On July 8, 2019 The Delhi High Court decided that a copyright infringement occurs when there is no ‘Originality’ under Section 13(3)(a) and Section 2(d) of the Copyright Act, 1957. This is an essential feature for any right claiming copyright infringement, and was missing in the subject matter before the court. To decide this, reliance was placed on two other cases- R.G. Anand v. M/s Deluxe Films and Ors., (1978) 4 SCC 118 and MRF limited v. Metro Tyres Limited, CS (COMM) 753/2017.

In this case, the makers of the movie ‘BAND BAJA BAARAT’ by Yash Raj Films who are also the ‘Plaintiffs’ in the current suit, had filed a case against the producers of the film ‘JABARDASTH’, Sri Sai Ganesh Productions & Ors., who are the ‘Defendants’ in the current suit, for their unofficial re-make of the Plaintiff’s film.

As word spread around the month of November/December 2011, the Plaintiff got a whiff that the Defendants were making a film loosely based on their concept and storyline. So to clarify the same, the Plaintiffs had sent a notice, on January 31, 2012, whereby, they requested the Defendants, to stop  such creation as, any and all copyrights- such as the story line, dialogues, theme, concept, plot, script, music, lyrics, character sketches, etc. existed with the Plaintiffs and in their film and not in anyone else’s. Thus, establishing that, the plaintiff is entitled to copyright protection under Section 14 of the Copyright Act, 1957. Soon after this, another notice was issued on April 4, 2012, calling for the complete stoppage of any such remakes, as it was unauthorized. The plaintiffs neither responded to this again nor did they cease and desist, thereby releasing their first trailer of the film on January 27, 2013.

Once again, on February 7, 2013, the Plaintiffs issued a third notice to the Defendants, asking to the script and decide whether it was a remake of the film or not, which  was not acknowledged again which led the Defendants simply releasing the film on February 22, 2013, across India including Delhi, the place of decision of the suit. The Plaintiff successfully proved that the Defendants’ film was similar to their in 19 ways and that no ‘originality’ existed in the work thereby infringing their rights. To this, the Defendants’ defence was that the court lacked jurisdiction because the movie was conceived, written and directed in Hyderabad and no part of its preparation including post-production work had taken place in New Delhi. The Plaintiff and the Court stressed that this court had the jurisdiction to deal with the present matter as, the Defendants’ film was released pan India including Delhi, thereby dismissing the contention of the Defendants.

The court ruled in favour of the Plaintiff prima facie, as it was a copyright infringement. Relying on MRF limited v. Metro Tyres Limited, CS(COMM) 753/2017 decided on July 1, 2019, whereby, the Court had held that a film is recognised as being more or greater than the sum of its parts and copyrights in a ‘cinematograph film’ is a work independent of underlying works that come together to constitute it. Although the expression ‘original’ is missing in Section 13(1)(b) of the Copyright Act, 1957, the requirement of originality or intellectual creation is brought in through Sections 13(3)(a) and 2(d). Furthermore, the Court held that the expression ‘to make a copy of the film’ in Section 14(d)(i) does not mean that a physical copy of the film can be made by a process of duplication. As the scope of protection of a film is at par with other original works, the test laid down in R.G. Anand v. Deluxe Films and Ors. [(1978) 4 SCC 118] would apply.

Thus, the Delhi High court applied these two rationales and arrived that they will have to compare “the substance, the foundation, the kernel” of the two films. While doing so, they decided in favour of the Plaintiff for the blatant and obvious copy of the film by the Defendants’.

Case Analysis

While analysing the case, a crucial question of ‘delays and laches’, on the part of the parties and/or the Court, arises here. The fact of the matter is that, the dates of filing the case, is not clearly mentioned. It can also be seen, that the movie was released in the year 2013 and relief was given in 2019 where the 6 years delay is left unanswered. The court should have actually dismissed the case, however heard the matter and ruled in favour of the Plaintiffs. An assumption to this effect can be made, that since the Plaintiffs had tried all possible ways from their end to protect their Intellectual Property, the Court allowed the said matter.

On the contrary, if the delay was caused by the Court then it is a matter of concern and worry because this 6 year delay has caused the Plaintiff monetary and financial losses along with the infringement losses without any remedy and relief. In intellectual property, the remedy must be awarded as soon as possible because once the intellect of the creator is infringed the whole concept of ‘intellectual property rights’ is defeated. The creator is not given monopoly or rights over the creation and the infringer is enjoying on the rights of the creator.

This can be seen in the current case itself where the film ‘JABARDASTH’ had performed very well at the box office commercially because of the benchmark set by the original film ‘BAND BAJA BAARAAT’. Thus, YRF has faced a loss to that extent earned by the movie ‘JABARDASTH’ while the film is originally created by YRF and team. This is classically an example of ‘passing-off’ in the movie industry.

Summary