Copyright infringement and plagiarism on the big screen

By Shubneet Panjete, Lall Lahiri & Salhotra
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The concept of plagiarism – the “use or close imitation of the language and thoughts of another author and the representation of them as one’s own original work”, according to the Random House dictionary – has recently been much discussed and subjected to legal scrutiny, especially in the context of the Indian entertainment industry. The makers of a Tamil film sued the producers of the record grossing film Ghajini for copyright infringement just days before the blockbuster’s release. Viewers of the Oscar-winning Hollywood thriller Memento (2000) know that Ghajini’s story was not screenwriter AR Murugadoss’s original work; in fact, the Tamil film was a remake of Memento.

Shubneet Panjete Senior associate Lall Lahiri & Salhotra
Shubneet Panjete
Senior associate
Lall Lahiri & Salhotra

With Bollywood being awarded industry status by the government in 1996 and allowed to access 100% foreign direct investment under the automatic route in 2002, the nation’s biggest film producer is increasingly opening up to foreign investment and collaboration. The marriage of Bollywood and Hollywood has almost inevitably seen a spotlight turned upon intellectual property rights (IPR). Film makers in the US now watch Indian movies not only for their delightful presentation of visuals spiced up with song and dance routines but also to look out for evidence of plagiarism – or as some in Bollywood would term it, inspiration. At the same time, there is a growing awareness of IPR in Bollywood, and increased efforts towards enforcement.

The best known case is probably the 2003 dispute between US-based author Barbara Taylor Bradford, who wrote the best selling book A Woman of Substance, and Bollywood’s Sahara Entertainment. Bradford filed a copyright infringement suit against Sahara’s Karishma – A Miracle of Destiny in Calcutta High Court. The case was decided in favour of the broadcasters on the grounds that while the rags-to-riches theme of Bradford’s book was present in the TV serial, mere ideas are not protected by Indian copyright law.

In 2007, Sony Pictures Entertainment and Will Smith’s Overbrook Entertainment threatened a lawsuit against David Dhawan’s Partner for the close relationship of its plot to that of their movie Hitch. Mirchi Films (the maker of Hari Puttar) was sued by Warner Brothers (the maker of the Harry Potter series) in March 2008 for the similarity in titles.

The Partner case did not go to trial, while Hari Puttar was released after one month’s delay. While valuable time was wasted and hundreds of thousands of rupees lost in these cases, none of them have resulted a financial disaster for Bollywood; Hollywood has not yet been able to emerge victorious in a copyright infringement case.

Under Indian law intellectual creations such as literary, artistic, dramatic, musical and cinematographic works are protected by the Copyright Act, 1957. The act protects an author’s creations from being unlawfully reproduced, and prevents others from exploiting them without his or her consent or licence. Copyright infringement is found if anyone other than the author or owner seeks to exploit an original work; however, the act provides certain “fair dealing” exceptions in order to encourage and promote education, research and private study.

The deciding factor referred to by the Copyright Act is that the work must be created entirely by the author – the author must have bestowed upon the work sufficient judgment, skill and labour or capital to be rightly deemed its creator. Indian copyright law protects the expression of ideas rather than ideas themselves. Infringement of copyright is found when a similarity in the expression of the ideas is established.

Indeed, courts in India have at times found in favour of the copycat and not the original copyright owner. A work inspired by copyrighted work may not be deemed to be copyright infringement if the theme is arranged differently to create a completely new work. However, the copying of an essential and substantial part of the work could lead to a finding of copyright infringement. Substantial copying is assessed by the Indian courts by using a “lay observer” test of both the qualitative and quantitative copying of the copyrighted work. The test requires that a person viewing or reading the original and the copy should have an “unmistakable impression that the subsequent work is a copy of the original”.

What does the difference between the concept of plagiarism and the definition of copyright infringement under the Copyright Act imply for the future of IPR in Bollywood? Creative workers in film, as in all art forms, thrive on borrowing concepts, ideas and elements from existing sources, and this will doubtless continue to give rise to further debate among IP clients, lawyers and regulators in the world of entertainment. One thing is clear, though: India is increasingly aligned to the global entertainment industry, a change symbolized by Slumdog Millionaire’s domination of the Oscars in 2009. The recent marked increase in Hollywood’s scrutiny of Bollywood’s borrowing of ideas may foretell more lawsuits against plagiarists; it may also lead film makers in India to reassess their attitudes concerning valid forms of creative inspiration.

Shubneet Panjete is an associate at Lall Lahiri & Salhotra.

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