(2015) 409 KLW 495
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.SURESH KUMAR, J.
R.F.A.No.456 of 2011
Dated this the 20th day of May, 2015
(AGAINST THE JUDGMENT IN OS.NO. 3/2007 OF ADDL.DISTRICT COURT, KOTTAYAM DATED 02-11-2009)
APPELLANT/PLAINTIFF
SHUHAIB HAMEED
BY ADVS.SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS
RESPONDENT(S)/DEFENDANTS
1. JAMES ALBERT, FILM SCRIPT WRITER, KARUMALIL ROAD, KAVAL JUNCTION, THANKASSERY P.O., KOLLAM DISTRICT-691 007.
2. LAL JOSE, FILM DIRECTOR, MECHERRY HOUSE, OTTAPPALAM P.O., PALAKKAD-679 101.
3. PRAKASH DAMODARAN, FILM DIRECTOR, KUNNEL HOUSE, VETTATHUKAVALA, PUTHUPALLY P.O., KOTTAYAM DISTRICT-686 011.
R1 BY ADV. SRI.K.A.SALIL NARAYANAN
J U D G M E N T
The defeated plaintiff in an action for infringement of copyright is the appellant in this appeal.
2. The plaintiff is the author of the Malayalam novel “Kalaalayavarshangal” published in the year 2004. The defendants are the scrip writer, director and producer respectively of the cinematograph film “Classmates” made and released in the year 2008. According to the plaintiff, the story of the cinematograph film “Classmates”, hereinafter referred to as “the movie” for short, is a reproduction of the story of the novel “Kalaalayavarshangal”, hereinafter referred to as “the novel” for short . It is alleged by the plaintiff that the background, idea, theme, characters and the manner of telling the story in the movie are exactly the same as in the novel. A decree of permanent prohibitory injunction restraining the defendants and persons claiming under them from exhibiting the movie or dubbing or remaking the movie in other languages, was the relief sought in the suit.
3. The defendants filed separate written statements, contending among others, that the similarities in the novel and movie are only in respect of the common features of campus life; that the story of the movie is distinct and different from the story of the novel and that there are no similarities in the fundamental or substantial aspects of the mode of expression adopted in the novel.
4. The trial court, after having read the novel and watched the movie, found that there is nothing in the movie which is actionable and consequently dismissed the suit. The plaintiff is aggrieved by the decision of the trial court.
5. Heard the learned counsel on either side.
6. The essence of the novel is that Sudhakaran and Meera became thick friends during their college days after some differences at the beginning and one of their classmates Balachandran instigates hatred in the mind of Meera towards Sudhakaran with a view to possess her. The conduct of Balachandran estranges the relationship between Sudhakaran and Meera. Later, on account of repentance, Sudhakaran confesses to Meera the wicked act committed by him and by the time, their college days were over and Sudhakaran had already left abroad for job. Meera remained unmarried due to the psychic disorder she had undergone and she takes over the business of her father to keep herself busy in life. After a few years, Sudhakaran and Meera meet at a function of the former students of the college and reconcile themselves. The essence of the movie, on the other hand, is that Sukumaran and Thara became lovers during their college days after some differences at the beginning and they estrange themselves after some time on account of a wicked act committed by one of their classmates, Satheeshan. Later, Satheeshan confesses to Meera the wicked act committed by him in estranging them. By that time, their college days were over and the Sukumaran had already left for Bombay seeking job. Thara, on account of repentance remained unmarried and became a dancer to keep herself busy in life. Sukumaran gets married to another. Later, on account of irreconcilable differences, Sukumaran had to get divorce from his wife. After a few years, Sukumaran and Thara who meet at a function of the former students of the college reconcile themselves and decide to live together.
7. The learned counsel for the appellant pointed out the various similarities in the works, which according to him, make the defendants guilty of piracy. It was pointed out that there is a main story and a sub-story in both the works and the stories take place in two time periods in the backdrop of campus. It was also pointed out that in both works, the hero and heroine who are classmates develop intimacy after some disputes and they estrange themselves on account of the wickedness of one of their classmates. It was further pointed out that in both the works, the heroine discontinues her studies and the villain confesses to the heroine the wicked act committed by him after the hero leaves the station. In both the works, the heroine remains unmarried. In both the works, one of their classmates becomes a legislator. In both the works, the hero and heroine meet after a few years at a function organised by the former students.
8. In the light of the provisions contained in the
Copyright Act, 1957
it is beyond dispute that an author of a literary work has copyright in respect of his work and the said right includes the exclusive right to make cinematograph films in respect of the same also. There cannot also be any dispute to the proposition that the copyright in a work is deemed to be infringed when a person other than the owner of the copyright does anything which the owner of the copyright alone is entitled to do as per the provisions of the Copyright Act. As such, if it is found that the movie is in respect of the literary work of the plaintiff, the same would amount to infringement of the copyright of the plaintiff. The scope of the copyright owned by a person has been considered by the Apex Court in
R G. Anand v. M/s. Delux Films (AIR 1978 SC 1613)
It was clarified in the said case that it is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others. It was also clarified in the said case that where two authors write on the same subject, similarities are bound to occur and similarities or coincidences themselves cannot lead to an irresistible inference of plagiarism. It is thus clear that even in a case where the defendant reproduces the original in a different form, different tone and different tenor, so as to infuse a new life into the idea, there cannot be any violation of the copyright, for, the subsequent work becomes a completely new work. Paragraphs 45 and 46 of the said judgment read thus:
“45. Thus, the position appears to be that an idea, principle, theme, or subject matter or historical or legendary facts being common property cannot be the subject-matter of copyright of a particular person. It is always open to any person to choose an idea as a subject-matter and develop it in his own manner and give expression to the idea by treating it differently from others. Where two writers write on the same subject similarities are bound to occur because the central idea of both is the same but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek, Roman and British mythology or legendary stories like Merchant of Venice, Hamlet, Romeo Juliet, Julius Caesar etc. But the treatment of the subject by Shakespeare in each of his dramas is so fresh, so different, so full of poetic exuberance, elegance and erudition and so novel in character as a result of which the end product becomes an original in itself. In fact, the power and passion of his expression, the uniqueness, eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him. It will thus be preposterous to level a charge of plagiarism against the great playwright. In fact, throughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of his dramas constitute a masterpiece of English literature. It has been rightly said that "every drama of Shakespeare is an extended metaphor". Thus, the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor charges or super-additions or embellishment here and there. Indeed, if on a perusal of the copyrighted work the defendant's work appears to be a transparent rephrasing or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved. Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.
46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge :
1.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.
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 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 copy-right. 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 tests 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 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.”
Similar view has been taken by the Federal Court of Australia in
Re : Giovanni Zeccola, Liliana Zeccola, Superstar International Films Pty Ltd Franco Benito Adolfo Zeccola, Vincenzo Zeccola, Gregory Philip Lynch, GL Film Enterprises Pty Ltd v. Universal City Studios Inc [(1982) 67 FLR 225]
In the said case, it was held that copyright exists in the combination of situations, events and scenes which constitute the particular working out or the expression of the idea or theme. The relevant portion of the judgment reads thus :
“The difficulties involved in severing films into parts which are capable of characterization as original works and other parts that are not is obvious. Indeed, it is the subject of only limited exploration by the laws of this country and the United Kingdom. We were referred to certain decisions of United States' courts where this question has been consdiered from time to time and we have found those cases helpful in resolving the questions before us. In general, there is no copyright in the central idea or theme of a story or play however original it may be; copyright subsists in the combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme. If these are totally different the taking of the idea or theme does not constitute an infringement of copyright.”
The question to be decided in such cases, therefore, is as to whether the similarities are on the fundamental aspects of mode of expression adopted in the copyrighted work. In other words, the question is whether the defendant has adopted the manner, arrangement, situation to situation and scene to scene with minor changes or super additions or embellishments here and there. As held by the Apex Court in R G. Anand v. M/s. Delux Films(supra), one of the surest tests to determine whether there is violation of copyright is to see whether the reader/viewer gets an unmistakable impression that the work of the defendant is the copy of the original. True, the medium of movie has much broader perspective, wider field and bigger background where one can introduce a variety of incidents to give a different colour and competition from the manner in which the copyrighted work has expressed the idea. Even in such cases, one has to see whether the viewer gets an impression that the movie is by and large a copy of the copyrighted work to hold in favour of infringement of the copyright. The facts of the present case, in the said circumstances, are to be analysed in the light of the said principles.
9. Ext.A2 is the novel and Ext.A5 is the compact disk of the movie. I have read the novel and watched the movie for the purpose of this case. On a reading of the novel and watching the movie, I did not get an impression that the movie is a copy of the novel. True, there are similarities and coincidences in the works as pointed out by the learned counsel for the appellant. But, as held by the Apex court in the case referred to above, the similarities and coincidences themselves would not lead to the inference of plagiarism. No doubt, in both the movie and novel, the story is narrated in the background of campus life. There are features which are peculiar to campus life. Love affairs, estrangements, politics, elections, fights etc., are some of the peculiar features of campus life. The said features of campus life are not copyright protected. Most of the similarities highlighted by the learned counsel for the appellant are in respect of the common features of campus life. On watching the movie, I did not feel that the story of the movie is same as the story of the novel. Several situations and scenes in the movie are distinct and different from the work of the plaintiff. In the movie, the focus is on the love affair between the hero and heroine, whereas, no such relationship is portrayed in the novel. The relationship between the hero and heroine portrayed in the novel is only a thick friendship. A very peculiar feature of the movie is the love affair of the characters Murali and Raziya and in the novel there are no such characters. There is no sub-story in the movie and the whole movie depicts campus life and alumni meet, whereas, a sub story in relation to the past life of heroine which leads to a psychological trauma in her life is highlighted in the novel. As pointed out by the court below, on the day of the alumni meet, there takes place an attempt on the life of the hero in the movie and the climax of the movie is the identification of the culprit. No such suspense is created in the novel. As pointed out earlier, the hidden deep love between Murali and Raziya is the uniqueness of the movie. Likewise, there is a character called Karthika who gets killed by a character called Soman in the novel. There is no such story in the movie. In the novel, the student politician Cherian who later becomes a legislator is the friend of the hero, whereas in the movie, the student politician Satheeshan who later becomes a legislator is the villain. As pointed out earlier, there is a climax in the movie, whereas the novel ends without any climax. It is thus evident that though the story portrayed in the movie and novel are in the background of the campus, there is substantial difference in the mode of expression of the story. The facts stated above would also indicate that the points of dissimilarities in the works exceed the points of similarities. Even if it is conceded that there are broad similarities in respect of some of the characters, it cannot be disputed that they are presented differently in the movie. The plaintiff has not examined any witness to whom it appeared that the movie is a copy of the novel. The similarities highlighted by the learned counsel for the appellant are not on the fundamental aspects of mode of expression adopted in the movie. The script of the movie is a work which could be conceived and written by a person who has not seen the copyrighted work also. As such, on an evaluation of the entire materials on record, I am in complete agreement with the view taken by the trial court that the movie is a completely new work and there is no question of any infringement of the copyright of the plaintiff.
10. The learned counsel for the appellant, relying on the decision of the United States Court of Appeals, in
Rogers v. Koons (960 F.2d 301)
contended that what is to be determined in a case like this is whether the work of the defendant is substantially similar to the copyrighted work and that the said fact is to be determined in the point of view of a lay observer. According to the learned counsel, if an average lay observer recognises the alleged copy as having been appropriated from the copyrighted work, then it has to be presumed that a case of infringement is made out. According to the learned counsel, it is only where the points of dissimilarity exceed those that are similar and those similar are, when compared to the original work, of small import quantitatively or qualitatively, that a finding of no infringement is appropriate. I have already held that the work of the defendants is not substantially similar to the copyrighted work. I have also found that the dissimilarities in the movie exceed the similarities therein. Further, as pointed out earlier, the plaintiff has not examined anybody to say that on watching the movie, he/she felt that the movie is a copy of the copyrighted work. As such, there is no substance in the arguments developed based on the decision of the American Court referred to above.
In the light of the facts and circumstances stated above, the appeal is devoid of merits and the same is accordingly dismissed.
Sd/- P.B.SURESH KUMAR, JUDGE.
Kvs/- (true copy) P.S. to Judge.