[This post has been co-authored with Swaraj and Nivrati Gupta. Nivrati is an IP lawyer based in Delhi and is a graduate of Institute of Law, Nirma University Ahmedabad. Long post ahead.]
The Delhi High Court recently in Humans of Bombay v People of India granted an interim relief to ‘Humans of Bombay’ (HoB) by issuing a notice to ‘People of India’ (PoI) (both being social media pages) for alleged copyright infringement and ‘replication of HoB’s business model’ including the stories and thus creating an imitative platform. Though no injunction was granted against the HoB’s application for ad interim relief, the Court observed prima facie identical and similar photographs/images and “substantial imitation” by PoI, of HoB’s content.
Despite all the commentary on the case, it seems to have largely escaped notice that some identical ‘photos’ shown in court, are actually screengrabs of videos that are substantially different from one another, both telling different stories, but which have a few overlapping (i.e. identical) video moments. (for instance, see here and here for the works which are presented as similar.) Prima facie, the best guess explanation for this would be that the person who actually shot the footage has sent different clippings (with some overlapping) to both platforms. Anyhow, before going further into that, let us first lay out the background a bit more clearly. HoB is a storytelling platform and claims operation since 2014 through its website, Instagram, and YouTube. POI is another storytelling platform operating since 2019 (as per the linkedin page of its founder.) Both platforms share “feel good” stories about people fighting different adversities, and celebrating their achievements. The present suit is filed by HoB against the POI, alleging replication of a large number of images and videos, and replication of business models and stories shared by them. They further alleged that the POI was approaching similar subjects to create an imitative platform. They further provided a comparison table to substantiate their claims, which is reproduced below for reference.
Not So Similar Stories?
We looked for some of these competing contents and interestingly, it seems like what was being projected before the court as “images” to substantiate the allegation of infringement were infact videos/ reels where despite similar subjects, the shared story was expressed differently. For instance, the story of Rashmi Jathan, has been portrayed by HoB as that of a dance teacher/ pole dancer who after getting out of an abusive marriage and battling depression, decided to pursue her lifelong dream of becoming a dancer. Here she met her present partner who motivated her to pursue pole dancing and now they are running a dance studio for students/ organizing dance workshops. On the other hand, the POI’s version of her story is that after getting out of an abusive marriage and battling depression, she did something that she was afraid of doing i.e. pursuing dance and specifically pole dance. Because of this decision, she was subjected to online bullying. It then talks about her present partner who stuck with her through thick and thin and now she is teaching students/ organizing workshops. But in both videos, there are clips/ snippets that are similar and seem to have been shot by the same person.
This opens up multiple questions concerning the ownership of the work, its expression, and whether there is any actual infringement or not?
Legal Analysis of the Claims by Humans of Bombay
HoB has made many claims on infringement of their work and as per para 16 and 17 of the order, it seems like they are asserting ownership over images, videos, business model and exclusivity over approaching the same subject. Let’s look at these claims individually :-
Ownership on Photographs and Videos
At the prima facie stage it’s unclear if copyright on these photographs and videos vests with HoB. As explained above, some of these videos express different “stories” despite being about the same subject with some overlap/ similar snippets. This raises an apprehension that the same person could have made these videos and submitted to different platforms for promotion. Looking at the HoB website, the careers page talks vaguely about a team “that’s interviewing people, clicking photos, managing finances, and making hires” but does not clearly state if all the photographs on their platform actually belong to them or if their page merely offers a platform for “storytelling.”
Assuming that that photos and the videos which are put up by the HoB are actually owned by them by the means of work for hire, the next question that comes up is that if there is any infringement by the POI by uploading contents about the similar subjects? Here, applying the test prescribed by the Supreme Court in R G Anand v. Deluxe Films, the assessment of whether the two works are similar or not needs to be done in a holistic manner. Applying this test to the instance pointed above, it is clear that upon a holistic comparison, the POI’s expression is different from the expression of the “idea” by HoB. Whether this will be the case for the rest of the photographs or videos, will depend on an independent assessment of each work.
“Replication of Business Model, and Copyright?!”
The replication of the business model as being an infringement of copyright is a strange argument. It forces one to ponder if HoB through their suit is trying to establish an exclusive right to copyright the model of publishing featured stories of people’s real life experiences with illustrated images and thus create a monopoly under the shadow of “business model” imitation claim. However, such a claim would lack rationality as it is evident that business models cannot be eligible for copyright protection, which is specifically limited to tangible expressions of creative “works”! The court order on the prima facie hearing of the matter does not appear to have made any reference to this question.
Moving further, let’s say hypothetically if the claim of HoB is over the specific arrangement of work/photographs, followed by a story – would this have been a stronger argument for them? It is pertinent to cite the seminal discussion in R.G. Anand v. Delux Films again, which laid down the basic principles of copyrights by laying the idea-expression dichotomy (i.e., copyright exists not in an idea but only its expression). Therefore, any claim of copyright over the arrangement of scenes/ photos/ content would need to satisfy the originality standard and also prove that it is not a mere idea but an expression of an original and creative concept.
Moreover, it would be a challenge to show that the arrangement in HoB’s stories, which involves photographs and accompanying anecdotes or captions, is inherently distinctive and not merely a combination of elements seen in other in countless other works depicting real-life experiences, including of course, Humans of New York (HoNY).
‘Forum Conveniens’
In a query posed by the court regarding the jurisdiction of the Delhi High Court in this case, HoB responded that a number of subjects who were being interviewed by the Defendants are based out of Delhi. Though firstly, their name and early work suggest otherwise, their blog/ media handle currently does have people from Delhi as well as various other parts of the country. Upon looking at their website, one can see that the HoB operates from Mumbai and no reference of any sub-office situated in New Delhi has been made there. In light of this, it’s particularly interesting to see that the entity, located in Mumbai, with no real presence in Delhi, is filing a suit in New Delhi instead of leaving the convenience of instituting the suit in the place of its head office and where its founder resides. Legally, it may be straightforward enough for HoB to institute the suit in Delhi, but one can’t help but wonder if this is part of a legal strategy based upon an impression that the Delhi High Court is a better place to receive injunctions, than the Bombay High Court. There is of course no way of knowing if this was part of the actual reason for approaching the Delhi High Court. And the lack of court-related data anyway makes it difficult to say whether such an impression (if it did play a part) has any basis in reality or not.
Nonetheless, it would be relevant to mention that in recent decades, the practice of forum shopping, where plaintiffs strategically select jurisdictions they believe are inclined to issue favorable rulings, has witnessed a surge. Such practice has also been taken note by the Supreme Court and Delhi High court in various instances. Discussion regarding territorial jurisdiction and recognition of forum shopping can be seen here, here, here, here and here.
Where Did Humans of Bombay Lose? In the Eyes of the Law, or Public Relations?
Needless to say, the reason that this case has garnered so much attention is not because the public is suddenly interested in copyright law, but because of the ‘human’ touch that so many, including us, have often been moved by, when reading the various “Humans of” stories over all these years, starting from HoNY onwards. The news of HoB suing PoI has also caught more attention because of ethical reasons the platform works for. The intention of HoB from their website seems to be to create a platform to “lend a voice to the voiceless” and “to tell stories, to connect strangers with the emotion of, You’re not alone”. But their act of bringing a suit against PoI who also seem to be working on a humane objective like them, shakes one’s confidence behind their expressions of altruism.
And of course, most people know about the “roots” of the “Humans of” platforms, being HoNY. The arrangement of scenes/ photographs in a specific way followed by a story under the concept of “Humans of …” seem to have taken birth after the popularity of “Humans of New York” handle’. The expression of HoNY’s to “interview subjects in addition to photographing them” and to “include quotes and short stories from their lives” have gained them about 20 million followers from all over the world. On an online search, one can find umpteen pages working under the concept of “Humans of…”. To name a few, Humans of Amsterdam, Humans of Judaism, Humans of Pakistan, Humans of Kurdistan, Humans of Jabalpur, Humans of Kerala, We the Humans, People of Pride. Undoubtedly HONY’s expression inspired people to open more such handles with a selfless motive of providing a glimpse of the heroes and warriors of daily lives on the internet. Coming to IP matters, while Brandon may not have had a copyright case on the “business model” for the same reasons HoB would not, it would have certainly been interesting if Brandon/HoNY had decided early on to enforce trademark or passing off claims against other similar platforms! Conversely, Brandon’s words in the past have shown that he enjoys that other such platforms are bringing the power of storytelling to so many places in the world.
And indeed, in an interaction with Forbes the founder of HoB recorded her knowledge about HoNY’s existence and thought “…why something like this couldn’t exist in her own city.” Although, strangely, her statements saw a contrary stance in her TEDx talk where the founder mentioned the idea to be her own. (As a coincidental sidenote, TEDx talks are similar “business model replications” of the original TED talks, protected primarily through trademark licensing agreements)
While on the legal front, the court has issued notice to the PoI, it is yet to be seen which way will the wind turn for the HoB. On a public relations front, the harsh act of HoB considering the objective they work for seems to be uncalled for by many. By pursuing this lawsuit, it contradicts their primary objective of giving voice to the voiceless. This exacerbates further when one looks objectively at this situation considering the similarity this platform shares with HoNY.
However, it seems that this may be a case for other organizations to watch and learn from. If HoB does own the copyright over the images/texts that were reproduced by PoI, (which they have not discussed/shown so far), then their legal claim may be fine, to the extent of copyright over those images. Nonetheless, the act itself, combined with the vague claims of rights over the business model, seems to have been perceived by many as being contrary to what they believed the platform(s) stood for. Whichever way this goes, it does teach a good lesson in understanding with more nuance, the role that IP rights can play in working ‘business models’.