Many Indian film industries exist, but this article will focus on Bollywood, the most well-known of them all. Mumbai, India is home to India’s commercial film industry, which got its nickname “Bollywood” by combining the names of two words: Bombay and Hollywood. More than a thousand films are produced each year in Bollywood, which has a global viewership of nearly three billion people. And yet, despite all of this, Hollywood remains the most lucrative film industry in the world.
“Copyright infringement” or rather “Copyright Inspiration “has always been a part of Indian Cinema for example, in addition to having made an everlasting impression on Indian cinema, Sholay also had a profound effect on Indian popular culture. Many other actors and actresses in Indian cinema have been inspired by its characters, especially the dynamic duo of Jai, Veeru, and Gabbar himself. All of the film’s memorable scenes and songs have become instant classics, and the movie itself has served as an inspiration for countless other characters. A number of westerns served as inspiration for Sholay, including Seven Samurai and the numerous spaghetti westerns that were all the rage in the late 1960s and early 1970s.’
This article deals with the legal framework, Lay Observer’s Test and its exceptions, fundamental case laws, and analysis.
The Legal Framework
The Copyright Act of 1957 (“the Act”) controls Indian copyright law, and
- Section 13 of the Act defines copyrighted works, including cinematograph films (b).
- Section 14(a) of the Act gives the creator exclusive rights to a cinematograph film, as defined in Section 2(f).
- Section 51 of the Act defines copyright infringement as a “substantial and material” copy of the original work.
- Section 52 details rule exceptions
TRIPS Agreement: According to Article 12 of the Berne Convention
- As a member of the World Trade Organization (“WTO”), India is bound by the Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) agreement of 1994.
- TRIPS mandates that all WTO members adhere to the requirements of the Berne Convention and the Paris Act, and it incorporates intellectual property rights into the domain of trade.
- Article 12 of the Berne Convention states that “writers of literary or artistic works should have the exclusive right to permit adaptations, arrangements, and other modifications of their works.” The lifetime of copyright protection is the author’s life plus fifty years, however shorter protection periods are available. Article 12 stipulates that when the period of protection is not based on a human being’s life (such as when the author is an entity or company), the term of protection must be at least 50 years.
‘Lay Observer’s Test’ & Its Exceptions
If thoughts are protected like physical goods, individuals can’t convey the same notion. This wouldn’t encourage unrestricted idea sharing. It’s important to exclusively attribute authorship to the material manifestations of artists’ works, not their concepts. The Supreme Court introduced a broader definition of “copying” and standards for spotting intellectual property crimes after this case.
First, ideas, plots, topics, concepts, stories, or historical facts cannot be copyrighted. This was important. Art shapes, frames, and expresses the concept.
Second, a notion expressed in multiple ways keeps its original properties.
The ‘Lay Observer Test’ was created in R.G. Anand v. Delux Films and Others. The court decides that an infringement has occurred if the spectator has the “unmistakable impression that the following work seems to be a clone of the first.” If “a person with common memory can distinguish between the original and reproduced work,” it’s not a copyright violation. There is no intellectual property infringement when two works share the same underlying idea but portray it differently.
The idea of dichotomy has the following exceptions
The doctrine of Merger: in the form of the merger doctrine, which states that copyright would not apply even to the statement in question. In most cases, this occurs when the expression of the thought is inextricably intertwined with the notion itself. The Indian case of Mattel v. Jayant Agarwalla and Others, which was heard by the Delhi High Court, is regarded as an authoritative source in this area (2008).
‘scènes à faire’: The phrase ‘scènes à faire’ literally translates to “obligatory scenes.” This philosophy acknowledges that there are specific characteristics of a particular genre that are unavoidable and cannot be changed. However, the mere appearance of such elements cannot be used as grounds for alleging a violation of copyright. This legal principle was first articulated in the Cain v. Universal Pictures case that was tried in the United States (1942).
Fundamental case laws
MRF Ltd v. Metro Tyres Limited:
A film must be an original work in order to be granted copyright under Section 13 of the Act, and it is an infringement to create a film that is a clone of the original film without the owner’s permission.
In Mansoob Haider v. Yashraj Films:
the Bombay High Court ruled that the idea is not copyrightable after removing similarities between the two works. The court ruled that mere likeness isn’t a copyright violation.
Shree Venkatesh Films Pvt. Ltd. The court said, citing Raghunath Rai Bareja & Anr.:
Bengali film “Poran Jaye Joliya Rae” infringed on Bollywood film “Namaste London”. The court found that a ‘copy’ of a film need not be a physical copy, but might also have a considerable likeness to the original. “Image content, foundation, and core” must be evaluated to determine infringement. In other words, a copy may include modifications or inspirations. The court concluded that the Bengali film is a copy or translation of the Hindi film. Namastey London is innovative, according to Purab Aur Paschim. The film’s Bengali idea and script were ignored.
Twentieth Century Fox filed the first legal cinematography infringement complaint against BR Films’ Banda Yeh Bindaas Hai. Sued:
BR Films Before a court verdict, the two producers assigned them, My Cousin Vinny rights. The media extensively covered the first time a Bollywood corporation had to pay for an illicit copy. Due to ambiguous court precedence, the parties settled. This arrangement benefits Hollywood studios financially.
The Indian film Partner (2007) was an obvious imitation of the American film Hitch:
Partner (2007) copied Hitch. Overbrook Entertainment and Sony Pictures asked the Partner’s authors to halt and put an end to these actions. Before the Bombay High Court could rule, the parties settled out of court. Overbrook didn’t press charges because there were no court rulings clarifying the matter or favoring Hollywood film businesses.
In order to appeal to Indian audiences, Bollywood studios say they “Indianize” Hollywood films by giving them Indian lead actors and actresses, incorporating more musical numbers, and stretching out the plots. It’s usually not easy to prove that the same statement appears in both films.
Scènes à faire and the Merger Doctrine hold that certain aspects (incidents, characters, and scenes) are so intrinsically linked to the idea that they cannot be copyrighted. Some situations, ideas, and plots simply can’t be employed in Bollywood since they blur the borders between metaphor and allegory. Using the same concepts in different forms of expression will undoubtedly result in some degree of similarity, but the vast variations between these forms preclude any claims of infringement. It is difficult to assert that a breach occurred because of how difficult it is to prove.
Indian Copyright law allows the recycling of Hollywood ideas. Such lifting may be unethical. It undermines the author’s work. The Indian Copyright Law allows producers to draw “inspiration” from Hollywood and Indianize it for their audience. Creativity and morality are overlooked for financial and territorial gain. The Indian courts must obey the TRIPS Agreement and Berne Convention, which India has signed. These agreements safeguard authors’ works and punish infringers. Indian law has been altered to liberally interpret “copying,” making Bollywood producers liable if they copy other works.
- Srivastava, S. (2018) ‘raabta’, ‘partner’, ‘Kaante’: How bollywood has dealt with plagiarism cases, Scroll.in. Scroll.in. Available at: https://scroll.in/reel/873364/raabta-partner-kaante-how-bollywood-has-dealt-with-plagiarism-cases (Accessed: October 31, 2022).
- Copyright infringement: Bollywood v. Hollywood (no date) Khurana And Khurana Advocates and IP Attorneys. Available at: https://www.khuranaandkhurana.com/2022/06/28/copyright-infringement-bollywood-v-hollywood/ (Accessed: October 31, 2022).
- Escholarship repository (no date) eScholarship, University of California. Available at: https://escholarship.org/repository (Accessed: October 31, 2022).
- quod_legalis (2021) Copyright infringement of a popular Bollywood movie, Quod Legalis. Blogger. Available at: https://www.quodlegalis.live/2021/05/copyright-infringement-of-popular.html (Accessed: October 31, 2022).