were made by Lord Slesser which may be extracted thus:-
“Anyone hearing it would know that it was the march called “Colonel Bogey” and though it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, vital and an essential part which is there reproduced. That being so, it is clear to my mind that a fair use has not been made of it; that is to say there has been appropriated and published in a form which will or may materially injure the copyright that in which the plaintiffs have a proprietary right.”
23. In the case of Harman Pictures N. V. v. Osborne [(1967) 1 WLR 723] it was held that similarities of incident and situation undoubtedly afforded prima face evidence of copy and in the absence of any explanation by the defendant regarding the sources, the plaintiffs must succeed . It was however held that there was no copyright in ideas, schemes or systems or method and the copyright is confined only to the subject. In this connection Coff. J. observed as follows:-
“There is no copyright in ideas or schemes or system or methods, it is confined to their expression …But there is a distinction between ideas (which are not copyright) and situations and incidents which may be … One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history. In such cases the plaintiffs and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources.”
“But I have read the whole of the script very carefully and compared it with the book and I find many similarities of detail, there also … Again it is prima facie not without significance that apart from the burial of Captain Nolan the play ends with the very quotation which Mrs. Woodham Smith used to end her description of the battle … As Sir Andrew Clark points out, some of these might well be accounted for as being similar to other events already in the script, and in any event abridgement was necessary, but that may not be a complete answer.”
24. Similarly in the case of Donoghue v. Allied Newspapers Ltd., [(1937) 3 All ER 503] it was pointed out that there was no copyright in an idea and in this connection Farewell, J. observed as follows:
“This, at any rate, is clear, and one can start with this beyond all question that there is no copyright in an idea, or in ideas …. if the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not until it is (if it may put it in that way) reduced into writing or into some tangible form, that you get any right to copyright at all, and the copyright exists in the particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or look at it.”
Thus on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above the following propositions emerge:
- There can be no copyright in an idea, subject-matter, themes, and plots or historical or legendry fact 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.
2. 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 literal imitation of the copyrighted work with some variation 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.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see 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. 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.
5. 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.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various test laid down by the case law discussed above.
7. Where however, the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and the large a copy of the original play, violation of the copyright may be said to be proved.
27. We would now endeavor to apply the principles enunciated above and the tests laid down by us to the facts of the present case in order to determine whether or not the plaintiff has been able to prove the charge of plagiarism and violation of copyright levelled against the defendant by the plaintiff. The learned trial Judge who had also had the advantage of seeing the picture was of the opinion that the film taken as a whole is quiet different from the play written by the plaintiff. In order to test the correctness of the finding of the trial Court we also got the play read to us by the plaintiff in the presence of counsel for the parties and have also seen the film which was screened at C.P.W.D. Auditorium, Mahadev Road, New Delhi, This was done merely to appreciate the judgment of the trial Court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the parties.
48. To begin with we would like to give a summary of the play Hum Hindustani which is supposed to have been plagiarized by the defendants. The script of the play Ex. P-1 has had been placed before us and we have gone through the same.
51. Analysing therefore the essential features of the play the position is as follows:-
1. That the central idea of the play is based on provincialism and parochialism.
2. The evils of provincialism are illustrated by the cordial relations of the two families being marred because of an apprehended marriage tie which according to both the families was not possible where they belonged to different states.
3. That the Madrasi boy Amni is a coward and in spite of his profound love for Chander he does not muster sufficient courage to talk the matter out with his parents.4. That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into the suicidal pact and write letters to their parents intimating their intention.
5. It was only after the letters are perused by the parents that they realise the horror of parochialism and are repentant for having acted so foolishly.
6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well.
54. Analysing the story of the film it would appear that it portrays three main themes: (1) Two aspects of provincialism viz. the role of provincialism in regard to marriage and in regard to renting out accommodation (2) Evils of a caste ridden society, and (3) the evils of dowry. So far as the last two aspects are concerned they do not figure at all in the play written by the plaintiff/appellant. A close perusal of the script of the film clearly shows that all the three aspects mentioned above are integral parts of the story and it is very difficult to divorce one from the other without affecting the beauty and the continuity of the script of the film. Further, it would appear that the treatment of the story of the film is in many respects different from the story contained in the play.
62. On a close and careful comparison of the play and the picture but for the central idea (provincialism which is not protected by copyright), from scene to scene, situation to situation, in climax to anti-climax, pathos, bathos, in texture and treatment and support and presentation, the picture is materially different from the play. As already indicated above, applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the play.
63. Apart from this the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright. This Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, we feel that the judgment of the courts below are absolutely correct.
64. The result is that the appeal fails and is accordingly dismissed. But in the circumstances there will be no order as to costs in this Court only.
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