Delhi High Court
Twentieth Century Fox Film ... vs Zee Telefilms Ltd. & Ors. on 10 July, 2012
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10.7.2012
+ I.A Nos.4776, 4777/2005 in C.S (OS) No.868/2005
Twentieth Century Fox Film Corporation ... Plaintiff
versus
Zee Telefilms Ltd. & Ors. ...Defendents
Advocates who appeared in this case:
For the Plaintiff : Mr. C.M.Lall & Mr. Pradyuman Dubey
For Defendants : Mr. Arun Jaitley, Sr. Advocate with
Ms.Pratibha M.Singh, Mr.Sudeep Chatterjee
and Mr. Ashwin Kumar Advocates
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
ANIL KUMAR, J.
*
1. These are the applications by the plaintiff/applicant under Order
39 Rules 1 & 2 and under Order 26 Rule 9 seeking interim injunction
against Zee Telefilms Ltd from making, telecasting or broadcasting or in
any other manner communicating to the public the television
serial/cinematograph film titled `Time Bomb' and not to do anything
without obtaining a license from the plaintiff and for directions to the
defendants, their partners, servants, agents, representatives to hand
over possession of the infringing copies and all other incriminating
material including the original script and all plates for production of
cinematograph film titled `Time Bomb' in a suit for permanent,
mandatory injunction and rendition of accounts for the alleged
infringement of copyright of the plaintiff.
2. The suit was initially filed against M/s.Zee Telefilms Ltd. During
the pendency of the suit the plaintiff filed an application being IA
No.4822/2005 to implead Ms.Deepa Sahi, Mr.Ketan Mehta and M/s.
Maya Movies Pvt.Ltd also as defendants on account of their
involvement, as they claimed to be producer of the serial „Time Bomb‟.
The said application was allowed by order dated 18th July, 2005 and the
said persons were impleaded as defendant Nos.2, 3 & 4 to the suit of
the plaintiff. The plaintiff/applicant has contended that he is a pioneer
in the world of entertainment and the plaintiff Corporation was founded
in 1913 when William Fox founded Fox Studios to produce the famous
Movietone Newsreels. In 1935 Fox Studios merged with 20th Century
Pictures and (which had been founded in 1933). According to the
plaintiff he is engaged principally in the business of film entertainment,
television entertainment including direct broadcast, satellite and cable
transmission of television channels and programming. The plaintiff also
gave the details of various notable movies made by him. The plaintiff
asserted that he was one of the first to introduce various channels for
different audiences. In 1987 plaintiff launched network by the name of
FOX.
3. According to the plaintiff he has the copyright in his well known
television serial titled „24‟ which is a thriller with the main theme of
narration of story in real time. The plaintiff contended the term „24‟
relates to 24 hours in a day and the story is told in `real time‟ about
how a terrorist attempt is thwarted within 24 hours. The plaintiff
disclosed that each episode of „24‟ features an hour in the life of counter
terrorism agent Jack Bauer. According to him the theme of setting a
television serial in this format is unique to the plaintiff.
4. The plaintiff contended that the principal star of the serial is
Mr.Keifer Sutherland who has been nominated three times for Emmy
Awards for his work in „24‟ who plays the role of a protagonist Jack
Bauer, a secret service agent working for the U.S. Government on VIP
Security and his main task is to save the political leaders from
international terrorist attacks.
5. The plaintiff has given the description of Season One of the said
serial in which the protagonist Jack Bauer‟s main task was to protect a
U.S.Senator (David Palmer) running for the position of the U.S.President
from an assassination attempt by a gang of international terrorists. In
Season two the serial deals with the trauma of his wife‟s murder and
the effect it had on his relationship with his daughter. He was called by
President David Palmer to stop a terrorist plot to detonate a nuclear
bomb in Los Angles. Season three was set three years later where Jack
spent several months deep under cover and returned to Counter
Terrorist Unit (CTU) as Director of Field Operations. According to the
plaintiff the complete episode guide with the entire story line is available
on the plaintiff‟s website.
6. The plaintiff disclosed that his television serial „24‟ had been
extensively discussed in articles in Indian publications and it is
described as unique, as it takes place in `real time‟. A number of books
have been written on the plaintiff‟s serial according to plaintiff.
7. The plaintiff/applicant further contended that the representatives
of the plaintiff had met with Mr. Subhash Chandra in 2005, who is the
Principal Officer of defendant No.1 and the possibility of licensing the
rights of serial „24‟ in order to create a local version in India was
discussed. However, the plaintiff categorically communicated to Mr.
Subhash Chandra that plaintiff would not license the rights of „24‟ to
the defendants.
8. The grievance of the plaintiff is that he was shocked to learn that
the defendant has processed and launched a television serial titled
"Time Bomb". On perusal of power point presentation prepared by the
defendants containing a summary of the proposed television serial, it
became apparent to the plaintiff that the serial `Time Bomb‟
characterization, story line and the script would have numerous
similarities to the plaintiff‟s television serial „24‟. The averment of the
plaintiff is that the similarities between the defendants serial "Time
Bomb" and plaintiff‟s serial „24‟ amount to copyright infringement.
According to the plaintiff `Time Bomb' is an international political
thriller of global terror with its epi-centre in South Asia in which Varun
is a special agent of an exclusive, secret, multi-disciplinary intelligence
agency created under the PMO to deal with terrorism and related
matters known to the very few. The plaintiff further disclosed that from
the script, it has transpired that in serial `Time Bomb‟ a young and
dynamic Prime Minister of India Sh.Anirudh Prakash was woken up on
account of imminent crisis, as there was reason to believe that there
was an assassination attempt on the Prime Minister. The plaintiff has
given the other details of the serial `Time Bomb'.
9. In the circumstances, the allegation of the plaintiff is that the
defendants have copied the story line of the plaintiff. The USP of the
defendants‟ serial is described as "This story of 1 day told in real time
over 24 hours, 1 hour episodes in a crisp breathtaking manner ending
on 11th September 2005" which is exactly how the plaintiff‟s serial is set
up.
10. The plaintiff contended that in order to resolve the matter with
defendant a communication dated 6th May, 2005 was sent to defendant
no.1 through the attorney of the plaintiff not to produce any television
serial which in any way violates the copyright of the plaintiff. The
defendant no.1 was also asked to disclose the complete story line and
script of their proposed television serial and to make appropriate
amendments to the satisfaction of the plaintiff in a manner that the
serial does not violate the copyright of the plaintiff.
11. The plaintiff alleged that no response was received from the
defendants therefore, a reminder dated 27th May, 2005 was also sent.
Thereafter, the attorney of the plaintiff received a letter dated 3rd June,
2005 stating that the defendants are in the process of preparing reply to
plaintiff‟s letter dated 6th May, 2005 which shall be sent soon.
Thereafter on 10th June, 2005 the attorney of the plaintiff received
another reply dated 6th June, 2005 denying the allegation of the plaintiff
of violation of his copyright and contended that the characterization,
story line and script of the serial of the defendants was entirely different
from the script of the serial of the plaintiff and consequently the
allegations of the plaintiff were rejected.
12. The plaintiff‟s allegation is that the defendant used time in
answering their allegations with the aim to expedite the launch of their
television serial "Time Bomb". The plaintiff crystallized the similarities
in its serial „24‟ and the defendant‟s serial "Time Bomb" as under:-
a) The unique and unusual feature of the plaintiff‟s
serial is that it is about a story told in real time
narrating events over a period of 24 hours. The serial
is divided into 24 episodes of one hour each. This is
the Unique Selling Point (USP) of the Plaintiff‟s
television serial. There is no other serial which has
such a format or story line. The Defendant‟s proposed
serial is exactly the same format and interestingly the
format is described in the Defendant‟s power point as
the USP of the Defendant‟s serial as well.
b) The Plot of the Plaintiff‟s serial relates to international
terrorism, as does the Defendant‟s television serial.
c) The protagonist in the Plaintiff‟s serial is a special
secret service agent Jack Baur, as is the protagonist
in the Defendant‟s serial, Varun.
d) The protagonist in the Plaintiff‟s serial is deployed by
the Counter-Terrorist Unit (CTU), the protagonist in
the Defendant‟s serial is deployed by the Agency to
Counter Terrorism (ACT).
e) The backdrop of the Plaintiff‟s serial is the protection
of the U.S. President from international terrorist
attack, whereas the Defendant‟s serial is about
saving the Indian Prime Minister from international
terrorist attack.
f) Both serials have a plot of nuclear attack combined
with a threat on the head of government, with the
protagonist attempting to stall both.
g) The proposed terrorist attack in each of the Plaintiff‟s
serials has international repercussions, which is
exactly the case in the Defendant‟s serial.
h) In both the serials the terrorists groups are Islamic
terrorists."
13. According to the plaintiff, the similarities as enumerated
hereinabove, unequivocally reflected violation of copyright by the
defendants of the plaintiff‟s serial „24‟. According to the plaintiff the
defendants have not only kept the hour format but has also taken the
main plot, theme, characters etc. The defendants according to the
plaintiff, refused to subject their script for scrutiny to the plaintiff giving
rise to the suspicion that the script of `Time Bomb' violated the
copyright of the plaintiff.
14. In the circumstances, the plaintiff contended that plaintiff is
likely to suffer irreparable injury and harm as the plaintiff has the
exclusive right to telecast or license the making of a television serial in
accordance with the script and story line and the copyright which vests
with the plaintiff.
15. The plaintiff further alleged that this is not the first time when the
defendants have attempted to infringe the rights of the plaintiff. The
plaintiff disclosed that it had filed legal proceedings against defendant
No.1 on account of defendant no.1 adopting the plaintiff‟s well known
channel name FX. The plaintiff alleged that in the said suit defendant
No.1 had given an assurance that it will change its channel's name from
FX to ZEE MX and the said suit being suit No.208/04 is pending before
the Court.
16. The plaintiff alleged that the attempt of the defendants is malafide
and they want to derive as much coverage and benefit from the
plaintiff‟s already existing and popular television serial „24‟. In the
circumstances the plaintiff sought an interim restraint against the
defendants from telecasting or broadcasting their serial `Time Bomb‟
and a direction that the defendant should hand over all the infringing
copies and all other incriminating material to the plaintiff.
17. The plaintiff has alleged violation of its copyright inter-alia on the
grounds that its serial has been broadcast since 2001 and the
defendants had ample opportunity to view the plaintiff‟s serial and had
full access to it. The story line of the plaintiff‟s serial is available in the
text form on the plaintiff‟s website and the defendants had shown its
interest in obtaining license. However, when it was declined the
defendants have copied it. The plaintiff also alleged that the defendants
have acted dishonestly as they have not disclosed as to who is the
producer of the said serial. In order to buttress his allegation that the
defendants have copied his serial and they violated his copyright,
plaintiff contended that the defendants have copied the format and
structure, screenplay, story-line, character sketches, interplay of
characters and sequence of events.
18. The plaintiff alleged the similarities in character and events as
under:-
B. SIMILARITIES IN MAIN CHARACTERS
Name Plaintiff Name Defendant
Jack Protagonist Varun Protagonist
Bauer battling between Awasthi battling between
marital and family marital and family
problems and problems and
professional professional
problems - threat problems - threat
to life of to life of Prime
presidential Minister. Works
candidate. Works for Anti Terrorist
for Anti Terrorist Unit called ACT
Unit called CTU
David Presidential Anirudh Prime Minister
Palmer Candidate facing Prakash facing political
political crises as crises and threat
well as threat to to life.
life
Victor Father and son Osama & Father and son
Drazen & combination heads Son combination heads
Sons terrorist group & Usman terrorist group &
(Andre & plans attack on the plans attack on
Alexis) premier of state the premier of
and the state and
protagonist Jack protagonist Varun
Baur Awasthi
Kimberley Daughter and only Payal Daughter and only
child of the child of the
Protagonist Jack Protagonist Varun
Baur
Victor A telephone call Abhay is A telephone call
Rovner received informing the caller received informing
transmits about threat to the & about threat to the
the life of the President Anirudha life of the Prime
message & Prakash, Minister
David Target
Palmer is Prime
the Target minister
President
Martin A Photographer Roma A news reporter
Belkin Journalist Awasthi
Nina A female chief of Menaka Lady Jt. Director
Myers staff at CTU - at ACT -
concerned about concerned about
the marital the marital
problems that the problems that the
protagonist is protagonist is
facing. facing.
Mandy Stranger who Sejwani Stranger who
meets the meets the
journalist under journalist under
cover and cover and
impression of a impression of a
coincidence coincidence
Patty Presidents Lady PA A close Aide to
Brooks Campaign manager to Prime Prime Minister
minister
19. According to the plaintiff the defendants have attempted to
dissect the components of the plaintiff‟s serial and has contended that
the common features in the comparison chart are common stock,
however, such dissection is impermissible.
20. The plaintiff/applicant contended that though ideas are not
protected but expression of ideas are protected and relied on R.G.Anand
v. Deluxe Films PTC Suppl. (1) 802 (SC); Sid & Marty Krofft Television
Productions Inc. v. McDonald‟s Corp. 196 USPQ 97 at 102; Universal
Pictures v. Harold Lloyd Corporation, 162 F2d 354 at 363. The plaintiff
has further alleged that even if the similar material is quantitatively
small, however, if it is qualitatively important, it may constitute
infringement of copyright and has relied on Fink v. Goodson Todman
Enterprises Ltd, 169 USPQ 106 at 114, 115; Universal Pictures v.
Harold Lloyd Corporation, 162 F2d 354 at 361. According to plaintiff
new treatment of common subjects are also entitled to copyright
protection. For this proposition plaintiff has relied on Universal Pictures
v. Harold Lloyd Corporation, 162 F2d 354 at 360, 363. The plaintiff has
relied on Sid & Marty Krofft Television Productions Inc. v. McDonald‟s
Corp. 196 USPQ 97 at 102, 103 to assert that for determination
whether there is a similarity in the expression of the idea, hypercritical
or meticulous scrutiny is not to be done but it is to be ascertained by
observation and expressions of the average reasonable reader and
spectator. According to the plaintiff analytical dissection in order to
ascertain the similarities and dissimilarities are not permissible and
relied on Sid & Marty Krofft Television Productions Inc. v. McDonald‟s
Corp. 196 USPQ 97 at 103.
21. The counsel for the plaintiff emphasized that in order to ascertain
whether the copyright has been violated or not what is relevant is
whether the concept and feel has been copied and mere absence of
duplication or near identity is not necessary to negate the plea of
infringement. The plaintiff relied on Sid & Marty Krofft Television
Productions Inc. v. McDonald‟s Corp. 196 USPQ 97 at 105; Fink v.
Goodson Todman Enterprises Ltd, 169 USPQ 106 at 114; Anil Gupta v.
Kunal Dasgupta, 2002 (25) PTC 1 (Del) at 22; Zee Telefilms Ltd v.
Sundial Communications P.Ltd, 2003 (27) PTC 457 (Bom DB) at 468.
22. The plaintiff further contended that portrayal techniques,
adornments and methods of presentation can form an integral part of
copyrighted subject matter and relied on Fink v. Goodson Todman
Enterprises Ltd, 169 USPQ 106 at 113, 114, 115; Universal Pictures v.
Harold Lloyd Corporation, 162 F2d 354 at 363.
23. In order to substantiate its allegation of violation of copyright the
plaintiff contended that digital time clock with the distinctive sound is
an integral part of the serial which is used at the beginning and the end
of each episode and after each commercial break; portrayal of a story of
24 hours in real time divided into 24 episodes of one hour each; the
seasons of the plaintiff and defendants serial begins at 12 midnight and
ends 24 hours later and at places multiple screens are used to portray
simultaneous events and in real time and the time spent in the
commercial break is included in the real time events. Plaintiff also
alleged similarities in plots and sequence of events.
24. The defendants have contested the claim of the plaintiff.
Defendant No.1 filed a written statement dated 11th August, 2005 along
with a short reply dated 18th June, 2005 to the applications of the
plaintiff. Defendant No.1 averred that the plaintiff by its notice dated 6th
May, 2005 had sought for disclosure/sharing of the complete storyline
and script of the television serial `Time Bomb‟. The telecast of the serial
Time Bomb commenced on 20th June, 2005 and had to continue for 24
episodes. The defendant No.1 asserted that he had clearly informed the
plaintiff by his reply dated 6th June, 2005 to the notice of the plaintiff
dated 6th May, 2005 that the storyline of the script of the serial of the
defendants could not be disclosed to the plaintiff who is a business rival
and the defendant No.1 could not prejudice the telecast of his own
programme. The defendant No.1 asserted that it had informed the
plaintiff that the characterization, storyline and script of the defendants‟
serial is completely different from that of the plaintiff‟s serial „24‟. It was
emphasized that the serial „Time Bomb‟ is a continuation of earlier
serial of defendants titled „Pradhan Mantri‟. It was also aired earlier on
Zee. Mr.Ketan Mehta had produced the said television serial for the
defendants titled as "Pradhan Mantri" in which there was an
assassination attempt on the Prime Minister. According to the
defendant No.1 the serial „Time Bomb‟ is in continuation of earlier serial
„Pradhan Mantri‟ which is apparent from the fact that the lead actors
who had featured in „Pradhan Mantri‟ are the same.
25. According to the defendant No.1 the serial „Pradhan Mantri‟ was a
story of a young leader, MP who went to become the Prime Minister of
India and turned out to be an ideal Prime Minister. That serial had
ended with an attempt to assassinate him. The present serial „Time
Bomb‟ picks up the thread from the end of that serial and the same
Prime Minister, Mr.Anirudh Prakash three years later is still the Prime
Minster and there is an attempt on his life. The defendant No.1 detailed
the various roles played by various actors in the two serials „Pradhan
Mantri‟ and „Time Bomb‟. The defendant No.1 in the circumstances
emphasized that the story and screen play of the serials have been
developed entirely by the defendants‟ producers and directors through
extensive research and it has been written by Mr.Uttam Gada who is a
well known screen play writer and play writer. In the written statement
dated 11th August, 2005 the defendant No.1 also contended that they
are filing in a sealed cover having a concept note of serial „Time Bomb‟
along with a CD of the episode.
26. According to the defendant No.1 the serial „Time Bomb‟ which
follows the earlier serial „Pradhan Mantri‟ is an international thriller
based on the theme of global terrorism. The epicentre of said global
terror is in South Asia and it relates to terrorists who move from
Pakistan to India. There is an intelligence report that there exists an
apprehension of assassination attempt on the Prime Minister of India.
The question is whether the secret service agent would be able to save
the Prime Minster? Investigation also revealed that there would be
simultaneous attacks in various important cities of the world and it
revolves around the 11th September attacks.
27. The defendant No.1 categorically contended that the various
element existing in the serial „Time Bomb‟ namely an assassination
attempt, terrorism threat from weapons of mass destruction, political
turmoil etc are all elements which are existing in the earlier serial. The
primary secret service in the serial is known as RAW which is the real
name of such an agency and other agencies which are referred to are
IB, CBI and CID which are actual names of existing agencies.
28. Refuting the allegation of the plaintiff that „24‟ is the unique serial
confined to a single day, the defendant No.1 contended that a large
number of films and serials have depicted the incident of a single day
which include "Iss Raat Ki Subah Nahi"; "Ek Din Achanak"; "Jagte
Raho", "Holi" and "Mirch Masala". According to the averment of
defendant No.1 storyline has a real time story which is not new to this
serial. The defendant No.1 further disclosed that earlier films namely
"Nick of Time" and another serial "In the nick of Time" have this kind of
narration structure which is claimed to be exclusive by the plaintiff.
29. The defendant No.1 further asserted that a show is presented by
Zee T.V titled "Tamanna House" which is also the story of one day told
over 48 half hour episodes in real time. It also has multiple windows
being used in serial which have simultaneous events. According to the
defendant No.1 this has been made possible through use of advanced
technology in editing and a large number of feature films used this kind
of technology and technique. The defendant No.1 in the circumstances
emphasized that there is no copyright in the format of any T.V
programme or serial.
30. The defendant No.1 thus contended that its serial „Time Bomb‟ is
an independently created work and it is not based on plaintiff‟s
programme in any manner whatsoever and there is no commonality
either in the story or in the content or character.
31. Any story which consists of an assassination links with terrorism
will have a large number of elements which would be common in
various other similar stories and the plaintiff cannot claim a copyright
on the same. The defendant No.1 further alleged that the format of
serial by itself is not entitled to any copyright protection whatsoever.
The defendant No.1 also stated that the preparation for this serial
commenced way back in November, 2004 when the programme
department of Zee engaged Mr.Ketan Mehta who is one of the most
reputed directors in India who had prepared the concept note in 2004
itself and an agreement dated 23rd November, 2004 was entered
between the defendant No.1 and Maya Movies Pvt Ltd. which is a
company of Mr.Ketan Mehta. Thus the concept of serial „Time Bomb‟
was decided way back in November, 2004 itself. The defendant No.1
also disclosed that the entire cost of production and the programme
including the payment to the Director, marketing, advertising etc of the
serial „Time Bomb‟ till the date of filing of the written statement was
approximately 10.5 crores.
32. The defendant No.1 further disclosed that the serial „Time Bomb‟
had to be telecast every Monday over 20 episodes with duration of
approximately 45 minutes. The serial had been successfully promoted
by the defendants on its various channels and on the Zee network
platform and the shooting of the serial had taken place in Washington,
London, Tel-Aviv (Israel), Mumbai and Delhi and is based on the date
11th September, 2005 and is revealed over 24 hours depicting in 24
episodes. In the circumstances, the defendant No.1 contended that
there is no infringement of copyright, if any of the plaintiff and he is not
entitled for any interim order. The defendant No.1 contended that there
is no copyright in an idea, concept or the form of any T.V programme.
33. Regarding the alleged similarities it is contended that every story
based on assassination and terrorism are bound to contain various
elements which can be compared and the similarities can be found.
However, that itself will not be sufficient to infer that there are
similarities. The serials based on assassination and terrorism are
bound to contain elements like international terrorism, secrets service
agents, assassination of Head of States and counter terrorists units.
According to the defendant No.1 there are numerous films with such
plots including Roza, 13th September, The Hero, Maachis, Mission
Kashmir, Kachche Dhagge, Qayamat etc. which had been produced
which have the similar elements as has been alleged by the plaintiff on
the basis of which the plaintiff is allegedly claiming copyright in the
serial „24‟.
34. The defendant No.1 further asserted that mere idea of „24‟ one
hour episodes cannot be copyrightable and cannot be protected under
the law of copyright, as the mere idea is not copyrightable. The
defendant No.1 contended that general ideas are in public domain and
cannot become a monopoly of any particular entity. The mere idea of an
assassination attempt on the head of state by a terrorist group
combined with modern technological inputs as also the presentation of
the same in a 24 episodes format, is per se is not entitled to copyright.
The defendant No.1 contended that such claim would be prejudicial to
"creativity, expression" and this would be contrary to public policy and
is neither permissible nor sustainable in law. In the circumstances it is
also asserted that there is no similarity between the plaintiff‟s serial „24‟
and the defendant‟s serial „Pradhan Mantri‟ and „Time Bomb‟ nor in the
portrayal or in the combination of incidents, pattern of activity etc.
35. The defendant No.1 refuted the allegation that the Chairman of
defendant No.1 Mr. Subhash Chandra had tried to obtain the license
from the plaintiff which was declined. The defendant No.1 rather
contended that there had not been any occasion for the defendant No.1
to request for such a license. It was disclosed that in fact three
representatives of the plaintiff‟s distribution company had visited the
office of the Chairman of defendant no.1 in Mumbai. The representative
of the plaintiff who visited defendant No.1‟s office in Mumbai were
Mr.Brendan Zauner, Director of Television Sales, Mr.Richard Samuesl,
Sr.V.P & M.D, Asia Pacific and Mr.Mark Kaner, President. The meeting
was fixed as the plaintiffs representatives wanted to sell their content
and software for defendant‟s English Channel Zee Café and Zee Studio.
According to the defendant No.1 the meeting took place on 1st March,
2005, however, the preparation of the agreement for serial „Time Bomb‟
had taken place in November, 2004 and a large amount of money had
already spent by Zee from 1st March, 2005. The defendant No.1
categorically asserted that by that time entire concept note was
conceived, the storyline was ready, the script was ready and the serial
was under production and substantial shooting had taken place and
thus there was no question of the Chairman of the defendant No.1
Company requesting for a license from the plaintiff. In the
circumstances reliance by the plaintiff on the alleged meeting is
completely misleading and is an attempt to twist the facts. The
defendant No.1 also filed the scanned copies of the visiting cards of the
three representatives who had come to meet the Chairman of the
defendant on 1st March, 2005. In order to allege malafides on the part of
the plaintiff, the defendant No.1 contended that with a view to mislead,
the plaintiff is deliberately not giving the exact date and has rather
mentioned that such a meeting had taken place in "early 2005".
36. Regarding the earlier litigation with Channel FX, the defendant
No.1 contended that it has no connection with the present case. Even in
the said case no injunction was granted in favour of the plaintiff. The
defendant No.1 had rather filed the reply and had unilaterally changed
the channels name to Zee MX. Though an objection was taken by the
plaintiff that FX and MX are similar, however, without granting any
further relief to the plaintiff the suit was disposed of.
37. The defendant No.1 further asserted that the marketing of the
serial had commenced, a number of months in advance and no
objection was raised from any quarter. According to the defendant No.1
the plaintiff noted the story of the serial which is evident from the
website zee-tv.com which is the basic story of the serial. The plaintiff
did not take action earlier and the present suit has been filed with a
view to prejudice the successful telecast of the serial. In order to
demonstrate the malafides on the part of the plaintiff the defendant
No.1 relied on the documents which are as under:-
1) Page 239 extract of indiantelevision.com dated
2.6.05- This is one of the websites dealing with
Indian Television industry and this extract clearly
states that the telecast is from 20th June.
2) Page 241 extract from Bizasia- 8th June, 05- This
extract states that the serial come in July, but is of
later dated that No.1 above.
3) Another extract from Biz Asia dated 3rd June 05
states that the serial is slated for early July."
38. In the circumstances it is contended that the telecast was
scheduled for Monday at 10 PM on 20th June, 2005 and filing of the suit
on 16th June, 2005 was a malafide attempt. The defendant No.1
applicant also contended that the suit is bad for non joinder of parties
and the suit has not been filed by a duly authorized person. In the
circumstances, it is contended that for the foregoing reasons there is no
prima facie case in favour of the plaintiff and against the defendant
No.1.
39. The defendant No.1 emphasized that there are fundamental
differences between the serial of the plaintiff „24‟ and the defendant
No.1‟s serial. According to the said defendant the defendants serial
„Time Bomb‟ is based on its own earlier serial and is shot/produced in
or around various locations of the world which is not the case in the
serial of the plaintiff „24‟. The other major difference relied on by the
defendant No.1 is that the defendant‟s serial „Time Bomb‟ is based on
11th September, 2005 attack which is not the case in the serial of the
plaintiff „24‟. These differences change the entire script, characterization
and the screen play of the plaintiff‟s serial.
40. According to the defendant No.1 mere reading of the story line
would show that there is no similarity between the plaintiff‟s serial „24‟
and the defendants‟ serial and it is because of this that after
reproducing the story line of the defendants‟ serial, no comments has
been made by the plaintiff. The defendant No.1 thus contended that the
plaintiff cannot claim exclusive copyright in portraying terrorism on
television.
41. To emphasize that the plaintiff is claiming the copyright in an
idea, the defendant No.1 contended that the alleged similarities alleged
by the plaintiff cannot be the basis for a copyright. The defendant No.1
answered the alleged similarities alleged by the plaintiff as under:-
a) The plaintiff in para (a) is trying to claim a monopoly
on a specific format which is impermissible. There has been
a number of movies which relate to a story of one day being
narrated. In fact such a format has been used by the
defendants in an earlier serial also.
b) International terrorism is a concept and subject
matter which is very common in a large number of movies
and television serials in India and abroad. There cannot be
any monopoly on this.
c) Secret service agents are there in every country. They
are involved in every film which revolves around terrorism.
There is nothing new and they are in public domain. There
are episodes to counter terrorism and it is nothing but an
imagination of the director/producer.
d) Assassination attempts on Heads of States is a very
old concept and a very old subject matter.
e) Every terrorist attack always have international
repercussion. The plaintiff‟s serial is based on one location
whereas the defendants serial is not so. They are all co-
related with 11th Sept. They are also co-related with the
real-time terrorist group which is alleged to be involved in
11th Sept. attacks. Islamic terrorism is extremely common
and has been portrayed in various films and serials. There
are large number of differences between the plaintiff‟s and
defendants‟ serial which is evident from them.
h) Every terrorist attack always have international
repercussion. The plaintiff‟s serial is based on one location
whereas the plaintiff‟s serial is not so. They are all co-
related with 11th Sept. They are also co-related with the
real-time terrorist group which is alleged to be involved in
11th Sept. attacks. Islamic terrorism is extremely common
and has been portrayed in various films and serials. There
are large number of differences between the plaintiff‟s and
defendants‟ serial which is evident from reading of the
concept. The allegations of similarities is unfounded. In any
case, such elements are in public domain. A large number
of serials are based on crime, mother-in-law vs. daughter-
in-law, music based programmes etc., Granting of a
monopoly on ideas of this nature is alien to the law of
copyright."
42. In the circumstances, the defendant No.1 contended that prima
facie plaintiff has no right and even the inconvenience caused to the
defendant No.1 will be more in case the telecast of the serial is stayed
and the defendant No.1 shall also suffer irreparable loss.
43. The defendant Nos.2 to 4 who were impleaded later filed a
separate written statement dated 11th August, 2005 reiterating the
pleas and contentions which were raised by the plaintiff. The said
defendants, however, disclosed that Mr.Ketan Mehta is the co producer
and Director of television serial „Time Bomb‟ and M/s. Maya Movies Pvt
Ltd (Defendant No.3) is a co-producer of the said serial. The defendant
No.4 was also disclosed to be the Director of defendant No.3.
44. The defendant Nos.2 to 4 also disclosed that the serial „Pradhan
Mantri‟ was telecast on Zee T.V between 6th April, 2001 till October,
2001. The said serial „Pradhan Mantri‟ had a re-run on Zee T.V in
November-December, 2004 as „Pradhan Mantri Time Bomb‟. According
to the said defendants, the serial „Pradhan Mantri Time Bomb‟ had all
features including the digital clock, windows technique, nuclear attack
and the assassination of the Prime Minister on which the plaintiff is
allegedly trying to seek a monopolistic claim.
45. The defendant Nos.2 to 4 reaffirmed that in October, 2004 the
concept note of serial „Time Bomb 9/11‟ was prepared and an
agreement was entered into between M/s. Maya Movies Pvt Ltd and Zee
Telefilms Ltd on 23rd November, 2004 for production of serial „Time
Bomb‟ continuing with the actors and characters of the earlier serial
„Pradhan Mantri‟. In the circumstances, it was re-asserted that the
serial „Time Bomb‟ is the continuation of earlier serial „Pradhan Mantri‟.
According to the defendant Nos.2 to 4 the suit of the plaintiff is a
speculative and baseless and there is no commonality between the two
serials „24‟ and „Time Bomb 9/11". They are based on different facts
and circumstances and they are completely dissimilar. The plots in the
two serials have no connection with each other. The script is different
and the story line is different. According to defendant Nos.2 to 4 the
number of dissimilarities between the two serials would be unending.
The defendants also crystallized same of the dissimilarities between the
two serials as under:-
Sl.No. Plaintiff's serial 24 Defendant's Serial Time
Bomb
1. Basic plot revolves around on Plot simultaneously unfolds in
location in the USA (Los four capital cities of the world
Angeles) which is the target of viz., Washington D.C., London,
terrorism. Tel-Aviv & New Delhi.
2. Basic storyline is primarily The plot revolves around the
related to threat within USA & geo-politics of South Asia viz.,
a Presidential candidate. India 7 Pakistan and its global
repercussions.
3. Inspiration is general terrorist Inspiration drawn is from the
threats & attacks. 9/11 attacks and the terrorist
groups alleged to be involved
therein.
4. Three seasons have been run: Time Bomb is a sequel to the
1st Season: Threat is to the life earlier Television series
of the Black Presidential produced for Zee by Mr.Ketan
Candidate Mehta viz., Pradhan Mantri
2nd Season: Nuclear threat in which was telecast starting
Los Angeles April, 2001. It had ended with
3rd Season: Biochemical an assassination attempt on
threat in Los Angeles the Prime Minister of India.
Time Bomb picks up the same
characters and stories 3 years
later when the same person is
the Prime Minister and there is
an attack to his life which
unravels into a global terrorist
threat. The attack on the Prime
Minister of India is in fact a
"red herring" which is meant to
deflect the attention of the
Security Agencies from the
global simultaneous terrorist
attacks.
5. The main protagonist of 24 The main secret service agent
Jack Bauer is a middle aged Varun Awasthi is a young man
man in his late forties. in his late 20s.
6. The female protagonist is a The female protagonist the wife
house wife who is the wife of of Varun Awasthi is a TV
Jack Bauer. journalist and an independent
working woman.
7. The villains in the series are Terrorist are Afghanistan-
from the Balkans Pakistan-India based.
Osama the character in this
serial, flees from Pak-occupied
Kashmir to Kashmir in India
when his hiding camp is
attached by America.
8. No local Americans villains An Indian industrialist tycoon
associated with terrorists. is involved with the Terrorists.
9. The main villain is actually in Son of Osama the terrorist in
prison and the attempt is to Time Bomb actually takes over
get him to be released. the head of the organization
by-passing his father who gets
a heart-attack.
10. Daughter of Jack Bauer is a Daughter of Varun Awasthi is a
teen-aged girl who escapes 5 year old girl.
from her house.
11. Daughter of the Presidential Daughter of Prime Minister of
Candidate is a rape-victim. India is studying in London
and has come back for a
holiday.
12. Wife of the Presidential Wife of the P.M. of India is dead
candidate is an ambitious in a terrorist attack 5 years ago
woman not averse to breaking in a car bomb explosion.
rules and goding him on ala
Lady Macbeth.
13. Starts in Malaysia and Series opens with a few
continues to Los Angeles. clippings from Pradhan Mantri
and how the present plot is
happening 3 years later. The
important beginning of the
present serial is in Pak-
occupied- Kashmir and shows
Osama escaping into India.
14. USA is a victim of terrorism. President of USA orders
elimination of Osama and
destruction of his camp. This
information is leaked to Osama
and he manages to escape. So
USA is shown as an aggressor
& a victim of terrorism.
15. Daughter of Presidential PM‟s daughter gets involved
Candidate is a traumatized with a group of teenagers and
rape victim. son of an industrialist tycoon
who is in league with the
terrorists.
16. Son of the President is a In the present Time Bomb
murder accused. version, the son of PM is not
portrayed.
17. Presidential Candidate in the The Prime Minister is already
first season is still fighting for an elected PM for four years
the presidential preliminaries. and is facing a crisis to his
Government due to defection
from one of the coalition
partners in the Government.
18. The assassination of the The assassination of the PM is
Presidential Candidate is being planned because of the
being planned as a revenge for industrial tycoon‟s vested
ordering an attack on the interests.
Balkans.
19. Wife of Jack Bauer dies at the The wife of Varun does not die
end of the First Season. and actually plays an active
role in thwarting the attempt of
the terrorists.
20. Terrorist threat is thwarted in The terrorists succeed in one of
all their Seasons. the Capital Cities of the world.
46. The defendant Nos.2 to 4 also contended that even scene to scene
narration does not show any similarities between the plaintiff‟s story
and the defendant No.1 serial which are as under:-
1 CIA Agent in Washington Victor Rovner transmits from
informs US president that the Kuala Lumpur, Malayasia that
Operation has begun. US a shooter is coming into town
president wants Osama to target Senator Palmer. Agent
eliminated. CIA agent‟s driver Richard Walsh, a high-ranking
informs Osama‟s men that Counter Terrorist Unit (CTU)
their camp is going to be officer, is alerted.
attacked by the Americans.
2. Roma is driving home ... at Senator David Palmer, an
the same time a recorded African-American running for
news cast is on where Roma is President, writes his speech for
talking about Sept 11... and the next day‟s California
that terrorist have announced primary election.
a threat on the anniversary of
Sept. 11 AND the current PM‟s
govt. is in doldrums
Roma reaches her house and
puts her daughter to bed and
goes to get ready for the party.
The recorded news continues-
it is about the last Sept. 11,
2011 attack.
3. In POK Usmaan gets a call Jack Bauer plays chess with
about an attack that can his daughter Kimberly in their
happen anytime ... Usmaan home. Before going to bed, she
alerts everyone .. the camp is tells him that she‟s glad he
bombarded but Osama and moved back in. jack and his
gang (Usmaan, Zafar and wife Teri go to her room to find
Noora) escape in a truck. she has snuck out the window.
Nina Myers, Jack‟s chief-of-
staff at CTU, calls him into the
office because Richard Walsh is
in town. Jack phones
Kimberly‟s ex-boyfriend
Vincent, but he doesn‟t know
where she is.
4. Roma is getting ready to leave Kimberly and her friend Janet
for the party. She gets a call York are on their way to meet
from Varun (her husband0 up with some guys named Dan
who is driving in a jeep. and Rick.
Tension prevails in brief
conversation, which breaks off
on a note of usual martial
friction.
5. Varun and his colleague Asif Jack arrives at CU
stop a hotel. They go in and headquarters and calls his wife
arrest Javed Durani - a to alleviate her fears. Turning
suspected terrorist. Varun back to work, Jack gathers his
and Asif are special agents of team and suggests that
(ACT-RAW). perhaps Senator Palmer is the
Varun asks Asif to take Javed reason they have been called
to Raw office and says he will in. he asks them to start
back in a while. pulling together information on
the candidate. Along with Nina
are CTU employees Jamey
Farrell and Tony Almeida.
Meanwhile, Kimberly and
Janet arrive at a furniture
store where they meet the
guys.
6. PM Anirudh Prakash is Jack asks a friend at the LAPD
watching the recorded news to keep a lookout for his
from earlier today, where daughter. Walsh arrives and
Roma is interviewing him and briefs Jack‟s team about an
other cabinet ministers about expected attempt on Palmer‟s
the fate of the Prakash Govt. life. Walsh privately tells Jack
that there may be a leak within
CTU involved in the hit.
7. PM discusses the vote of no Martin Belkin, a foreign
confidence with the ministers. photographer, calls Palmer
It seems like the Govt. is campaign manager Patty
doomed. The ministers are Brooks from an airplane bound
blaming the PM for his action for Los Angeles. He is
of firing a minister who has scheduled to meet Palmer for
taken 15 MP‟s with him. breakfast the next morning
Cabinet is of the opinion that Mandy, the woman in the seat
the Govt. should be saved by next to him, overhears his
hook or crook and that is the conversation and asks about
PM‟s responsibility. PM is Palmer.
shocked to see the amorality
of his ministers.
8. At a grand party, somewhere Nina confronts Jack about not
in Delhi, Nath is being being included in a meeting
congratulated for getting the with District Director George
„Industrialist of the Year Mason. Jack does not tell her
Award‟. He goes around what the secrecy is about. Teri
meeting the dignitaries. Roma calls to tell Jack that she found
has just rushed in. she joints in Kimberly‟s desk. Jack
congratulates Nath.. Nath apologizes for not being there
introduces her to Gulshan to help. In a heart-to-heart talk
Bano- a celebrity from Middle with Rick, Kimberly lies and
East says that her father is dead.
Sejpal, a handsome looking
NRI approaches her and tries
to talk to her. How come she
is alone?
9. Osama and gang cross the Mason does not reveal to Jack
Line of Control ... Usmaan what his source is for the
tells Osama that they will be information on the Palmer
in India very soon. case. Jack is suspicious, and
shoots Mason with a
tranquilizer gun to knock him
out. Jack orders Nina to look
up the assets of convicted
heroin dealer Phillipe Darcet
because he has always
suspected that Mason
skimmed money from the bust.
Jack hopes to use that
information to blackmail the
District Director.
10. The meeting with PM is about Teri receives a call from Alan
to get over; Yadav makes an York, the father of Kimberly‟s
offer to work out something of friend Janet. He too is looking
Pm agrees to go along with for his daughter.
whatever he decides. PM does
not want to agree without
knowing the details. Savita
stays back a little longer after
the ministers leave and
displays proximity with him.
She suggests that he should
take rest as he looks tired.
11. Osama is angry about the way Jack requests that Nina get
they were attacked. He is told Tony to access the Darcet files.
that their location was given Tony is suspect that Nina is
to the Americans by ACT- doing this because she is still
RAW. He decides to take sleeping with Jack. She doesn‟t
revenge with India. give a straight answer, but
convinces the reluctant Tony to
get her the information. Jack
asks Jamey to trace the
passwords for the email
accounts on his home phone
line. He informs Teri that
Kimberly‟s password is
LIFESUCKS.
12. Varun comes to Nath‟s party On the plane, Mandy continues
and is looking for Roma. He to grill Martin flirtatiously.
sees Roma talking top Sejpal. There is growing attraction
Varun interrupts and takes between them.
Roma aside.
13. Osama and gang are on mules Senator Palmer gets a phone
moving towards Indian call from Maureen Kingsley at
territory. the network. He gets angry at
her allegation, and avoids
telling his wife Sherry what
was discussed.
14. Varun talks to his wife Roma Nina grows worried about
trying to reconcile matters .. Jack‟s erratic behaviour, and
just then he gets a call from she voices her concern that he
Abhay Sinha about some is breaking the law by tapping
problem related to PM .. into private files. He says that
Varun apologizes to Roma and he will not compromise
leaves the party. himself. Meanwhile, Teri and
Alan York decided to try to find
the girls at an address found in
Kimberly‟s email account.
Seeking her mother‟s repeated
calls on her cell phone,
Kimberly asks the guys to drive
her home.
15. Osama has crossed border an Martin and Mandy make love
entered India...he announces in the airplane bathroom. She
that the last battle will start asks if they can get together in
from here. Los Angeles, but he replies that
Varun sends the audio file of he will be "pretty busy."
his conversation with Abhay
to Tina at RAW and asks her
to clean-up the distorted
audio file.
The PM talks to his sister in
law about where the kids are
...she says they are at the
party and having fun.
16. At the party Sejpal tries to At CTU, Tony sends to Jack the
console Roma .. tries to get accessed wire transfers on the
close to her and introduces Darcet account, and Jack
himself as being from wakes Mason. He once again
Canada... asks the District Director who
his source is, but this time
shows the incriminating Darcet
transfers. Mason goes to the
back of the plane and knocks a
flight attendant unconscious.
She takes out Martin‟s stolen
identification and she puts on
a protective jumpsuit. She
removes a bomb from the
plane‟s fire extinguisher and
detonates it. Mandy ejects
herself from the cabin within
seconds of the plane‟s
explosion, parachuting to
safety.
17. Osama and gang have stopped Teri speaks to Jack while
in the hills .. Osama is driving with Alan York to the
worried about Zafar‟s injured Valley. When he loses contact
condition... Usmaan takes with his wife, Jack sets out to
Osama to give his dose of find her. Tony stops him with
injection (insulin) ... Zafar news that a plane has blown
informs Indian friends that up over the Mojave Desert.
they are approaching Srinagar Preliminary reports indicate
... Usmaan asks Osama to that it was bombed. Within
leave Zafar behind as he will Dan drives the van with the
be a trouble because of his girls insides, he ignores
injured condition. Kimbgerly‟s directions to her
house. For the first time she is
afraid, and she realize that she
may not be in control of the
situation.
18. Varun reaches RAW office and
checks the cleaned up audio
file ... Javed Durani is being
interrogated ... Menka who is
Varun‟s boos is upset with
Varun for not maintaining
protocol... Varun listens to the
cleaned up audio and finds
out that there is going to be
an attack on India PM today
... he decided to go and meet
the PM personally at that
hour.
19. Varun reaches PM‟s house
and tries to get special
permission to get in.
20. Sejpal tells Roma that he is
India to meet Roma and that
he has a proposal for her.
21. Osama and gang kill the
loaders and mule men and
leave.. they cross a check post
that says Srinagar 100 Kms.
22. Varun tells the PM that some
is going to make and attempt
to kill him today ... PM is
shocked.
47. The said defendants also contended that the plaintiff is seeking a
claim mainly on real time format, use of digital clock and windows,
however, such techniques are known to the film industry. The real time
format has been used for a large number of years now which dates back
to 1949 with the film, "The Set Up". The real time format feature had
been used in the serial M*A*S*H. The real time format was also used in
1995 feature film, Nick of Time. According to defendant Nos.2 to 4 a
large number of movies and programs were made in real time format
including Alfred Hitchcock‟s 1948 film ROPE. The defendant Nos.2 to 4
disclosed that film "High Noon" was a film specifically shot in "real time"
84 minutes and also the film "My Dinner with Andri". According to them
even daily program called "Before sunrise" was based on the lives of 365
people from different cities produced in one hour capsules for one whole
year in real time. Under the circumstances according to said defendants
there is nothing noble or unique in plaintiff‟s serial „24‟. Regarding
depiction of a clock with a countdown the said defendants contend that
this is a common technique which is used in most video games, movies
based on war, blackmail, spy stories etc. The digital countdown is very
common and has been used in hundreds of movies e.g "Nick of Time",
"High Noon" and "Dr.Strange Love".
48. Regarding the split screens also the defendant Nos.2 to 4 asserted
that it is extremely common and is used in large number of movies
internationally as well as in India. Some of the movies according to the
said defendants which used split scenes are Time Code, Dhoom, Kal Ho
Na Ho, Phone Booth, Asambhav. Even the television serials „Pradhan
Mantri‟ and CID Special Bureau had used split screens. The said
defendants also reiterated the plea of the defendant No.1 that large
number of movies confers to a single day incident and in the
circumstances plaintiff cannot claim any monopoly or copyright in the
same.
49. Regarding the window technique, it is asserted that it is made
possible by advanced technology and there is nothing novel which can
be copyrighted by the plaintiff. It is stated that this technique is used by
news channels in general, sports channels, a large number of
commercials and television serials such as CID which is an investigative
serial telecast on Sony T.V which is based on window technique.
50. The defendant Nos.2 to 4 also emphasized that they have used
presentation techniques, different tools of presentation like "Television
News Reporting" which according to the said defendants could be used
in the serial „Time Bomb‟ which are not comparable or similar to the
features of the plaintiff‟s serial „24‟.
51. In the circumstances, the said defendants allege that the suit of
the plaintiff is only speculative and is an attempt to derail the telecast
of the serial „Time Bomb‟. The defendants also produced the print out
from various movies showing that the format used by the plaintiff is not
unique to the serial of the plaintiff.
52. The plaintiff filed the rejoinder dated 23rd June, 2005 denying the
pleas and contentions raised by the defendants. Along with the
rejoinder the plaintiff filed the similarities between the format of the
plaintiff and the defendants. The similarity in the format between the
plaintiff and the defendants as alleged by the plaintiff were the
comparison of some of the slides of two serials.
53. The plaintiff also filed the affidavit of Mr.Brendon Zauner dated
24th June, 2005 refuting the allegations made by the defendants
regarding the meeting.
54. The defendants had also filed the colour print outs of some of the
shots of the pictures Dhoom, Kal Ho Na Ho, Phone Booth, Asambhav to
show that split screens are very common and are used in large number
of moves internationally and in India.
55. The plaintiff also relied on the complete episode guide of first
Season, Season II, Season III of serial „24‟ and power point presentation
of defendant and various other documents as well as the
correspondence exchanged between the plaintiff and defendants. The
correspondences exchanged between the plaintiff and defendants were
the copy of notice dated 6th May, 2005 by the counsel for the plaintiff to
the defendant No.1; reply dated 3rd June, 2005 from defendant No.1 to
the plaintiff; the reply dated 6th June, 2005 on behalf of defendant No.1
to the plaintiff. The plaintiff also filed a copy of the order dated 25th
November, 2004 passed in IA No.1382/2004 in CS(OS) No.208/2004.
56. This Court has heard the learned counsel for the parties on
various dates and perused the record in detail. Even certain episodes of
the serial „Time Bomb‟ which had already been telecast and the serial
„24‟ were screened in the Court. On the basis of the screening of the
serial „Time Bomb‟ and the serial „24‟, it was noticed that besides having
some elements similar, the general impression of this Court is that the
serial „Time Bomb‟ is not the copy of the serial „24‟.
57. Before analyzing the various allegations made by the plaintiff and
the defendant, it will be appropriate to consider a number of judgments
cited by the counsel for the plaintiff as well as counsel for the
defendants in support of their respective contentions.
58. The plaintiff has relied on Fleet Street Reports (1993) 497, Johan
Richardson Computers Limited Vs. Flanders and Another to contend
that that Court should first decide whether the plaintiff‟s program as a
whole was entitled to copyright, and then decide whether any similarity
attributable to copying which was to be found in the defendant‟s
program amounted to a copy of a substantial part of the plaintiff‟s
program. Consideration of the substantiality of any copying is not to be
restricted to the text only. Nor should consideration be limited to the
"structure and organisation" of the program since this imports an
unacceptable degree of uncertainty because it is unclear at what level of
observation of the "structure and organisation" is to be discerned.
59. In considering the question of substantiality, the similarities
between the program should be considered individually and then it
should be considered whether the entirety of what had been copied
represented a substantial part of the plaintiff‟s program. Whether a
part was substantial is to be decided by its quality rather than by its
quantity. It was necessary to take in account such considerations as
originality and the distinction between the idea and expression in
assessing the quality, and hence the substantiality, of any part which is
said to have been copied. It is also relevant in assessing substantiality
to filter out elements dictated by efficiency, elements dictated by
external factors and elements taken from the public domain. The Court
held that Mr. Flanders had intimate knowledge of BBC programme at
all levels of abstraction and it is possible that he has unconsciously,
unintentionally or in some other way which he did not consider to be
objectionable, made use of that knowledge in a way that amounts to
copying in the context of breach of copyright. It was those possibilities
that were evaluated in appraising the particular similarities between the
BBC program and that of Mr.Flanders.
60. 1997 PTC (17) DB, Metropol India Limited Vs. Praveen Industries
India was relied on by the plaintiff to contend that the deception is the
gist of the tort of passing off and it is not necessary for a plaintiff to
establish that the defendant consciously intended to deceive the public,
if that is the probable result of his conduct. Nevertheless, the question
why the defendant chose to adopt a particular name or getup is always
highly relevant. It is a question which calls for an answer. In the said
case, reliance was placed on Munday Vs. Carey, 22 RPC 273 where it
was held that "where you see dishonesty, then even though the
similarity were less than it is here, you all, I think, to pay great
attention to the items of similarity and less to the items of
dissimilarity."
61. Reliance on Copinger and Skone James on copyright, 14th
Edition, by Kavin Garnett, the plaintiff contended that whether copying
has occurred or not is a matter of fact. Direct evidence of copying is
rarely available and reliance frequently has to be placed on inference
drawn from circumstantial evidence. The basis of secondary proof of
copying normally lies in the establishment of similarities between the
plaintiff‟s work and the defendant‟s work, combined with the proof of
possibility of access by the author of defendant‟s work to the plaintiff‟s
work. The relevant observation is extracted as under:-
"Whether copying has occurred or not is a matter
of fact. Direct evidence of copying is rarely
available and reliance frequently has to be placed
on inference drawn from circumstantial evidence.
The basis of secondary proof of copying normally
lies in the establishment of similarities between
the plaintiff's work and the defendant's work
combined with proof of the possibility of access by
the author of the defendant's work to the
plaintiff's work. Inferences may properly be
drawn from the surrounding circumstances and
from the nature of the similarities themselves. It
is good practice for the plaintiff to particularise at
an early stage in an action the alleged points of
similarity between his work and the defendant's
work. The existence of a striking general
similarity coupled with evidence of the
opportunity to copy will establish a prima facie
case of copying which the defendant then has to
answer. The evidential burden shifts to the
defendant who then may seek to adduce evidence
of some alternative explanation of the similarities
between the two work, for example, evidence of
independent creation or common source. The
Court has declined to order interrogatories
seeking evidence of the detailed history of the
defendant's development of their copyright work
on the grounds that they were "fishing" for
information which would be the subject of
evidence at the trial. The task of the judge is then
to consider the evidence as a whole and decide
whether there has been copying or not. An
appellate court will not normally interfere with the
judge's findings of fact."
62. The plaintiff has also relied on 169 USPQ 106, Fink Vs. Goodson
Todman Enterprises, a case of California District Court of Appeal,
Second District, Division Five to contend that to assess infringement of
copyright, story similarities are key to recovery in action for
infringement of common law copyright in literary material. Change in
setting of stories can be ignored. It is not fatal to recover that some
parts of plaintiff‟s elaborate idea are not found in defendant‟s
production provided that parts taken are quantitatively and
qualitatively significant to the work.
63. In 2003 (27) PTC 4157 (Bom) DB), Zee Telefilms Ltd. & Anr. Vs.
Sundial Communications Pvt. Ltd. & Ors., a Division Bench had held
that in order to find out similarity in two concepts what is to be seen is
the substances, the foundation, the kernel and the test as to whether
reproduction is substantial is to see if the rest can stand without it. If it
cannot, then even if many dissimilarities exist in the rest, it would
nonetheless be a substantial reproduction liable to be restrained.
64. For comparison, two words involved are to be considered in
hypocritical and meticulous scrutiny but by the observations and
impressions of the average viewer.
65. A TV Reality Show "Swayamvar" providing a platform for match-
making giving a choice to the bride with mediation of an Anchor to
chose a husband of a choice from a line-up of suiters in the presence of
her parents in the studio was conceived. The concept of swayamvar as
conceived by the plaintiff was found to be noval concept in original
though capable of being protected. In this matter, the defendant also
had a TV Reality Show "Subh Vivah" based on concept of spouse
selection in any form so to depict match-making in the form of reality
TV show as a real drama. It was held that the defendants were aware of
the concept of Swayamver and the concept developed and evolved by
the plaintiff was the result of the work done by the plaintiff and if the
defendant is allowed to show their own reality show based on the
concept of originally conceived by the plaintiff, it will be allowing the
defendant to use that concept and to reap the fruits of the labour of the
plaintiff and consequently it was held that the plaintiff has prima facie
case pertaining to his TV reality show "Swayamver" in his favour and
the defendants were restrained from its own TV reality show "Subh
Vivaha" and balance of convenience was also found to be in favour of
the plaintiff leading to restraint against the defendants from
transmitting or enabling the transmission by television of the
programme entitle "Subh Vivaha".
66. The single Judge had crystallised the propositions as follows:-
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 copyrighted 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
defendant's work is nothing but a literal imitation of the
copy-righted work with some 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
see if 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 copy of the original.
4. Whether 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, 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 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.
67. Reliance has also been placed on 162 Federal Reporter, 2nd Series
354, Universal Picture Company Incorporation Vs. Harold Lloyd
Corporation to contend that entire motion picture, photo play, need not
be copied to constitute infringement of copyright but mere copy of a
major sequence is sufficient and slight difference and variations will not
serve as a defence in action for copyright infringement. But a test of
infringement is whether the work is recognisable by an ordinary
observer as having been taken from the copyrighted source. The means
of expressing an idea is subject to copyright protection and where one
uses his common method or way of expression, his idea with such a
mode of expression would constitute a protactable work.
68. Relying on 196 USPQ 97, Sid & Marty Krofft Television
Productions Inc. Vs. McDonald‟s Corporation, the plaintiff contended
that in addition to substantial similarity, a plaintiff must show access
in order to prove infringement. In this case, the defendants had access
to plaintiff‟s work as defendants were engaged in negotiations with
plaintiff for licensing of the work even while preparing the Macdonald
land commercials. It was held that the test for whether there is a
similarity of ideas is factual one to be decided by the trier of fact and
analytical dissection and expert testimony are appropriate for this
determination; type of the work involved, material used, subject matter
and settings are some criteria to be analysed in applying this extrinsic
test. Once substantial similarity of ideas has been established, trier of
fact must determine whether there is substantial similarity in
expression of ideas so as to constitute infringement and analytic
dissection and expert testimony are not intrinsic determination which
depends upon response of ordinary reasonable person.
69. The contention of the plaintiff is that the defendants had ample
opportunity to view the plaintiff‟s serial and had full access to it as it is
being broadcast since 2001 and the entire storyline of the plaintiff‟s
serial is also available in text form on the plaintiff‟s website giving
opportunity to the defendants to copy the same. To further advance the
plea of availability of plaintiff‟s material, it was contended that first
defendant had met the representatives of the plaintiff‟s and had showed
interest in obtaining a license from the plaintiff for the same serial but
when no licence was granted, the serial has been copied. Plaintiff relied
on the affidavit of Mr. Brendan Zauner dated 8th August, 2005. the
allegation of the plaintiff is that with a view to divert the issue regarding
this meeting, first defendant who claimed to be producer of the serial
has taken a dramatically opposite stand calling second defendant the
producer which reflects the dishonesty with which the defendants have
acted.
70. The plaintiff has given great emphasis on the copy of its serials by
contending that format and structure, screen play, storyline, character
sketches, entire play of character or sequence of events have been
copied by the defendants inasmuch as that different actors in both the
serials have similar roles to play. The plaintiff contended that though
ideas are not protected but the expression of ideas are protected.
71. To counter the plea of the defendants that features in their serials
are commonly used and are common stock, the plaintiff has contended
that new treatment of common subject are also entitled to copyright
protection. According to the plaintiff for determination whether there is
a similarity in the expression of an idea, hypocritical or meticulous
scrutiny is not to be done, but by the observations and impressions of
the average reasonable reader and spectator. The plaintiff asserted that
portrayal, adornments and methods of presentation can from an
integral part of copyrighted subject matter.
72. Relying on Sid & Marty Krofft Television Productions Inc. Vs.
McDonald‟s Corporation, 196 USPQ 97 at 105; Fink V. Goodson
Todman Enterprises Ltd. 169 USPQ 106 at 114; Anil gupta V. Kunal
Dasgupta 2002 (25) PTC 1 (Del) at 22; Zee Telefilms Ltd. & Anr. Vs.
Sundial Communications Pvt. Ltd. & Ors. 2003 (27) PTC 457 (Bom DB)
at 468), it was contended that what is important is whether the concept
and feel has been copied and in order to ascertain the copying,
duplication or near identity is not necessary to establish infringement
nor it is permissible to divide up the work and make comparison of
individual parts as analytical dissection is improper.
73. Another precedent relied on by the plaintiff, Green v.
Broadcasting Corporation of New Zealand 1989 RPC 700 Privy Council,
the issue was whether copyright subsisted in the „dramatic format‟ of
the plaintiff‟s show „Opportunity Knocks‟? It was observed:-
"The alternative formulation of the appellant‟s claim relies
upon the „dramatic format‟ of „Opportunity Knocks‟, by
which their Lordships understand is meant those
characteristic features of the show which were repeated in
each performance. These features were, in addition to the
title, the use of catch phrases "for [name of competitor]
opportunity knocks" "this show is your show folks, and I do
mean you", and "make your maind time", the use of a
device called "clapometer" to measure audience reaction to
competitors‟ performances and the use of sponsors to
introduce competitors......
It is stretching the original use of the word "format" a
long way to use it metaphorically to describe the features of
a television series such as a talent, quiz or game show
which is presented in a particular way with repeated but
unconnected use of set phrases and with the aid of
particular accessories. Alternative terms suggested in the
course of argument were „structure‟ or „package‟. This
difficulty in finding an appropriate term to describe the
nature of the "work" in which copyright subsists reflects the
difficulty of the concept that a number of allegedly
distinctive features of a television series can be isolated
from the changing material presented in each separate
performance (the acts of the performers in the talent show,
the question and answers in the quiz show etc.) and
identified as an "original dramatic work"......
The protection which copyright gives creates a
monopoly and "there must be certainty in the subject
matter of such monopoly in order to avoid justice to the rest
of the world."[Tate v. Fulbrook (1908) 1 K.B. 821. The
subject matter of the copyright claimed for the „dramatic
format‟ of „Opportunity Knocks‟ is conspicuously lacking in
certainty. Moreover, it seems to their Lordships that a
dramatic work must have sufficient unity to be capable of
performance and that the features claimed as constituting
the "format" of a television show, being unrelated to each
other except as accessories to be used in the presentation of
some other dramatic or musical performance, lack that
essential characteristic."
74. In Borden v. Andrews 139 USPQ 557 (California Superior Court,
Los Angeles County) referred to by the Plaintiff, the alleged infringing
game, "By the Numbers" was a variation on the old parlour game called
„Ghost‟. The purpose was to make a word of three or more letters in
which two-man teams participate. A game board was involved, which
has thirty permanently numbered squares. Before each game, the
twenty-six letters of the alphabet were assigned, each to one of the
thirty squares, leaving four dummy squares. The contestants were
permitted to view the arrangement with a view to memorizing the same.
Then, the letters were withdrawn from sight. The beginning member of
the team then called out one of the numbers; the letter was then
momentarily exposed and recorded; his teammate thereafter, called out
another number, the letter corresponding to which thus became the
second letter towards a prospective word. This selection continued till
an impossible combination has been reached or one of the members of
the team „declares‟ a word rather than seeking to add thereto.
Thereupon, the opposing team proceeded in a similar fashion. Values,
in terms of points, were given according to the length of a word
successfully completed. In this case the Court observed: -
" On the other hand the plaintiff‟s concept, as
expressed in the exhibits bear no relationship to this
televised program. Quite apart from the basic reliance on
the dollar bill as a source of numbers to be translated into
letters and words, and from the fact that the letter-number
equivalence is both invariable and open to the contestants
at all times, both the manner of play and goal to be attained
are entirely different.
75. The plaintiff in this case had contended that he had conceived his
game as one in which there is number-letter equivalence, which is
manifested in terms of an electrical board in which this is shown and
exhibited to the audience and that this had been copied by the
defendants in their game show. The Court observed:-
" In a case such as this, it is the clothing of the idea
rather than the idea itself which is protectable; that is the
manner and form in which the basic concept of
cryptography is fashioned into a game show for television.
Except for the basic cryptographic principle itself, the only
minor similarity between the two concepts is the use of the
game board. Even there, the similarity is not one which
exists as a practical and tangible, as distinguished from
verbal, matter. Under such circumstance the issue is one of
law on which reasonable minds cannot differ."
76. Another precedent relied on by the plaintiff is Zee News v. Navjot
Sandhu & Ors. SLP (Crl.)No. 5464/2002. In this case the respondents
were prosecuted for their alleged involvement in the 13th December,
2001 Parliament Attack. Their trial was over and the trial court had
notified that the judgment would be delivered on 11th December, 2002.
On 5th December, 2002 the petitioner advertised that it would be
broadcasting a reconstruction of the parliament attack from 13th
December, 2002 to 16th December, 2002. The court subsequently
changed the date of delivery of judgment from 11th December to 16th
December, 2002. Thereafter, the respondents filed a criminal writ
petition before the Delhi High Court contending that the broadcast of
the telefilm may cause prejudice to their case and therefore the
broadcast may be stayed till the delivery of the judgment. The High
Court without issuing notice to Zee News passed the following order:
- "In the meantime in case the film „December 13
Parliament Attack‟ is to be telecast the same shall be done
only with the prior permission of the trial court. Any order
which the trial court passes in the meanwhile with regard
to the telecast of the film shall be passed only after hearing
the accused."
On appeal the Supreme Court held :-
"We find that there was neither any prima facie case nor
balance of convenience in favour of the respondents for
passing the interim order nor an irreparable injury was
likely to be caused to the respondents if the interim order
had not been passed. It may be noted that the Sessions
Court on 25th November, 2002 notified that the judgment
would be delivered on 11th December, 2002. The petitioner
on 5th December, 2002 advertised that it would broadcast
the telefilm from 13th December, 2002. The afore-said dates
show that the telecast of the film was not for the purpose,
in any way, to influence the mind of the judge. Further, we
find that the judges by their judicial training and the kind
of office they hold are not expected to be influenced by any
broadcast of such film. For the above said reasons we stay
the operation of the order under challenge."
77. In Hollinrake v. Trustwell 1894 Ch. 420 relied on by the plaintiff
it was held:-
"Copyright, however, does not extend to ideas, or schemes,
or systems, or methods; it is confined to their expression;
and if their expression is not copied the copyright is not
infringed. The case of Baker V. Selden, already referred to,
illustrates this very well. It was there held that the author
of a system of book-keeping was not entitled to any
monopoly in the system, but was only entitled to prevent
the other persons from copying his description of it...."
Applying this principle it was observed,
"If this dictum is applied to our case it can be said, and we
say so, the plaintiff No. 1 has no monopoly in the idea of a
poor woman making good in life, being burdened early in
life with an illegitimate child, having a life long friend who is
an ordinary worker, marrying an army officer, and then
making a devise of her fortunes, required through a chain
of stores, to her successors. It might, be the theme of "A
Woman of Substance", but if only this is copied, then
nothing is copied. It is common to both the works, but it is
too common. There can be no monopoly in something which
is too common, because it would prevent free exercise of
artistic skill."
78. Per contra the defendants have also relied on a vast number of
Indian and foreign judgments in support of their contentions. In R.G.
Anand v. Delux Films & Anr. 1978 (4) SCC 118 relied on by the
defendants, the plaintiff was the writer and the producer of the play
„Hum Hindustani‟. The play was written by him in Hindi in 1953 and
was enacted by him for the first time on February 6, 7, 8 and 9, 1953 in
New Delhi. The play proved to be very popular and received great
approbation from the press and the public as a result of which the play
was re-staged in February and September, 1954 and also in 1955 and
1956 at Calcutta. In November, 1954 the plaintiff received a letter from
the second defendant in that case wherein the defendants informed the
plaintiff that he was supplied with a synopsis of the play by one Mr.
Balwant Gargi, a common friend of the plaintiff and the defendant. The
defendant had requested the plaintiff to supply a copy of the play so
that the defendant may consider the desirability of making a film on it.
Some time about January, 1955 the second and the third defendants
came to Delhi, met the plaintiff in his office where the plaintiff read out
and explained the entire play to the defendants and also discussed the
possibility of filming it. The second defendant did not make any clear
commitment but promised the plaintiff that he would inform him about
his reaction after reaching Bombay. Thereafter, the plaintiff heard
nothing from the defendant. Sometime in May, 1955 the second
defendant announced the production of a motion picture entitled "New
Delhi". One Mr. Thapa who was one of the artists in the play produced
by the plaintiff happened to be in Bombay at the time when the picture
'New Delhi' was being produced by the defendant and informed the
plaintiff that the picture being produced by the defendant was really
based on the plaintiff's play 'Hum Hindustani'. The picture was released
in Delhi in September, 1956 and the plaintiff read some comments in
the papers which gave the impression that the picture was very much
like the play 'Hum Hindustani' written by the plaintiff. The plaintiff
himself saw the picture on the 9th September, 1956 and he found that
the film was entirely based upon the said play and was, therefore,
convinced that the defendant after having heard the play narrated to
him by the plaintiff, dishonestly imitated the same in his film and thus
committed an act of piracy so as to result in violation of the copy-right
of the plaintiff. The plaintiff accordingly filed the suit for damages, for
decree for accounts of the profits made by the defendants and a decree
for permanent injunction against the defendants restraining them from
exhibiting the film 'New Delhi' The Court had observed that the position
appears to be that an idea, principle, theme, or subject matter or
historical or legendary facts being common property cannot be the
subject matter of copyright of a particular person. It is always open to
any person to choose an idea as a subject matter and develop it in his
own manner and give expression to the idea by treating it differently
from others. Where two writers write on the same subject similarities
are bound to occur because the central idea of both are the same but
the similarities or coincidences by themselves cannot lead to an
irresistible inference of plagiarism or piracy. Thus, the fundamental fact
which has to be determined where a charge of violation of the copyright
is made by the plaintiff against the defendant is to determine whether
or not the defendant not only adopted the idea of the copyrighted work
but has also adopted the manner, arrangement, situation to situation,
scene to scene with minor changes or super additions or embellishment
here and there. Indeed, if on a perusal of the copyrighted work, the
defendant's work appears to be a transparent rephrasing or a copy of a
substantial and material part of the original, the charge of plagiarism
must stand proved. Care however must be taken to see whether the
defendant has merely disguised piracy or has actually reproduced the
original in a different form, different tone, different tenor so as to infuse
a new life into the idea of the copyrighted work adapted by him. In the
latter case there is no violation of the copyright. 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
defendant's work is nothing but a literal imitation of the
copyrighted work with some 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
see if 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 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."
79. The Court had further held,
"On a close and careful comparison of the play and the
picture, but for the central idea (provincialism which is not
protected by copyright), from scene to scene, situation to
situation, in climax to anti-climax, pathos, bathos in
texture and treatment and purport and presentation, the
picture is materially different from the play. As already
indicated above, applying the various tests outlined above
we are unable to hold that the defendants have committed
an act of piracy in violating the copyright of the play."
80. Another Judge, JASWANT SINGH, J. In this case had rather held,
"On a careful comparison of the script of the plaintiff's
copyrighted play with the aforesaid film, although one does
not fail to discern a few resemblances and similarities
between the play and the film, the said resemblances are
not material or substantial and the degree of similarities is
not such as to lead one to think that the film taken as a
whole constitutes an unfair appropriation of the plaintiff's
copyrighted work. In fact, a large majority of material
incidents, episodes and situations portrayed by defendants
1 and 2 in their aforesaid film are substantially different
from the plaintiff's protected work and the two social evils
viz. caste system and dowry system sought to be exposed
and eradicated by defendants 1 and 2 by means of their
aforesaid film do not figure at all in the plaintiff's play. As
such I am in complete agreement with the conclusions
arrived at by my learned brother Murtaza Fazal Ali that
there has been no breach on the part of the defendants of
the plaintiff's copyright and concur with the judgment
proposed to be delivered by him."
81. However, judge PATHAK, J. had held,
"An infringement of copyright can arise even though the
essential features of a play correspond to a part only of the
plot of a film. Such a situation can arise where changes are
effected while planning the film so that certain immaterial
features in the film differ from what is seen in the stage
play."
82. It appeared from a comparison of the script of the stage play
"Hum Hindustani" and the script of the film "New Delhi" that the
authors of the film script had been influenced to a degree by the salient
features of the plot set forth in the play script. There can be little doubt
from the evidence that the authors of the film script were aware of the
scheme of the play. But on the other hand, the story portrayed by the
film travels beyond the plot delineated in the play. Nonetheless, the
question can arise whether there is an infringement of copyright even
though the essential features of the play can be said to correspond to a
part only of the plot of the film. This can arise even where changes are
effected while planning the film so that certain immaterial features in
the film differ from what is seen in the stage play. The relative position
in which the principal actors stand may be exchanged or extended and
embellishments may be introduced in the attempt to show that the plot
in the film is entirely original and bears no resemblance whatever to the
stage play. If the treatment of the theme in the stage play has been
made the basic of one of the themes in the film story and the essential
structure of that treatment is clearly and distinctly identifiable in the
film story, it is not necessary, for the Court to examine all the several
themes embraced within the plot of the film in order to decide whether
infringement has been established. In the attempt to show that he is
not guilty of infringement of copyright, it is always possible for a person
intending to take advantage of the intellectual effort and labour of
another to so develop his own product that it covers a wider field than
the area included within the scope of the earlier product, and in the
common area covered by the two productions to introduce changes in
order to disguise the attempt at plagiarism. The trial Court as well as
the High Court had concurred with the finding that such similarities as
exist between the stage play "Hum Hindustani" and the film "New Delhi"
do not make out a case of infringement. The dissimilarities, in their
opinion, are so material that it is not possible to say that the appellant's
copyright has been infringed. This Supreme Court had held that it was
extremely reluctant to interfere with concurrent findings of fact reached
by the Courts below and for that reason, the judgment under appeal
was allowed to stand. It was further held that in another, and perhaps a
more clearer case, it may be necessary for this Court to interfere and
remove the impression which may have gained ground that the
copyright belonging to an author can be readily infringed by making
immaterial changes, introducing insubstantial differences and enlarging
the scope of the original theme so that a veil of apparent dissimilarity is
thrown around the work now produced.
83. In R.M. Subbiah & Anr. v. N. Sankaran Nair, AIR 1979 Madras
56, the plaintiff claimed copyright in the story titled „Mandanotsavam‟
and sought an injunction refraining the defendant from producing or
continuing to produce the Telegu movie titled „Amar Prem" which was
allegedly based on the story „Mandanotsavam‟. Instead of granting an
injunction, the learned Single Judge passed an order the operative
portion of which is quoted below-
" I direct the defendants to furnish a bank guarantee to
the tune of Rupees 50,000/- to the satisfaction of II Asst.
Registrar, High Court, Madras, on or before 23-5-1978, will
stand made absolute. If, however, the bank guarantee as
directed above is furnished the interim injunction granted
as stated above, will stand dissolved to the extent of the
exploitation of the story 'Madanotsavam' for picturing the
Telugu version by the second defendant and in other
respects, the interim injunction granted will continue".
84. In pursuant to the order of the Court, the defendant had
completed the Telegu version of the picture „Amar Prem‟ and distributed
the prints thereof to various distributors in the State for the release of
the said movie. Wide publicity was made about the release of the movie.
Thereafter the plaintiff once again approached the Court for an
injunction restraining the defendants from releasing the movie „Amar
Prem‟. The learned Single Judge passed an order restraining the
defendant from releasing the movie as he was of the opinion that the
previous order passed by him only enabled the defendant to picturize
the film but did not authorize him to release it. The defendant preferred
an appeal against the said order. The issue before the DB was „whether
the grant of an injunction alone will subserve the interests of justice or
whether substituted safeguards could be thought of in order to preserve
the rights, if any, of the respondents.‟ The Court had held and observed:
-
" Injunction being an equitable remedy, which is
granted by a court in exercise of its judicial discretion has
to be considered from various facets which arise from a
particular set of circumstances in each case. There may be
cases in which the grant of an injunction temporary or
permanent will only meet the ends of justice and an
alternative safeguard for the preservation of the rights of
the challenging party cannot at all be thought of. There may
be also cases where the remedy of injunction has to be
made flexible and adjustable to the situations arising in
each case. A rigid invocation without contemplating
elasticity in the application of the rule as to the grant of
injunction might sometimes result in hardship which
cannot later be cured."
85. In the instant case, the learned Judge had allowed the Telugu
version of the picture Amar Prem to be taken, the story said to be based
on the story of 'Madanotsavam' in which the plaintiffs claimed a
copyright. When once we reach the stage, which is not in dispute, that
the picture has been picturised on celluloid and it would not be
conducive in equity or in the name of justice to keep such a completed
picture in the shelves of a laboratory without the same being exploited
for the benefit of both the parties in litigation in which only question is
whether there is a copyright vested in the plaintiff in the story of the
picture. If the picture as picturised and completed in the Telugu version
is to be kept without being released, then it would neither benefit the
plaintiffs not the defendant. But in our view certain nearer
approximations in order to render justice has to be thought of, instead
of creating a stalemate which is not beneficial to the parties. It is not
conducive to keep the status quo until the disposal of the suit. The
plaintiff is interested only in establishing his rights and getting
sufficient compensation in terms of money, if his copyright is
established in accordance with law. It was held that:
".........In a case like this, when it is not disputed that after
the Telugu version was completed, prints were taken and
distributed to the distributors in this State and in other
States, it would be highly iniquitous to stem the progress of
such a commercial activity unless the Court is satisfied that
there is no other way of granting justice to the parties
excepting by a preventive injunction. The rights of third
parties are also involved. The third parties are distributors
and exhibitors who have come into the picture. The first
plaintiff's claim is that his literary work has been pirated.
This relief could be compensated for sufficiently in money.
In cases where an equitable relief would be sufficiently
compensated for monetarily, then the Courts refrain from
being wooden and granting injunctions alone instead of
contemplating the nearest approximation which it can
make. The mere fact that a prima facie case exists for the
grant of an injunction or even the additional intelligence
that a party seeking for it would suffer irreparable harm or
inconvenience by this, may not be sufficient criteria for the
granting of an injunction. Before the Court exercises its
jurisdiction, to grant such a interim relief, which is
essentially an equitable and a discretionary remedy the
Court will have to be further satisfied that the comparative
mischief or inconvenience which is likely to arise from
withholding an injunction will be greater than that which is
likely to arise from granting it".
86. In NRI Film Production Associates (P) Ltd. v. Twentieth Century
Fox Film Corpn. & Anr. , ILR 2004 Kar 4530 relied on by the
defendants, the plaintiff filed a suit for declaration that the movie
`Independence Day‟ produced by the defendants is the infringement of
the copyright of the film script „Extra Terrestrial Mission. In this film the
plaintiff was the author of the film script E.T.M and acquired registered
copyright in the year 1986. It was alleged that the defendants‟ movie
I.D. was a plagiarized version of E.T.M. The plaintiffs pointed out
various similarities between the script of E.T.M and the movie I.D. The
storey line was that Phil Talon a U.S. Army Captain saves Diana, a
Vietnam citizen from a sexual assault during the Vietnam War. Love
blossoms and they get married. They are now working together for the
rehabilitation of Vietnamese war affected children at U.S. Aliens
descend on earth on a rescue good will mission and informs Phil Talon
about an impending nuclear blast conspired by a Christian priest at the
site of a mosque at Jerusalem and requests him to negotiate with the
President of U.S. for preventive action. The President takes an egoistic
stand, refuses alien interference in the affairs of earth and directs war
against the aliens. First round of war the nuclear arsenal is
substantially exhausted and the aliens appear invincible. The aliens
successfully prevent the nuclear holocaust and resists the U.S. attacks.
The President of U.S. confers with U.S.S.R., France etc. and launches a
second round of attacks with too is thwarted by the aliens. Desperate,
the President calls for a truce. The aliens having established their
triumph, voluntarily returns. Whereas the storyline of I.D was that
Aliens attack the earth bombarding buildings including the White house
and nuclear installations killing several people. Space ships of 15 miles
diameter descend on several important cities. A huge mother space ship
stationed in the space at quite a distance control the smaller space
ships. The U.S. Air Force attacks in vain exhausting substantial nuclear
arsenal. A scientist accidentally hits on the idea of implanting a virus in
the mother ship thereby making all the space ships vulnerable. The
scientist and an expert war pilot takes the journey to the mother ship in
an old captured spaceship and successfully implants the virus. The
president gets directly involved in the war, as a pilot to attack the
spaceships. The virus is activated and the spaceships become
vulnerable to attacks and starts crumbling. In this case it was held:
"......the idea and portrayal of sequences like traffic jams,
disruption of communication, dazzling effects of the nuclear
missiles are hackneyed subjects of every scientific fiction
and matters of common grasp. There is no novelty or
uniqueness either in the idea or in expression. In variably
every author of a scientific fiction would conjure them as
consequential concomitant effects as a matter of common
grasp and "Scenes a Faire" which carry no copyright."
87. The true effect of amendment of clause 2(a) (v) in the case of
literary and dramatic works would apply only when there is marginal
peripheral alterations and rearrangements. The amendment does not
bring out any drastic change in the existing law, therefore the test of
dissimilarities propounded by Supreme Court in R.G.Anand's case still
holds the field. In that view it was held that the story and the film script
in I.D. is totally distinct and different from E.T.M. The so called unique
features of E.T.M. like President's involvement in war, the picturization
of effects of war, the presentation of concept of spaceship, energy shield
could at the best be called an idea, but not a precise defined expression
to confer copyright. It was held:
" There is no comparative basis between E.T.M. and
I.D. Except the fact in both the plots the President is
involved in the war, but the manner of involvement and the
nature of the President's role conceived in E.T.M. is totally
different from I.D. The spaceship, energy shield, people
welcoming aliens are again ideas. The treatment and
presentation of the concept in the film I.D. is totally
different from the script E.T.M. The picturisation of blasting
of nuclear missiles, disruption of communications, traffic
jams are nothing but "scene a faire" commonly found in
scientific fictions. Indeed in the several English earlier
movies which have been marked and presented visually for
the Court's benefit disclose that the confrontation of aliens
with the men on the earth, the spaceship energy shields are
the ideas evolved several decades ago and there is nothing
special of the idea.
In fact E.T.M. is only at the stage of film script, a
reading material. Whereas I.D. is a visual material. The
presentation and picturisation of ideas into events in a
visual form involves technical skills and expertise of
photography. The depicture of the events of nuclear missile
attacks, the traffic jams, disruption of communications,
devastating effects of the nuclear bombardment could get
altogether a different photographic treatment varying from
person to person. The photographic expression of the work
in the film would itself constitute a copyright. Therefore, it
cannot be said that the script of E.T.M. if made a film will
bear the similar presentation and effects."
88. In another judgment relied on by the defendant, Barbara Taylor
Bradford v. Sahara Media Entertainment Ltd.2004 (28) PTC 474
(Cal)(DB), the plaintiff was the authoress of the book „A Woman of
Substance‟. She sought an interim injunction against the defendant
from infringing her copyright in the book by broadcasting the serial
„Karishma- The Miracle of Destiny‟. At the time of filling the suit the
defendants had already completed and made ready for telecasting 80
episodes of the serial. About 100 crores had already been invested and
11 crores taken as advance from advertising agents. One episode had
been telecast before the Single Judge had issued the injunctive order.
The only material on which the plaintiffs had based their claim for
infringement was the interview taken by a freelance journalist named
Ms. Pammi Somal of Respondent No. 2, Akashdeep Sabir who was the
creative Director and producer of the serial, wherein he had mentioned
that the serial was based on the book „A Woman of Substance‟. The
Court had observed that the law protects originally of expression but
not originality of the central idea, not merely because of the balancing
of two conflicting policies. Those policies are that the law must protect
originality of artistic work, thereby allowing artists to reap the fruits of
their labour and stopping unscrupulous pirates from enjoying those
fruits. The second policy is that the protection must not become an over
protection, thus, curbing down future artistic activity. If mere plots and
character were to be protected by copyright, on original artist could not
write anything "original" at all, on a similar plot or on similar
characters. The rationale behind the basic copyright law is that you can
borrow the idea of another author, but not the expression. The theme
can be borrowed. The originality in the theme is not protected. There is
no protection given by the law to the first writer who is not really the
first writer at all. The plot being common, perhaps too common, and
being the possible field for operation of future and different literary
works and plays, should not be blocked of by the law of copyright. If
plots and ordinary prototype characters were to be protected by the
copyright law, then soon would come a time in the literary world, when
no author would be able to write anything at all without infringing
copyright.
89. In these circumstances, the issue which arises is that since no
literary work is ever exactly copied, except for naked piracies by
unauthorized printing, should not a particular author be free to devise
his own story, characters and plots, just as he pleases provided he does
not actually copy an earlier work, exactly or almost exactly? It was held
that the law cannot become this lax. It would pave the way to
plagiarism and the labors of the authors would be freely picked up by
unscrupulous persons. They would utilize the fruits or originality, not
the authors themselves. Therefore, even if the plot is copied, the person
who copies it, be it consciously or unconsciously, must also weave into
the plot sufficient creations of his own imagination and literary skill, to
make the work his own and not a copy of the work which might have
inspired him in the first place.
90. The defendants have also relied on Norowzian v. Arks Ltd., Fleet
Street Reports [2000] 363 (In the Court of Appeal). In the said decision
in 1992 the claimant directed a short film called „Joy‟, consisting of a
man dancing to music. The striking feature of the visual impact of the
film was the apparent sudden changes of position of the man which
could never have been performed as successive in reality. This effect
was produced by the use of an editing technique known as „jump
cutting‟. He claimed that the Guinness advertisement entitled
‟Anticipation‟ infringed his copyright in „Joy‟. In „Anticipation‟ the
defendants had used a similar jump cutting technique to that used by
the plaintiff in „Joy‟ with the similar result that the dancing man
appears to indulge in a series of jerky movements that could not be
achieved by a dancer in reality. It was held by the Court that it is
impossible to say that `Anticipation‟ is or includes a copy of a
substantial part of Joy. It was observed, "the highest it can be put in
favor of the claimant is that there is a striking similarity between the
filming and editing styles and techniques used by the respective
directors of the two films. But no copyright subsists in mere style or
technique. Mr. Prescott QC, for Arks Ltd, instanced the technique of
Pointillism, which was originated by the neo-impressionists Seurat and
Signac. That was a telling example. If, on seeing La Baignade, Asnieres
at the Salon des Artistes Independents in 1884, another artist had used
precisely the same technique in painting a scene in Provence, Seurat
would have been unable, by the canons of English copyright law, to
maintain an action against him. Other examples of original artistic
styles or techniques whose imitation in the production of an entirely
different subject matter would not found such an action might be the
'sprung rhythm' of Gerard Manley Hopkins' verse or the thematic build-
up of Sibelius's second symphony. So here, the subject matter of the
two films being, as the judge said, very different one from the other, the
similarities of style and technique are insufficient to give the claimant a
cause of action against the defendants."
91. In McGhan v. Ebersol, 605 F.Supp. 277(S.D.N.Y. 1985) it was
observed that it is true that the fact that a plaintiff's idea 'embodies
elements long in use does not of itself negate originality or novelty. In
Baut v. Pethick Const. Co., 262 F. Supp. 350, 361 (M.D. Pa. 1966)], it
was observed that in order to be protectable, adaptations of ideas must
show genuine novelty and invention, and not a merely clever or useful
adaptation of existing knowledge. The judicious use of existing means
or the mixture of known ingredients in somewhat different proportions,
all the variations on a basic theme, partake more of the nature of
elaboration and renovation than of innovation. Similarly in Educational
Sales Programs, Inc. v. Dreyfus Corp., supra, 317 N.Y.S.2d at 844,
applying the principle enunciated in the above said case the Court
observed-
" In his proposal for "Father's Day," plaintiff took
already existing ingredients from the basic theme of the
family situation comedy. If plaintiff's submission in 1980,
which was expressly rejected by NBC in November of 1980,
were to be considered novel, it would mean that defendants
would be barred from televising a family situation comedy
starring Bill Cosby, if the family is an intact family unit."
92. In Green v. Broadcasting Corporation of New Zealand 1989 RPC
469 (Court of Appeal NZ) the appellant was the author, producer and
compere of a television talent quest produced and broadcast in the
United Kingdom under the name „Opportunity Knocks‟ from the early
1960‟s until 1978. Over the years he had developed a distinctive style
built round the name of the production and his personality and each
broadcast followed a standard form in which contestants were
introduced by sponsors who spoke briefly about them, and there were
also features such as a "clapometer" for visual measurement of
audience reaction and distinctive phrases said to be exclusively
associated with the show, such as "For 'So and So' Opportunity Knocks"
and "Make your mind up time", to give the audience the opportunity to
make their decision. The appellants broadcasted a talent show with the
same title „Opportunity Knocks‟ in New Zealand from 1975 to 1979. The
said talent show was alleged to have the same format as that of the
appellant‟s talent quest. In 1979 the appellant brought an action
against the respondent, the Broadcasting Corporation of New Zealand,
claiming that by its production and transmission in New Zealand of a
similar television talent quest under the same name in 1978 it passed
off its program as his, or as an adaptation authorized and approved by
him. The appellant also claimed that the Corporation by its
transmission had infringed his copyright in the title "Opportunity
Knocks" and to scripts and the dramatic format of his program. In these
circumstances, the Court had observed:
"In order to succeed in his action the plaintiff had to make
out that his television program was distinctive, that its
reputation in New Zealand among television viewers had
generated a goodwill here and that the Corporation in
transmitting its program falsely represented that it was Mr.
Green's program or at least that he had approved of it."
The judges were of the opinion that the plaintiff has not been able
to establish the existence of goodwill in New Zealand for his show
sufficient to support an action of passing off. The two issues before the
Court were whether the plaintiff had copyright in (1) script (2) format of
„Opportunity Knocks‟. The court was of the opinion that the plaintiff‟s
script included the title, the various catchphrases (which as time went
by became a standard and expected part of the entertainment),
recorded the names of the competitors or entrants together with the
nature of their act, the names of the sponsors and the general order of
appearances and happenings, and specifically referred to the
"clapometer". The script must also have indicated the sequence of
events, musical interludes and the like. They did not include the details
of interviews for they were ad lib, nor, obviously, details of the
particular performance of each competitor. The Court had held that the
scripts could not constitute a dramatic work as they were nothing more
than a general scheme for a proposed entertainment and they could not
themselves be acted or performed, which according to the court was the
essence of such a work. As to the issue whether the scripts were
entitled to copyright as a literary work it was observed -
"The question remains whether the script or scripts is, or
are, literary works. Mr. Green's written work was, to an
extent which in the absence of the actual scripts is not
entirely clear, the expression of an idea for the production
of a talent quest. Copyright does not protect a general idea
or concept. The abstraction implicit in a general idea or
concept may however be delineated by or attended with
detail or pattern or incidents sufficiently substantial to
attract copyright in the whole. If the work is sufficiently
removed from mere idea so as to obtain copyright the
question of whether it is infringed will depend upon the
nature and quality of what has been taken. If the general
idea which underlies or forms the basis of the work has
alone been taken there will be no infringement. If more than
that it will be a question of fact and degree whether there is
an infringement."
In these facts and observation, the Court had held:
"I am of the opinion that Mr Green's script or scripts cannot
support a claim of copyright in a dramatic work. Nor do I
think there can be a claim for "format" which is not either a
dramatic or literary work itself or perhaps a combination of
both. The monopoly conferred by the Copyright Act can only
be maintained where the condition of its grant are complied
with."
93. The suit of the plaintiff twentieth Century Fox Film Corporation is
at preliminary stage, though pending for some time, when the existence
of the rights of the plaintiff and their violations are contested and
uncertain. The rights of the plaintiff are still to be established after the
trial for evidence in support of the pleas of the parties. Considering the
facts that the serials of both the parties have already been telecast, this
Court will have to go by the principles of „balance of convenience‟ which
will be as to who will be more inconvenienced in case as prayed for by
the plaintiff is granted or not granted and also as to who will suffer
irreparable loss. The principles enunciated by the Apex Court in the
case of Wander Ltd. & Anr. v. Antox India (P) Ltd. can be a guideline
principle to resolve this controversy and to throw light about these
aspects of the matter. In the case of Wander Ltd. & Anr. (supra), it was
held by the Supreme Court as under:-
"......Usually, the prayer for grant of an interlocutory
injunction is at a stage when the existence of the legal right
asserted by the plaintiff and its alleged violation are both
contested and uncertain and remain uncertain till they are
established at the trial on evidence. Court at this stage,
acts on certain well settled principles of administration of
this form of interlocutory remedy which is both the
temporary and discretionary. The objection of the
interlocutory injunction, it stated;
"......is to protect the plaintiff against the injury by
violation of his rights by which he could not adequately
be compensated in damages recoverable in the action if
the uncertainty were resolved in his favour at the trial.
The need for such protection must be weighed against
the corresponding need of the defendant to be
protected against the injury resulting from his having
being prevented from exercising his own legal rights for
which he could not be adequately compensated."
94. In the circumstances, this Court must weigh the plaintiff‟s
requirement to telecast his serial against the defendants‟ need to
telecast his serial and determine where balance of convenience lies and
preserve the status quo in respect of the rights of the parties which will
appear on a prima facie case. The task is slightly more difficult at this
stage as parties have not yet started with their evidence and the telecast
of both the serials of plaintiff and defendant is over without any further
new development.
95. The plea of the plaintiff to establish prima facie case is that the
defendants have substantially copied the serial of the plaintiff ` 24‟. In
considering the question of substantiality, the similarity between the
programs can also to be considered individually in certain situations
and then to consider whether the entirety of what had been copied
represented a substantial part of the plaintiff‟s program. Even regarding
the substantial copy by the defendants, what is to be decided is by its
quality of copy rather by its quantity. This has not been disputed by
both the parties that under the Copyright Act protection for an original
work does not extend to any "idea, procedure, process, system, method
of operation, concept, principle, or discovery" regardless of the form in
which it is described, explained, illustrated or embodied in such work. A
statutory protection does not extend to the intellectual conceptions
apart from the thing produced. The protections of Copyright Act are not
intended to either enlarge or to contract the scope for Copyright
production and the basic dichotomy between the idea and its
expression remain unchanged. The rules of the Copyright provide that
ideas, plans, method, systems, or device, as distinguished from the
particular manner in which they are expressed or described in a right,
are not copyrightable.
96. Although, there is no copyright protection for an idea, concept,
principles or discovery, there may be a valid copyright in an original
form of expression of an idea, concept or discovery. It is equally true
that a mere outline or theme is not copyrightable since it is only an
idea, nor is there any protected property right in the "theme" of a work,
or in locale or setting of a story. But a distinctive treatment of a plot or
theme is copyrightable as a literary work or as a dramatic work.
97. Similarity in the presentation techniques will not constitute
violation of copyright in the facts and circumstances and on the basis of
the various decisions cited by the parties and considered in short this
Court is unable to infer that there can be copyright in the manner and
format of presentation. The precedents relied on by the Zee Films Ltd. v.
Sun Dial Communication Pvt. Ltd & Ors. (supra) by the plaintiff are
apparel distinguishable. The precedents express News Paper VLC v.
Liver Pool Delhi Post and Eco PLC & Ors. is also distinguishable.
98. Some of the facts which are prima facie apparent are that there
have been an agreement in relation to serial Pradhan Mantri between G.
Telefilms and Maya Entertainment on 20th February, 2001 and the
telecast had commenced on 6th April, 2001. This is also the plea of the
plaintiff that the first season of serial "24" commenced later on 6th
November, 2001. The Story of Pradhan Mantri had all the elements of a
Head of State, Nuclear attack by a terrorist group etc. The said serials
also have the presentation technique of windows, time, clock etc. The
agreement between the Zee Telefilms and Maya Movie for the serial
`Time Bomb‟ was executed prima facie on 23rd November, 2004 as per
the pleadings and documents of the defendant, unless refuted and
proved by the plaintiff otherwise. The serial `Pradhan Mantri‟ also had a
rerun as "Pradhan Mantri Time Bomb" in November, 2004 and the
shooting of the allegedly offending serial "Time Bomb" commenced in
December, 2004, unless established otherwise after the evidence by the
plaintiff or if the defendants are not able to prove their pleas and
contentions.
99. In the circumstances, the plea of the plaintiff that on the basis of
the alleged meeting between the Chairman and some representative of
the plaintiff on 1st March, 2005 in which according to the plaintiff, the
defendants had demanded the license for the said serial which was
however, rejected by the plaintiff will not be of much consequences, as
the serial Pradhan Mantri had started much earlier than the telecast of
the serial "24" first season. Even the shooting of the allegedly offending
serial "Time Bomb" had commenced before the alleged meeting on 1st
March, 2005. The plea of the defendants that tenor of the meeting was
entirely different then what has been alleged by the plaintiff, appears
prima facie to be correct. In the facts and circumstances, as alleged by
both the parties, it cannot be inferred even prima facie that whatsoever
has been alleged by the plaintiff in respect of alleged meeting between
the representative of the plaintiff and the chairman of defendant No.1
on 1st March, 2005 can be accepted. It may be that the plaintiff is able
to establish his plea after evidence, however, on the basis of the
allegation and counter allegation made by the plaintiff and the
defendant, the same cannot be accepted.
100. The plea of the defendants is also that the serial "Time Bomb"
accepts thread from the earlier serial Pradhan Mantri and narrate the
story "three years later". If there is substantial similarity between the
serial `Pradhan Mantri‟ and the serial „Time Bomb‟ then the plea of the
defendant that in fact the serial `Time Bomb‟ accepts the thread from
the serial Pradhan Mantri and narrate the story in continuation cannot
be repelled. The plaintiff has emphasized in comparing the format of
plaintiff‟s serial "24" and defendant‟s serial "Time Bomb", however, from
the perusal of the pleadings, it is apparent that the alleged similarity
between the serial Pradhan Mantri and Time Bomb has not even been
alleged appropriately by the plaintiff. If it is to be held that the serial
`Time Bomb‟ is in continuation after few years of the serial `Pradhan
Mantri‟ then prima facie the plea of the plaintiff that `Time Bomb‟ is the
copy of the serial "24" cannot be accepted.
101. The another significant factor which repels against the plea of the
convenience about the meeting of the representative of plaintiff and the
chairman of defendant No.1 on 1st March, 2005 is that before the
alleged meeting, the agreement for production between defendant No.1
and other defendants had already been executed, unless proved
otherwise by the plaintiff by evidence. Therefore, it has to be inferred
that by the time alleged meeting on 1st March, 2005 had taken place
between the plaintiff and the defendants, the serial `Time Bomb‟ was
under the advance stage of preparation in terms of concept, note script,
and story line and substantial shooting had already taken place. If that
be so it cannot be accepted that chairman of defendant No.1 had asked
for the license for production of serial on the line of the serial "24" from
the plaintiff.
102. The plaintiff has also claimed copyright in presentation technique
and the story line and characters. There appears to be a little dichotomy
between the pleadings of the plaintiff and the submission made on
behalf of the plaintiff during the protracted arguments. In the plaint,
the plaintiff has claimed the copyright in the "Cinematograph Film" and
"Underlying Literary work" whereas later on the emphasis had been
made on the format being a protectable feature. If the plaintiff has been
claiming the copyright in the literary work of the serial, then naturally
format was not a part of the script and therefore there could not be a
violation of literary work on account of alleged violation of format of the
plaintiff.
103. The plaintiff has claimed copyright in the presentation
techniques/format especially in use of digital clock, use of split screens
and adoption of concept of "Real Time". These allegations of
presentation technique as alleged by the plaintiff, in view of a number of
instances and documents produced by the defendants cannot be
termed to be unique to the serial of the plaintiff. All these presentation
techniques/format do appear in many films and programs.
104. Countdown normally with a clock appears to be have been used
in "Nick of Time"; "High Noon"; and "Dr. Strange Love" and a number of
war films etc. The split screen technique also cannot be contended to be
unique of the serial of the plaintiff. The defendants have given various
instances of films and serials where these techniques have been used.
Similarly, `Real Time‟ format is alleged to have been used in various
films and serials and the technique is alleged to date back to 1949 and
was used in the film "the Set Up" and others. In the circumstances, it
will be difficult to infer that the plaintiff can claim originality in these
presentation techniques. These presentation techniques are apparently
enabled by the use of Modern Technology e.g., split screen copy
achieved by the advance camera by stretching; digital clock can be
inserted by use of advance camera and "Real Time" is also a format and
on the basis of these the plaintiff, prima facie, cannot claim any
uniqueness in its serial `24‟ on the basis of it. Reliance for this can be
placed on NRI Film Production Associates (P) Ltd. v. Twentieth Century
Fox Film Corporation & Anr. (supra), Green v. Broadcasting Corporation
of New Zealand (supra) and Norowzian v. Arks Ltd. & Ors. (supra)
discussed hereinabove.
105. By protracted argument and a number of decisions cited by the
plaintiff, the attempt has been made regarding copyright on the basis of
manner of presentation in which the time clock is an integral part of the
story; character move in the break; sound of clock and 24 hours split
into one hour with no flash back. Apparently on the basis of the law
discussed hereinabove there cannot be a copyright in the original
format of presentation as all these presentation techniques which have
been used in various films in the past, plaintiff cannot claim anything
unique, noble and new in the same.
106. Though both the parties have referred to a very large number of
precedents at the interim stage when the parties have not led evidence
and alleged similarities and dissimilarities and other factors have not
been established. Whether on the basis of these large number of
decision the pleas can be decided in this case at this stage? It must be
remembered that decision is only an authority for what it actually
decides. What is of the essence in a decision is its ratio and not every
observation found therein nor what logically follows from the various
observations made in it. The ratio of any decision must be understood
in the background of the facts of that case. It has been said long time
ago that a case is only an authority for what it actually decides, and not
what logically follows from it. It is well settled that a little difference in
facts or additional facts may make a lot of difference in the precedential
value of a decision. A decision is only an authority for what it actually
decides. What is of the essence in a decision is its ratio and not every
observation found therein nor what logically follows from the various
observations made in it. The ratio of any decision must be understood
in the background of the facts of that case. It is well settled that a little
difference in facts or additional facts may make a lot of difference in the
precedential value of a decision. The plaintiff has also tried to
distinguish Norowzian (supra), NRI Film Production Associates (P) Ltd.
(supra), Barbra Tailor Brad Ford (supra), Green v. Broadcasting
Corporation of New Zealand (supra), Marey v. N.B.C. (supra),
R.G.Anand v. Deluxe Films (supra) and Borden v. Andrew. On the basis
of the descriptions and the prepositions crystallized by the plaintiff, this
Court is even unable to accept the pleas of the plaintiff that the cases
relied on by the defendants do not support the pleas and contentions of
the defendants.
107. Viewing of some of the plaintiff‟s and defendants‟ episodes of
serial also reveal that concept utilized by the of defendants‟ allegedly
offending serial, are not the same as that of plaintiff. Terrorism is very
common thing and plaintiff cannot contend that it is unique to his
serial. Similarity the presentation techniques cannot be the basis to
contend that there has been a copyright violation, as there cannot be
any copyright in the manner and the format of presentation. In the
circumstances, even the theme of the plaintiff‟s serial also cannot be
termed to be noble. The plaintiffs have alleged similarity between the
story line of the plaintiff‟s serial "24" and defendants serial "Time Bomb"
whereas the defendants have highlighted the differences between the
story line of the plaintiff‟s serial and their serial. Considering the
qualitative differences between the serial of the plaintiff and serial of the
defendants, prima facie the inferences which can be drawn is that the
story line of the plaintiff‟s serial is substantially different from the story
line of the defendant‟s serial "Time Bomb".
108. As already held the plaintiff cannot claim a copyright on the basis
of the presentation techniques which are enabled by the use of modern
technology e.g. splitting the screen which is possible by advance camera
and editing technique, inserting clock to show time which is very easy
in modern cameras and the use of "Real Time" format a story told are
24 hours. How does one distinguish between a copy of an idea or a plot,
which is permitted, and the copy of an expression of the author, which
is protected and which is his or her own? Where does idea end and
expression begin? These are the questions which are the most difficult
to answer or even to explain at the interim stage. These are situations
for legal assessment after parties lead exhaustive evidence. Just as
there is no mathematical formula for finding out when it is just and
convenient to appoint a receiver, similarly, although at a more refined
level of intellectual operation, there is no final and exact way of
determining what is a copy, or what is a copy of the expression, or what
is a copy of the idea, or what is a copy of the idea only. It was observed
that in copyright cases especially, the judgments should be read as a
whole. It is possible to find apparently contradictory statements within
the very same copyright judgment. The subject is such that exact
dealing is not easily possible.
109. The plaintiff also prima facie cannot claim the copyright on the
basis of the general story line even taking the entirety of the defendants‟
serial `Pradhan Mantri‟, `Pradhan Mantri Time Bomb‟ & `Time Bomb‟. It
is apparent to an ordinary person that the serials of the defendants are
different from the serial of the plaintiff "24". Similarities which have
been pointed out by the plaintiff appear to be superficial and such type
of similarity can be inferred in many different serials. Terrorism, attacks
on country heads has already been subject matter in various movies
and serials and the plaintiff cannot claim exclusivity in respect of the
same. From the defendants‟ serial "Time Bomb", it is apparent that it
revolves around the India and Pakistan. There is definite co-relation
between the serial "Pradhan Mantri" which was recast as "Pradhan
Mantri Time Bomb" and thereafter "Time Bomb". Characters between
these three serials are quite common and the story continues after
three years later.
110. The allegation by the plaintiff that "Pradhan Mantri" and
"Pradhan Mantri Time Bomb" are two different serials altogether prima
facie is not acceptable. If the serials "Pradhan Mantri" & "Pradhan
Mantri Time Bomb" and `Time Bomg‟ are different serials altogether
then a fortiori the serial "24" of the plaintiff cannot be contended to be
similar to that of "Time Bomb". The plaintiff has emphasized that the
Digital Time Clock was introduced for the first time in November-
December in the rerun of the serial "Pradhan Mantri" in the name of
"Pradhan Mantri Time Bomb" and not in `Pradhan Mantri‟. However,
even it is accepted it still negates the contentions of the plaintiff that
the use of the digital time clock is unique to the serial of the plaintiff
„24" as it was used in `Pradhan Mantri Time Bomb‟.
111. The plaintiff has also emphasized the alleged difference between
"Pradhan Mantri Time Bomb" in order to contend that same has not
been continued afterwards in "Time Bomb" 9/11. According to the
plaintiff the concept and story developers are different. However, that
will not make the serials completely different. If in the sequel "Time
Bomb" 9/11 the assassination of the Pradhan Mantri is not explained,
this itself will not lead to the inferences that "Time Bomb" 9/11 is not
the sequel of the "Pradhan Mantri Time Bomb".
112. The plaintiff in its note on additional arguments on the VCDs filed
by the defendant on 20th September, 2008, has tried to emphasize that
"Time Bomb" 9/11 is not an independent creation on the ground that
defendant No.1 in his written statement has claimed that Mr.Ketan
Mehta is a script writer as the name of Mr.Uttam Gada does not appear
in the acknowledgement of "Time Bomb" 9/11 and no credits have been
given to script writer of "Time Bomb" and credit have been given only to
coordinator Mr.Saleem Puna Wala and the credits have been given to
hair stylist, dress man, spot boys and even to office boys and suppliers
and not to script writer. The suit is still at the preliminary state and the
parties have not lead evidence. Merely on the basis of the affidavit filed
by the parties, the inferences which have been drawn conclusively by
the plaintiff cannot be drawn and consequently, the inferences drawn
by the plaintiff that "Time Bomb" 9/11 is not an independent creation
cannot be accepted in the facts and circumstances, nor in the
circumstances it can be held that the defendants‟ serial "Time Bomb" is,
prima facie, a copy of the plaintiff‟s serial „24".
113. The alleged similarity given by the plaintiff in the format of his
serial "24‟ and defendants‟ "Time Bomb", conspicuously ignores various
dissimilarity which are apparent on watching the two serials and
consequently, on the basis of the just 14 frames of the two serials, it is
difficult for this Court to draw inferences that serial "Time Bomb‟ is a
copy of the serial "24".
114. The plaintiff has tried to emphasize about the litigation regarding
the change of name sought by the plaintiff where some of the
defendants had agreed to the change of name to Zee Max. However, this
fact in itself does not reflect in any manner that serial "Time Bomb‟ is a
copy of the plaintiff‟s serial "24". If one takes similarity and dissimilarity
and considers them after juxtaposing them, the inferences which have
been drawn by the plaintiff cannot be drawn even prima facie and this
Court is unable to conclude prima facie that defendants‟ serial "Time
Bomb" is a copy of plaintiff‟s serial "24" or is similar to that. The list of
differences rather clearly shows that story line is different and the
treatment and expression are also different.
115. In the circumstances, the plaintiff has failed to make out prima
facie case at the stage. Since the serial has already been telecast,
restraining the defendants from telecasting the serial further will cause
more inconvenience to the defendants, it is more so because the serial
of the defendant "Time Bomb" has already been telecast as also the
serial of the plaintiff. Despite the serial already having been telecast, the
plaintiff has not modified his prayers in any manner despite the
passage of considerable time. In these circumstances, it is apparent
that defendant shall suffer irreparable loss if the plaintiff is granted
injunction as has been sought by him. It may also lead to multiplicity of
proceedings and in the circumstances, it will not be appropriate even to
direct the defendant to submit the script of his serial to the plaintiff at
this stage.
116. Consequently in the facts and circumstances and for the forgoing
reasons, the applications of the plaintiff are dismissed. It is, however,
clarified that anything stated hereinbefore is not the final expression of
the opinion by the Court on the pleas and contentions raised on behalf
of the parties. Parties are also left to bear their own costs.
July 10, 2012 ANIL KUMAR, J.
vk/k
