Image from here
The Bombay High Court has for the past few years emerged as the epicenter of decisions on copyright law relating to films and media. Notable amongst these is the judgment in the XYZ Films case, which has been covered in the past on the blog here. The judgment is a truly delightful read especially the travails of the Judge in viewing the impugned movie. The judgment eventually culminated in a denial of injunction despite multiple points of coincidences and conceptual similarities. The judgments thereafter have been of a similar vein, including the recent order rejecting an injunction against the release of the Netflix series Betaal.
In this seemingly steady line of decisions, a peculiar order has recently been bought to our attention. The order grants limited interim injunction against a web series entitled ‘Singardaan’ against a claim brought by an author of a short story having the same title. The premise of the dispute is the claim that the plaintiff’s story revolved around a vanity case (which is also called a ‘singardaan’) belonging to a courtesan. The vanity box is looted from the courtesan during riots, and taken to the residence of the looter. Thereafter, womenfolk in the looter’s family start behaving in a manner similar to the courtesan, leading the looter to ponder and regret his theft of the courtesan’s article. In dealing with the defendant’s web series, the defendant claimed numerous points of dichotomy and argued that any similarities were merely conceptual overlaps. Interestingly, the order itself records “There is no doubt that the theme, plot and story line of the Plaintiff has been developed in a different manner by the Defendants”.
Unlike trademark law in which stress is laid down on common features rather than on difference in essential features, copyright law is myriad in its approach. The differences are typically not ignored and neither is the treatment of the subject. The requirement to consider the differences in expression allows for artists to draw from the fount of creative commons without treading on copyright law. The inevitability of inspiration in all art would stand severely impeded if only commonalities between two works are considered for determining copyright infringement.
Novel “Abstraction” Process to Determine Infringement
The judgment also applies a hitherto unknown “abstraction” process. The approach (which is novel in India) is “When we strip the story of its embellishments, its description of mood, the motivations and tribulations of its characters and their actual actions, we get the plot and the story line”. The judgment then proceeds to demarcate certain elements as “embellishments – the details which have no essential bearing on theme, plot and story line of the Plaintiff’s work”. The judgment then proceeds to decide on the “theme, plot and story line” which can be protected. Thereafter, the judgment moves to the defendant’s work and says that it is very clearly a copy of the plaintiff’s “theme, plot and story line” (emphasis added). Differences are held to be “mere embellishments”. The judgment reduces the scope of non-protectable matter to only the “idea”. The theme emerging from this idea is held to be protectable as it “has not yet reached the level of extraction where the work can be said to be stripped to its non-protectable idea”.
This approach appears to be at odds with earlier decision in the XYZ Films case that “I must agree with this view that there is, generally speaking, no copyright in the central idea or theme of a story or a play”.
Difficulties of Thematic Protection
The difficulty in providing thematic protection to works is rather apparent. As is the difficulty of an approach which identifies the “essential” elements of a plaintiff’s work and considers whether they are present in the defendant’s work. In fact in the order itself, only the later half of the defendant’s web series is held to be a copy of the plaintiff’s theme, plot and story line. If this rationale were applied to the facts of the XYZ Films case, the outcome in that case would have been altogether different. We are therefore confronted with two wholly different approaches in dealing with this issue from within the same High Court. The protection of themes in copyright law, and deeming the theme itself to be a mode of expression would significantly expand the scope of protectable matter. Highlighting this issue I believe would definitely bring out some interesting views on this blog. What is required without doubt are definitive parameters to deal with these claims, as they are increasingly common place. Virtually every movie release of note is subject to these proceedings, and exhaustive litigation at the juncture of release on claims of such nature is almost inevitable. A possible approach would be taking the American Court standard of “total concept and feel” [as considered by the United States Court of Appeal, Second Circuit in Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc., 118 F.3d 955, 967 (2d Cir. 1997)]. This approach considers the similarities of the plot, mood, setting, sequence of events and characterizations from the viewpoint of an average lay observer. Specific instances thereafter, such as dialogue appropriation enable the Court to arrive at a conclusion on infringement. Such approach, obviously requires a thorough examination of the works on either side and even attempting the same at the interim stage appears to be unviable.
The order in discussion does temper the relief granted to preserve the commercial relevance of the defendant’s work. In such matters, even pushing the matter to trial may not be the fix, as the Judge determining the issue has to subject herself to reading/ viewing both works. While this would of course make decisions highly subjective, such approach seems to be the only means to consider the degree and manner of infringement.
[Note: The post has been edited to reflect that the Court did not pass the order without viewing both the works.]