PROJECT :

R.G ANAND VS. M/S. DELUX FILMS & ORS.

Submitted To : Mrs. Jasmeet Kaur

Submitted By : Ramandeep Kaur Roll No 80/08 Uils

PETITIONER: R.G ANAND Vs. RESPONDENT: M/S. DELUX FILMS & ORS. DATE OF JUDGMENT18/08/1978 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SINGH,

JASWANT PATHAK, R.S. CITATION: 1978 AIR 1613 1979 SCR (1) 218 1978 SCC (4) 118

Act:
Infringement of a copyright in a play in a film-What are the tests-Whether copyright can be claimed in a theme. Suit for damages for infringement of a copyright-What are the principles.

Basis of Copyright Law. - The fundamental idea of violation

of copyright or imitation is the violation of the eighth commandment: "Thou shall not steal," which makes the moral basis of the protective provisions of the Copyright Act.. It is obvious that when a writer or a dramatist produces a drama, it is the result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyright work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour.

Test - There is no better way of detecting the piracy in an alleged infringing work than
by making a careful examination of it to see whether any of the deviation and mistakes which artistic licence permits in the original have been reproduced in the alleged infringing copy.

Similar mistakes - Where the mistakes committed by the plaintiff in

certain calculations in his book were found in the defendant's book in similar calculations it was held that the defendant had copied the calculations from plaintiff's book.

Common source - A person is at liberty to draw upon common sources

of information. But if he saves himself the trouble and labour requisite for collecting that information by adopting another's work with colorable variations, he is guilty of infringement of copyright, even though the original work is based on materials which are common property. Where the balance of convenience and inconvenience on both sides is equal, the defendant who has been proved to have prima facie infringed the copyright of the plaintiff's work must suffer inconvenience by grant of injunction rather than the plaintiff by not granting it.

Temporary injunction may be granted even if reference pirated by the defendant are insignificant compared to the total volume of the defendant's work.

52. Certain acts not to be infringement of copyright

(1) The following acts shall not constitute an infringement of copyright namely (a) A fair dealing with a literary, dramatic, musical or artistic work There is no category of work that is specifically excluded from protection under the Act. However it is clear from various decisions of the courts that copy right doesnt subsist in thoughts or ideas or in natural events.

Exception to the copyright infringement

The doctrine of fair use or fair dealing has been invoked by legislatures and judges to provide exceptions to copyright infringement. The moral justification for copyright is thata person should be able to reap the benefits of his or her creation or mechanical labour. The doctrine of fair use seeks to limit that exclusive right to extent in specific instances of overriding social interest. A copyrighted work can be used without the consent of the copyright holder to facilitate education, research and the dissemination of knowledge and information for the promotion of the economy and culture of a society. The fair use doctrine is a valid defence when there is market failure,or when transfer of use to the defendant will benefit society, or when such fair use would not cause any substantial injury to the copyright owner. Some typical circumstances under which the exceptions to copyright infringement are invoked ( in terms of fair use or otherwise) Factual material is open to public inspection. Act was done for parliamentary/judicial proceedings.

Acts done in pursuance of ends specifically authorised by copyright act such as advancement of education ise in libraries and or research in the course of instruction, performance in classrooms, broadcast recorder for educational use etc.

Protection of the publics right to be informed thorugh photographs,news shots, reporting of events. Use for the purposes of criticism or review. Public reading or recitation of literary work. Recording of work by a party that is entitled to broadcast it. Showing of braodcat to public audience who have not paid for admission to venue. Home taping of broadcast. Reproducing ones own work or using parts of it. Filming and /or broadcasting a sculpture/ work of art that is publicly situated. Reproduction of an article in an artistic effort. Backup copies of computer software. Copies made in situations where the author may be presumed to be dead for more than time gap permitted for copyright to exist after the death of the author/ artist. Copies made to advertise the product itself.

Headnote:
The appellant-plaintiff is a playwright, dramatist and producer of stage plays. The appellant had written and, produced a number of plays. The subject matter of the appeal however, is the play entitled (Hum Hindustani'. This play was written by him in the year 1953 and was enacted in the year 1954 and thereafter the play proved to be popular. In November 1954 the appellant received a letter from the second defendant-Mr. Mohan Sehgal requesting the appellant to supply a copy of the play so that he could consider the desirability of making, a film on it. Thereafter, the appellant and defendant No. 2 met at Delhi. In May, 1955 the second defendant announced the production of a motion picture entitled "New Delhi". The picture was released in Delhi in September 1956. The appellant saw the picture. The appellant filed a suit alleging that the film "New Delhi" was entirely based upon the play "Hum Hindustani", that the play was narrated by the appellant to defendant No. 2 and he dishonestly imitated the same in his film and thus committed an act of piracy as to result in

violation of the copy right of the plaintiff. The appellant, therefore, filed the suit for damages, for decree for accounts of the profits made by the defendant and a decree for permanent injunction against the defendants restraining them from exhibiting the film. The suit was contested by the defendants. The defendants pleaded that defendant No. 2 is a film director and producer and director of Deluxe Films defendant No. I that at the instance of a common friend Mr. Gargi the defendant No. 2 met the appellant and saw the script of the play, that the play was inadequate for The purpose of making of a full length commercial motion picture.

DIFFERENT

FROM THE PLAY BOTH IN CONTENTS, SPIRIT AND CLIMAX

: Defendants

contended that there could be no copy right so far as the subject of provincialism is concerned which can be used or adopted by anybody in his own way. The defendants further contended that the motion picture was quite different from the play both in contents, spirit and climax. The mere fact of some similarities between the firms and the play could be explained by the fact that the idea, provincialism was the common source of the play as also of the film. The trial court raised several issues and came to the conclusion that the appellant was the owner of the copy right in 'Hum Hindustani' but there was no violation of copy right of the appellant. Thereafter the appellant filed an appeal in the Delhi High Court. A Division Bench of the Delhi High Court upheld the decree dismissing the appellant's suit. The counsel for the appellant contended (1) that the principles enunciated and the legal inference drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India (2) the two 219 courts have not fully understood the imports of the violation of copy-right particularly when the similarities between the play and The film are so close that would lead to the irresistible inference and unmistakable impression that the film is nothing but an imitation of the play.

A VAST DIFFERENCE BOTH IN THE SPIRIT AND THE CONTENTS BETWEEN THE PLAY
AND THE

FILM: The counsel for the respondents submitted (1) that the two courts below

have applied the law correctly. (2) This Hon'ble Court may not enter into the merits in view of the concurrent findings of fact given by the two courts. (3) Even on the facts found it is manifest that there is a vast difference both in the spirit and the contents between the play and the film.

Appeal:
Dismissing the appeal by special leave the Court HELD: (a) In order to appreciate the argument of the parties the court discussed the law on the subject.

COURT RELIED ON THE OLD LAW PASSED BY THE BRITISH PARLIAMENT VIZ., THE COPYRIGHT ACT OF 1911. S. 1 SUB-SEC. (2)(D) : At the time when the cause of action
arose in the present suit, the Indian Parliament had not made any law governing copyright violation and therefore the court relied on the old law passed by the British Parliament viz., the Copyright Act of 1911. S. 1 sub-sec. (2)(d) defines copyright as including in the case of a literary, dramatic or musical work, to make any record, performed roll. Cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered. S. 2(i) defines that copyright in a work shall be deemed to be infringed by any person who without the consent of the owner of the copyright, does anything, the sole right to do which is by this Act conferred on the owner of the copyright. The play written by the appellant falls within the definition of copyright. The following is summary of the decided cases in England, America and India on the question of copyright. 1. NO COPYRIGHT IN AN IDEA, SUBJECT MATTER, THEMES, PLOTS OR HISTORICAL
OR LEGENDARY FACTS AND VIOLATION OF THE COPYRIGHT :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 tile author of the copy-righted work. 2. SIMILARITIES ARE BOUND TO OCCUR, IN ORDER TO BE ACTIONABLE THE COPY
MUST BE A SUBSTANTIAL AND MATERIAL ONCE WHICH LEADS TO THE CONCLUSION THAT THE DEFENDANT IS GUILTY OF AN ACT OF PIRACY.: 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. 1249 A-C] 3. THE READER, SPECTATOR OR THE VIEWER GETS AN UNMISTAKABLE IMPRESSION
OF WORK TO APPEAR A COPY OF THE ORIGINAL. One of the surest and the safest test to

determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4.IF A WORK PRESENTED AND TREATED DIFFERENTLY COMPLETELY NEW WORK

: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. 5. COINCIDENCES APPEARING ARE INCIDENTAL AND NO INFRINGEMENT OCCURS: Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two words are clearly incidental no infringement of the copyright comes into existence. 6. MUST BE PROVED BY CLEAR AND COGENT EVIDENCE: As a violation of copyright amounts to an act of piracy it must be proved . By clear and cogent evidence after applying the various tests laid down by decided cases . 7. , IF THE VIEWER AFTER SEEING THE FILM GETS A TOTALITY OF IMPRESSION THAT
THE FILM IS BY AND LARGE A COPY OF THE ORIGINAL PLAY, VIOLATION OF THE COPYRIGHT MAY BE SAID TO BE PROVED.: Where however the question is of the

violation of the copyright of a stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the Idea. Even so, if the viewer after

seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved. Hanfstaengl v. W. H. Singh & Sons, [1905] 1 Chancery Division 519; Bobbs-Merill Co. V. Isdor Straus and Nathan Strau, 210 US 339; West Francis, (1822) 1 B & Ald. 737, 743; Ladbroke (Football) Ltd. V. William Hill (Football) Ltd. (1964) 1 All. E.R. 465; Corelli v. Gray, 29 T.L.R. 570; Hawkes & Son (London) Ltd. V. Paramount Film Service Ltd., (1934) 1 Ch. D. 593; Harman Pictures N. V. V. Osborne & Ors., (1967) 1 W.L.R. 723; Donoghue v. Allied Newspapers Ltd. (1937) 3 All. E.R. 503; Bobl & Anr. V. Palace Theatre (Ltd.) & Alir. 28 T.L.R. 72; Tate v. Fullbrook, 77 Law Journal Reports 577; Frederick. B. Chatterton & Benjamin Webster v. Joseph Arnold Cave, (1878) 3 A.C. 483; Sheldon v. Metro-Goldwyn Pictures Corp., 81 2d 19; Shipman v. R.K.o. Radio Pictures, 100 2d 533, Michael v. Moretti v. People of the State of Illionois, 248 2d 799=356 U.S. 947, Warner Bros. Pictures v. Columbia Broadcasting System, 216 F 2d 945: Otto Eisenchiml v. Fawcett Publications, 246 2d 598; Dorsey v. Old Surety. Life Ins., Co., 98 F. 2d 872; Twentieth Century Fox Film Corporation v. Stonesifer, 140 2d 579; Oliver Wendel Homes v. George D. Hurst, 174 U.S. 82; Macmillan & Co. Ltd. V. K. & J. Cooper, 51 I.A. 109; Florerlce A Deeks v. H. G. P Wells & Ors., 60 I.A. 26; N. T. Ragllunathan & Anr. V. All India Reporter Ltd., Bombay, A.I.R. 1971 Bom. 48, K. R. Venugopala Sarma v. Sangu Ganesan, 1972 Cr. L.J.. 1098; The Daily Calendar Supplying Bureau, Sivakasi v. The United Concern, A.I.R.. 1967 Mad. 381; Hantsiaenql v. Bains & Co., 1895 A.C. 20 (25); C. Gunniah & Co. V. Balraj & Co., A.I.R. 1961 Mad. 111; Mohendra Ghundra Nath Ghosh & ors. V. Emperor, A.I.R. 1928 Cal. 359. S. K. Dutt v. Law Book Co. & Ors. A.I.R. 1954 All. 570; Romesh Chowdhry & Ors v. Kh. Ali Mohammad Nowsheri & Ors., AIR 1965 J. & K.101 and Mohini Mohan Singh & Ors v. Sita Nath Basak, AIR 1931 Cal. 238; referred to. The learned trial Judge who had the advantage of seeing the picture was of the opinion that the film taken as a whole is quite different from the play written by the appellant. This Court also got the play read to the learned Judges and the learned Judges also saw the film.

The Court came to the conclusion that the essential features of the play are as under:
1. That the central idea of the play is based on provincialism and parochialism. 2. The evils of provincialism are illustrated by the cordial relations of the two families being marred because of an apprehended marriage tie which according to both the families WAS not possible where they belonged to different States. 3. That the Madrasi boy Amni is a coward and in spite of his profound love 'or Chander he does not muster sufficient courage to talk the matter out with his parents. 4. That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into a suicidal pact and write letters to their parents intimating their intention. 5. It was only after the letters are perused by the parents that they realise he horror of parochialism and are repentant for having acted so foolishly. 6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well.

The Court came to the conclusion that the essential features of the film are as under:(1) TWO
ASPECTS OF PROVINCIALISM VIZ.

THE

ROLE OF PROVINCIALISM IN REGARD TO

MARRIAGE AND IN REGARD TO RENTING OUT ACCOMMODATION SOCIETY, AND

(2) EVILS OF A CASTE RIDDEN

(3)

THE EVILS OF DOWRY.

It is true that there are following similarities in the

two. (i) PUNJABIS, BENGALIS, GUJARATI, MARATHAS, MADRASIS, SINDHIS : Before the actual stage play, the producer gives a narrative. He states that although we describe

ourselves as Hindustanis we are not really Hindustanis. He questions the audience as to what they are and various voices are heard. To say in their own provincial language that they are Punjabis, Bengalis, Gujarati, Marathas, Madrasis, Sindhis etc. In the said Film the same idea is conveyed and the hero of the picture is shown searching for a house in New Delhi and wherever he goes he is confronted by a landlord who describes himself not as a Hindustani but as a Punjabi, Bengali, Gujarati, Marathi, Madarasi or Sindhi. (ii) PROVINCIALISM: Both the said play and the said film deal with the subject of Provincialism. (iii) EVOLVE A DRAMA AROUND PUNJABI AND THE OTHER A MADRASI FAMILY: Both the said play and the said film evolve a drama around the lives of two facilities, one a Punjabi and the other a Madrasi family. (iv) THE NAME OF THE MADRASI FATHER IS SUBRAMANYAM : In both the said play and the said film the name of the Madrasi father is Subramanyam . (v) FILM HAVE THEIR LOCALE IN NEW: Delhi Both the said play and the said film have their locale in New Delhi. (vi) SHOW CORDIALITY OF RELATIONS BETWEEN THE TWO FAMILIES.: Both the said play and the said film show cordiality of relations between the two families.

(vii) DISRUPTION OF CORDIAL RELATIONS WHEN FAMILIES DISCOVER THE

EXISTENCE OF A LOVE AFFAIR: Both the said play and the said film show the disruption

of cordial relations as soon as the heads of the families discover the existence of a love affair between their children. (viii) THE PARENTS WARN THEIR RESPECTIVE CHILDREN: In both the said play and the said film, both the parents warn their respective children not to have anything to do with each other on pain of Corporal punishment. (ix) ENTIRE DIALOGUE BASED UPON THE SUPERIORITY OF ONE PROVINCE OVER THE
INHABITANTS OF THE OTHERS: The entire dialogue in both the said play and the said film

before and after the disruption is based upon the superiority of the inhabitants of one Province over the inhabitants of the others. (x) GIRL FOND OF MUSIC AND DANCING: In both the said play and the said film the girl is shown to be fond of music and dancing. (xi) HERO IS SHOWN AS A COWARD: In both the said play and the said film the hero is shown as a coward to the extent that he has not the courage to go to his parents and persuade them to permit him to marry a girl hailing from another Province. (xii) GIRL IS LISTENING TO THE DIALOGUE FROM BEHIND A CURTAIN: Both in the said play and in the said film, when the parents of the girl are discussing marrying her off to somebody the girl is listening to the dialogue from behind a curtain. Thereafter the girl runs to the boy and explains the situation to him. (xiii) GIRL WRITES A LETTER OF SUICIDE: In both the said play and the said film, the girl writes a letter of suicide. (xiv) IN PLAY BOTH THE CHILDREN GO FOR SUICIDE WHEREAS IN FILM ONLY GIRL
GOES OUT TO SUICIDE : In the said play reconciliation takes place when the children of the

two families, who were in love, go out to commit suicide by drowning etc., whereas in the said film, it is only the daughter who goes out to commit suicide by drowning herself in the Jamuna.

(xv) IN THE SAID PLAY THE CHILDREN ARE STOPPED FROM COMMITTING SUICIDE BY
AN ASTROLOGER whereas in the said FILM THE GIRL IS STOPPED FROM COMMITTING SUICIDE BY A FRIEND OF THE FAMILY.

(xvi) In the said PLAY RECONCILIATION BETWEEN THE TWO FAMILIES TAKES PLACE
ONLY AFTER THEY HAVE EXPERIENCED THE SHOCK OF THEIR CHILDREN COMMITTING SUICIDE on account of their provincial feelings whereas in the FILM, THE FATHER OF THE GIRL REALISED HIS MISTAKE AFTER EXPERIENCING THE SHOCK OF HIS DAUGHTER COMMITTING SUICIDE.

(xvii) STRESS LAID ON FEELING OF PROVINCIALISM: In both the said play and the said film, stress is laid on the fact that although India is one country, yet there is acute feeling of provincialism between persons hailing from its various States even though they work together and live as neighbours. (xviii) DIALOGUE CENTRE AROUND THE SAME SUBJECT : Both in the said play and in the said film even the dialogue centres around the same subject of provincialism.

However, the Court found following dissimilarities:(i)

PROVINCIALISM RISES ON MARRIAGE:In the play provincialism comes on the

surface only when the question of marriage of Amni with Chander crops up where

PROVINCIALISM

RISES IN THE BEGINNING: In the picture it is the starting

point of the story when Anand goes around from door to door in search of accommodation but is refused the same because he does not belong to the State from which the landlord hails as a result thereof Anand has to masquerade himself as a Madrasi. This would therefore show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which not developed or stressed in the play. (ii)

TWO

FAMILIES ARE FULLY AWARE OF THE IDENTITY OF EACH: other

similarly in the play the two families are fully aware of the identity of each other whereas

PERFORMANCE OF JANKI AND ANAND DISCLOSE THE IDENTITY OF TWO

FAMILIES: In the film they are not and in fact it is only when the dance

Performance of Janki and Anand is staged that the identity of the two families is disclosed which forms one of the important climaxes of the film. Thus, the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play. (iii)

NO SUICIDAL PACT IN THE FILM: In the film there is no suicidal pact between
the lovers but only a suicide note is left by Janki whereas in the play both the lovers decide to end their lives and enter into a suicidal pact and leave suicide note to this effect. Furthermore, while in the play Amni and Chunder get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janki's real identity is disclosed and Subramaniam also finds out that his daughter is alive.

(iv)

IN

THE PLAY

PUNJABI

AND THE

MADRASI

FAMILIES BUT IN THE FILM

THERE ARE THREE IMPORTANT FAMILIES, NAMELY, THE FAMILY, THE

PUNJABI

MADRASI FAMILY AND THE BENGALI FAMILY: The story in

the play revolves around only two families, namely, the Punjabi and the Madrasi families but in the film there are three important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat Ram. (v)

ASPECT OF THE MATTER IS COMPLETELY ABSENT IN THE PLAY: The film

depicts the evil of caste ridden society and exposes the hollowness of such a society when in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play.

(vi)

EVIL

OF DOWRY APPEARS IN THE FILM: The film depicts another important

social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplus age or embellishments in the story of the film but are important and substantial part of the story.

Conclusion
The Court came to the conclusion that the number of similarities by themselves are not sufficient to raise an inference of colourable imitation. The similarities are trivial and touch insignificant points and do not appear to be of substantial nature. The appellant has failed to prove that the defendants committed colourable imitation of the play. 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. The theme of provincialism may have been the same, the latter work had been presented and treated differently and that though there were some similarities appearing in the two works, there were also material and broad dissimilarities which negated the intention to copy the original and the coincidences appearing in the two works were clearly incidental. Thus there was no infringement of a copyright in this case.

BIBLIOGRAPHY

Intellectual property law Parameswaran Narayanan Eastern Law House, 2002 Freedom of press: politico-legal aspects of press legislations in India Sita Bhatia Rawat Publications, 1997 Managing intellectual property: the strategic imperative Vinod V. Sople PHI Learning Pvt. Ltd., 2006 Intellectual property rights for engineers Vivien Irish, Institution of Electrical Engineers IET, 2005