CASE COMMENTARY: R.G. ANAND V. M/S. DELUX FILMS BY - SHIVANI. A
CASE
COMMENTARY: R.G. ANAND V. M/S. DELUX FILMS
AUTHORED BY - SHIVANI. A[1]
INTRODUCTION:
The case R.G. Anand v. M/s. Delux
Films[2] is
one of the landmark judgements pertaining to copyright law in India. The main
issue of the case revolves around the question as to whether the movie ‘New
Delhi’ infringes the copyright of a play named ‘Hum Hindustani’ as the theme of
the both the works is the same and the movie was made without the permission of
the author of the play. The case serves as a precedent for cases involving
copyright infringement of literary and dramatic works as the Supreme Court lays
down certain principles which can be used to determine infringement. These
principles laid down by the court are relevant even in the recent times.
FACTS OF THE CASE:
In this case, the appellant, R.G.
Anand is a playwright, dramatist and also the producer of several plays. The
present case is pertaining to a play titled ‘Hum Hindustani’ which is claimed
to be written by the appellant in or about 1953. This play was enacted in the
year 1954 after which it gained immense popularity. As a result, one of the respondents
of the instant case approached the appellant and requested him to provide a
copy of the play so that he could make a movie on it. The appellant responded
by asking the respondent to attend the screening of the play at the National
Film Festival as it was going to be screened at the festival.
The respondent attended the screening
and had a discussion with the appellant as to the potentialities of turning the
play into a movie. The respondent also told the appellant that he would inform
him if the respondent would make a movie on the play. However, the appellant
never heard from the respondent thereafter.
In 1955, the respondent began filming
a movie titled ‘New Delhi’ which the appellant claims, was based on his play
‘Hum Hindustani’. However, the respondents denied this contention. The film was
released in the year 1956 and after watching it, the appellant filed a suit of
copyright infringement and contested that the theme of the play as well as the
movie was the same, i.e, about ‘provincialism’. The trial court gave the
judgement in favour of the respondent due to which an appeal was filed by the
appellant in the Delhi High Court which also upheld the judgement of the trial
court. Therefore, an appeal was filed before the Supreme Court.
ISSUES OF THE CASE:
1. Whether the appellant is the owner of
the copyright in the play ‘Hum Hindustani’?
2. Whether the film ‘New Delhi’ can be
considered as a violation of the copyright of the appellant’s play ‘Hum
Hindustani’?
3. Whether the respondents violated the
appellants copyright?
4. To what relief is the appellant
entitled and against whom?
LAW INVOLVED:
The
Copyrights Act, 1957:
Section 13(1):
This Section[3]
provides for the kinds of work that can be subject to copyright. It states that
a copyright may be granted to:
·
Original
literary, dramatic, musical, and artistic works;
·
Cinematograph
films; and
·
Sound
recording.
Section 14:
This Section[4] defines
the term copyright. It states that, the word ‘copyright’ refers to the
exclusive right which is given to a person to produce work in any form that he
wants, grant a copy of the work produced by him to the public, make any
cinematographic film, make an adaptation of the work, etc.
Section 51:
This Section[5]
defines the term ‘copyright infringement’. It states that ‘copyright infringement’
is said to occur when:
·
A
person uses a copyrighted work without taking prior permission of the owner or
exercises any right which rests with the owner of the copyright,
·
Permits
to use any place for communication of a work for profit and such communication
amounts to infringement of a copyright. However, the person will not be liable
if he has no knowledge or no reason to believe that that his act might amount
to infringement.
·
If
a person imports infringing copies of a copyrighted work and produces them as
his own.
·
If
a person portrays a replica of a copyrighted work as his own without the
permission of the true owner of the work.
JUDGEMENT:
The Supereme Court in this case,
upheld the decision of the Delhi High Court that the movie ‘New Delhi’ did not
violate the copyright of the play ‘Hum Hindustani’. To arrive at this
conclusion, the court made a detailed analysis on the story of the play as well
as the movie. Upon such analysis, the court observed that the similarity
between the two works was mainly based on their theme which was pertaining to
‘provincialism’. However, the manner in which the theme was presented was
completely different.
The court also observed the arguments
stated by the appellants in their plaint as to why they believe that the movie
was similar to their pay and thereby infringed their copyright. However, the
court then made a list of dissimilarities between the two works and observed
that the number of dissimilarities listed were more than the similarities which
were pointed out by the appellants in their plaint. Also, the court observed
that the similarities pointed out by the appellant were very trivial and didn’t
comprise any substantial aspects of the play.
The court also relied upon the fact
that a copyright can only be provided to an expression of an idea and to the
idea itself. Therefore, by considering all these points, the court in this case
held that the respondents in the instant case were not liable for copyright
infringement.
ANALYSIS:
After considering the arguments of
both the parties and also the decision of the High Court, the Supreme Court
laid down the following guidelines to determine if a copyright infringement has
taken place:
1. Idea- expression dichotomy:
The principle of idea- expression
dichotomy is an essential principle of copyright law. Though it has been
criticized several times for being vague, fictitious and imprecise, it is still
considered as a pertinent principle of copyright law and is also a part of the
Agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS)[6].
The same principle is also given under the World Intellectual Property Organization
(WIPO) Copyright Treaty[7].
The underlying premise of this principle is that ideas must be distinguished
from expression while granting a copyright. It states that it is the expression
of an idea and not the idea itself which can be copyrighted[8].
Even in the instant case, the Supreme
Court observed that a copyright cannot be granted to an idea, subject matter,
theme, narrative, etc. However, when an idea or a theme is reduced to a
tangible form, then, a copyright may be granted to the tangible form of the
idea. Therefore, this principle states that it is not always necessary for a
work to have an original idea in order to be granted a copyright. The novelty
with which the idea is presented should be considered while granting a
copyright.
This principle acknowledges the fact
that ideas are abstract and are common to everyone. Therefore, while granting a
copyright, the manner in which such ideas are presented must be considered. In
order to better understand this point, the Supreme Court relies on the example
of Shakespeare. The court observed that most of the plays written by
Shakespeare were based on Greek roman and British mythology. However, the
nature and elegance with which he expresses each of his works is so novel that
the end product becomes an original work in itself. This is the reason in which
none of Shakespeare’s works can be considered to be an infringement of a
copyright.
In the instant case, the plaintiff
claims that the defendant should be charged with copyright infringement as both
the play as well as the movie are based on the same theme, i.e,
‘provincialism’. However, as per this test, it cannot be considered as an infringement
of copyright as mere idea or theme cannot be copyrighted.
2. Substantial similarity between the
works:
A copyright is not said to be
infringed by mere copying of a copyrighted work. In order to bring an action
against a person for copyright infringement, the owner has to prove that the
‘protected elements’ of the of the work have been infringed[9].
Here can be no direct evidence that the owner can produce to prove that there
has been a copyright infringement. Therefore, it is enough that the owner of
the copyright proves that the accused work is substantially similar to the
original copyrighted work to prove infringement.
This principle rests on the premise
that, if the idea or the theme of two or more works is the same, there will be
some similarity between the two works. These similarities per se do not amount
to copyright infringement. The courts in such cases must check if the
similarity of the work alleged to be copied is pertaining to the substantial
aspects of the copyrighted work. If a person imitates the copyrighted works and
just makes some changes to it here and there, it would amount to copyright
infringement.
Therefore, to check if there is
substantial similarity between two works, it is important to check if the ‘core
copyrightable material’ has been infringed[10]. This
core copyrightable material is obtained by removing the following from a work:
·
Ideas
·
Facts
·
Substances
from the public domain
·
Substances
which are under the doctrine of merger, i.e, the idea and the expression are so
intertwined with each other that they cannot be separated and thus can only be
expressed in a single way.
After removing all these from the
work that is alleged to infringe a copyright, it is check if it is similar to
the original work. If the works appear to be substantially similar, then, it is
said to be a case of copyright infringement.
In the instant case, the court held
that there was no infringement as the similarity between the play and the movie
was mainly based on the theme and the rest of the similarities were trivial and
were not substantially similar to each other.
3. Audience test/ Lay observer’s test:
This is a traditional test used to
determine copyright infringement. It states that a work is said to infringe a
copyright if an ordinary person who sees a work can associate it with a
copyrighted work and can recognize this it is a copy of a copyrighted work[11].
This ‘ordinary observer’ is considered as a benchmark to determine whether a
copyright infringement has taken place or not.
In the case of Atari, Inc. v.
North American Philips Consumer Elecs. Corp[12],
it was held that a copyright is said to be violated when “the accused work
is so similar to the plaintiff's work that an ordinary reasonable person would
conclude that the defendant unlawfully appropriated the plaintiff's protectable
expression by taking material of substance and value”. Therefore, the test
which must be used to determine the infringement is overall similarity between
the two works and not minute similarities[13].
In the instant case, the court
considered the totality of the movie and held that it was different from the
play and therefore, didn’t amount to copyright infringement.
4. Same theme, presented differently
doesn’t violate copyright:
T.S.Eliot said: “Immature
poets imitate, mature poets steal. Bad poets deface what they take
from great poets and transform it into something better, or at least
different”. This line essentially explains the difference between
inspiration and imitation. Taking inspiration form somebody else’s work and
creating a new work altogether is allowed and doesn’t infringe the copyright of
a person. However, imitating the copyrighted work of a person as it is and not
creating anything new from it definitely leads to infringement.
There can be some similarities
between the accused work and the original work. Substantial similarity is
allowed under the copyright law. In this case, the court held that if
the theme of an accused work is similar to that of a copyrighted work, it
doesn’t in itself violate the copyright if it is presented in a different way.
This is because, ideas, information, national phenomena and events are
considered to be common property and are not eligible for copyright protection[14].
Therefore, even in the instant case,
there is no violation of copyright as the movie was just based on the idea
which was portrayed in the play but the way in which it was expressed was
completely different from the play.
5. If there are broad dissimilarities
along with similarities, there is no violation of copyright:
A copyright infringement is said to
have taken place when the accused work is strikingly similar[15]
to the copyrighted work. However, if there are a few similarities, but there
are also broad dissimilarities between the two works and an intention to not
copy the original work can be ascertained from the accused work, then, there
can be no infringement. If the plaintiff is successful in proving that the
accused work is strikingly similar to the copyrighted work, the court can infer
that the defendant had access to the copyrighted work and therefore, has
infringed the copyright[16].
Most of the courts have not yet
defined when a work becomes strikingly similar. However, there are several
factors which are considered by the court to determine if the two works are
strikingly similar:
·
The
uniqueness, complexity and intricacies of the both the works are carefully
examined.
·
The
court checks if the original work includes any sort of unexpected events or
idiosyncrasies in it and if the same are repeated in the accused work.
·
The
courts can check if any mistakes or errors which were present in the original
work are also present in the accused work to determine striking similarity.
·
If
the accused work contains the same fictitious elements which are used in the
original work like fake names, places, etc, the court may believe that there is
a violation of copyright.
·
The
court may also check if the accused work contains any unwanted or unworked
elements in it which the infringer has added just to make it look like
original.
If these elements are proved, the
court can hold that the works are strikingly similar to each other and that
there is a violation of a copyright. However, in the instant case, the court
observed that the play and the movie were very different from each other and
had a very few similarities. Therefore, there was no infringement.
6. Clear and cogent evidence:
In this case, the Supreme Court held
that, copyright infringement leads to piracy. Therefore, before coming to a
conclusion that a particular work amounts to copyright infringement, the court
has to apply various tests which are mentioned above. Only after applying the
tests and obtaining clear and cogent evidence, the court should decide if the
copyright has been infringed or not.
In the instant case, even after
applying all the tests the appellants couldn’t produce any clear evidence that
the respondents had violated their copyright. Hence, the court held that there
was no copyright infringement.
7. Totality of the work should be
considered:
The Supreme Court also observed that
in cases where a copyright of a play has been infringed by a film, it can be
difficult for the author of the play to prove that there is substantial
similarity and thereby his copyright has been violated. This is because, unlike
a stage play, movies have a wider field and a bigger background which can be
used by the defendants to express the same ideas and incidents of the
copyrighted play in a different complexion. Even then, the court states that,
if the viewer gets an impression that the total film is by and large a copy of
the original play, it can amount to violation of a copyright.
In the instant case, the court
analysed the story of the play as well the story of the movie and based on this
they found that both the works were completely different from each other and
the similarities pointed out were trivial. They also observed that an ordinary
person watching the film will not have an indication that the film is copied
from the play. Hence, they held that there was no violation of copyright.
CONCLUSION:
The judgement given by the Supreme
Court in the case of R.G. Anand v. M/s. Delux Films holds relevance even
in the contemporary period. The court held that though there are certain
similarities between the two works, they are not substantially similar to each
other. The court also brought a distinction between the terms imitation and
inspiration and held that a copyright cannot be granted to mere ideas, rather,
it granted to the manner in which such ideas are presented. By giving these
principles, the Supreme Court laid a foundation for determining copyright
infringement which can serve as a guiding light to decide future cases of
copyright infringement.
[1] B.A.LL.B, Fourth Year, KLE Law
College, Bengaluru.
[2] R.G. Anand v. M/s. Delux Films,
AIR 1978 SC 1613.
[3] The Copyrights Act, 1957, s.13(1).
[4] The Copyrights Act, 1957, s.14.
[6] Trade Related Aspects of
Intellectual Property Rights, Art. 9(2).
[7] WIPO Copyright Treaty, Art. 2.
[8] Narell v. Freeman, 872
F.2d 907 (9th Cir. 1989); Warner Bros. v. American Broadcasting Cos., 654
F.2d 204 (2d Cir. 1981).
[10] Modhura Roy, Substantial
Similarity in Copyright Law, Available at SSRN: https://ssrn.com/abstract=1666910 or http://dx.doi.org/10.2139/ssrn.1666910
[11] Ideal Toy Corp. v. Fab-Lu Ltd.,
360 F.2d 1021 (2d Cir. 1966).
[12] Atari, Inc. v. North American
Philips Consumer Elecs. Corp., 672 F.2d 607 (7th Cir. 1982).
[13] Ibid.
[14] Indian Express newspaper (Bombay)
Pvt. Ltd. v. Jagmohan Mundhara, AIR 1985 Bom 229.
[15] McRae v. Smith, 968 F. Supp. 559
(D. Colo. 1997).