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High Court Of Calcutta
Pinaki Chandra Ghose, I.P. Mukerji, JJ.
Shree Venkatesh Films Pvt. Ltd. : Appellant
Versus
Vipul Amrutlal Shah : Respondent
G.A. No. 2153 of 2009; A.P.O.T. No. 303 of 2009; G.A. No. 2064 of 2009; C.S. No. 219 of 2009 G.A. No. 2211 of 2009; G.A. No. 2212 of 2009; A.P.O.T. No. 315 of 2009; C.S. No. 219 of 2009 Of A.P.O.T. No. 316 of 2009 with G.A. No. 2213 of 2009 with C.S. No. 219 of 2009
Decided On : Sep 01, 2009
COPYRIGHT - CINEMATOGRAPHY FILM - INFRINGEMENT - MEANING OF COPY - SUBSTANTIAL SIMILARITY - ORIGINALITY - TENANT-IN-COMMON - RIGHT TO SUE - INJUNCTION - DELAY - THIRD PARTY RIGHTS - DISTRIBUTION RIGHTS - RECEIVER - MODIFICATION OF INTERIM ORDER.
Fact of the Case:
The plaintiff/respondent, producer of the Hindi film 'Namastey London', filed a copyright infringement suit against the defendants/appellants, producers of the Bengali film 'Poran Jaye Joliya Rae', alleging that the Bengali film was a substantial copy of the Hindi film. The plaintiff/respondent also filed an interlocutory application for an ad interim injunction to restrain the exhibition of the Bengali film.
Finding of the Court:
The Court held that the Bengali film was a substantial copy of the Hindi film and that there was infringement of the plaintiff/respondent's copyright in the story and screenplay of the Hindi film. The Court also held that the plaintiff/respondent, as a tenant-in-common of the copyright of the Hindi film, had the right to sue for infringement. The Court further held that the ad interim injunction was rightly passed by the trial court, but modified the order to allow the producer of the Bengali film to retain 1/3rd of the box office collections from the date of release of the film to the date of the filing of the suit.
Issues: 1. Whether the Bengali film was a substantial copy of the Hindi film and whether there was infringement of the plaintiff/respondent's copyright in the story and screenplay of the Hindi film. 2. Whether the plaintiff/respondent, as a tenant-in-common of the copyright of the Hindi film, had the right to sue for infringement. 3. Whether the ad interim injunction was rightly passed by the trial court.
Ratio Decidendi: 1. The Court held that the Bengali film was a substantial copy of the Hindi film and that there was infringement of the plaintiff/respondent's copyright in the story and screenplay of the Hindi film on the following grounds: (a) The two films had a substantially similar story and screenplay. (b) The Bengali film copied several scenes from the Hindi film verbatim. (c) The Bengali film did not have any originality of its own. 2. The Court held that the plaintiff/respondent, as a tenant-in-common of the copyright of the Hindi film, had the right to sue for infringement on the following grounds: (a) A tenant-in-common of a copyright has the right to sue for infringement. (b) The plaintiff/respondent had not assigned his right to sue to any other person. 3. The Court held that the ad interim injunction was rightly passed by the trial court on the following grounds: (a) The plaintiff/respondent had made out a prima facie case of infringement of copyright. (b) The balance of convenience was in favour of the plaintiff/respondent. (c) The plaintiff/respondent was likely to suffer irreparable harm if the injunction was not granted.
Final Decision: The Court dismissed all the appeals filed by the defendants/appellants and modified the ad interim injunction order passed by the trial court to allow the producer of the Bengali film to retain 1/3rd of the box office collections from the date of release of the film to the date of the filing of the suit.
Key Points: - The Bengali film Poran Jaye Joliya Rae was found to be a substantial copy of Namastey London, infringing the plaintiff’s copyright in story and screenplay (!) (!) (!) (!) (!) . - A tenant-in-common of a copyright has the right to sue for infringement; the plaintiff held rights as tenant-in-common with Ad Labs and others (!) (!) (!) . - The Court upheld the ad interim injunction but modified it to allow the Bengali producer to retain 1/3rd of box office from release to filing; later extended conditions and stayed orders were issued (!) (!) (!) (!) . - The meaning of "copy" in copyright law for cinematography films must be broad, including substantial similarity, not just exact replication (!) (!) (!) . - The court emphasized that infringement can involve substantial similarity in story, screenplay, and overall impression, not merely identical scenes (!) (!) (!) . - The court conducted a scene-by-scene comparison and found substantial similarity in Bengali film’s story and screenplay to Namastey London (!) . - The distribution rights were transferred to Eros, but the court found that copyright and analogous rights were not wholly transferred; relevant to who can sue (!) (!) . - The court recognized that third-party distributors may be innocent parties and ordered a receiver to collect and deposit funds, with proportional allocations to the producer and distributors (!) (!) . - Prior negotiations and delay in filing impacted the court’s relief, noting unjustness of directing receiver to collect from release date due to delay (!) . - The decision cites multiple precedents on scope of copyright in cinematography films and the test for infringement beyond literal copying (!) (!) (!) (!) .
Pinaki Chandra Ghose, J.
1. THIS appeal is directed against an ad interim order of injunction passed in a copyright suit on 10* August, 2009 by this Hon'ble Court.
2. THE Hon'ble First Court was pleased to pass an ad interim order of stopping exhibition of a Bengali film titled as 'Poran Jaye Joliya Rae'. From the said order, further two appeals have been preferred by the Producer and Director respectively of the said film. A separate appeal has been preferred by a body of five exhibitors.
We have heard the learned Counsel for the parties at length and intend to dispose of all these appeals by this common judgment.
3. A Hindi film titled as 'Namastey London' was released. It was a run away success. According to the averments made in the interlocutory application, the film earned more than Rs.100 crores in box office collections.
4. THE story of the film is like this. THEre is a non-resident Indian family in Britain. THE parents are conservative and conscious of their Indian roots and culture. THEir daughter Jasmeet has been brought up in Britain and professes to be British by culture. She is resistant to imbibing Indian culture. Her parents think of her marriage to an Indian. She has a British boyfriend by the name of Charlie Brown. She is brought over to India where she is married to Arjun. Both Arjun and she returned to London. In London she disclaims her marriage with Arjun. She says that her marriage in India is void and that she has no legal relationship with Arjun. Arjun is psychologically affected by this attitude, but accepts it somehow. Jasmeet continues to entertain ideas of getting married to Charlie Brown. She continues her relationship with him, in the presence of Arjun. Arjun realises her feelings and cooperates in Jasmeet's marriage with Charlie Brown. At the point when Jasmeet is to wed Charlie Brown in a church there is a complete change in her feelings. She does not marry Charlie Brown and affirms her marriage with Arjun.
It appears that as early as on 22nd July, 2009 before the release of Bengali film titled as 'Poran Jaye Joliya Rae', newspapers i.e., The Hindustan Times and others reviewed and warned the readers that the said Bengali film, in their opinion, is nothing but a copy of the Hindi film "Namestey London" which was known to the plaintiff/respondent, as it would be evident from the averments made in the plaint. On 24th July, 2009 the said Bengali film was released. On the basis of the prima facie evidence, the plaintiff knew that a potentially infringing film or work was about to be released. Yet no suit was filed till it released. It is also the case of the plaintiff/respondent that after release of the said Bengali film, negotiations were made by the plaintiff/respondent with the Bengali film producer on 28th July, 2009 for assignment of rights in their favour which, did not fructify. The suit and the interlocutory application were filed some ten days after release of the film. We cannot help but entertain a prima facie view that the producer of the Hindi film waited to see whether the Bengali film' would be a success. Upon being satisfied that it was a success and a revenue earning enterprise did the producer apply for injunction to restrain exhibition of the film on the ground that his copyright was being infringed. This was one of the reasons why by our interim order we did not stop the film but ordered a receiver to collect the proceeds till the respondent/plaintiff was able to establish his prima facie case.
5. FURTHER we justify the initial interim order on the ground that the Court of the first instance appeared to have based its prima facie finding of existence of copyright solely on the basis of its impression on viewing the film and on the basis of the prima facie finding that the Hindi film could at best be "plagiarism" and not "infringement of copyright" which finding in itself is a contradictory finding. FURTHER when the appellant wanted production of documents of assignment b
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