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A single-judge Bombay High Court bench recently passed an order refusing an interim injunction to stall the release of the Netflix series ‘Betaal’. The Plaintiff, in this case, Sameer Wadekar, a writer, sought an ad-interim injunction against Netflix Entertainment Services to prevent them from airing their latest series ‘Betaal’. The Plaintiff claimed that the series infringed the copyright held by him in the literary work in ‘Vetaal’. The order denied an ad-interim injunction to the Plaintiff as he could not prima facie prove that the Defendants had infringed the copyright held by him.
Background
The Plaintiff claimed that his story ‘Vetaal’ was an original script based on a fictional story. The Plaintiff came across a video promotion for the Netflix web-series ‘Betaal’ on 07th May 2020 and found that the Plaintiff’s characters, locations, and props were depicted in manners similar to the work that the Plaintiff held copyright in. Betaal was set for a worldwide release on Netflix on 24th May 2020. The Plaintiff claimed that the Defendants had infringed his registered copyrighted work and hence should be restrained from releasing the series through an ad-interim injunction.
When the judge inquired about how the Defendants could have possibly come to know about the Plaintiff’s story; and based on the Plaintiff’s claims, how there could have been so many similarities, the Plaintiff averred that since 2015 he had shared his copyrighted work with many known and established producers. In support of this claim, the Plaintiff averred that he had also shared his work with a filmmaker who claimed to have contacts with Netflix, and this is how Netflix could have gotten hold of the story. To establish the same, the Plaintiff produced emails between himself and the said filmmaker as exhibits.
The Judgment
The judge denied the Plaintiff an ad-interim injunction and allowed the Defendants to release their series online based on three points. First, the judge found the link drawn up by the Plaintiff to establish how Netflix could have copied his story to be contentious. The judge noted that the mere fact that the filmmaker claimed to have contacts with Netflix does not prove that Netflix copied the Plaintiff’s story with such detail. Second, the judge observed that the Plaintiff had majorly delayed bringing this case to court. While the Plaintiff claimed that he came across the Defendants advertisement only on 07 May 2020, the Defendants had actually made several print and online publications, dated 16th, and 17th July 2019, on popular platforms to advertise their web-series. The Plaintiff’s lack of awareness of these publications that were available in the public domain did not help his case. Finally, the judge noted that the word ‘Betaal’ originates from ‘Vetalam’, which is a part of Hindu mythology and is a well-known story, so this also does not work in favour of the Plaintiff’s request for granting ad-interim relief.
Analysis
While the first two reasons – there being no conclusive link to prove that the Defendants had used the Plaintiff’s story and the delay on part of the Plaintiff – are fairly straightforward reasons and are sufficient for denying the interim injunction, the third reason should have ideally been elaborated upon. The mere fact that the story of ‘Vetalam’ is well-known in Hindu mythology would mean that it is an idea that is available in the public domain. However, individual expressions of it, that incorporate specific stories, props, characters, etc., does cross-over to the realm of expression and can benefit from copyright protection if the work is original.
Another factor for consideration could have been the scenes a faire of the genre of zombie horror. The scenes a faire doctrine in copyright law holds that certain common stock of expressions are not protectable because they are customary to a particular genre. This doctrine was formulated in the US case of Cain v. Universal Pictures wherein it was recognized that while there were similarities between the plaintiff’s story and the defendant’s movie, the similarities cannot be held to be copyright infringement because the scenes in question were an inevitable part of the genre. While Indian copyright law does not explicitly refer to the concept of scenes a faire, the Courts follow the US doctrine. In NRI Film Production Associates v. Twentieth Century Fox Films, it was observed that when same/similar ideas are developed in different manners, there are bound to be similarities. It was further stated that in judging such similarities the test should be whether the works are copies of each other in substantial and material ways. If that is held in the affirmative, only then an actionable claim for infringement can arise. It would have been useful to explore the same in this case and identify whether the alleged infringement claim was against stock expressions or if the similarities were material and substantial, especially given the observation that the story is quite well-known.
To simply dismiss the claim of copyright infringement because it is a well-known story overlooks the idea/expression dichotomy that acts as an initial barrier for copyrightability claims. While only a prima facie test is undertaken to check whether there are grounds for granting an interim injunction, in this case, the test undertaken seems to place a mistaken emphasis on what the story is about than whether there was any similarity between the Plaintiff’s story and the Defendant’s series. In that, if the Plaintiff’s story has already received copyright protection and is registered, there can be a fair assumption that the story did pass the originality test and was held to be a copyrightable expression of a well-known idea. Ideally, in a case of copyright infringement, the contested works need to be compared under the idea/expression dichotomy rather than under the originality test, which is more appropriate for checking if individual works can be copyrighted. The idea/expression dichotomy test helps establish the extent of infringement if any, as it compares the contested works. By bringing in the originality test and not elaborating on why it should be applied here, the order seems to skew the line between the originality test and the idea/expression dichotomy, which is more appropriate for infringement claims.