R.G Anand Vs. M/S. Delux Films & Ors [1978] INSC 140 (18 August 1978)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA SINGH, JASWANT PATHAK, R.S.
CITATION: 1978 AIR 1613 1979 SCR (1) 218 1978 SCC (4) 118
ACT:
Infringement of a copyright in a play in a film-What are the tests-Whether copyright can be claimed in a theme.
Suit for damages for infringement of a copyright-What are the principles.
HEADNOTE:
The appellant-plaintiff is a playwright, dramatist and producer of stage plays. The appellant had written and, produced a number of plays. The subject matter of the appeal however, is the play entitled (Hum Hindustani'. This play was written by him in the year 1953 and was enacted in the year 1954 and thereafter the play proved to be popular. In November 1954 the appellant received a letter from the second defendant-Mr. Mohan Sehgal requesting the appellant to supply a copy of the play so that he could consider the desirability of making, a film on it. Thereafter, the appellant and defendant No. 2 met at Delhi. In May, 1955 the second defendant announced the production of a motion picture entitled "New Delhi". The picture was released in Delhi in September 1956. The appellant saw the picture.
The appellant filed a suit alleging that the film "New Delhi" was entirely based upon the play "Hum Hindustani", that the play was narrated by the appellant to defendant No. 2 and he dishonestly imitated the same in his film and thus committed an act of piracy as to result in violation of the copy right of the plaintiff. The appellant, therefore, filed the suit for damages, for decree for accounts of the profits made by the defendant and a decree for permanent inujunction against the defendants restraining them from exhibiting the film. The suit was contested by the defendants. The defendants pleaded that defendant No. 2 is a film director and producer and director of Delux Films defendant No. I that at the instance of a common friend Mr. Gargi the defendant No. 2 met the appellant and saw the script of the play, that the play was inadequate for The purpose of making of a full length commercial motion picture. The defendants contended that there could be no copy right so far as the subject of provincialism is concerned which can be used or adopted by anybody in his own way. The defendants further contended that the motion picture was quite different from the play both in contents, spirit and climax. The mere fact of some similarities between the firms and the play could be explained by the Fact that the idea, provincialism was the common source of the play as also of the film.
The trial court raised several issues and came to the conclusion that the appellant was the owner of the copy right in 'Hum Hindustani' but there was no violation of copy right of the appellant.
Thereafter the appellant filed an appeal in the Delhi High Court. A Division Bench of the Delhi High Court upheld the decree dismissing the appellant's suit.
The counsel for the appellant contended (1) that the principles enunicated and the legal inference drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India (2) the two 219 courts have not fully understood the imports of the violation of copy-right particularly when the similarities between the play and The film are so close that would lead to the irresistible inference and unmistakable impression that the film is nothing but an imitation of the play.
The counsel for the respondents submitted (1) that the two courts below have applied the law correctly. (2) This Hon'ble Court may not enter into the merits in view of the concurrent findings of fact given by the two courts. (3) Even on the facts found it is manifest that there is a vast difference both in the spirit and the contents between the play and the film.
Dismissing the appeal by special leave the Court
HELD: (a) In order to appreciate the argument of the parties the court discussed the law on the subject. At the time when the cause of action arose in the present suit, the Indian Parliament had not made any law governing copyright violation and therefore the court relied on the old law passed by the British Parliament viz., the Copyright Act of 1911. S. 1 sub-sec. (2)(d) defines copyright as including in the case of a literary, dramatic or musical work, to make any record, performed roll. Cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered. S. 2(i) defines that copyright in a work shall be deemed to be infringed by any person who without the consent of the owner of the copyright, does anything, the sole right to do which is by this Act conferred on the owner of the copyright. The play written by the appellant falls within the definition of copyright. [229 D-H 230 A-B] The following is summary of the decided cases in England, America and India on the question of copyright.
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 tile author of the copy-righted work. [248 H, 249 A]
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. 1249 A-C]
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. [249 C-D]
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. [249 D] 220
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 words are clearly incidental no infringement of the copyright comes into existence. [249 E]
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 decided cases [249 F]
7. Where however the question is of the violation of the copyright of a 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. [249 F-H] Hanfstaengl v. W. H. Singh & Sons, [1905] 1 Chancery Division 519; Bobbs-Merill Co. v. Isdor Straus and Nathan Strau, 210 US 339; West Francis, (1822) 1 B & Ald. 737, 743;
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.
(1964) 1 All. E.R. 465; Corelli v. Gray, 29 T.L.R. 570;
Hawkes & Son (London) Ltd. v. Paramount Film Service Ltd., (1934) 1 Ch. D. 593; Harman Pictures N. V. v. Osborne & Ors., (1967) 1 W.L.R. 723; Donoghue v. Allied Newspapers Ltd. (1937) 3 All. E.R. 503; Bobl & Anr. v. Palace Theatre (Ltd.) & Alir. 28 T.L.R. 72; Tate v. Fullbrook, 77 Law Journal Reports 577; Frederick. B. Chatterton & Benjamin Webster v. Joseph Arnold Cave, (1878) 3 A.C. 483; Sheldon v.
Metro-Goldwyn Pictures Corp., 81 2d 19; Shipman v. R.K.o.
Radio Pictures, 100 2d 533, Michael v. Moretti v. People of the State of Illionois, 248 2d 799=356 U.S. 947, Warner Bros. Pictures v. Columbia Broadcasting System, 216 F 2d 945: Otto Eisenchiml v. Fawcett Publications, 246 2d 598;
Dorsey v. Old Surety. Life Ins., Co., 98 F. 2d 872;
Twentieth Century Fox Film Corporation v. Stonesifer, 140 2d 579; Oliver Wendel Homes v. George D. Hurst, 174 U.S. 82;
Macmillan & Co. Ltd. v. K. & J. Cooper, 51 I.A. 109;
Florerlce A Deeks v. H. G. p Wells & Ors., 60 I.A. 26; N. T.
Ragllunathan & Anr. v. All India Reporter Ltd., Bombay, A.I.R. 1971 Bom. 48, K. R. Venugopala Sarma v. Sangu Ganesan, 1972 Cr. L.J.. 1098; The Daily Calendar Supplying Bureau, Sivakasi v. The United Concern, A.I.R.. 1967 Mad.
381; Hantsiaenql v. Bains & Co., 1895 A.C. 20 (25); C.
Gunniah & Co. v. Balraj & Co., A.I.R. 1961 Mad. 111;
Mohendra Ghundra Nath Ghosh & ors. v. Emperor, A.I.R. 1928 Cal. 359. S. K. Dutt v. Law Book Co. & Ors. A.I.R. 1954 All.
570; Romesh Chowdhry & Ors v. Kh. Ali Mohammad Nowsheri & Ors., AIR 1965 J. & K.101 and Mohini Mohan Singh & Ors v. Sita Nath Basak, AIR 1931 Cal. 238; referred to.
The learned trial Judge who had the advantage of seeing the picture was of the opinion that the film taken as a whole is quite different. from the play written by the appellant. This Court also got the play read to the learned Judges and the learned Judges also saw the film. The Court came to the conclusion that the essential features of the play are as under: [250 A-B, 251 G]
1. That the central idea of the play is based on provincialism and parochialism. [251 G] 221
2. The evils of provincialism are illustrated by the cordial relations of the two families being marred because of an apprehended marriage tie which according to both the families WAS not possible where they belonged to different States. [251 H, 252 A]
3. That the Madrasi boy Amni is a coward and in spite of his profound love 'or Chander he does not muster sufficient courage to talk the matter out with his parents.
[252 A-B]
4. That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into a suicidal pact and write letters to their parents intimating their intention. [252 B-C]
5. It was only after the letters are perused by the parents that they realise he horror of parochialism and are repentant for having acted so foolishly. [252 C]
6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well. [252 D] The Court came to the conclusion that the essential features of the film are as under:- (1) Two aspects of provincialism viz. the role of provincialism in regard to marriage and in regard to renting out accommodation (2) Evils of a caste ridden society, and (3) the evils of dowry. [255 H] It is true that there are following similarities in the two. [256 A] (i) Before the actual stage play, the producer gives a. narrative. He states that although we describe ourselves as Hindustanis we are not really Hindustanis. He questions the audience as to what they are and various voices are heard. To say in their own provincial language that they are Punjabis, Bengalis, Gujarati, Marathas, Madrasis, Sindhis etc. In the said Film the same idea is conveyed and the hero of the picture is shown searching for a house in New Delhi and wherever he goes he is confronted by a landlord who describes himself not as a Hindustani but as a Punjabi, Bengali, Gujarati, Marathi, Madarasi or Sindhi.
[256 C-D] (ii) Both the said play and the said film deal with the subject of Provincialism. [256 E] (iii)Both the said play and the said film evolve a drama around the lives of two facilities, one a Punjabi and the other a Madrasi family. 1256 E] (iv) In both the said play and the said film the name of the Madrasi father is Subramanyam .[256 F] (v) Both the said play and the said film have their locale in New Delhi. [256 F] (vi) Both the said play and the said film show cordiality of relations between the two families.
[256 F-G] (vii)Both the said play and the said film show the disruption of cordial relations as soon as the heads of the families discover the existence of a love affair between their children. [256 G] (viii) In both the said play and the said film, both the parents warn their respective children not to have anything to do with each other on pain of Corporal punishment. 1256 Hl.
222 (ix) The entire dialogue in both the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of one Province over the inhabitants of the others. [257 A] (x) In both the said play and the said film the girl is shown to be fond of music and dancing. [257 B] (xi) In both the said play and the said film the hero is shown as a coward to the extent that he has not the courage to go to his parents and persuade them to permit him to marry a girl hailing from another Province. [257 B-C] (xii) Both in the said play and in the said film, when the parents of the girl are discussing marrying her off to somebody the girl is listening to the dialogue from behind a curtain. Thereafter the girl runs to the boy and explains the situation to him. [257 C] (xiii) In both the said play and the said film, the girl writes a letter of suicide. [257 D] (xiv) In the said play reconciliation takes place when the children of the two families, who were in love, go out to commit suicide by drowning etc., whereas in the said film, it is only the daughter who goes out to commit suicide by drowning herself in the Jamuna. [257 D-E] (xv) In the said play the children are stopped from committing suicide by an astrologer whereas in the said film the girl is stopped from committing suicide by a friend of the family. [257 E-F] (xvi) In the said play reconciliation between the two families takes place only after they have experienced the shock of their children committing suicide on account of their provincial feelings whereas in the film, the father of the girl realised his mistake after experiencing the shock of his daughter committing suicide. [257 F-G] (xvii) In both the said play and the said film, stress is laid on the fact that although India is one country, yet there is acute feeling of provincialism between persons hailing from its various States even though they work together and live as neighbours. [257 G] (xviii) Both in the said play and in the said film even the dialogue centres around the same subject of provincialism. [257 H] However, the Court found following dissimilarities:- (i) In the play provincialism comes on the surface only when the question of marriage of Amni with Chander crops up but in the picture it is the starting point of the story when Anand goes around from door to door in search of accommodation but is refused the same because he does not belong to the State from which the landlord hails as a result thereof Anand has to masquerade himself as a Madrasi. This would therefore show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which not developed or stressed in the play[258 D-F] (ii) similarly in the play the two families are fully aware of the identity of each other whereas in the film they are not and in fact it is only when the dance Performance of Janki and Anand is staged that the identity of the two families 223 is disclosed which forms one of the important climaxes of the film. Thus, the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play. [258 F-G] (iii) In the film there is no suicidal pact between the lovers but only a suicide note is left by Janki whereas in the play both the lovers decide to end their lives and enter into a suicidal pact and leave suicide note to this effect. Furthermore, while in the play Amni and Chunder get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janki's real identity is disclosed and Subramaniam also finds out that his daughter is alive [258 H, 259 A-B] (iv) The story in the play revolves around only two families, namely, the Punjabi and the Madrasi families but in the film there are three important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat Ram. [259 B-D] (v) The film depicts the evil of caste ridden society and exposes the hollowness of such a society when in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play. [259 D-E] (vi) The film depicts another important social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial part of the story. [259 E-G] The Court came to the conclusion that the number of similarities by themselves are not sufficient to raise an inference of colourable imitation. The similarities are trivial and touch insignificant points and do not appear to be of substantial nature. The appellant has failed to prove that the defendants committed colourable imitation of the play. [259 G-H, 260 B] Applying the principles mentioned above to determine whether in this particular case there has been a violation of the copy right, the Court came to the conclusion that the film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff. The treatment of the film and the manner of its presentation on the screen is quite different from the play written by the appellant at the stage. No prudent person can get the impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play viz. provincialism is undoubtedly the subject matter of the film along with other ideas also.
It is well settled that a mere idea cannot be the subject matter of copy right. [260 G-H, 261 A-B] 224 The two courts of fact having considered the entire evidence, circumstances and materials before them have come to a, finding of fact that defendants committed no violation of the copyright. This Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence the court finds that the judgments of the court below are absolutely correct. [261 C-D] (Jaswant Singh, 1. concurring) On a careful comparison of the script of the plaintiff's copyright play with the 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 appellant's copyright word;. In fact a large majority of material `incidents, episodes and dramatic 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 motion film, do not figure at all in the appellant's play.
There has been no breach on the part of the defendants of the appellant's copyright. [261 G-H, 262 A] (Pathak, J. concurring) lt appears from a comparison of the script of the play 'Hum Hindustani' and the script of the film 'New Delhi' that the authors of the film have 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 auth-ors of. the film script were aware of the scheme of the play. But, the story portrayed by the film travels beyond the plot delineated in the play. The theme of provincial parochialism is illustrated only in the opposition to a relationship by marriage between two families hailing from different parts of the country. In the film the theme is also illustrated by the hostile attitude of proprietors` of lodging accommodation towards prospective lodgers who do not belong to the same provincial community. The plot then extends to the evils of the dowry system which is a theme independent of provincial parochialism. There are still other themes embraced within the plot of the film. 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. In the attempt to show that he is not guilty of infringement of copy right it is always possible for a person intending to take advantage of the intellectual efforts 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. If a. reappraisal of the facts in the present case were open to this Court, the Court perhaps would have differed from the view taken on the facts by the High Court but in view of the concurrent findings of the two courts below to the effect that the appellant's copy right has not been infringed this Court is extremely reluctant to interfere with the concurrent findings of fact reached by the Courts below. In another, and perhaps a clearer case it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copy right belonging to an author can be readily infringed by making immaterial changes, introducing in substantial differences and enlarging the scope of the original theme. so that a veil of appa- 225 rent dissimilarity is thrown around the work now produced.
The court will look A strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation. [262 B-H, 263 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2030 of 1968.
Appeal by special leave from the Judgment and Decree dated 23-5-1968 of the Delhi High Court at New Delhi in R.F.A. No. 147D of 1968.
S. N. Andley, Mahinder Narain and Rameshwar Nath, for the Appellant.
Hardyal Hardy, H. S. Parihar and 1. N. Shroff, for Respondents Nos. 1 and 2.
The following Judgments were delivered:
FAZAL ALI, J.-This appeal by special leave is directed against the judgment of the Delhi High Court dated 23rd May, 1967 affirming the decree of the District Judge, Delhi and dismissing the plaintiff's suit for damages against the defendants on the ground that they had violated the copyrighted work of the plaintiff which was a drama called 'Hum Hindustani'.
The facts have been succinctly stated by the District Judge in his judgment and summarised by the High Court, and, therefore, it is not necessary for us to repeat the same all over again. We would, however, like to give a brief resume of some of the striking facts in the case which may be germane for the purpose of deciding the important issues involved in this appeal. We might mention here that the High Court as also the District Judge negatived the plaintiff's claim and prima facie the appeal appears to be concluded by finding of fact, but it was rightly argued by Mr. Andley appealing for the appellant that the principles of violation of copy-right in the instant appeal have to be applied on the facts found and the inferences from proved facts drawn by the High Court which is doubtless a question of law and more particularly as there is no clear authority of this Court on the subject, we should be persuaded to go into this question without entering into findings of facts. Having heard counsel for the parties, we felt that as the case is one of first impression and needs to be decided by this Court, we should enter into the merits on the basis of the facts found and inferences drawn by the High Court and the District Judge. It is true that both the District Judge and the High Court have relied upon some well established principles to determine whether or not in a particular case a violation of copy right has taken place, but learned counsel for the appellant has challenged the validity of the principles enunciated by the High Court.
226 The plaintiff is an architect by profession and is also a playwright, dramatist and producer of stage plays. Even before Hum Hindustani the plaintiff had written and produced a number of other plays like Des Hamara, Azadi and Election which were staged in Delhi. The subject matter of the appeal, however, is the play entitled 'Hum Hindustani'.
According to the plaintiff, this play was written by him in Hindi in the year 1953 and was enacted by him for the first time on 6th, 7th, 8th and 9th February, 1954 at Wavell Theatre, New Delhi under the auspices of the Indian National Theatre. The play proved to he 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 support of his case the plaintiff has referred to a number of comments appearing in the Indian Express, Hindustan Times, Times of India and other papers.
Encouraged by the success and popularity of the aforesaid play the plaintiff tried to consider the possibility of filming it. In November, 1954 the plaintiff received a letter dated 19th November, 1954 from the second defendant Mr. Mohan Sehgal wherein the defendant 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. The plaintiff, however, by his letter dated 30th November? 1954 informed the defendant that as the play had been selected out of 17 Hindi plays for National Drama Festival and would be staged on 11th December, 1954, the defendant should take the trouble of visiting Delhi and seeing the play himself in order to examine the potentialities of making a film, and at that time the matter could be discussed by the defendant with the plaintiff.
The plaintiff's case, however, is that some time about January, 1955 the second and the third defendants came to Delhi, met the plain tiff 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 re-action 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 227 plaintiff's play 'Hum Hindustani'. The plaintiff thereupon by his letter dated 30th May, 1955 wrote to the second defendant expressing serious concern over the adaptation of his play into a motion picture called 'New Delhi'. The defendant, however, by his letter dated 9th June, 1955 informed the plaintiff that his doubts were without any foundation and assured the plaintiff that the story treatment, dramatic construction, characters etc. were quite different and bore not the remotest connection or resemblance with the play written by the plaintiff.
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 suit was contested by defendants No. 1 and 2 as also by other defendants who adopted the pleas raised by defendants No. 1 and 2.
The defendants, inter alia, pleaded that they were not aware that the plaintiff was the author of the play 'Hum Hindustani' nor were they aware that the play was very well received at Delhi. Defendant No. 2 is a film Director and is also the proprietor of defendant No. 1 Delux Films. The defendants averred that in November, 1954 the second defendant was discussing some ideas for his new picture with Mr. Balwant Gargi who is a play wright of some repute. In the course of the discussion, the second defendant informed Mr. Gargi that the second defendant was interested in producing a motion film based on 'provincialism' as its central theme. In the context of these discussions Mr. Gargi enquired of defendant No. 2 if the latter was interested in hearing the play called 'Hum Hindustani' produced by the plaintiff which also had the same theme of provincialism in which the second defendant was interested. It was, therefore, at the instance of Mr. Gargi that the second defendant wrote to the plaintiff and requested him to send a copy of the script of the play. The defendant goes on to state that the plaintiff read out the play to the second defendant in the presence of Rajinder Bhatia and Mohan Kumar, Assistant Directors of the second defendant when they had 228 come to Delhi in connection with the release of their film "Adhikar". The second defendant has taken a clear stand that after having heard the play he informed the plaintiff that though the play might have been all right for the amateur stage, it was too inadequate for the purpose of making a full length commercial motion picture. The defendants denied the allegation of the plaintiff that it was after hearing the play written by the plaintiff that the defendants decided to make a film - based on the play and entitled it as 'New Delhi'.
The defendant thus submitted that there could be no copy-right so far as the subject of provincialism is concerned which can be used or adopted by anybody in his own way. He further averred that the S motion picture was quite different from the play 'Hum Hindustani' both in contents, spirit and climax. The mere fact that there were some similarities between the film and the play could be explained by the fact that the idea, viz., provincialism was the common source of the play as also of the film. The defendant thus denied that there was any violation of the copy right.
On the basis of the pleadings of the parties, the learned trial Judge framed the following issues:
1. Is the plaintiff owner of the copyright in the play 'Hum Hindustani' ?
2. Is the film 'New Delhi' an infringement of the plaintiff's copyright in the play 'Hum Hindustani' ?
3. Have defendants or any of them infringed the plaintiff's copyright by producing, or distributing or exhibiting the film 'New Delhi' ?
4. Is the suit bad for misjoinder of defendants and cause of action ?
5. To what relief is the plaintiff entitled and against whom ? Issue No. 1 was decided against the defendants and it was held by the trial Judge that the plaintiff was the owner of the copy-right in the play 'Hum Hindustani'. Issue No. 4 was not pressed by the defendants and was accordingly decided against them. The main case however turned upon the decision on issues No. 2 and 3 which were however decided against the plaintiff as the learned Judge held that there was no violation of the copyright of the plaintiff. The plaintiff then went up in appeal to the Delhi High Court where a Division Bench of that Court affirmed the decision of the District Judge and upheld the decree dismissing the plaintiff's suit. The findings of fact arrived at by the learned trial Judge and the High Court 229 have not been assailed before us. The only argument advanced by h the appellant was that the principles enunciated and the legal inferences drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India. It was also submitted by Mr.
Andley that the two courts have not fully understood the import of the violation of copy-right particularly when the similarities between the play and the film are so close and sundry that would lead to the irresistible inference and unmistakable impression that the film is nothing but an imitation of the play. On the other hand, it was argued by Mr. Hardy counsel for the respondents that the two courts below have applied the law correctly and it is not necessary for this Court to enter into merits in view of the concurrent findings. of fact given by the two courts. He further submitted that even on the facts found it is manifest that there is a vast difference both in the spirit and the content between the play 'Hum Hindustani' and the film 'New Delhi' and no question of violation of the copy- right arises.
In order to appreciate the argument of both the parties it may be necessary to discuss the law on the subject. To begin with there is no decided case of this Court on this point. Secondly, at the time when the cause of action arose Parliament had not made any law governing copy-right violations and the courts in the absence of any law by our Parliament relied on the old law passed by the British Parliament, namely, the Copy Right Act of 1911. Section 1 sub- section (2) (d) defines 'copy-right' thus:
"(2) For the purposes of this Act, copy-right' means the sole right to produce or reproduce the work or any substantial Part thereof in any material form whatsoever to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public. If the work is unpublished, to publish the work or any substantial part thereof; and shall include the sole right, (d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means or which the work may be mechanically performed or delivered".
Section 2 provides the contingencies where a copy-right could be infringed and runs thus :- "2(1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the 230 owner or the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copy right".
It is, therefore, clear that the Act of 1911 defines 'copyright' and also indicates the various contingencies where copy-right cannot be infringed. The statute also provides exceptions which would not amount to violation of copyright.
In the instant case the play written by the appellant falls within section 1(2)(d) because it is a dramatic work.
The learned District Judge has rightly held that emotions like mere ideas are not subject to pre-emption because they are common property. Quoting from the law of copyright and Movie-rights by Rustom R. Dadachanji the learned Judge observed as follows:- "It is obvious that the underlying emotion reflected by the principal characters in a play or look may be similar and yet that the characters and expression of the same emotions be different. That the same emotions are found in plays would not alone be sufficient to prove infringement but if similar emotions are portrayed by a sequence of events presented in like manner expression and form, then infringement would be apparent".
Similarly in the case of Hanfstaengl v. W. H. Smith and Sons(1) it has been held by Bayley, J. that "a copy is that which comes so near to the original as to give to every person seeing it the idea created by the original".
In Halsbury's Laws of England by Lord Hailsham Fourth Edition the following observations are made:
"only original works are protected under Part I of the Copyright Act 1956, but it is not requisite that the work should be the expression of original or inventive thought, for Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of a literary work, with the expression of thought in print or writing..........
There is copyright in original dramatic works and adaptations thereof, and such copyright subsists not only in the actual words of the work but in the dramatic incidents created, so that if these are taken there may be an infringement although no words arc actually copies. There cannot be copyright in mere science effects or stage situations which are not reduced into some permanent form".
(1) [1905] 1 Ch. D. 519.
231 Similarly, it was pointed out by Copinger in his book on Copyright 11th Edition that what is protected is not the original thought but expression of thought in a concrete form. In this connection, the author makes the following observations based on the case law:
"What is protected is not original thought or information, but the original expression of thought or information in some concrete form. Consequently, it is only an in fringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must to be liable, have made a substantial use of this form; he is not liable if he has taken from the work the essential, ideas however original, and expressed the idea in his own form, or used the idea for his own purposes." The author also points out that there is no infringement unless the plaintiff's play-wrighted work has been actually used so, that it may be said that the latter work reproduces the earlier one. In this connection the author observes as follows:- "A further essential matter, and one which-rather strangely-is not anywhere precisely stated in the Act of 1956 is that there can be no infringement unless use has been made, directly or indirectly, of the plaintiff's work".
Moreover, it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment: "Thou shalt not steal" which forms the moral basis of the protective provisions of the Copyright Act of 1911. It is obvious 11' that when a writer or a dramatist produces a drama it is a result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copy-righted work, his act amounts to theft by depriving the original owner of the copy-right of the product of his labour. It is also clear that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure, is sufficient to indicate that it is a copy. In Article 418 Copinger states thus:- "In many cases the alleged infringement does not consist of an exact, or verbatim copy, of the whole, or any part, of the earlier work, but merely resembles it in a greater or lesser degree".
232 In Article 420 the author lays down the various tests to determine whether an infringement has taken place and observes as follows:- "Various definitions of 'copy' have been suggested, but it is submitted that the true view of the matter is that, where the court is satisfied that a defendant has, in producing the alleged infringement, made a substantial use of those features of the plaintiff's work in which copyright subsists, an infringement will be held to have been committed, if he has made such use, he has exercised unlawfully the sole right which is conferred upon the plaintiff." Ball in "Law of Copyright and Literary Property'` page 364 points out that where the defendant materially changes the story he cannot be said to have infringed the copyright.
In this connection, the author observes as follows:- "In such a composition the story is told by grouping and representing the important incidents in the particular sequence devised by the author whose claim to copyright must depend upon the particular story thus composed; and not upon the various incidents, which, if presented individually, without such unique sequential arrangement, would be common literary property. Consequently another dramatist who materially changes the story by materially varying the incidents should not be held to be infringer'.
It is also pointed out by Mr. Ball that sometimes even though there may be similarities between the copy-righted work and the work of the defendant they may be too trivial to amount to appropriation OF - copyrighted material. The author observes thus:- "When two authors portray in literary or dramatic form the same occurrence, involving people reacting to the same emotions under the influence of an environment constructed of the same materials. similarities in incidential details necessary to the environment; or setting are inevitable; but unless they are accompanied by similarities in the dramatic development of the plot or in the lines or action . Of the principal characters, they do not constitute evidence of copying.
They are comparable to similarities in two works of art made by different artists from the same original subject, and in the usual case are` too trivial and unimportant to amount to a substantial appropriation of copyrighted material".
233 The author further says that unless there is any substantial identity A between the respective works in the scenes, incidents and treatment a case of infringement of copyright is not made and observes thus:- "But there was no substantial identity between the respective works in the scenes, incidents, or treatment of the common Them, the court held that the plaintiff's copyright were not infringed by the defendant's photoplays".
Dealing with the infringement of copyright of a play by a motion picture which appears to be an identical case in the present appeal. the author observes as follows:- "In an action for the alleged infringement of the copy right of a play by a motion picture, wherein it appeared that both authors had used life in a boys' reform school as a background, but the only similarity between the two productions consisted to a few incidents and points in dialogue, such as one would expect to find in stories set against the same background, there was no infringement of copyright" To the same effect are the following observations to` the author:
"Where the only evidence of similarities between two plays was based upon the author's analysis and interpretation of an extensive list of "parallel", from which he infer red that many incidents, scenes and characters in the alleged infringing play were adapted from the plaintiff's copy righted play but no such resemblance would be apparent i. to an ordinary observer, it was held that the meaning or interpretation which the author gives to his literary work cannot be accepted as a deciding test of plagiarism; and that, in the absence of any material resemblance which could be recognised by an ordinary observation. each play must be regarded as the independent work of the named author" Similar observations have been made in Corpus Juris Secundum VOL 18 at page 139 where it is observation as follows :
"An author has, at common law, a property in his intellectual production before it has been published, and may obtain redress against anyone who deprives him of it, or, by improperly obtaining a copy, endeavours to publish or to use it without his consent".
16-520 SCI/78 234 "This right exists in the written seenario of a motion picture photoplay and in the photoplay itself as recorded on the photographic film. There is, however, no common-law literary property right in the manner and postures of the actors used by them in performing the play".
"Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copy right, or piracy, which is a synonymous term in this connection consists in the doing by any person, without the con sent of the owner of the copyright, of anything the sole right to do, which is conferred by the statute on the owner of the copyright." This view was taken by the U.S. Supreme Court in the case of Bobbs-Merrill Company v. Isidor Straus and Nathan Straus.(1) In the American Jurisprudence also it is pointed out that the law does not recognize property rights in abstract idea, nor is an idea protected by a copyright and it becomes a copyright work only when the idea is given embodiment in a tangible form. In this connection the following observations are made:- "Generally speaking, the law does not recognize property rights in abstract ideas and does not accord the author or proprietor the protection of his ideas.
which the law does accord to the proprietor of personal property'.
"In cases involving motion pictures or radio or television broadcasts, it is frequently stated that an idea is not protected by a copyright or under the common law, or that there is no property right in an idea, apart from the manner in which it is expressed".
"When an idea is given embodiment in a tangible form, it becomes the subject of common-law property rights which are protected by the courts, at least when it can be said to be novel and new".
It was also pointed out in this book as to what constitutes colorable imitation. In this connection, the following observations have been made:- "Infringement involves a copying, in whole or in part, either in haec verba (sic) or by colorable variation . . . A copy (1) 21 O U.S . 339.
235 as used in copyright cases, signifies a tangible object which is a reproduction of the original work. The question is not whether the alleged infringer could have obtained the same information by going to the same source used by the plaintiff in his work, but whether he did in fact go to the same source and do his own independent research. In other words, the test is whether one charged with the infringement made an independent production, or made a substantial and unfair use of the plaintiff's work".
"Intention to plagiarise is not essential to establish liability for infringement of a copyright or for plagiarism of literary property in unpublished books, manuscripts, or plays. One may be held liable for infringement which is unintentional or which was done unconsciously".
Similarity of the alleged infringing work to the author's or proprietor's copyrighted work does not of itself stablish copyright infringement, if the similarity results from the fact that both works deal with the same subject or have the same common source ..
Nevertheless, it is the unfair appropriation of the labour of the author whose work has been infringed that constitutes legal infringement, and while identity of language will often prove that the offence was committed, it is not necessarily the sole proof; on the other hand, relief will be afforded, irrespective of the existence or non-existence of any similarity of language, if infringement in fact can be proved." "The appropriation must he of a 'substantial' or 'material' part of the protected work .. The test is whether the one charged with the infringement has made substantial and unfair use of the complainant's work.
Infringement exists when a study of two writings indicates plainly that the defendant's work is a transparent rephrasing to produce essentially the story of the other writing, but where there is no textual copying and there are differences in literary style, the fact that there is a sameness in the tricks of spinning out the yarn so as to sustain the reader's suspense, and similarities of the same general nature in a narrative of a long, complicated search for a lost article of fabulous value, does not indicate infringement. ' 236 We shall now discuss some of the authorities that have been cited at the Bar as also some others with whom we have come across and which throw a flood of light on the point in issue. Dealing with the question of similarities Lord Kekewich, J. in Hanfstaengl case (Supra) described various qualities of a copy and observed as follows:- "In west v. Francis(1) Bayley J. uses language coming, as Lord Watson says, nearer to a definition than anything which is o be found in the books. It runs thus: "A copy is that which comes so near to the original as to give to Every person seeing it the idea created by the original .;
If it were altered thus- "a copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it" -the substance of the definition would be preserved and Lord Watson's criticism would be avoided.
The learned Judge aptly pointed out that an imitation will be a copy which comes so near to the original as to suggest the original to the mind of every person seeing it.
In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant that will be sufficient to constitute a violation of the copy-right.
In the case of Ladbroke (Football) Ltd. v. William Bill (Foot ball) Ltd Reid made the following pertinent observations .
But, in my view, that is only a short out, and more correct approach is first to determine whether the plaintiff's work a whole is 'original' and.
protected by copyright, rand then to inquire whether the part taken by the defendant is substantial. A wrong result can easily be reached if one begins by dissecting the plaintiff's work and asking, could section A be the subject of copyright if it stood by itself, could section be protected it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be".
(1) [1822] r. B. & Ald. 737, 743.
(2) [1964] 1 All E.R. 465.
237 Lord Hodson expressed similar views at p. 475 in the following A words:- The appellants have sought to argue that the coupons can be dissected and that on analysis no copyright attaches to any of their component parts and accordingly no protection is available. In my opinion this approach is wrong and the coupons must be looked at as a whole. Copy right is a statutory right which by the terms of s. 2 of the Act of 1956 would appear to subsist, if at all, in the literary or other work as one entity".
This case clearly lays down that a similarity here or a similarity there is not sufficient to constitute a violation of the copyright unless the imitation made by the defendant is substantial.
In the case of Corelli v. Gray(1) Sargent, J. Observed as follows:- "The plaintiff's case is entirely founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may he due to any one of the four hypotheses-namely (1) to mere chance, or (2) to both sketch and novel being taken from a common source: (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any of the first three hypothesis would result in the success of that defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed".
Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one in which the proof is cumulative. I am irresistibly forced to the conclusion that it is quite impossible they should be due to mere chance coincidence and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiff's novel".
Thus it was pointed out in this case where the aggregate of the similarities between the copyrighted work and the copy lead to the cumulative effect that the defendant had imitated the original and that the similarities between the two works are not coincidental, a reasonable inference of colorable imitation or of appropriation of the labour of the owner of the copyright by the defendant is proved. This case was followed by the Master of Rolls in the case of Corelli v.Gray (2) .
(1) 29 T.L.R. 570.
(2) 30 T.L.R. 116.
238 The case of Hawkes and Son (London) Limited v.
Paramount Film Service Limited(1) was whether a musical composition made by the owner was sought to he imitated by producing a film containing the said composition. An action for violation of the copyright was fired by the owner. Lord Hansworth, M. R. found that the quantum taken was substantial and a substantial part of the musical copyright could be reproduced apart from the actual film. In this connection, Lord Hansworth observed as follows:- Having considered and heard this film I am quite satisfied that the quantum that is taken is substantial, and although it might be difficult, and although it might be difficult and although it may be uncertain whether it will be ever used again, we must not neglect the evidence that a substantial part of the musical copy right could be reproduced apart from the actual picture film." Similar observations were made by Lord Slesser which may be extracted thus:- "Any one hearing it would know that it was the march called "Colonel Bogey" and thought it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital and an essential part which is their reproduced. That being so, it is clear to my mind that a fair use has not been made of its that is to say, there has been appropriated and published in a form which will or may materially injure the copyright that in which the plaintiffs have a proprietary right".
In the case of Harman Pictules N.V. v. Osborne & ors.(a) it was held that similarities of incidents and situation undoubtedly afforded prima facie evidence of copy and in the absence of any explanation by the defendant regarding the sources, the plaintiffs must succeed. It: was however held that there was no copyright in ideas, schemes or systems or method and the copyright is confined only to the subject. In this connection Coff, J. Observed as follows:- "There is no copyright in ideas or schemes or systems or methods; it is confined to their expression............ But there is a distinction between ideas (which are not copy right) and situations and incidents which may be........ ........ one must, however, be careful not to jump to the (1) [1934]1 Ch. D. 593.
(2) [196711 W.L.R. 723.
239 conclusion that there has been copying merely because of A similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history.
In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources".
"But I have read the whole of the script very carefully and compared it with the book and I find many similarities of detail there also. .. ......Again it is prima facie not without significance that apart from the burial of Captain Nolan the play ends with The very quotation which Mrs. Wodham-Smith used to end her description of the battle .......... .....As Sir Andrew Clark points out, some of these might well be accounted for as being similar to other events already in the scripts, and in any event abridgment was necessary, but that may not be a complete answer." Similarly in the case of Donoghue v. Allied Newspapers(1) it was pointed out that there was no copyright in an idea and in this connection Farwell, J. Observed as follows:- This. at any rate, is clear, and one can start with This beyond all question that there is no copyright in an idea, or in ideas............. of the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not until it is (If I may but it in that way) reduced into writing, or into some tangible form, that you get any right to copyright at all, and the copyright exists in the particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or look at it".
Similarly in the case of Bobl and Anr. v. Palace Theatre (Limited) and Anr.(2) Justice Hamilton observed as follows .- "If similarity between two works was sufficiently strong the evidence of copying would be so cogent that no one would believe any denial, but here the intrinsic evidence was (1) [1937] 3 All E.R. 503.
(2) 28 T.L.R. 22.
240 really the other way......... The matter had been considered by Justice Scrutton in his book on Copyright, and the conclusion there come (sic) to (Note h p. 83 of fourth edition) was that to which his own reflection during the progress of this case would have led him. He considered, therefore, that where the similarity was a mere coincidence there was no breach of copyright." In the case of Tate v. Fullbrook(1) Lord Vaughan Williams observed as follows:- '.
I do not think that I need go at length through the similarities and dissimilarities of the two sketches. It is practically admitted that, so far as the words are concerned the similarity is trifling..
.. All that we find here is a certain likeness of stage situation and scenic effect, which, in my opinion, ought not to he taken into consideration at all where there is appreciable likeness in the words".
In the case of Frederick B. Chatterton and Benjamin Webster v. Joseph Arnold Cave(2) Hatherley observed as follows:- "And if the quantity taken be neither substantial nor material if, as it has been expressed by some Judges, "a fair use only be made of the publication, no wrong is done and no action can be brought. It is not, perhaps, exactly the same with dramatic performances.
They are not in tended to be repeated by others or be used in such a way as a book may be used, but slill the principle de minimis non curat lex applies to a supposed wrong in Laking a part of dramtic works, as well as in reproducing a part of a book.
"I think. my Lords, regard being had to the whole of this case to the finding of the Lord Chief Justice that the parts which were so taken were neither substantial nor material parts, and the impossibility of damage being held to have accrued to the plaintiff from such taking, and the concurrence of the other Judges before whom the case was, brought that this appeal should be dismissed, and dismissed with costs''.
In the case of Sheldon v. Metro-Gclden Pictures Corporation(3) Judge Learned Hand stated that while considering a case which is very similar to the case in this appeal observed as follows:- (1) 77 L.J.R. 577.
(2) (1878) 3 A.C. 483.
(3) 81 F 2d 40.
241 "But it is convenient to define such a use by saying that others may "copy" the "theme" or "ideas", or the like, of a work, though not its "expression". At any rate so long as it is clear what is meant, no harm is done Finally, in concluding as we do that the defendants used the play pro tanto, we need not charge their witnesses with perjury. With so many sources before them they might quite honestly forget what they took; nobody knows the origin of his inventions; memory and fancy merge even in adults. Yet unconscious plagiarism is actionable quite as much as deliberate." "The play is the sequence of the confluents of all these means, bound together in an inseparable unity; it may often be most effectively pirated by leaving out the speech, for which a substitute can be found, which keeps the whole dramatic meaning. That as it appears to us is exactly what the defendants have done here; the dramatic significance of the vwcenes we have recited is the same, almost to the letter ........... It is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate." In the aforesaid case the Court held that there was no plagiarism or violation of the copyright.
In the case of Shipman v. R. K. O. Radio Pictures(l) which holding that an idea cannot be the subject of copyright great stress was laid on the impression which the audience forms after seeing the copy. In this connection, Menton, J. Observed as follows.- "The Court concluded that it was the idea or impression conveyed to the audience which was the determining factor, and since the impressions were the same, held there was an infringement... .....From this case stand the modern law of copyright cases, with the result that it is now held that ideas are not copyrightable but that sequence of events is; the identity of impression must be capable of sensory perception by the audience".
In the case of Michael V. Moretti v. People of the State of Illinois(2) It was held that law does not recognise property rights in ideas but only in the expression of the same
