Bombay High Court
Ashim Kumar Bagchi vs Balaji Telefilms Limited on 6 August, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
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jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
Digitally
signed by
JITENDRA
JITENDRA SHANKAR
SHANKAR NIJASURE
INTERIM APPLICATION (L) NO.22738 OF 2023
NIJASURE Date:
2025.08.06
18:51:25
+0530
IN
COMM IP SUIT NO.322 OF 2023
Ashim Kumar Bagchi ...Applicant /
Plaintiff
Versus
Balaji Telefilms Ltd. and Ors. ...Defendants
----------
Mr. Priyank Kapadia with Mr. Aniketh Poojari i/b. Legal House for
the Applicant / Plaintiff.
Mr. Rashmin Khandekar, Mr. Rahul Dhote, Ms. Anushree Ravta Mr.
Shwetank Tripathi for the Defendant No. 1.
Mr. Anand Mohan i/b. De Zalmi and Associates for Defendant No. 5.
----------
CORAM : R.I. CHAGLA J.
Reserved on : 16TH DECEMBER, 2024.
Pronounced on : 06TH AUGUST, 2025.
O R D E R:
1. By this Interim Application, the Plaintiff has sought an
injunction restraining the Defendants from exploiting the film titled
"DREAM GIRL -2" produced by Defendant No.1 on the grounds of (i)
alleged infringement of the Plaintiffs copyright in its purported
literary work being the script titled "KAL KISNE DEKHA" which
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the Plaintiff claims was re-registered under the title "THE SHOW
MUST GO ON"; (ii) breach of confidence.
2. The Plaintiff states that he had written and developed an
original story in the form of the Plaintiff's script for the purpose of
having it made into a film.
3. The Plaintiff states that the "idea" of the Plaintiff's work
is based on the concept of gender swap comedy. The protagonist, a
male, dons the persona and performance of a female and tackles
various comedic situations where his identity may get exposed.
4. The Plaintiff states that the arrangement of scenes, the
comedic effect of specific situations, the profile of the characters and
their development, all of which propels the story narrated in the
Plaintiff's script towards its climax / culmination and that the
Plaintiffs script is an original literary work within the meaning of the
Copyright Act, 1957.
5. The Plaintiff states that the contents of the Plaintiff's
script are also confidential and was shared by the Plaintiff with
Defendant No.4 under strict conditions of confidence, in pursuit of
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the possibility of identifying a producer who would be willing to
make a film with the Plaintiff's script.
6. The Plaintiff submits that the Defendants have, in
making the film DREAM GIRL 2 ("the Defendants Film"), infringed
the Plaintiff's copyright in the literary work initially titled "KAL
KISNE DEKHA" subsequently changed to "THE SHOW MUST GO ON"
("the Plaintiff's script").
7. Upon the present Suit being filed, on 18th August, 2023
an Interim Application was taken out in the present Suit, on the basis
of the trailer announcing release of the Defendants' Film on 25th
August, 2023. This Court by an Order dated 22nd August, 2023
refused to restrain the release of the Defendants' Film without
affording the Defendants an opportunity to file their replies,
particularly in view of the Plaintiff having approached this Court at
the eleventh hour prior to release, despite sufficient notice of the
release date.
8. Thereafter, the Defendants Film has been released in
theaters, and is being / has been exploited over other mediums.
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9. The pleadings were completed in the Interim Application
including the Defendant No.1's Affidavit in Reply dated 31st August,
2023, the Plaintiffs Affidavit in Rejoinder thereto dated 10th October,
2023 and Defendant No.1's Affidavit in Sur Rejoinder dated 29th
November, 2023. The matter was thereafter argued finally at length
and was reserved for orders on 16th December, 2024 granting the
parties leave to file their Written Submissions.
10. Mr. Priyank Kapadia, the learned Counsel appearing for
the Plaintiff has submitted that the Plaintiff's script is an original
literary work and is entitled to protection against infringement under
the Copyright Act, 1957.
11. Mr. Kapadia has stated that when a Notice dated 4th
August, 2023 alleging infringement with details of the Plaintiff's
work / script was sent to the Defendants, the Defendants in their
reply dated 10th August, 2023 claimed that it is the Plaintiff who has
infringed their copyright. He has in this context referred to paragraph
7 of the Plaintiffs notice dated 5th August, 2023. He has submitted
that the response of Defendant No.1 is critical. The Defendant No.1
accepts that the respective works are similar and that the Plaintiff's
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work is an infringement of their copyright. He has submitted that
now that the record shows that the Plaintiff's work predates the
Respondents / Defendants, a specious defence is taken that (i) the
Plaintiffs work is not original or novel enough to constitute a
copyrightable work; (ii) in any event there is no similarity between
the rival works and (iii) similarity, if any, is a scènes à faire.
12. Mr. Kapadia submits that the Plaintiff's work is defined,
well fleshed out with copious detail, and follows a certain
arrangement of scenes and situations resulting in a composite
original and novel work with an underlying motif, theme and climax.
The originality of the Plaintiff's work is apparent from the script copy
of which is annexed to the Plaint at Exhibit 'A'. The Plaintiff's script
has been registered on 25th May, 2007 with the former Film Writer's
Association and granted Registration No.127297.
13. Mr. Kapadia has submitted that the genre of the
Plaintiff's work is comedy. It tracks the exploits of the protagonist
who swaps his gender to take on the persona of a beautiful debutant
actress and achieves success. He does this to overcome financial
hardship and burden at the instance and instigation of his close
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friend. The inter-personal relationships resulting in this
unconventional choice, the experiences of the protagonist in
interacting with supporting characters (especially his employer who
is mesmerized by the protagonist's beauty) during the protagonist's
attempt to avoid suspicion and revelation, and the various comedic
situations that puts him in are original and copyrightable. He has
submitted that there are marked similarities between the Plaintiff's
work and that of the Defendants Film.
14. Mr. Kapadia has submitted that the Plaintiffs' work /
script was shared in confidence with Defendant No.1 and Defendant
No.4. He has submitted that on 18th February, 2009, the synopsis
and concept of the Plaintiff's original work was shared over email
with one Mr. Abhijeet Bhande working with Defendant No.1. Due to
a typographical error in the email, it was not delivered. On 21st
February, 2009, on receiving an intimation of non-delivery, the
Plaintiff corrected the address and emailed the concept and synopsis
to Mr. Abhijeet Bhande working with Defendant No.1. He has
submitted that in 2011, the Plaintiff's friend one Mr. Nandlal Lodhi
wanted to produce a film using the Plaintiff's script but did not have
the financial means at the time to do so. He introduced the Plaintiff
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to Mr. Shashank Shekhar, who in turn gave a reference of Defendant
No.4, a comedy writer.
15. Mr. Kapadia has further submitted that, in 2012, the
Plaintiff narrated the concept and script to Defendant No.4 over a
phone call in the presence of Mr. Nandlal Lodhi. He has referred to
the Affidavit of Mr. Nandlal Lodhi dated 22nd August, 2023 to this
effect. However, this lead did not materialize. He has submitted that
Defendant No.4 has not appeared before this Court during final
hearing of the Interim Application and is deemed to have accepted
the Plaintiff's case. In any event, his denial is bare and lacking in any
material particulars. He has submitted that on 29th April, 2013, the
Plaintiff got in touch with one Mr. Umesh Ray, Senior Executive
working with Defendant No.1 who requested the Plaintiff to email
the script. An email was addressed by the Plaintiff to Mr. Umesh Ray
working with Defendant No.1. He has further submitted that, the
aforementioned facts makes it beyond dispute that the Plaintiff
shared his script titled "KAL KISEN DEKHA" name subsequently
changed to "THE SHOW MUST GO ON" and that the Defendant
Nos.1 and 4 got aware of the Plaintiff's work.
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16. Mr. Kapadia has submitted that there is no cogent
explanation of the alleged making of Dream Girl 2. He has submitted
that neither Defendant No.4 nor Defendant No.5 have demonstrated
in any meaningful sense the process by which the script of the
impugned film came into being. Till date Defendant No.4 and
Defendant No.5 have not produced the alleged script they claim to be
basis of the infringed film. He has submitted that this itself casts
aspersions on the conduct and integrity of the Defendant Nos.4 and
Defendant No.5.
17. Mr. Kapadia has referred to the Writer Service Agreement
dated 26th March, 2021 which has entered into between Defendant
No.1 with Defendant No.4 and his Company Thinkink Picturez Ltd.
for writing the story, screenplay, and dialogues of the Defendant's
Film. He has submitted that in the said Agreement the Defendant
No.1 is the producer and in Clause D it is recorded that the producer
is the sole and exclusive owner of the concept titled as "Dream Girl
2" which is annexed to the said Agreement as Annexure A. He has
referred to Annexure 'A' which is blank and despite repeated requests
the Defendants have not produced the same. He has submitted that,
further in the said Agreement, Defendant No.4 who is the writer
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under the said Agreement under Clause E was engaged for the
purpose of developing literary works based on the above concept
which means the story, screenplay and dialogues for the audio visual
content. In Annexure 2, annexed to the said Agreement, Defendant
No.4 has specifically stated that the original work i.e. Dream Girl 2 is
authored by him and is submitted in the name of Balaji Telefilms Ltd.
for copyright registration. He has submitted that Defendant No.4 has
accordingly stated that the work i.e. script and screenplay of the
impugned film was originally authored by him. However, Defendant
No.5 on the other hand claims to have solely and exclusively
authored an original literary work of which the synopsis titled
"Dream Girl 2" was registered with the Screenwriters Association
under Certificate of Registration dated 15th July, 2021. He has
submitted that this is contrary to what is stated in Annexure 2 of the
Agreement between Defendant No.1 and Defendant No.4.
18. Mr. Kapadia has referred to the Suit filed by Defendant
No.5 which arose from the Defendant No.5 being allegedly aggrieved
with the credit i.e. "Written and Directed by" being exclusively given
to Defendant No.4 by Defendant No.1 in violation of Clause 8 of the
Exclusive Writer Agreement dated 23rd July, 2021 amended by the
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understanding recorded over WhatsApp on 29th July, 2023.
Defendant No.5's credit of having written the film was removed.
19. Mr. Kapadia has referred to paragraph 20 of the Plaint,
filed in the Commercial IPR Suit (L) No.21883 of 2023 by Defendant
No.5 against inter alia Defendant Nos.1 and 4, wherein it is stated
that "Defendant No.1, 2 (Balaji Telefilms Ltd., Defendant No.1 in the
present Suit) and 7 (Raaj Shaandilyaa i.e. Defendant No.5 in the
present Suit) have maliciously, knowingly and intentionally conspired
with each other to discredit the Plaintiff of his work in the
subsequent works developed pursuant to the Writer Agreement
including the Story, Script and Screenplay of the said Film". He has
submitted that inspite of this allegation made by Defendant No.5, the
Suit was decreed by consent with Defendant Nos.1 and 4 and this
shows that Defendant No.4 acted in collusion with Defendant No.5,
though at one point of time having tried to usurp Defendant No.5's
credit as assured and agreed by Defendant No.4 to Defendant No.5
under the exclusive Writer's Agreement.
20. Mr. Kapadia has submitted that in the Suit filed by
Defendant No.5 against, inter alia Defendant No.4, and Defendant
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No.5 claims that the story of the said film as referred to in the Writer
Agreement was solely written and developed by Defendant No.5
based on the original literary work developed by him. He has
submitted that the Defendant No.5 has stated that although, the
screenplay of the Defendant's Film was developed by Defendant No.5
with inputs from Defendant No.4, Defendant No.4 had no role to play
in the development of the story of the film.
21. Mr. Kapadia has submitted that it is obvious that neither
Defendant No.4 nor Defendant No.5 authored the script for the film
Dream Girl 2 in any meaningful sense. He has submitted that
Defendant No.4 had access to the script and synopsis of the Plaintiff's
original literary work which is undisputed. Defendant No.4 has not
even addressed the Court at the time of hearing of the Interim
Application. The Agreement dated 23rd July, 2021 between the
Defendant No.4 and Defendant No.5 has absolutely no reference to
the Writers Agreement between Defendant No.1 and Defendant No.4.
Further, the Agreement neither mentions the name of the film.
However, strangely, Defendant No.5 claims to have registered
synopsis of Dream Girl 2 on 15th July, 2021 with SWA. He has
submitted that Defendant No.5 in the Affidavit in Reply clearly states
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that he had independently developed the concept of Dream Girl 2
and that Defendant No.4 subsequently approached him for making a
movie out of it, especially when Defendant No.1 holds all rights in
respect of the Defendants' Film.
22. Mr. Kapadia has submitted that it is surprising to see that
Defendant No.5, who according to Defendant No.1 was further
appointed by Defendant No.4 for developing the Defendants' Film
based on concept of Defendant No.1, could have independently
developed the said concept and claim to have solely and exclusively
authored an original literary work of which the synopsis titled
"DREAM GIRL 2". He has submitted that this itself is self-destructive
and indicative of the fact that Defendant No.5 was subsequently
introduced only to aver suspicion away from Defendant No.1 and
Defendant No.4 who had access and knowledge of Plaintiff's original
literary work.
23. Mr. Kapadia has submitted that the Plaintiff's case that
Defendant No.5 was introduced by Defendant No.4 merely as a
scapegoat to show that as Plaintiff had no nexus with Defendant No.5
who claims to have solely and exclusively authored an original
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literary work of which the synopsis titled "DREAM GIRL 2". He has
submitted that the active collusion between Defendants is thus
established from the above act.
24. Mr. Kapadia has submitted that going by the Defendants
own plea, there is no proper and definitive author of the concept and
script of the infringed film. This infact supports the case of the
Plaintiff that Defendants have used Plaintiff's work as a springboard
to prepare the infringed film.
25. Mr. Kapadia has submitted that the test to determine
infringement is well settled in several judgments of this Court. The
test to determine infringement is to assess the rival works as a whole,
and not to dissect individual aspects of the works which may be
dissimilar. He has submitted that the rival works establish that there
is material similarity between the rival works and that the
Defendants have, in making the film DREAM GIRL 2, infringed the
Plaintiff's copyright. He has relied upon annexure 'A' to the Written
Submissions which is a detailed table which compares the respective
works and he has submitted that this shows that the Defendant's Film
infringes the Plaintiffs copyright.
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26. Mr. Kapadia has submitted that the Defendant Nos.1 and
5 have submitted that no case is made out by the Plaintiff to
demonstrate the originality of the works. He has submitted that the
Defendant Nos.1 and 5 incorrectly categorize the Plaintiff's case as
claiming monopoly on the idea of gender swap. He has submitted
that this is not the case. On the contrary, the Defendants failed to
demonstrate that their work was independently conceived and
developed without substantial reliance on the Plaintiff's script.
27. Mr. Kapadia has submitted that prior to Dream Girl 2,
Dream Girl 1 with an entirely different premise was made. He has
submitted that the Plaintiff in the present Plaint has not made any
allegations that the said movie Dream Girl 1 infringes the Plaintiff's
original literary work as the plot of the said movie revolves around
the protagonist working as a call center employee who is only
disguising his voice as a female call center girl to lure other men. He
has submitted that in other words, the expression of the idea in
Dream Girl 1 is not alleged to be an infringement.
28. Mr. Kapadia has submitted that no attempt is made to
cast a wide net and claim copyright in every gender swap idea
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expressed in any form. He has submitted that the Defendants have
scene by scene copied the Plaintiff's Work and that is the
infringement alleged by the Plaintiff. He has submitted that the
Defendants contention that the Plaint does not disclose which part of
the Plaintiff's Work is confidential and which part is not is incorrect.
He has submitted that confidentiality is claimed in the scene-by-scene
arrangement of the Plaintiff's Work and the trajectory of the story
which is copied by the Defendants.
29. Mr. Kapadia has submitted that Defendant No.4 despite
being served and having filed Reply to the above Interim Application
has failed to appear before this Court at the time of hearing of the
above Application. He has submitted that it is settled law that
although a number of submissions may be made in pleadings, the
Court is only required to consider those submissions made across the
bar. He has in this context placed reliance on Daman Singh & Ors.
Vs. State of Punjab & Ors.1 at Paragraph 13.
30. Mr. Kapadia has submitted that the Plaintiff has provided
material to show that he had shared his Original Literary work with
the Officers of the Defendant No.1 which is not in dispute. He has
1 (1985) 2 SCC 670
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submitted that Defendant No.1 does not claim to have authored the
script and screenplay of the infringing film DREAM GIRL 2. This work
was given to Defendant No.4 who in turn gave this work to
Defendant No.5. There is not an iota of material to show how the
Defendants' work was actually authored. As such, he has submitted
that prima facie, it appears that the Defendants have not
independently and organically created the script and screenplay of
the Defendants' Film and have simply recycled the Plaintiff's
copyrighted work with cosmetic changes.
31. Mr. Kapadia has submitted that the Plaintiff has
discharged the onus of proving as to how his Original Literary Work
was developed and its registration which was much prior to the
development of the Infringed film. He has submitted that the
Defendants have till date, not discharged the onus as to how the
infringed Movie was conceptualized. He has submitted that
Defendant No.1 simply states that the infringed Movie is a sequel to
their earlier Movie i.e. Dream Girl 2019. However, Defendants have
not been able to establish any element of continuity between their
2019 movie and the infringing film. All characters in the infringed
film are new and a perusal of the Comparison charts prepared and
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annexed to the Rejoinders would reveal this. The commonality
existing in the infringed film is so substantial that in the event the
said common elements are taken off the infringed Movie cannot
stand on its own.
32. Mr. Kapadia has submitted that the Plaintiff sets out in
detail the common theme and substantial elements in the infringed
movie comparable to the Plaintiff's Original literary Work. He has
submitted that thus it can be seen that the Defendants have used the
Original Literary Work of the Plaintiff in making of the infringed film
as a springboard and profiteered from the hard work of the Plaintiff
without his consent and acknowledgment, which is why the prayers
in the present Application have to be allowed and exemplary cost be
imposed on the Defendants.
33. Mr. Kapadia has submitted that the cases relied upon by
the Defendants in support of their contention that the costs must be
awarded in the event the Plaintiff fails to make out a case, are cases
where the Plaintiffs insisted on ad-interim hearings despite having
approached the Court at the 11th hour. He has submitted that the
Defendants in those cases established material suppression of facts
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and the Court remarked that the claim being pursued was vague and
a 'worthless cause'. These cases relied upon by the Defendants are
Akashaditya Vs. Ashutosh Gowarikar2 and Dashrath Rathod Vs.
Foxstar3.
34. Mr. Kapadia has submitted that in the present case, even
if this Court finds that no case is made out for grant of injunctive
reliefs, there has been no suppression of material facts. The Plaintiff
has not insisted on a hearing at the 11th hour, but has in fact awaited
its turn after completion of pleadings and after the Defendants' Film
has been exploited for over 2 years. He has submitted that it is a
matter of trial for the Defendants to establish the organic
development of the script. Failure to do so would definitely warrant
an adverse inference against the Defendants that they have failed to
prove that the impugned Film was originally conceptualized into
being. He has submitted that there are marked similarities between
the rival works. That the similarities are to be ignored because of the
common nature of the premise or the 'scènes - à - faire' doctrine
which qualifies as a 'worthless cause' to warrant the imposition of
costs as was done in Akashaditya (supra) and Dashrath (supra).
2 2016 SCC Online Bom 527
3 Order dated 21st March 2017 passed in NML/693/2017
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35. Mr. Kapadia has accordingly submitted that the Interim
Application be allowed.
36. Mr. Rashmin Khandekar, learned Counsel appearing for
Defendant No.1 has submitted that there can be no question of any
prima facie case for actionable similarity because the Plaintiff's entire
case for copyright infringement (as pleaded and placed) is based on
seeking monopoly over matters in which ex-facie no copyright
subsists to begin with - including inter alia common themes, ideas,
unoriginal / stock / scenes a faire matters, and other aspects directly
flowing from such elements which are not protectable either by
themselves or taken together. He has submitted that it is clear from
the record that the Plaintiff's claim of monopoly is nothing but the
very "idea / concept / theme" of gender disguise, "the idea /
concept / theme" of someone in need of money for one reason or
another, and "common / stock / unoriginal / scenes a faire" elements
and matters which directly flow from the above. He has referred to
the pleadings at Paragraphs 8, 11 and 14 of the Plaint which he has
submitted bears this out.
37. Mr. Khandekar has submitted that the Plaintiff has
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claimed in Paragraph 8 of the Plaint "elborately" captures what the
Plaintiff terms as the "salient features" of the Plaintiff's script. He has
submitted that it is clear from the most cursory perusal of the said
"salient features" identified by the Plaintiff that not a single one of
the said features are original or capable of protection under the law
of copyright. He has submitted that most of them clearly are mere
themes / concepts / ideas.
38. Mr. Khandekar has submitted that the dead giveaway in
the Plaintiff's attempt to monopolise the theme of gender disguise (as
well as the contradiction fatal to such a claim) is the fact that
Paragraph 8(i)(c) terms gender disguise a "novel idea" on the one
hand while Paragraph 8(i)(e) uses the phrase "Mrs. Doubtfire Act" to
describe the male lead dressing up as a woman - a reference to Mrs.
Doubtfire, one of the best known prior films (from the year 1993)
employing gender disguise as a core theme / idea.
39. Mr. Khandekar has submitted that Paragraph 11 of the
Plaint again only speaks of common / unoriginal / stock / scenes a
faire matters viz. someone being indebted to creditors, gender
disguise as a means to solve a problem, a man falling in love with the
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male lead when he is in gender disguise as a woman, and instances
of the male lead in gender disguise attempting / managing to get out
of the situation without getting caught. He has further submitted that
Paragraph 14 of the Plaint identifies as the " substance, foundation
and kernel" of the Plaintiff's Script the following: the "theme
involving a struggling boy who lives with his friend and eventually to
pay off his debt," the male lead disguising himself as a woman to get
break in the film industry, a film producer getting mesmerised by his
beauty and giving him a break as a leading lady of the film and
starting to fall in love with the male lead in gender disguise, and the
story of how the struggling boy manages to get out of the situation
without being caught. He has submitted that the Plaintiff has stated
in no uncertain words that the Defendant's Film " is substantially
similar in this respect to the Plaintiff's original work."
40. Mr. Khandekar has submitted that enough and more
prior / public domain material pertaining to other films / works
exploring the themes of gender disguise and/or financial difficulties
has been placed on record. He has submitted that the Plaintiff in the
Rejoinder has failed to deal with these prior works.
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41. Mr. Khandekar has submitted that it is ex-facie clear that
nothing of what is claimed to be either "novel" or the "substance,
kernel and foundation" or "salient features" of the Plaintiff's Script is
in any way protectable. He has submitted that it is trite law that no
copyright subsists in such matters as above. The very framing of the
Plaintiff's case is contrary to settled copyright law. Consequently, any
similarities pertain to purely unprotectable matters (being stock /
scenes a faire / common / known matters and things flowing directly
from such matters), and the dissimilarities in the expression of the
rival works clearly lead to an unmistakable conclusion that the two
works are completely different.
42. Mr. Khandekar has referred to the Cease & Desist Notice
dated 4th August 2023 sent prior to filing of the Suit in order to show
that what is pleaded in the Plaint was always the Plaintiff's
understanding about what the protectable elements of his work are.
He has in particular referred to Paragraphs 8 and 9 of the Cease &
Desist Notice issued by the Plaintiff to the Defendant, in which the
claim of copyright / originality is framed. He has submitted that it is
ex-facie clear from the pleadings contained in the Plaint and
correspondence addressed by the Plaintiff, even if are taken to be
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true, that they grossly fall short of the test to establish infringement
of copyright because the entire case is mounted for violation of
matters in which no copyright subsists to begin with.
43. Mr. Khandekar has submitted that there is a clear and
dishonest attempt in the Plaint to paint a skewed / misleading
picture of the rival works. He has submitted that the Plaintiff has mis-
characterised / incorrectly described the rival works in an attempt to
contrive similarity where there is none. He has submitted that the
Defendants' Film is not about a boy who employs gender to pay off
various loans as alleged. It is about the male lead wanting to prove
himself to his prospective father in law / girlfriend's father, who has
given the boy a challenge / ultimatum to earn INR 25 lakhs within 6
months and so prove his worthiness if he wants to marry the latter's
daughter. The male lead employs gender disguise to get a job at a
dance bar in order to earn money and win the hand of his lover in
marriage.
44. Mr. Khandekar has submitted that there is no "producer"
in the Defendants' Film as falsely alleged, and the setting of the
Defendants' Film does not involve the film industry. Such an
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imputation has clearly been made in the Plaint in an attempt to make
the Defendants' Film appear closer in its narrative to the Plaintiff's
Script which revolves around a character trying to break into films
(something completely absent in the Defendants' Film).
45. Mr. Khandekar has submitted that it is clear from the
comparison tables annexed to the Plaint that the Plaintiff has
undertaken a piecemeal / dissected / misleading comparison of the
rival works, contrary to settled law (and often mischaracterising the
rival works). He has submitted that not only does no copyright
subsist in such matters as asserted, but the entire approach to
comparison of the rival works by the Plaintiff is impermissible, as
held in a catena of Judgments. He has submitted that this
piecemeal / dissected comparison is evident from the table of
comparison produced at Exhibit D to the Plaint. He has submitted
that there is "One Liner Comparison" and "Detailed Comparison" at
Exhibits A and B to the D1 Rejoinder. He has submitted that a "copy
paste" skewed / unreliable comparisons are produced and relied
upon by the Plaintiff which is prepared by slicing and dicing the
works willy-nilly, and using similar phrases or phraseology in the
tables to simply make the rival works appear similar (often by
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mischaracterising the works entirely). He has submitted that
Defendant No. 1 has elaborately responded to / commented upon the
Plaintiff's comparison tables, in the tables annexed at Exhibits A and
B to the D1 Sur-Rejoinder. He has submitted that not a single one of
these individual elements are original, and there isn't so much as a
pleading that their "sequence" or "arrangement" is novel or original.
46. Mr. Khandekar has submitted that the rival works are in
fact and in any event completely dissimilar, and the similarities, if
any, are in respect of aspects that are entirely unprotectable. He has
submitted that the salient features/highlights of the rival works are
totally different and distinct and similarities, if any, pertain to
unprotectable matters (such as scenes a faire / unoriginal / stock
elements, and matters which directly flow from gender disguise
and/or financial challenges of some kind as a common theme).
47. Mr. Khandekar has submitted that the Plaintiff's claim is
premised on claiming copyright in unprotectable matters such as a
common theme / idea / concept of gender disguise and/or financial
challenges (and similarities arising out of commonality in such
unprotectable elements can never be actionable). He has relied upon
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the ratio from the landmark Judgment of the Supreme Court in R.G.
Anand v. M/s. Delux Films & Ors.,4 and in particular Paragraph 46 in
support of this submission.
48. Mr. Khandekar has also relied upon the Judgment of this
Court in Mansoob Haider Vs. Yashraj V. Yashraj Films Pvt. Ltd. &
Ors.,5 at Paragraphs 18 to 30 and 38.
49. Mr. Khandekar has also placed reliance on the Judgment
of this Court in Shivani Tibrewala Vs. Rajat Mukherjee & Ors.,6 in
support of the proposition that "the protectable story elements in the
rival works must be considered, which do not necessarily flow from
the subject/theme and which as such are unique" , and that the test
for substantial similarity requires identifying the "substance or kernel
which is copied in the Defendant's work" and the seeing then if the
Defendant's work can stand / remains in spite of such deletion. He
has submitted that the Court has also eschewed the Plaintiff's
attempt to "to dissect the rival works into fragments of unprotectable
elements.". He has in particular placed reliance on Paragraphs 21,
23, 26 and 28 of the said judgment.
4 (1978) 4 SCC 118
5 [2014 SCC Online BOM 652]
6 AIR 2020 BOM 32
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50. Mr. Khandekar to highlight the difference between
"actionable similarity" and "mere similarity" (and to respond to the
belated bid in arguments by the Plaintiff to claim that the
unprotectable elements "taken together" were protectable) has relied
upon the Judgment of this Court in Gaurav K. Dave Vs. MX Media &
Entertainment Private Limited & Ors.,7 at Paragraphs 16, 17, 19 and
20.
51. Mr. Khandekar has also relied upon the Judgment of this
Court in the case of Amit R. Kalyanaraman Vs. Gurfateh Films8 in the
context of the Plaintiff having sought protection of matters which
directly flow from the common theme. No actionable similarity was
found despite a few commonalities being found to exist between the
rival works. This Judgment is particularly relevant in view of the fact
that Defendant No. 1 itself has produced the first " Dream Girl" movie
of which the Defendants' Film under issue is a sequel / franchise film.
He has in particular placed reliance upon Paragraphs 4 to 6 of the
said Judgment in this context.
52. Mr. Khandekar has submitted that there is absolutely no
7 MANU/MH/23/2022
8 2016 SCC ONLINE BOM 2367
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case for copyright infringement made out as the protection sought is
in respect of common plots, themes and other unprotectable
elements; and on a proper comparison as a whole, the rival works are
completely dissimilar. He has submitted an assessment of the case in
the Plaint as culled out above (as well as the Defendants' Film, which
the Court has had the opportunity to view) on the touchstone of the
test laid down by the Supreme Court in R.G. Anand (supra), clearly
shows that there is no actionable similarity whatsoever between the
two - and the entire claim is based on an attempt to monopolise the
theme / idea / concept of gender disguise: [1], the theme / idea /
concept of someone facing financial challenges [2], the common /
unoriginal idea of someone using situation 1 to solve situation 2.
Commonalities, if any, flow in the broadest and most general sense
from the choice of the common themes above.
53. Mr. Khandekar has submitted that the rival works are
completely dissimilar: the expression / treatment / story / kernel of
the Plaintiff's Script on the one hand and the Defendants' Film on the
other could not be more different.
54. Mr. Khandekar has submitted that the Plaintiff's case on
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'access' is extremely tenuous, and access has neither been properly
pleaded nor proven through cogent material as required to be done.
He has submitted that the Defendant No. 1 has not only denied the
said claim, but has accurately and credibly set out the clear and
cogent facts pertaining to development of the Defendants' Film,
tracing title back to Defendant No. 5's synopsis. He has submitted
that a clear case of access shown through cogent evidence (and in the
face of clear denial of access by the Defendants), the threshold for
establishing the substantial similarity is even more stringent, and the
Plaintiff has hopelessly failed to meet the same. He has submitted
that in any event, it is trite from a review of the law and facts above
that the issue of access to the Plaintiff's Script and/or manner of
development of the script for the Defendants' Film is rendered
entirely irrelevant and academic in view of the Plaintiff's failure to
show (1) anything protectable in its own work, and (2) the remotest
actionable similarity between the rival works.
55. Mr. Khandekar has submitted that the Plaintiff's claim
must fail in view of (i) the misleading (and in any event dissected /
piecemeal manner in which the rival works have been sought to be
portrayed in the Plaint and compared in the "copy-paste" tables
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annexed to the Plaint / Rejoinder de hors any context and contrary to
settled law; (ii) the manner in which monopolies have been claimed
therein in absolutely stock / unoriginal / scènes à faire / common
matters, and things which directly flow from such elements; (iii) the
manner in which access has been sought to be imputed without a
shred of clear / cogent evidence; and (iv) in any event the total
failure to show any actionable similarity when the rival works are
compared as a whole. He has submitted on the strength of the above
it is clear that no case for copyright infringement is made out in the
present case.
56. Mr. Khandekar has submitted that the Plaintiff being
fully aware of the far-fetched nature of its claim for copyright
infringement, proceeded to claim breach of confidence as something
of a fall back. He has submitted that as is evident from the following,
the case for breach of confidence is even more hopelessly without
merit in the present case.
57. Mr. Khandekar has submitted that it is settled law that in
order to even maintain an action for breach of confidence, the
"confidential information" must be identified "precisely and
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accurately" in the Plaint. He has submitted that the Plaintiff's failure
to do so is absolutely fatal.
58. Mr. Khandekar has submitted that the Plaintiff's claim for
breach of confidence on the basis of the " springboard " / "germ of the
idea" doctrine is based on an incorrect and incomplete reading of the
Judgment of the Ld. Single Judge of this Court (Hon'ble Former
Justice S C Gupte) in the Beyond Dreams case. He has drawn
reference to Paragraphs 8, 9, and 11 of the Beyond Dreams
Judgment, emphasizing that there are three key elements for
maintaining / sustaining a confidentiality claim: first, showing that
the information is confidential; second, that it was imparted in
circumstances of confidentiality; and third, unauthorised use by the
defendant.
59. Mr. Khandekar has submitted that this Court in Beyond
Dreams then goes on to identify / sub-divide the requirements which
must mandatorily be satisfied for the above to be met in a given case.
It is in this context that the Court lays down the following two
mandatory requirements that must be satisfied in order to maintain
(let alone sustain) a claim for breach of confidence: "The first is
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identification of the confidential information itself. For without
identification, it will not be possible to hold the information to be
confidential. Secondly, the information shared must be original and
not be in public domain.".
60. Mr. Khandekar has submitted that the Plaintiff has failed
to identify its confidential information in the Plaint in the manner
required by law. This, coupled with the fact that the rival works are
different, renders the issue of access / handing over and /or
unauthorized use entirely irrelevant and academic (even though, as
noted above, the same is denied).
61. Mr. Khandekar has placed reliance upon the case of
Tarun Wadhwa v. Saregama India Ltd. & Anr. ,9 where another Ld.
Single Judge of this Court (Hon'ble Former Justice Patel) has built on
the Beyond Dreams ratio in the specific context of quality of
pleadings and the requirement to identify confidential information in
Plaint "precisely and accurately". After taking stock of the pleadings
in the Plaint in that case, this Court proceeded to apply the Beyond
Dreams test, to find that a Plaint in a claim of confidence which
either vaguely identifies what is sought to be protected, or which
9 2021 SCC OnLine Bom 13993
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entirely fails to do so, must result in a rejection of reliefs. This Court
held that this is particularly so when the Plaintiff's work / material
admittedly includes common / public domain / unprotectable
matters as well. He has placed reliance upon paragraphs 14, 15, 20,
21, 25, 27, 28, 35, 37, 40 to 44 of the said judgment.
62. Mr. Khandekar has submitted that the present case falls
in the teeth of all the vices expressly prohibited by the Beyond
Dreams test as elaborated by Tarun Wadhwa (supra), and fails to
satisfy the most fundamental requirement for maintaining /
sustaining a case for breach of confidence.
63. Mr. Khandekar has submitted that all elements of an
action for breach of confidence must be shown to be satisfied. It is
not enough for only one or some of them to be pleaded or shown. He
has submitted that in the present case, (i) Plaintiff has failed to
identify its confidential information with " precision and accuracy" in
the Plaint; and (ii) has failed to show any actionable similarity /
misuse of confidential information in the Defendants' Film. He has
submitted that the Plaintiff therefore prima facie has no chance of
succeeding in a breach of confidence action on such a Plaint.
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64. Mr. Khandekar has submitted that the fact that the Plaint
is lacking in the most fundamental aspects of the claim sought to be
agitated; (ii) the fact that the Plaintiff has persisted with its action
despite clear and stark dissimilarity between the rival works even
after having had a chance to view the Defendants' Film after its
release; (iii) the fact that the matter has thereafter naturally
consumed significant time and effort / expenses from the
Defendants, given that multiple rounds of pleadings were filed; (iv)
given the fact that the matter was argued over multiple sessions
consuming the valuable time of the Court as well as causing
Defendants to spend on counsel fees; and (v) given the regime of
costs applicable to Commercial Suits, the present case is a fit one for
grant of costs in favor of Defendant No. 1.
65. Mr. Khandekar has in support of his submission relied
upon the judgment of this Court in Dashrath B. Rathod v. Fox Star
Studios India Pvt. Ltd. & Ors.10 at paragraphs 32 to 37.
66. Mr. Khandekar has submitted that it is clear that from
the conduct of the parties in the context of suppression etc. in that
case was only one among several factors which weighed with the
10 (2018) 1 Mh.LJ. 474
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Court while granting an order of costs; the remaining factors (being
the frivolous nature of the claim, the total failure to make out any
case, the consuming of the Court's time and parties' expenses despite
having viewed the starkly different works, the scheme of the
Commercial Courts Act etc.) apply with full force to the present case.
67. Mr. Khandekar has also placed reliance upon the
judgment of this Court in the case of Akashaditya Harishchandra
Lama v. Ashutosh Gowarikar & Ors.11 at paragraph 71.
68. Mr. Khandekar has submitted that the Interim
Application is accordingly, liable to be dismissed with an order of
substantial costs being imposed on the Plaintiff.
69. Mr. Anand Mohan the learned Counsel for the Defendant
No. 5 has submitted that the Defendant No. 5 is an established writer
and has authored numerous scripts (including for films having
gender disguise as a central theme) in the past. He has submitted
that the Defendant No. 5 is the sole author of the original literary
work "Dream Girl 2 ", which synopsis was registered on 15th July
2021 by Defendant No. 5 with the Screenwriters Association ("SWA")
11 2016 SCC OnLine Bom 5207
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(under Certificate of Registration No. 110214286243). He has
submitted that the Plaintiff has never pleaded or argued that the
kernel / core-story of the Defendants' Film is different from
Defendant No. 5's original synopsis; which was further developed by
Defendant No. 5 (with others) into the story / script / screenplay for
the Defendants' Film pursuant to a Writer Agreement dated 23rd July
2021. He has submitted that all this material is placed on record.
70. Mr. Mohan has submitted that there is no allegation in
the Plaint that the Plaintiff's Script / work was ever shared with
Defendant No. 5. Even during arguments and the submissions
tendered, the Plaintiff only claims "script shared in confidence with
Defendant No. 1 and Defendant No. 4" . He has submitted that in the
Plaintiff's rejoinder, a case is belatedly raised of Defendant No. 5
having "indirect access" through Defendant No. 1 / Defendant No. 4,
which is an afterthought based on mere ipse dixit / conjectures /
surmises, and Defendant No. 5 has categorically denied such
allegations in its Affidavits.
71. Mr. Mohan has supported the submission of Mr.
Khandekar viz. that the Plaintiff bases its own pleadings and
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arguments has failed to raise even a prima facie case of actionable
similarity between the Plaintiff's script and the Defendants' film
(whether under copyright or under law of confidence).
72. Mr. Mohan has submitted that the Plaintiff's case for
copyright infringement is ex-facie dishonest, inconsistent, and
contrary to law. He has submitted that the Plaintiff has not identified
anything protectable / original in the Plaintiff's Script. He has
submitted that the Plaintiff has tried to mislead the Court by
dishonestly cloaking admittedly unoriginal / public domain elements
in the Plaintiff's Script. He has submitted that no interim reliefs can
be granted on such a Plaint, and the Interim Application is liable to
be dismissed on this ground alone.
73. Mr. Mohan has supported the submission of Mr.
Khandekar that the Plaintiff's entire claim is premised on asserting a
monopoly on the theme of gender disguise per se and has sought to
make out a false and misleading case with respect to the "Mrs.
Doubtfire Act" reference in its pleadings. He has referred to the
pleadings in that context. He has submitted that another clear
instance of the Plaintiff's case being dishonest, dubious and
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inconsistent pertains to the conveniently shifting the story of
genesis / creation of the Plaintiff's own work.
74. Mr. Mohan has referred to the Plaintiff's Rejoinder to the
Reply of Defendant No. 5 where the Plaintiff for the very first time
states that it had come up with a new timeline / story about how the
Plaintiff's Script was in fact created in "2004" and has claimed that
the idea, concept and theme was originated to the Plaintiff first in
2004 when his friend Mr. Upendra Sahai narrated an incident
whereby Miss Australia contest of 1997 was won by a contestant who
was actually a male dressed up and styled for the said show. He has
submitted that this claim is ex facie an afterthought and cooked-up,
as evident from the fact that the story of a "2004" creation / origin
has never been pleaded anywhere in the Plaint or in any pre-suit
correspondence. He has submitted that nothing prior to 2007 is ever
pleaded in this regard. He has submitted that the entirely new story
of a 2004 creation is contrary to all contemporaneous material /
pleadings on record and the Plaintiff's shifting stances as regards its
own work betray the absolute lack of credibility / honesty with
regard to the Plaintiff's pleadings / case. He has referred to the Sur-
Rejoinder of Defendant No. 5 where Defendant No. 5 has pointed out
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the falsity in the Plaintiff's 2004 story, which is apparent from the
fact that even the claim as to the Miss Australia contest of 1997
having been won by a man dressed as a woman is incorrect, false and
cooked up. Defendant No. 5 has annexed material to show that the
1997 Miss Australia pageant was won by a woman / female model
named Laura Csortan and there was no incident whatsoever
involving gender disguise at the said pageant event.
75. Mr. Mohan has submitted that a review of the Plaintiff's
script as well as the Plaintiff's table in the Rejoinder reveals that the
characters are ex-facie unoriginal, lightly sketched and lacking in any
description. He has submitted that relevant test has been succinctly
formulated by the US Court of Appeal for the 9th Circuit in the
decision of DC Comics Vs. Mark Towle12, at pages 12, 14 and 15. He
has submitted that the character in the Plaintiff's Script do not even
remotely satisfy the test laid down by the US Court of Appeal since
they are "stock characters", which are not "especially distinctive",
contain no "unique elements of expression", and are not "sufficiently
delineated" and do not display any physical or conceptual traits /
persistent identifiable attributes.
12 989 F. Supp. 2d 948 (C.D. Cal. 2013)
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76. Mr. Mohan has submitted that there is no actionable
similarity between the rival works, when tested in accordance with
settled law, and that the two works are completely / materially
different. He has placed reliance upon the judgment of the Delhi
High Court in BIKRAMJEET SINGH BHULLAR V. YASH RAJ FILMS
PVT. LTD. & ORS.13, where the Court found no case for infringement
in respect of the impugned film " Shamshera". He has submitted that
the similarity of that case with the present one is that case was also a
script Vs. film copyright infringement case. The Delhi High Court
took special note of / applied the principles laid down in the
Supreme Court's decision in R.G. Anand Vs Deluxe (supra), as well as
this Court's judgments in Mansoor Haider (supra) and Shivani
Tibrewala (supra) relied upon by Defendant No. 1. The injunction
had been refused despite the Plaintiff in that case being on a
relatively far stronger footing than the present case because (a)
access to the Plaintiff's work was admittedly / undisputedly in that
case, and a large number of peculiar similarities were shown to exist
between the rival works in a copy-paste table similar to the present
case. He has in particular placed reliance upon paragraphs 36, 49
and 50 of the said judgment.
13 2023 SCC OnLine Del 8212
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77. Mr. Mohan has submitted that when the rival works are
compared / tested in line with these settled principles, there is no
question of the Plaintiff succeeding in its claim for copyright
infringement.
78. Mr. Mohan has supported the submission of Mr.
Khandekar with regard to the case of access to the Plaintiff's Script
being based on ipse dixit, surmises and conjectures and in any event
entirely irrelevant. He has submitted that in the context of Defendant
No. 5, it is only in the Rejoinder for the first time, as an afterthought,
that the Plaintiff raised a new story of "indirect access" by Defendant
No. 5 through Defendant No. 1 / Defendant No. 4. He has submitted
that Defendant No. 5 had entered into a Writer's Agreement with
Defendant No. 4 (which was after having authored and registered the
synopsis of Dream Girl 2, reproduced at Annex. 1 to the Written
Submissions). He has submitted that even taking the Plaintiff's claim
at its highest - the Plaintiff itself claims to have only shared the
synopsis with Defendant No. 1 / Defendant No. 4 in writing, and the
Plaintiff claims he "narrated the entire script and concept of the
Plaintiff's original work to Defendant No. 4 over a phone call ". He
has submitted that not only is this claim entirely devoid of any
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particulars / credibility, but even at its highest, cannot conceivably
make out a case for access by Defendant No. 5. He has submitted that
the claim of access is based on nothing but ipse dixit, surmises and
conjectures, which is contrary to the law of copyright which demands
cogent evidence and precision in such matters. He has submitted that
the threshold for establishing infringement / actionable similarity is
even higher when there is no access, which is not met. He has
accordingly, submitted that there is no question of copyright
infringement in the present case.
79. Mr. Mohan has supported the submission of Mr.
Khandekar on there being no case of breach of confidence by placing
reliance on the Beyond Dreams test.
80. Mr. Mohan has submitted that the Plaintiff fails the
Beyond Dreams test as applied / explained by this Court in the case
of Inception Media LLP Vs. Star India Pvt. Ltd. & Anr.14 He has
submitted that the Beyond Dreams test was explained in the above
decision of the learned Single Judge of this Court (Hon'ble Former
Justice G.S. Patel). He has in particular placed reliance upon
paragraphs 25, 35, 39, 40 and 42 of the said decision. He has
14 2015 SCC OnLine Bom 5046
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submitted that it is clear from the Beyond Dreams / Inception Media
test for breach of confidence which is in fact sequential and
cumulative. He has submitted that all the ingredients of the Beyond
Dreams / Inception Media test must be satisfied in order to sustain a
claim for breach of confidence. He has submitted that failure to
satisfy even one ingredient under the Beyond Dreams / Inception
Media test is fatal.
81. Mr. Mohan has submitted that the Plaintiff has
admittedly pleaded nothing other than an alleged circumstance of
confidentiality in which the Plaintiff's Script was handed over to
Defendant No. 1 / Defendant No. 4, which by itself can take the case
nowhere without the other ingredients being shown.
82. Mr. Mohan has submitted that the Plaintiff's Script was
admittedly never shared with Defendant No. 5, and there is no case
of access at all in the Plaint. He has submitted that allegations of
"indirect access" belatedly raised in rejoinder are based on surmises /
conjectures / ipse dixit. He has submitted that in fact, there are fatal
defects in the pleadings which rendered the whole case of access
dubious / unreliable.
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83. Mr. Mohan has submitted that there is no question of
grant of any interim reliefs for either copyright infringement or
breach of confidence, and the Interim Application is liable to be
rejected with costs, particularly in view of (i) consuming of the
Court's time / Defendants' costs over numerous hearings on a
defective Plaint / case; and (ii) the Plaintiff's deliberate /
unexplained failure to amend the Plaint despite having specifically
obtained an order to do so vide Order dated 22nd August 2023.
84. Having considered the rival submissions, I am of the
prima facie view that the Plaintiff by alleging copyright infringement
of the Plaintiff's script by the Defendants' Film is seeking a monopoly
over matters in which ex-facie no copyright subsists to begin with.
This includes common themes, ideas, unoriginal / stocks / scenes a
faire matters, and other aspects directly flowing from such elements
which are not protectable either by themselves or taken together.
85. Upon a perusal of the Plaint, in particular Paragraphs 8,
11 and 14, which are relied upon by Defendant No.1, the Plaintiff has
claimed monopoly in the aforementioned matters which are
unprotectable. The Plaintiff has referred to "salient features" of the
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Plaintiff's Script in the said paragraphs. However, upon perusal of
the same, I find that these features are neither original nor capable of
protection under the law of copyright. These are mere themes /
concepts / ideas.
86. The Plaintiff has attempted to monopolise the theme of
gender disguise and though on the one hand in Paragraph 8(i)(c) has
termed gender disguise a "novel idea" , on the other hand in
Paragraph 8(i)(e) has used the phrase "Mrs. Doubtfire Act" to
describe the male lead in the Plaintiffs' script dressing up as a
woman. This is nothing but a reference to the film "Mrs. Doubtfire",
a hollywood film and one of the best known prior films (from the
year 1993) employing gender disguise as a core theme / idea.
Further, from Paragraphs 11 and 14 of the Plaint, the Plaintiff has
only spoken of common theme viz. someone indebted to creditors,
gender disguise as a means to solve a problem, a man falling in love
with the male lead when he in a gender disguise as a woman, and
instances of the male lead in gender disguise attempting / managing
to set out of a situation without being caught. The Plaintiff having so
referred to these common themes has stated in no uncertain words
that the Defendant's Film "is substantially similar in this respect to
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the Plaintiff's original work." The Plaintiff's script which is based on
such common themes cannot be considered to be either " novel" or
the "substance, kernel and foundation " or "salient features" which
are in any way protectable. The Plaintiff's claim is further
elaborated in its Cease & Desist Notice dated 4 th August 2023 where
the Plaintiffs have once again re-iterated their script which is neither
original nor capable of protection under the law of copyright.
87. I am of the considered view that from comparison tables
annexed to the Plaint, the Plaintiff has undertaken a piecemeal /
dissected / misleading comparison of the rival works. Copyright does
not subsist in such matters as asserted, and it is settled law that
piecemeal / dissected comparison is impermissible. This Court in
Shivani Tibrewala (supra) relied upon by Defendant No.1 had upon
viewing the rival works, rejected the dissected comparison table of
the Plaintiff entirely. I have also had the opportunity of viewing the
rival works and I find no reason to depart from the view taken by this
Court in Shivani Tibrewala (supra), wherein it was held that " In my
view, the comparisons drawn are extremely strained by dissecting the
rival works into a series of unprotectable elements. On this basis, I
am not dealing in detail with the charts of similarities/dissimilarities
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presented by the parties."
88. The Judgment of the Supreme Court in R.G. Anand
(supra) as well as of the judgments of this Court in Mansoob Haider
(supra), Shivani Tibrewala (supra), Gaurav K. Dave (supra) and Amit
R. Kalyanaraman (supra) relied upon by Defendant No.1 have laid
down that copyright cannot be claimed in unprotectable matters such
as a common theme / ideas / concept of gender disguise and/or
financial challenges. In R.G. Anand (supra) at Paragraph 46,the
Supreme Court has held as under:
"46. Thus, on a careful consideration and elucidation
of the various authorities and the case law on the
subject discussed above, the following propositions
emerge:
1. There can be no copyright in an idea, subject
matter, themes, plots or historical or legendary facts
and violation of the copyright in such cases is
confined to the form, manner and arrangement and
expression of the idea by the author of the copyright
work.
2. Where the same idea is being developed in a
different manner, it is manifest that the source being
common, similarities are bound to occur. In such a
case the courts should determine whether or not the
similarities are on fundamental or substantial aspects
of the mode of expression adopted in the copyrighted
work. If the defendants work is nothing but a literal
imitation of the copyrighted work with some
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variations here and there it would amount to
violation of the copyright. In other words, in order to
be actionable the copy must be a substantial and
material one which at once leads to the conclusion
that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine
whether or not there has been a violation of
copyright is to seeing the reader, spectator or the
viewer after having read or seen both the works is
clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a
copy of the original.
4. Where the theme is the same but is presented and
treated differently so that the subsequent work
becomes a completely new work, no question of
violation of copyright arises.
5. Where however apart from the similarities
appearing in the two works there are also material
and broad dissimilarities which negative the
intention to copy the original and the coincidences
appearing in the two works are clearly incidental no
infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of
piracy it must be proved by clear and cogent
evidence after applying the various tests laid down
by the case law discussed above.
7. Where however the question is of the violation of
the copyright of stage play by a film producer or a
Director the task of the plaintiff becomes more
difficult to prove piracy. It is manifest that unlike a
stage play a film has a much broader prospective, a
wider field and a bigger background where the
defendants can by introducing a variety of incidents
give a colour and complexion different from the
manner in which the copyrighted work has expressed
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the idea. Even so, if the viewer after seeing the film
gets a totality of impression that the film is by and
large a copy of the original play, violation of the
copyright may be said to be proved." ("Emphasis
Supplied")
89. Considering the settled law as laid down by the
aforementioned Judgments, I prima facie find that the Plaintiff has
failed to make out a case for copyright protection of its script,
particularly since protection is being sought of common plots, themes
and other unprotectable elements apart from the fact that on a
comparison of the Plaintiff's script with the Defendants' Film, the
rival works are dissimilar.
90. I have had the opportunity of viewing the Defendant's
Film and perusing the Plaintiff's script. I find that there are
differences / dissimilarities between the Plaintiff's script and
Defendants' film. These differences / dissimilarities have also been
set out in the written submissions of Defendant No.1 at Pages 30 to
32 which are reproduced as under:
i. The Plaintiff's Script, being set around Bollywood,
takes place in Mumbai - a large metro city. The
Defendants' Film plays out in the small town of Mathura.
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ii. The Plaintiff's Script is based mainly around film
sets / shoot locations / film functions and other places
connected with films / Bollywood. The Defendants' Film
has nothing to do with the film industry / film sets, and
takes place in the residences of various characters, the
bar where the protagonist takes up a job etc.
iii. The primary motivation of the protagonist driving
the plot in the Plaintiff's Script is to get a break in
Bollywood and achieve success as an actor. The primary
motivation of the protagonist driving the plot of the
Defendants' Film is his desire to marry his girlfriend - in
order to do which he needs to meet the condition /
ultimatum placed by his prospective father in law of
earning INR 25 lakhs in 6 months.
iv. In the Defendants' Film, there is also an important
sub-plot involving the protagonist's friend which has no
parallel in the Plaintiff's Script viz. the protagonist's
friend (smiley) who loves a girl (Sakeena) who he is
unable to marry because her brother Shahrukh is in
depression due to a break up; and their marriage
wouldn't be possible till Shahrukh gets married. The
protagonist's friend introduces the protagonist as a
psychiatrist capable of curing Shahrukh, so that he could
get married to Sakeena sooner. Shahrukh's father and
grandfather believe that if the protagonist (Pooja), who
they believe is a psychiatrist marries Shahrukh, he will
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be cured. Shahrukh's grandfather lures the protagonist to
marry Shahrukh for money. The protagonist (Pooja)
marries Shahrukh. Simultaneously multiple characters
fall in love with the protagonist (Pooja / Karam) and
confusion ensues.
v. The rival climaxes could not be more different. In
the Plaintiff's Script, the lead wins the award for male as
well as female actor at a film award show, and reveals
his identity. In the Defendants' Film, in keeping with the
romantic angle, the gender disguise is revealed at the
female lead's marriage ceremony / wedding to another
boy - when the male protagonist comes clean and
explains his motivations / reasons, and the female lead
asks the male lead to marry her because she realises his
actions were motivated by love for her.
Thus, I prima facie find that the rival works are entirely
different and distinct.
91. The Plaintiff has also alleged breach of confidence. In
that context, I find much merit in the submission on behalf of
Defendant Nos.1 and 5 that the Plaintiff has fallen back on its claim
for breach of confidence being aware of the far-fetched nature of its
claim for copyright infringement. I further find much merit in the
submission of Defenant Nos. 1 and 5 that the test for determining
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breach of confidence has been laid down in the Beyond Dreams case
i.e. The Judgment of learned Single Judge of this Court (Hon'ble
Former Justice S.C. Gupte) read with the judgments of this Court in
Tarun Wadhwa (Supra) and Inception Media LLP (Supra) following
the Beyond Dreams case. The test laid down therein is that there are
three key elements for maintaining / sustaining a confidentiality
claim: (1) showing that the information is confidential; (2) that it
was imparted in circumstances of confidentiality; and (3)
unauthorised use by the Defendant. All three elements are required
to be satisfied.
92. In the preset case, I find that the Plaintiff has failed to
satisfy any of these elements. Firstly, there is no identification of the
confidential information with "precision and accuracy" and without
such identification, it will not be possible to hold the information to
be confidential. Secondly, the Plaintiff has not been able to show
that the information shared is original and not in public domain.
Thirdly, the Plaintiff has failed to show any actionable similarity /
misuse of confidential information in the Defendants Film.
93. In view thereof, the elements as per the aforementioned
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Judgments, the Plaintiff's claim for breach of confidence cannot be
sustained.
94. The Plaintiff's contention that the prior Suit filed by
Defendant No.5 has a bearing on the present Suit is an entirely
misconceived contention. The claim in the Suit filed by Defendant
No.5 against Defendant No.1 and Defendant No.4 had nothing to do
with the contents of the Defendants' film. The Suit was with regard
to the credit which had been given to Defendant No.4 and which
Defendant No.5 had claimed that he was entitled to be given the
credit. The Suit culminated into Consent Terms being filed and a
decree passed in terms thereof, the basis of which is in the manner of
displaying credits agreed to between the parties. The Plaintiff despite
having knowledge that the said Suit has nothing to do with the
present Suit has relied upon the said Suit in yet another manner to
seek a claim on copyright infringement or breach of confidence when
it has none. Hence, there is no merit in such contention of the
Plaintiff.
95. I find much merit in the submissions of Defendant Nos.1
and 5 that this being a Commercial Suit, the Commercial Courts Act
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applies and costs follow the event. The Plaintiff has failed in his
pleading to make out the fundamental aspects of the claim. Further,
the Plaintiff has persisted with his action despite clear and stark
dissimilarity between the rival works even after having had a chance
to view the Defendants' Film after its release. Significant time has
also been expended in this hearing given that multiple rounds of
pleadings were filed and arguments over multiple sessions. Hence,
costs are required to be imposed on the Plaintiff in favour of
Defendant Nos. 1 and 5 who are the contesting parties who have had
to spend on legal fees.
96. The Judgments relied upon by Mr. Khandekar and Mr.
Mohan in support of their arguments on costs are apposite. It has
been held that this Court's scarce resources cannot be allowed to be
squandered to indulge in fanciful claims. The conduct of the parties is
relevant, including the frivolous nature of the claim. Further, the cap
on compensatory costs has been removed. Accordingly, I find this to
be a fit case to award costs to Defendant Nos. 1 and 5 which shall be
borne by the Plaintiff.
97. In that view of the matter, the present Interim
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Application is dismissed with costs awarded to Defendant Nos. 1 and
5 in a sum of Rs.2 Lakh (Rs.1 lakh each) which shall be paid by the
Plaintiff within a period of four weeks from the date of uploading of
this order.
[ R.I. CHAGLA J. ]
