Inspirations, adaptations and drama over IP rights

By Manisha Singh and Shristi Bansal, LexOrbis
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India’s illustrious Bollywood entertainment industry is growing at an unprecedented rate, invariably leading to a rise in legal disputes. Traditionally, intellectual property-related disputes were scanty and solved without much ado. However, with the paradigm shift in the consciousness and commercialization of IP, and the advent of investment from corporate giants and foreign studios, the courts have been swamped with media and entertainment-centric disputes. The international entertainment markets are now recognizing Bollywood as a potential partner for creative alliances, which is one of the reasons Bollywood is waking up to copyright infringements.

Manisha Singh
Manisha Singh

Remakes are an integral part of Bollywood. A remake of a movie is usually based on the earlier story, with modernization, updated elements and/ or additional cultural features suited to the sensibilities of the target audience, in order to differ from the original.

Definitions

Movies fall under the definition of a “cinematograph film” under section 2(f) of the Copyright Act, 1957, and the copyright is held by the “author”, who is the producer of the movie. If a movie which is not in the public domain is to be remade, the filmmaker has to enter into an assignment or a licence agreement with the “author” under section 30 of the act.

Adaptation is another aspect of “use” of copyrighted works, over which the author is given exclusive rights under section 14 of the act. A work is said to be an adaptation of another when the second work is clearly and visibly a derivative of the earlier work. The most popular kind of adaptation is the conversion of novels into motion pictures.

Inspiration or copying?

Bollywood has often been criticized for blatantly copying or, as it claims, being “inspired” by storylines of Western films, especially Hollywood films. What constitutes “copying” is now a well-settled legal principle – a work that “comes so near to the original as to suggest the original to the mind of the spectator”. The right to reproduction can be breached by copying not just the words of a literary work but also “the themes and ideas incorporated into it if they are sufficiently substantial”.

Shristi_Bansal_-_LexOrbisReproduction can include the combination of the main themes, incidents and characters of a story. The case of Twentieth Century Fox Film Corp v BR Films & Anr is a classic example in this regard. The plaintiff alleged that the producers and director of the impugned motion picture – Banda Yeh Bindaas Hai – blatantly created a “substantial reproduction” of the movie My Cousin Vinny. Bombay High Court issued an injunction delaying the movie’s release while litigation ensued. Although the parties agreed to a settlement before the court could render a decision, this is one of the foremost cases where the Indian courts adjudicated on such a dispute.

Filmmakers also often opt to remake old blockbusters, owing to the diverse regional markets in India. For instance, movies such as Ghajini and Singham have been inspired from South Indian movies. In other cases, remakes may simply seek to ride on the success and goodwill of a previous popular movie. One such case was the infamous remake of the cult movie Sholay by Ram Gopal Varma, who later had to change the title of the movie to Ram Gopal Varma Ki Aag on the court’s directions. It was held that the characters and the title had acquired a distinctive reputation and hence the remake amounted to infringement.

Credit controversies

Ideas for a movie plot are frequently derived from novels. Adaptation involves the rearrangement or alteration of any published work. Copyright offers exclusive rights to an author who creates an original artistic, literary, musical or dramatic work, and affords copyright protection in another medium. Thus, section 3 of the Copyright Act gives the owner of a copyright “the sole right to produce or reproduce the work or any substantial part thereof in any material form”. Section 3(1)(d) of the act stipulates the sole right “in the case of a literary, dramatic or musical work, to make any cinematograph film”. Thus, the author of a novel has the exclusive right to “make” the book, or a substantial part of it, into a film.

The subject matter of such disputes also involves the moral (or integrity) rights of the author. These ought not to be mutilated and disrepute to the author should not be caused.

The popular Hindi movie 3 Idiots was a centre of controversy when Chetan Bhagat, the author of the novel Five Point Someone, alleged that he had not received sufficient credit in the movie, which contained extensive portions from the book, despite an agreement with the producers.

In order to curb unwarranted litigation, it has become imperative that filmmakers adopt adequate measures. Timely due diligence, negotiations and entering into necessary contracts to secure one’s rights have become absolutely mandatory.

Manisha Singh is a founding partner of LexOrbis, where Shristi Bansal is an associate.

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