Recently, in the matter of Vinay Vats v. Fox Star Studios India Pvt. Ltd. & Anr. [I.A. No. 6351/2020 in CS(COMM) 291/2020], a Single Judge Bench (Hari Shankar, J.) of the High Court of Delhi (“Court”) on July 30, 2020, refused to grant an interim injunction against the release of film ‘Lootcase’ on the OTT platform, Disney+ Hotstar. The Court while dismissing the plaintiff’s application noted that script of the plaintiff’s film was never available in the public domain and thereby knowledge of such script cannot be attributed to the defendants. Further, the Court observed that the plaintiff’s claim of infringement cannot just be evaluated on the basis of its trailer available in the public domain. As a trailer primarily represent theme or primary plot of a movie, and as such no copyright exists in the plot or theme of a film.
In light of the above decision, this article will analyze prior jurisprudence to discern whether there is blanket ban on the protection of plots/themes of a film or if there are special circumstances where courts may allow protection to copyright in the themes or plots of films.
An overview: Vinay Vats v. Fox Star Studios India Pvt. Ltd. & Anr.
In the instant matter,the plaintiff claimed to be the author and the first copyright owner, of a script for a film titled – ‘Tukkaa Fitt’ which it claimed to write in the year 2010-2011, and the trailer for which was released in the year 2012. The plaintiff filed the application for an interim injunction a day before the scheduled release of the film, Lootcase, based on the similarities between the plot of his film and the trailer of the film, Lootcase. The defendants submitted that the promos for their film were available in the public domain since June 2019 and on the other hand, the script of the plaintiff’s film was made public only when it was filed along with the plaint. The defendants also pointed out that the plaintiff in moving the Court at the last minute was trying to arm- twist the defendants and secure gains.
The Court dismissed the plaintiff’s application and stated that no copyright exists in the plot or theme of a film and reiterated the salient points from the landmark decision in R.G. Anand v. Deluxe Films and Ors. [AIR 1978 SC 1613], wherein a three Judge Bench (Raja Jaswant Singh, R.S. Pathak and S. Murtaza Fazal Ali, JJ.), observed that, “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.
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.…
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.…” (emphasis supplied)
The Court further went on to hold that “the plot idea is as old as the hills…the mere fact that certain plot points, between the plaintiff’s script and the story of the upcoming film ―Lootcase as reflected in the trailer…may be common, cannot be the basis to lay a claim to copyright, as the plaintiff has chosen to do. The plot points…such as persons losing bags of money, claiming the same and such bags being sought by members of the underworld, are plot points, which may figure in more than one cinematographic film and cannot, therefore, be said to be the exclusive province of the plaintiff.”
Judicial pronouncements: Are movie plots/themes protected under Copyright law?
In Zee Telefilms Limited v. Sundial Communications Private Limited [2003 (27) PTC 457], a Division Bench (A. P. Shah and D.K. Deskmukh, JJ.) of the High Court of Bombay (“Bombay High Court”) held that “merely because some of the components of the story are common or in public domain, the concept or idea does not become incapable of protection”. The Bombay High Court, while upholding the decision of the Single Judge Bench granting permanent injunction in favour of the plaintiffs, evolved certain tests for determining copyright infringement, viz. (a) the works should be considered on the basis of the observations and impressions of the average viewer and not hypercritically; and (b) what is to be seen is the substance, the foundation, the kernel and the test as to whether the reproduction is substantial is to see if the rest can stand without it.
In XYZ Films LLC and Ors. v. UTV Motion Pictures/UTV Software Communications Ltd. and Ors. [2016 (67) PTC 81 (Bom)], the plaintiffs claimed that the defendants had condensed the contents of its film, The Raid: Redemption into the last 20 minutes of their film, Baaghi. The plaintiffs argued that the length of the film is immaterial, and that should any viewer see the last 20 minutes of Baaghi, they would undoubtedly conclude that it is a copy of The Raid: Redemption. A Single Judge Bench (G. S. Patel, J.) of the Bombay High Court applied the kernel test laid down in the Zee Telefilms case and stated “the ‘kernel’ of Baaghi, if one is forced to it, is one of filial duty, of fighting for one’s love against all odds. Everything else is secondary, and none of this is even remotely suggested in The Raid: Redemption.” The Bombay High Court, accordingly, refused to grant an injunction in this case.
More recently, in Shamoil Ahmad Khan v. Falguni Shah [2020 (3) ABR 541], a Single Judge Bench (S. C. Gupte, J.) of the Bombay High Court applied a test of ‘abstraction’ to arrive at the conclusion that the plaintiff’s copyright has been infringed. The Bombay High Court stated that only when you strip a story of its embellishments, descriptions of moods, etc. you can arrive at the plot and story line. The Bombay High Court concluded that, in this case, when the embellishments are removed from the defendant’s web series, the life and blood of the series boils down to “…the protagonist coming into possession of a prostitute’s vanity box and bringing it home and noticing perceptible changes as a result of its use in the appearance, mannerism and behaviour of his wife and daughter” which is nearly identical to the plaintiff’s short story which revolves around the theft of a vanity box and changes to the behaviour of characters in the thief’s family. The Bombay High Court added, the addition of more characters, the fact that the moral character of the protagonist is different since he does not ‘steal’ the vanity box, etc. are mere embellishments added to lengthen the defendant’s web series. The Bombay High Court, therefore, held that “…instead of granting a temporary injunction against exhibition of the web series, interests of justice would be served better if the suit itself is set down for trial and the Defendants are asked to maintain accounts of the profits made from the web series in the meantime…however, further adaptation or use of the web series in a different format may be restrained.”
From a review of the cases above, it is clear that copyright protection in plots and themes of films is not a lost cause, and it is possible to protect the plotlines and themes of films from infringement. However, overzealous protection of broad plotlines and themes may result in stifling creativity. Therefore, it is for the courts to walk the fine line between copyright protection and copyright monopolization.
While it is safe to say that in order to determine copyright infringement, courts more often than not apply the average consumer test, the kernel test and the abstraction test, however, the differing approaches taken by courts does not offer a clear-cut path to protection. For filmmakers, the stance taken by a majority of the courts in India, is a wake-up call to step outside the box and away from archaic tropes and plot lines!
Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.
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