Author - Advocate Shubham Borkar Senior Legal Consultant at Vohra and Vohra and Udit Tiwari
When a person hears the word ‘Bollywood’, the first picture that comes in his mind is a world of colourful dreams being showcased on a big screen. The Indian Film Industry aka Bollywood has given us legendary stars like Amitabh Bachchan, Shah Rukh Khan, and many others, is Internationally famous for its catchy songs and famous dialogues. Bollywood as industry runs on the fuel of artistic creations and creative work and hence IPR Law comes in handy while an artist is seeking protection for his/her artistic work. There are multiple provisions under the Copyright Act 1957, which helps an artist who is seeking protection against the infringement of his copyright. In other words, protection against the fact that someone does not copy his/her work and get away with the fruit of someone else's hard work.
BOLLYWOOD AND MOVIE POSTERS
Coming directly to the point, “Judgemental hai kya” is a recently releases Bollywood Hindi movie starring Kangana Ranaut and Raj Kummar Rao, which has been directed by Prakash Kovelamudi. The movie was publicized on a large scale on different platforms, ranging from T.V. Shows to Social Media. The reason it has become relevant for us to discuss this movie in this article is because an European Artist named Flora Borsi accused filmmakers of Judgemental hai kya of plagiarising her work using her Twitter handle. In her tweets, she also mentioned that the filmmakers didn’t even bother to reach out to her or take her permission regarding the same.
Not the first time it has happened!
The designers who created movie posters for the movie SOLO were also accused of plagiarising the work from a series of album covers created in 2015 for sony.
There are some Bollywood centric examples that are mentioned below, which draws out the instances where other successful movies were also accused of copying someone else’s idea.
The blockbuster hit of Amir Khan “PK” was also accused of copying Quim Barreiros’s album cover:
Movie Aitraaz(2004) starring Akshay Kumar was also accused of copying its poster from ‘The Graduate’ (1967):
Movie “Anjaana Anjaani” starring Ranbir Kapoor and Priyanka Chopra was accused of copying its movie poster from the movie “ An Education”(2009):
The Multi-Starrer film “Zindagi Na Milegi Dobara”(2011) which is very much popular among the youth of India, as it depicts the storyline focusing on 3 friends and their complicated life was also accused of copying its poster from the movie “Lords of Dogtown”(2005)
Question of the Hour
Now, the question arises that, whether these claims can actually result in a successful suit for Copyright Infringement? Can the artist claim for damages for the copied work? For answering all these kind of questions, a prior understanding of the law pertaining to Copyright protection given for a Photograph to a Photographer under The Copyright Act, 1957, is necessary.
The definition of a ‘Photograph’ as defined under Section 2(s) of the Act. Section 13 of the Copyright Act talks about the Works in which Copyright subsists. The class under Section 13(a) mentioning “Artistic work” will include Copyright protection pertaining to photograph.
Idea Expression Theory
The theory of Idea Expression theory focuses and elaborates on the concept, that the expression
of an idea is protected under the Copyright Act and not just the idea itself. In other words, if an artist, being a play writer, lyricist, composer of a song, etc. wants to protect his artistic work against infringement. He/she will have protection extending to the expression in which an idea is represented and put forth, not for an idea which the artist just came up with or conceived. In other words, this theory focuses on the issue of giving protection to an artist who not only applied his/her brains in coming up with an idea but also was determined enough to put his work into a form of expression so that, it could be easy to communicate the idea to his/her target audience.
It is necessary that an artist convert that artistic thought into a tangible form. Which means that an artist can not seek protection for an idea which is only present in his mind and his thoughts. The artist has to inscribe that idea in the form of notes, recordings, writing or any other tangible form. Which not only will prove the existence of that idea but might also be a valid piece of evidence in a court of law, while an artist is claiming ownership of the idea itself. Judiciary through various precedents have established certain factors that are to be considered while examining a case of copyright infringement. Judicial precedents elucidate that in cases of copyright infringement, the nature or mode of expression used and factors like are there any colorable imitations? should not be overlooked. Also, it is very essential to consider the form, manner, arrangement, nature, and format of expression that the artist has used. As copyright protection extends to the expression coupled with an idea and not just the idea itself. It is very essential to understand that if the substantial portion of an art form is copied. Which will lead to an unmistakable assumption that, it is a copy of the art form created prior to the copied work will surely fall under the category of copyright infringement.
For example, there is a landmark judgment of Mr. Anil Gupta And Anr. vs Mr. Kunal Dasgupta And Ors. In this case, Plaintiff accused the Defendant of copyright infringement. The Plaintiff claimed that he represented and gave concept notes relating to the idea of Match Making in which the ancient concept of swayamwar was inscribed. Hence, when Defendant launched a T.V. show called “Shubh Vivah” in which the girls were given an opportunity to choose their spouse from the prospective candidates present as the potential suitors, Plaintiff instantly filed for copyright infringement. Court held that Copyright of the Plaintiff was infringed. It was held by the court that this was confidential information disclosed to the Defendant and secondly, Court recognized the need to protect the effort of sweat and blood of an artist in this case. The court held that the Defendant is liable for Copyright Infringement because the fundamental aspects of the idea and the mode of expression were copied from the Plaintiff. Like, a T.V. show as a form of expression, the girl gets to choose the husband of a choice from multiple suitors and many other similarities.
Relevant case laws
R.G Anand vs M/S. Delux Films & Ors-
FACTS: The facts of this case were that the plaintiff being a playwriter wrote a play named “Hum Hindustani” in the year 1953. He said that he narrated the play to the defendant which later was converted into a film. The plaintiff claimed that the film “New Delhi” is a total copy of his idea and claimed copyright infringement.
This is a Landmark case in which the Hon’ble Supreme Court laid out certain essential principles relating to copyright infringement. Which were further cited and used in number of cases as guiding principles. This case clearly stated that the umbrella of copyright protection is only limited to the expression, form, arrangement and the manner in which the idea is represented. Copyright protection does not extend to an idea, subject matter, themes, plots, historical events or legendary facts. The Court further explained that if a substantial portion of an artwork is copied, leading to fundamental similarities in respect of the mode of expression adopted in the work. This would amount to infringement of copyright.
Sanjay Kumar Gupta v. Sony Picture Networks India Pvt. Ltd-
This case also dealt with similar issues as that of R. G Anand Case. In this case, the appellant used the term “Jeeto Unlimited” for a game show concept. Where people could win gifts by answering questions in a quiz contest. Appellant said that the respondent compelled them to sign a consent letter permitting Sony Network(respondent) to use the concept without incurring any liability. Later copyright infringement was filed by the plaintiff against the popular game show KBC on Sony Network. Using and citing the principles of R. G. Anand Case, the decision was granted in favor of Sony Network. The court clearly mentioned that getting the audience involved in a television program is a recurring phenomenon. Also, the selection of candidates through answering question displayed on their T.V screen is substantially different from the appellant's concept.
Applying the Idea Expression Principle
From the above-mentioned case laws, it is clear that idea-expression theory protects the expression of an idea and not the idea itself. Now, coming back to the issue at hand. Before coming to the conclusion relating to whether the poster was copied or not? Or whether there is a copyright infringement or not? It is necessary that we apply the principles mentioned in the R.G. Anand Case to the present scenario. The poster surely is similar to the picture clicked by the photographer Flora Borsi and could also be the source of inspiration behind the movie poster, but one should also consider the number of distinctions present in both the pictures.
The lady posing in both pictures is different.
Colour of the hair is different in both the pictures.
One picture uses the background of a window while the other uses a plain background.
Borsi’s picture shows the women wearing a headband which is clearly absent in the poster.
The poster shows Kangana wearing a denim jacket whereas, is Borsi’s picture no such jacket is used.
Borsi’s picture synchronized the color of the eyes of the cat with the women posing in the picture, which is clearly not the case in the poster.
Hence, due to above-mentioned differences, it is clear that the picture might look similar to each other but are not an exact copy of one another. Also, Flora Borsi could argue upon the lack of decency by the filmmakers, in not informing her or taking her permission before making a poster inspired from her picture but she cannot file a suit for copyright infringement and get damages awarded for the same.
The Contrary View
It is pretty clear after analyzing different case laws and understanding the practical applications of the Copyright law in India, that a person can not claim copyright infringement easily with just snap of a finger. At the same time, one should not forget that the aim of Copyright Law is not to permit copying others artistic work in disguise. Which means that anything which is illegal directly is also illegal if done indirectly. As even if we analyze the poster of Judgemental hai kya one can easily also spot the things that are similar in both the picture and one can easily come to the that both the pictures are somewhere or the other similar to each other. Not identical! But similar. For example, both the picture are similar in terms of:
Cat positioned in a way that it is right in front of the right eye of the women in both the pictures.
Black Cat is used in both pictures.
Side profile of the cat and frontal profile of the lady is used.
So keeping in mind that, even though the picture is out of the radar if analyzed from a copyright infringement suit perspective. It still posses similarities that are clearly visible to a person in the first sight of the picture.
Flora Borsi is correct in raising her voice against the movie makers which clearly took inspiration from the picture taken by Flora and they did not even mention her name neither gave her any credit. At the same time, one should not forget that taking inspiration from an artistic work and the presence of some similarities does not label the work as copied.
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