Zee and Sony in copyright combat over reality show

By Aprajita Nigam, LexOrbis
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In the constant race for TV rating points, competitors often come at loggerheads as in a recent clash between two titans over a reality TV show.

Zee Entertainment Enterprises initiated a quia timet copyright infringement and passing off action in Bombay High Court against Sony Pictures Networks India, alleging infringement of Zee’s copyright in a concept note and production bible for India’s Best Dramebaaz, a popular acting talent hunt show for child contestants. Zee contended that Sony’s upcoming show Sabse Bada Kalakar is a copy of India’s Best Dramebaaz.

Zee launched India’s Best Dramebaaz in 2012. A concept note prepared around the same year laid down the show’s broad concept and format. Zee contended that the concept note falls within the purview of “original literary work” under the Copyright Act, 1957. Zee further argued that a full-fledged production bible set out the exact format and various key elements of the show.

Aprajita Nigam Associate LexOrbis
Aprajita Nigam
Associate
LexOrbis

After a review of the excerpts of the concept note and production bible set out in the plaint, the court observed that the excerpts were worded in such generalities that it was impossible to conceive any level of exclusivity or monopoly being afforded to any person in respect of them. With regard to the broad concept provided by the concept note, the court found that other talent hunt shows, be it for acting, dancing or cooking, follow the same pattern. As for the production bible, the court noted that though it contains a few themes with unique labels, even these are not necessarily original works. For example there cannot be any assertion of exclusivity in relation to an element called “Thank You”, where the contestants are supposed to thank their parents.

The court also observed that though copyright vests in a production bible and concept notes as they are not just ideas but expression of ideas, it does not follow that every page of a production bible or concept note enjoys the same level of protection. In a teeming industry like entertainment, common elements are bound to be found and a person claiming copyright in some aspect of a show must not readily claim copyright in relation to matters which are incontestably in the public domain.

Placing reliance on Eastern Book Company & Ors v DB Modak & Anr, Zee submitted that even without the new elements, it still has literary copyright on account of its sweat and labour in judiciously selecting and rearranging various elements. The court rejected this argument, saying that it could have succeeded if Zee marked such judiciously selected elements and showed that Sony has substantially copied Zee’s rearrangement.

Also rejecting Zee’s reliance on Urmi Juvekar Chiang v Global Broadcast News Ltd & Anr, for arguing that an assessment must be made from the perspective of an average viewer, the court held that this standard did not apply as the application was quia timet.

On the issue of passing off, the court held that though it is established that damage need not be proved, one cannot bypass proof of misrepresentation, and in a quia timet application the standard of proof is a notch higher. A plaintiff claiming relief must prove that the defendant’s product or service is such that there is no possibility of it being anything other than a deceitful misrepresentation. The court found that though Zee’s goodwill and reputation were not disputable, the other two factors of the classic trinity test, i.e. misrepresentation and damage, were not sufficiently addressed through the material presented.

Zee also relied on the single judge’s decision in Zee Entertainment Ltd v Gajendra Singh & Ors, which was reversed in part in appeal. In that case the test for maintaining a passing off action appeared to be sufficient novelty and originality of the show to create a lasting and significant impression on the viewer. Taking note of an earlier show in the Philippines cited by Sony, the court declined to find such originality in the concept of an acting-based talent hunt, pointing out that in a copyright infringement action even one prior instance is enough to destroy originality.

The court also concurred with Sony’s contention that given the complexities of such shows, a monopoly cannot be granted in non-specific and fuzzy terms. Accepting Sony’s reliance on RG Anand v M/s Delux Films & Others, the court dismissed Zee’s notice of motion for lack of material which could be described as clear and cogent evidence of copyright violation, as required by the said precedent.

This decision highlights the level of originality required for reality shows to be eligible for copyright protection. To discourage any attempt to stifle creativity, it makes clear that sweeping monopolies will not be awarded.

Aprajita Nigam is an associate at LexOrbis.

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