Bikramjeet Singh Bhullar vs. Yash Raj Films Private Limited & Ors.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 20 December, 2023
+ CS(COMM) 483/2022
BIKRAMJEET SINGH BHULLAR ..... Plaintiff
Through: Mr. Chander M. Lall, Senior
Advocate with Mr. Joseph Koshy, Ms. Ananya
Chugh, Mr. Indrani Mohan and Mr. Ankit
Chauhan, Advocates.

versus

YASH RAJ FILMS PRIVATE LIMITED & ORS.
..... Defendants
Through: Mr. Abhishek Malhotra and
Ms. Atmaja Tripathy, Advocates for D-1, 3, 8 and
9.
Mr. Parthasarathy Bose and Mr. Aman Gandhi,
Advocates for D-2 and D-4.
Mr. Rajshekhar Rao, Senior Advocate with
Mr. Deepak Biswas, Advocate for D-6 and 7.

CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
I.A. 11030/2022 (under Order XXXIX Rules 1 and 2 CPC, by Plaintiff)
1. This judgment will dispose of the present application seeking interim
injunction against the Defendants and all others acting on their behalf from
making, producing, distributing, broadcasting, communicating to the
public, adapting, telecasting, exhibiting in theatres, and/or on television
and/or online platforms (including any ‘OTT platform’ or other streaming
platform) the impugned film titled “Shamshera”, or any part(s) thereof, or
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Signed By:KAMAL KUMAR
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any other similar work amounting to infringement of Plaintiff’s copyright
in his copyrighted script titled ‘Kabu na chhadein Khet’ (hereinafter
referred to as the ‘KNCK’).
2. Facts to the extent relevant for the present application are that in or
around 2006, Plaintiff conceived the idea/concept of a work, which he set
out in writing and is stated to be a fictionalised period drama set around the
th
18 Century. In the year 2008, KNCK, the literary work was manifested/
condensed into a short cinematography film having a runtime of 10
minutes, written and directed by the Plaintiff, wherein the story created by
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the Plaintiff was set in the 19 Century. In October, 2008, the film was
screened at the Spinning Wheel Film Festival, Toronto under title KNCK
and the voice over was done by renowned actor Late Shri Om Puri.
Plaintiff continued to further flesh out the work and wrote a full-fledged
story/script/screenplay running into 40 pages. On 11.05.2009, the concept
work was registered with “The Film Writer’s Association”.
3. Plaintiff asserts that looking out for an appropriate opportunity to
pitch his script to a large production house, on 03.02.2016 he approached
Defendant No. 5, who was the then Creative Head of Defendant No. 2, so
that his work KNCK could be made into a big budget cinematograph film
and communicated the main aspects of his work, including that the story
was a tale of revenge, oppression, enslavement and freedom involving a
small village’s rebellion against a mighty foreign invader. Defendant No. 5
responded to the email vide his email dated 04.02.2016 and expressed
interest in KNCK and asked the Plaintiff to submit a synopsis and
screenplay along with details of Plaintiff’s professional background.
Defendant No. 5 also stated that Plaintiff should sign a document which
Defendant No. 2’s legal team would forward in line with their standard
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procedure, following which Plaintiff’s material would be read. It later
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turned out that the document was a Non-Disclosure Agreement (hereinafter
referred to as the ‘NDA’). Defendant No. 5 communicated that a meeting
could be set up thereafter, once Defendant No. 2 decided to consider
working on KNCK. Subsequently, correspondences were exchanged
between Plaintiff and Defendants No. 2 and 5.
4. It is further averred that by email dated 04.02.2016 Plaintiff received
a draft NDA from Defendant No. 2’s team seeking certain particulars from
the Plaintiff to finalise the Agreement. Plaintiff re-worked and further
fleshed out the script/screenplay and also populated/printed and signed the
NDA. By an email dated 08.02.2016, Plaintiff shared the required
particulars with Defendants No. 2 and 5 along with a copy of the signed
NDA and by another email dated 03.02.2016 shared the synopsis of
KNCK. Responding thereto, Defendant No. 5 by an email dated
23.02.2016, wrote to the Plaintiff that Defendant No. 2’s team had read the
synopsis and requested for sharing the script/screenplay. Promptly the
Plaintiff shared an attachment of the updated screenplay/script with
Defendants No. 2 and 5 by email dated 27.02.2016. By email dated
04.03.2016, Defendant No. 5 not only acknowledged reading of the
screenplay but also stated that he was interested and suggested next steps
including asking the Plaintiff to develop the work further and share a
complete script with dialogues to see how it plays out clearly. Plaintiff
shared a further re-worked script/screenplay on 12.05.2016 and
significantly on 17.05.2016, Defendant No. 5 acknowledged that he had
read the complete script and also appreciated the work done. Defendant
No. 5 invited the Plaintiff for a meeting at Defendant No. 2’s office to
discuss the work further.
5. It is further stated that Plaintiff was informed that, an in-house
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Director in Defendant No. 2 i.e. Defendant No. 6 was interested in KNCK
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and had offered to read the script shared by the Plaintiff following which
the project could be taken ahead. Between August and December, 2016
extensive correspondence/communication took place between the Plaintiff
and Defendants No. 5 and 6 including meetings with the creative team of
Defendant No. 2, which according to the Plaintiff is evident from
communications dated 04.08.2016, 06.08.2016, 08.08.2016 etc. and going
upto 25.12.2016. Each of these emails, as asserted, shed light on the fact
that the script was read by Defendant No. 6 and even hardcopies of
Plaintiff’s revised work were shared between Defendants No. 5 and 6.
Plaintiff asserts that certain suggestions/inputs were given to the Plaintiff,
which were incorporated under the impression that his work would develop
into a cinematograph film albeit the changes were mere embellishments
and did not detract from the core and/or kernel or the principal ethos of the
Plaintiff’s work.
6. In January, 2017, however, Defendant No. 5 informed the Plaintiff,
to his shock, that he had no intent to work on KNCK as Defendant No. 2
had decided to produce another film of the same genre and Plaintiff was
free to pursue other opportunities. As it later transpired the film that was
finally released was ‘Kesari’. Having apprehension that ‘Kesari’ was based
on Plaintiff’s work, he approached this Court in 2019 alleging similarities
in the poster of the film. However, on viewing the film ‘Kesari’, Plaintiff
found that only commonality was that the script and the film were of the
same genre and therefore, Plaintiff honestly and candidly decided not to
pursue the legal action.
7. Plaintiff asserts that in May, 2018, Defendant No. 1 announced its
film titled ‘Shamshera’ produced by Defendant No. 1 with Defendant No. 6
as writer/director and his wife Defendant No. 7 as screenplay writer. Under
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the guise of confidentiality, several details involving the film were
contemporaneously not disclosed.
8. Plaintiff avers that suddenly out of the blue in October, 2020,
Defendant No. 6 reached out to the Plaintiff and as the correspondence that
ensued would indicate, Defendant No. 6 wanted to touch base with the
Plaintiff and asked him to share the latest draft of his work. Defendant No.
6 expressed his intention to go through material again as he was in the
process of finalising his next film. Understanding the strategy of Defendant
No. 6, Plaintiff decided not to expend any further time on communicating
with Defendant No. 6, only to find that on 24.06.2022, trailer of
‘ Shamshera’ was released on YouTube and from the trailer it was clear that
the film was based on and/or was an adaptation and/or a substantial
reproduction/imitation/copy of Plaintiff’s work. This was not only a
copyright infringement but a case of breach of confidentiality by the
Defendants. Defendants No. 2, 5 and 6 and through them the others had
complete access to Plaintiff’s work and had parted information to third
parties including Defendant No. 1 to enrich themselves unjustly. The
access is further evident from the sudden request from Defendant No. 6 in
2020 even after he had moved from Defendant No. 2 to Defendant No. 1.
9. As per the trailer the film was slated for a theatrical release on
22.07.2022. With utmost dispatch Plaintiff wrote an email to Defendants
No. 2, 5 and 6 on 25.06.2022 stating that the film was entirely based on
KNCK. Defendant No. 6 by an email dated 28.06.2022 denied that there
was any substantial similarity between the rival works but there was no
denial of access to the entirety of Plaintiff’s work. Plaintiff by an email
dated 29.06.2022 reiterated that similarities were too many to ignore and
sought an audience before screening of the film to allay his apprehensions
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at the earliest only to be informed by Defendant No. 6 that there was no
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need to engage further on the subject. This was followed by a legal notice
on 06.07.2022 by the Plaintiff, to which there was no response from the
concerned Defendants, constraining the Plaintiff to approach this Court.
10. Learned Senior Counsel appearing on behalf of the Plaintiff
contended that there were striking similarities between the rival works,
which cannot be a mere coincidence. Mere comparison of the Plaintiff’s
work with the impugned film would show that Plaintiff’s work has been
plagiarized by the Defendants, who have also acted in gross breach of
confidentiality. Defendants’ impugned film ‘Shamshera’ is a substantial
reproduction and/or adaptation and/or imitation and/or copying of
Plaintiff’s work KNCK, details of which have been set out in a comparative
table in para 29 of the amended plaint. Defendants have not only infringed
Plaintiff’s literary work(s) in KNCK by copying it substantially in their
film but have also copied the expressions. The rival works when compared,
relate to the same genre i.e. period drama. Plaintiff’s world/characters
include the underdogs with a particular setting in North India. The
commonality extends to active protagonist, the legend, the antagonist,
animal, birds, boiling hot water etc. used in movie. The core story in the
script involves revenge by the son, oppression by foreign invaders, the
Afghans, enslavement, freedom, spanning two generations involving a
father and his son, based on fictionalised village set in the 1700s/1800s.
The script, as it goes, deals with father’s legacy and his defiance to fight
the foreign invaders which led to his treacherous killing and which proves
to be a turning point for the son. The son leads a rebellion against a
powerful Afghan army and attacks the antagonist’s fortress, exhibiting
extraordinary battle skills and valour with the final showdown being face-
off with handheld weapons and hand to hand combat between the son and
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Rashid Khan. This is really the substance of Plaintiff’s work and
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Defendants’ film is substantially similar in terms of the genre, the
underdogs, setting, active protagonist and antagonist, use of boiling hot
water, birds, secret tunnels. The core plot of the film is revenge by the son,
oppression by Britishers, enslavement and freedom and a transit between
two generations.
11. Much emphasis was laid by learned Senior Counsel for the Plaintiff
on the fact that two songs ‘Fitoor’ and ‘Ji Huzoor’ are slavishly copied by
the Defendants and a detailed comparative table as well as screenshots
from the film to support the stand of the Plaintiff were relied on. Compared
and contrasted with the stark similarities, the dissimilarities brought forth
by the Defendants are trivial and the defence set up against infringement
that the similarities, if any, are insignificant and coincidental or those
which are common to most films, is a desperate attempt to obfuscate the
issue.
12. It was next contended that Defendant No. 6 had clear access to the
script/screenplay of the Plaintiff and apparently the same was shared with
Defendant No. 1 as a result of which there are so many similarities in the
film viz-a-viz the Plaintiff’s script. The contradictory stands taken by
Defendant No. 6 is itself evidence of the fact that being privy to the script
and having access thereto he colluded with Defendant No. 1 and facilitated
the making of the impugned film. Post the issuance of legal notice by the
Plaintiff, Defendant No. 6 in the reply dated 15.07.2022 stated that he left
Defendant No. 2 in May, 2016. Defendant No. 6 admits that he met the
Plaintiff in Defendant No. 2’s office in August, 2016 and contacted
Defendant No. 4 in October, 2016 seeking further improvement in the
script to his satisfaction. However, in reply to the injunction application it
is stated that he left Defendant No. 2 in 2018 and joined Defendant No. 1
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immediately. Per contra in the additional reply, it is averred that he left
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Defendant No. 2 in 2017 and was freelancing till he joined Defendant No. 1
in February, 2018. In fact, Defendant No. 6 perused the script even post-
leaving Defendant No. 2 solely to secure his interests and make the film as
his own creation. The song Fitoor finds mention in the script and narrative
of the Plaintiff, however, the narrative in the script of the Defendants does
not portray the manner in which the song is finally presented in the film.
This and the fact that two allegedly independent writers, Defendants No. 8
and 9, who had never discussed the script with the Plaintiff, made a
substantial copy is reflective of the fact that the common factor was
Defendant No. 6, who admittedly had access to the script of the Plaintiff.
13. It was next contended that under Section 13 of the Copyright Act,
1957 (hereinafter referred to as the ‘1957 Act’) copyright subsists in
Plaintiff’s work and it is sufficient if the Plaintiff proves that Defendants’
film is a substantial copy of Plaintiff’s work if not a copy of the entire
work. By virtue of Section 14 of the 1957 Act all rights in the copyrighted
work vest in the Plaintiff as enumerated in the said provision and this is an
exclusive right to the exclusion of all others including the Defendants. The
acts of the Defendants amount to infringement of Plaintiff’s copyright by
virtue of a deeming fiction under Section 51 of the 1957 Act.
14. Learned Senior Counsel for the Plaintiff had emphatically drawn the
attention of the Court to the comparative tables, alleging that there are
multiple similarities in the script of the Plaintiff and the impugned film, but
without prejudice to the said argument, had also contended that the test is
whether the average audience would recognise the appropriation and
invoked the unambiguous concept of de minimis. It was argued that the
position of law as it obtains today in the field of idea-expression dichotomy
is that even common ideas and themes are protected. In Anil Gupta and
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Anr. v. Kunal Dasgupta and Ors., 2002 SCC OnLine Del 250, Delhi High
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Court has held that in modern day, when small screen has taken over the
earlier means of mass communication like radio, idea/concept/script of a
broadcaster has wider potentiality of capitalising revenue and if that idea is
not protected then the person who has conceived the idea, to be translated
into a reality TV show, which could be a key to its success, then the
channels with their enormous resources would always be in a better
position to adopt the idea from any Author and develop it at their own end,
leaving the original Author of the concept high and dry. An idea per se has
no copyright but if it is developed into a concept fledged with adequate
details, the same is registrable under the 1957 Act.
15. Mr. Abhishek Malhotra, learned counsel represented Defendants
No. 1, 3, 8 and 9 and Mr. Rajshekhar Rao, learned Senior Counsel
addressed arguments on behalf of Defendants No. 6 and 7 and albeit
separate written statements were filed but the arguments primarily are
common and a common written note has been filed on their behalf.
16. It was contended on behalf of the Defendants that the Plaintiff has
failed to make out case for grant of interim injunction, as neither of the
ingredients of prima facie case, balance of convenience and irreparable
injury, have been made out. To establish a prima facie case of copyright
infringement, Plaintiff must establish that Defendants had access to
Plaintiff’s work and there is substantial similarity in the rival works i.e. an
average person upon considering two works would inevitably conclude that
Defendants have copied substantial and material portions and the original
elements in Plaintiff’s work. The two tests are conjunctive and mere access
is not enough for the Plaintiff to prove infringement by the Defendants. The
reason that substantial similarity is to be established independent of access
is because the right conferred in relation to a literary work under Section
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14(a) of the 1957 Act is with respect to the work as a whole or a substantial
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part thereof and only when a substantial copy is shown, Section 51 of the
1957 Act comes into play. While Defendant No. 6 cannot deny access,
however, in the absence of the Plaintiff demonstrating substantial
similarity no injunction can be granted. In the past, Plaintiff had sued the
Defendants in relation to the film titled ‘Kesari’ and while there was
access, Plaintiff had withdrawn the case after watching the film as the only
commonality between Plaintiff’s script and ‘Kesari’ was that they were of
same genre.
17. It was urged that the legal requirements required to be fulfilled by
the Plaintiff to establish a prima facie case of copyright infringement are
crystalized by the Supreme Court in the judgment of R.G. Anand v. Delux
Films and Others, (1978) 4 SCC 118 . In the principles culled out by the
Supreme Court it is clearly elucidated that in order to be actionable, copy
must be a substantial and material one, which at once leads to the
conclusion that Defendant is guilty of piracy and the surest and safest test
to determine violation of copyright is to see if a reader, spectator or 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.
18. Plaintiff’s argument on substantial similarity is not only flawed but is
also inconsistent through the course of hearing. The primary flaw in the
argument is that rather than comparing the script with the film to show
substantial similarity, Plaintiff took the film, as presented, to be an
expression of how his script would be filmed/executed and then proceed to
pick individual elements, disjointed from the context to support the
allegation of substantial similarity. Furthermore, erroneously the Plaintiff
seeks to claim rights over factual/thematic/ideation such as period drama,
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story of suppression by foreign invaders and revenge and father-son story
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where father looks like the son and takes revenge. Interestingly, while
initially Plaintiff alleged that the entire film was a copy of the script, the
argument over the course of hearing changed to a substantial copy and
finally emphasis was laid on the two songs and their identity. While this
inconsistent stand cannot be permitted, even otherwise none of the three
aspects alleged to be copied substantially, can establish infringement by the
Defendants, even prima facie. Insofar as the period drama is concerned,
Plaintiff himself admits that the script is inspired by ‘Bahubali’ and in any
case there are many other films that have been period dramas. Countless
films, such as, Kranti, Kesari, Mard, Braveheart, etc. have been made on
story of suppression by foreign invaders and revenge. The aspect of
revenge in Plaintiff’s script is nothing to do with the son taking revenge of
the father and there are only stray references to the protagonist’s father in
Plaintiff’s script. It is also to be noted that there are multiple films which
have presented this thematic idea and Plaintiff cannot claim monopoly. As
an illustration, movies like Zanjeer, Agneepath, Aakhree Rasta, etc. were
cited on behalf of the Defendants. Similarly, use of burning oil to scald has
been used in multiple stories/films including Slumdog Millionaire etc. and
the secret under water tunnels are also featuring in several films such as
The Tunnel, The Great Escape and so on. Plaintiff claims similarity in the
theme on the anvil of the antagonists in both works being barbaric foreign
invaders, who plunder the village and the protagonists fighting for freedom
from this terror. A ‘theme’ cannot be accorded copyright protection as per
the settled law and additionally, there are various films which have typified
this theme, such as Kesari and is best a ‘stock’. Even otherwise the themes
are materially different and distinct in the rival works. While the village of
Noorpur is central to the theme and story of KNCK, as possibly the only
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village that withstands the terror and plunder of the Afghans, there is no
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such village that is subject matter of the film. Instead, the film refers to a
tribe of erstwhile warriors who have been shunned by the society as lower
caste and have retreated to the jungle, where the only way of survival is by
looting the upper castes. The upper caste locals bribe the British, who are
not portrayed as barbaric invaders, to get rid of the looting menace of the
Khameran tribe. The central barbaric character is not a foreigner but
Shuddh Singh, an upper caste Police officer, who tricks the Khamerans into
slavery.
19. It was contended that the theme of death of a father and the son
carrying forward his legacy is also not copyrightable. Multiple films such
as Agneepath, Braveheart are based on this theme. Character of Shamsher
in KNCK is not relevant or central to the script, which revolves around
resistance of Kartar and his villagers against the marauding Afghans.
Kartar is not carrying forward his father’s legacy. The film revolves around
the treaty signed between the British and Shamshera, a price that
Khamerans had to pay for their freedom and the task which could not be
completed by the father due to his killing, is completed by the son Balli.
There are differences between the lead characters and their respective roles
including the climax. There cannot be a copyright infringement in concepts
or ideas which emerge from the scenes in the script, besides the fact that
they are common to several earlier films or are based in history.
20. It was argued that much emphasis was laid by the Plaintiff on the
fact that there are certain scenes in the film such as back-stabbing in the
climax as well as in the description of the song sequence for the song
Fitoor including the scene of the protagonist putting on a ghaghra for the
song Ji Huzoor . The over-emphasis is misplaced, since unlike a script,
which is an individual and isolated process, film making is collaborative,
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involving contributions from various creative persons including lyricists,
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music composers, choreographers, art directors, producers etc. Thus, even
when a script/screen play is said to be ‘locked’, it is always subject to
modifications on account of various factors such as locations, weather,
availability of props, animals etc.
21. It was contended that insofar as the two songs are concerned, which
was really the bone of contention to begin with, this comparison itself is
incorrect and impermissible in law and contrary to the ratio of the judgment
in R.G. Anand (supra), which holds that works must be compared as a
whole and not by picking and choosing parts of one to compare with parts
of another. The description of the song by the Plaintiff is, in any event, not
protectable since it consists only of an idea/theme of two lovers engaged in
a sensuous song sequence in the backdrop of snow and wrapped in a red
dari. Perhaps the only part protectable is the use of red dari, which
significantly was not used by the Defendants. The scene description in the
Plaintiff’s script is not original and unprotectable since the same has been
used in numerous films such as Mohra, Chandni etc. Moreover, even on the
touchstone of qualitative comparison, the song sequences are not a
substantial part of Plaintiff’s work, since four out of five versions of the
script do not have this description of the song. There is no co-relation
between the description in the script and the screenplay of the song in the
Defendants’ film as is demonstrable from a mere viewing of the song.
Defendants’ song contains a more detailed expression and bigger canvass
of a generic love sequence, typical to a lot of Bollywood film songs, where
on a plateau with sand, the lead actor and actress make love with each
other, finally leading to their marriage.
22. Plaintiff has repeatedly asserted that there is stark similarity in the
use of ghaghra in a song sequence Ji Huzoor. According to the Plaintiff’s
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script, in one of the scenes there is a reference to a song where an Iranian
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dancer swirls her ghaghra and various dancers emerge from under the
ghaghra. However, contrasted with this, in the film there is no swirling of
the ghaghra to show emergence of children. The song sequence has the
protagonist dancing with kids and as part of the mischievous tilt to the song
sequence, the man jumps off a portion of a living space and laches on to the
clothing to cushion his fall, none of which is present in the Plaintiff’s
script. There cannot be a copyright in an idea of using a certain piece of
clothing, which is common place and nor in the idea of clothing being
swirled or emergence of people from under it.
23. The entire exercise of infringement analysis by the Plaintiff is
convoluted and unknown to law. Plaintiff is required to first identify his
work, especially the qualitative substantive portions and then demonstrate
how those have been substantially copied by the Defendants as an
expression, in the film. Instead, Plaintiff has taken Defendants’ film as the
starting point, instead of his script as the base and juxtaposed different and
out of context situations from his script to distort and fit the same into
Defendants’ film. Interestingly, there is no dispute or denial in replication
to the paras of the written statement where Defendants have brought forth a
summary of scene by scene flow of Plaintiff’s five scripts compared with
scene by scene flow of the film. Plaintiff has himself acknowledged that his
story is based on and inspired by earlier films such as ‘Bahubali’ and
different parts of the script referred to song sequences such as ‘kajra
mohabbatwala’ or ‘mere haathon mein nau nau churiyan’ evidencing that
inspiration from existing works is common place in the film industry.
24. It was argued that the ideas, expressions, storytelling, storyline,
characters, caste issues, are different in the rival works and thus mere
access to the script albeit admitted by the Defendants, would not justify a
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finding of copyright infringement, in absence of demonstrated substantial
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similarity in the two works. Plaintiff relied on the judgment in Anil Gupta
(supra) , to argue that an injunction order was granted in respect of use of
an idea of an age-old tradition such as Swayamwar and therefore, generic
elements can be monopolized and protected under the Act. This is a
fallacious argument as in the said judgment the injunction was granted not
to protect the concept of Swayamwar but the manner in which it was
expressed or portrayed by the Plaintiffs and another aspect that went
against the Defendants was their refusal to provide details of their proposed
expression of Swayamwar. In the present case, the ideas, expressions etc.
all being different, the judgment is inapplicable.
25. It was also urged that Plaintiff has misdirected itself in arguing the
principle of de minimis non curat lex. The said principle is advanced as an
argument in defence of a fair use and while taking such a defence there is
an admission of direct copying of parts of the copyrighted work. In other
words, the defence is that notwithstanding the admitted copying, the same
is so miniscule in the larger scheme of things that Court ought not to waste
its time in adjudicating the matter. In the present case, Defendants’ position
clearly is that there is no copying at all of the Plaintiff’s work and thus, the
defence of de minimis does not arise. Plaintiff has also argued, relying upon
Section 14(d)(i)(B) that even a small amount of copying such as a song,
photograph of a film, amounts to copyright infringement and even if the
Defendants have quantitatively taken a small portion of Plaintiff’s work i.e.
the song sequence alone, it would constitute copyright infringement.
Plaintiff claims that his right under Section 14(a)(iv) has been infringed i.e.
right to make a cinematograph film based on the script which is a literary
work and therefore, he cannot now make a film on his own script since the
Defendants have made the film substantially similar to the script. Albeit
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this submission is not pleaded, even otherwise, Plaintiff cannot use an
analogy from a provision of law relating to a different category of work.
26. Plaintiff has failed to make out a prima facie case of copyright
infringement. In terms of the settled principles of grant of interim
injunction, the standard required to be considered for balance of
convenience and irreparable injury has been aptly elucidated in the
judgment in the case of Wander Ltd. and Another v. Antox India P. Ltd.,
1990 Supp SCC 727 , where the Court held that corresponding hardships/
inconveniences likely to be caused to either party in the event the
injunction is or is not granted have to be considered by Courts. It is
Plaintiff’s pleaded case that he was aware of the film since May, 2018 and
in October, 2020, Defendant No. 6 reached out to him to ask for the script.
Despite this, Plaintiff waited till 03 days prior to the proposed release date
to file the present suit. Additionally, film has been released in theatres and
on the OTT platform and is already in the public domain. Grave hardship
shall be caused to the Defendants if the satellite release is stalled or
Defendants are directed to take the film of the various platforms, as
multiple agreements have been signed with third parties in this regard. On
the other hand, in case the Court comes to a conclusion, post-trial that
Plaintiff has been wronged, he can always be compensated in terms of
money, but the injury caused to the Defendants shall be irreparable and
irretrievable, if injunction is granted. Moreover, Plaintiff’s work has never
been published and it is always open to him to make a separate film based
on the script authored by him.
27. Arguing on behalf of the Plaintiff, in rejoinder, it was contended that
it is incorrect for the Defendants to argue that the script of the Plaintiff and
the film are different in ideas and/or expressions, screen play, plot etc. The
Signature Not Verified
changes apparently made in the film are nothing but embellishments and
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the central kernel/core/ethos of Plaintiff’s work have been blatantly copied.
It is not the manner in which the film is presented but the basic ploy or plot
and the storyline are the focal points of comparison to see if there is a
substantial copy. Plaintiff pleads that the basic plot and storyline of the
script has been copied and that too substantially, thereby infringing
Plaintiff’s copyright in the script. Defendant No. 6’s statement that film is a
periodic film and not a historical drama makes it evident that the film has
taken several inputs from the script of the Plaintiff, which was admittedly
accessible to him. It is a settled position of law that plots and storylines in
the script are protected under the copyright law and mere reduction in
figures and modifications introduced in some characters or clothes or
colours are too trivial to escape violations of copyright.
28. The contention was that in R.G. Anand (supra) , the Supreme Court
has held that the question is not whether the alleged infringer could have
obtained the same information by going to the same source used by the
Plaintiff in his work, but whether he did in fact go to the same source and
did his own independent research. In other words, whether he made an
independent production or made a substantial and unfair use of Plaintiff’s
work. It was also held that in an attempt to show that he is not guilty of
copyright infringement, it is always possible for a person intending to take
advantage of the intellectual effort and labour of another to so develop his
own product that it covers a wider field than the earlier product and
introduce changes in the common area in order to disguise the attempt at
plagiarism. In Kapil Chopra v. Kunal Deshmukh and Others, 2012 SCC
OnLine Bom 1302, the Bombay High Court held that the Court will look
strictly at not only the blatant examples of copyright but also at
reprehensible attempts at colourable imitation and once the Court comes to
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a conclusion that the script of the Plaintiff and the rival film has the same
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genesis in the idea, a clear case of grant of injunction is made out. In
Harman Pictures N.V. v. Osborne and Others, (1967) 1 WLR 723, it was
held that similarities of incidences and situations afford prima facie
evidence of copying and in absence of any explanation by the Defendant
regarding the sources, Plaintiffs must succeed. In Urmi Juvekar Chiang v.
Global Broadcast News Ltd. and Anr., 2007 SCC OnLine Bom 471,
Bombay High Court held that the Court needs to ascertain whether the
work of the Defendants is similar in material and substantial aspects
with that of the Plaintiff and referred to the observations in an earlier
judgment of the Bombay High Court in Zee Telefilms Ltd. v. Sundial
Communications Pvt. Ltd. and Others, 2003 SCC OnLine Bom 344 ,
where it was held that it is enough that substantial parts are lifted and no
play-right can excuse wrong for showing how much of his work he did not
pirate. In Twentieth Century Fox Film Corporation v. Sohail Maklai
Entertainment Pvt. Ltd. and Another, 2010 SCC OnLine Bom 1577,
Bombay High Court held that it is the quality of the copied work and not
the quantity that would determine infringement of the work. Reliance was
placed on a paragraph from Halsbury Law of England, Fourth Edition,
2006, Volume 9(2), Page 316, stating that sufficient objective similarity
between two works and some casual connection is enough to establish
copyright infringement.
29. Assuming without admitting that what has been copied are stock
elements, however, it cannot be a matter of sheer coincidence that so many
stock elements are common between the script and the film. It is a matter of
fact that Plaintiff’s script is a period drama containing underdogs, set in
North India, oppressed by foreign invaders, having an active protagonist, a
legend and an antagonist and after all this was shared with Defendant No.
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6, merely making changes to the film as trivial as ‘Sikhs to Khamerans’
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and ‘Afghans to Britishers’ cannot give any defence to the Defendants. In
India TV Independent News Service Pvt. Ltd. and Others v. Yashraj
Films Pvt. Ltd., 2012 SCC OnLine Del 4298, a Division Bench of this
Court and in Shemaroo Entertainment Limited v. News Nation Network
Private Limited, 2022 SCC OnLine Bom 930 , the Bombay High Court
have clearly enunciated that it is the qualitative element which matters and
even if the exploitation is miniscule it cannot come to the aid of an
infringer. The factors laid down in India TV Independent News Service
Pvt. Ltd. (supra) , commonly considered by the Courts in applying de
minimums are: (i) size and type of harm; (ii) cost of adjudication; (iii)
purpose of the violated legal obligation; (iv) effect on legal rights of third
parties; and (v) intent of the wrong doer. In Kapil Chopra (supra), the
Bombay High Court noted that injunction before the release of the film is
rarely granted as Courts at that time do not have benefit of examining the
script and in this scenario, if there is a case of plagiarism, writer is left with
no remedy at all. Writers of the film are not treated with the same dignity
and respect which they deserve. It was thus prayed that injunction be
granted directing the Defendants to take the film off all the platforms.
30. I have heard the respective learned Senior counsels for the Plaintiff
and Defendants No.6 & 7 as well as other counsels for the remaining
Defendants and examined their rival contentions.
31. The heart of the dispute in the present application lies in the rival
works: Plaintiff’s script ‘KNCK’ and Defendants’ film ‘Shamshera’.
Indisputably, Plaintiff has copyright in the script being the original author
of the script KNCK. Before proceeding to examine rival claims of the
parties on merits, it would be crucial to closely look at the judicial
precedents on the law of copyright, especially in the field of
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cinematography, which would also guide and delineate the contours of
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judicial scrutiny at this interlocutory stage. In order to succeed at this stage,
Plaintiff must establish a prima facie case of infringement of the copyright
albeit with a caveat that Plaintiff need not show that he has chances of
succeeding at the end of the trial. It is settled that the remedy is
discretionary and the discretion has to be exercised keeping in mind also
the remaining two parameters of the three trinity principles i.e. balance of
convenience and irreparable injury and harm.
32. The complexed question before this Court is whether the Defendants
have copied the idea and/or the expression of the idea of Plaintiff’s work
substantially in the impugned film, making themselves liable for copyright
infringement. Idea-expression dichotomy is fundamental to the law of
copyright and there is a sea of judicial precedence on this. The landmark
judgment on this dichotomy, as is well known, is by the Supreme Court in
the case of R.G. Anand (supra) . Going back in point of time, the earliest
formulation of this dichotomy was by the English Court in the case of
Hollinrake v. Truswell, 1894 Ch. 420 , where it was ruled that copyright
does not extend to ideas or schemes or methods and is confined to their
expressions and if expression is not copied, copyright is not infringed. Few
years later in 1954, the US Supreme Court in Mazer v. Stein, 347 U.S. 201,
218 (1954), reiterated that a copyright is no exclusive right to the art
disclosed and protection is given only to expression of the idea and not the
idea itself. In R.G. Anand (supra) , the Supreme Court referred to an earlier
judgment in K.R. Venugopala Sarma v. Sangu Ganesan, 1972 Cri LJ
1098, which was a case of infringement of copyright in a picture and it was
held that the degree of resemblance between two pictures, which is to be
judged by the eye, must be such that the person looking at the
Respondent’s picture gets a suggestion that it is Appellant’s work and one
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picture can be said to be copy of another only if substantial part of the
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former picture finds place in the reproduction. The Supreme Court then
observed that an idea, principle, theme, subject matter or historical or
legendry facts being common property cannot be subject matter of
copyright. It is always open to any person to choose an idea as a subject
matter and develop it in his own manner and give expression to the idea by
treating it differently from others. Significantly, it was also observed that
where two writers write on the same subject, similarities are bound to occur
because the central idea of both is the same and similarities or coincidences
by themselves cannot lead to an irresistible inference of plagiarism or
piracy. The Supreme Court in R.G. Anand (supra) , elucidated the
following principles on idea-expression dichotomy:-
“45. Thus, the position appears to be that an idea, principle, theme, or
subject-matter or historical or legendary facts being common property
cannot be the subject-matter of copyright of a particular person. It is
always open to any person to choose an idea as a subject-matter and
develop it in his own manner and give expression to the idea by treating it
differently from others. Where two writers write on the same subject
similarities are bound to occur because the central idea of both are the
same but the similarities or coincidences by themselves cannot lead to an
irresistible inference of plagiarism or piracy. Take for instance the great
poet and dramatist Shakespeare most of whose plays are based on Greek-
Roman and British mythology or legendary stories like Merchant of
Venice, Hamlet, Romeo and Juliet, Julius Ceasar etc. But the treatment of
the subject by Shakespeare in each of his dramas is so fresh, so different,
so full of poetic exuberance elegance and erudition and so novel in
character as a result of which the end product becomes an original in
itself. In fact, the power and passion of his expression, the uniqueness,
eloquence and excellence of his style and pathos and bathos of the dramas
become peculiar to Shakespeare and leaves precious little of the original
theme adopted by him. It will thus be preposterous to level a charge of
plagiarism against the great playwright. In fact, throughout his original
thinking, ability and incessant labour Shakespeare has converted an old
idea into a new one, so that each of his dramas constitute a masterpiece of
English literature. It has been rightly said that “every drama of
Shakespeare is an extended metaphor”. Thus, the fundamental fact which
has to be determined where a charge of violation of the copyright is made
by the plaintiff against the defendant is to determine whether or not the
defendant not only adopted the idea of the copyrighted work but has also
adopted the manner, arrangement, situation to situation, scene to scene
with minor changes or super additions or embellishment here and there.
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CS(COMM) 483/2022 Page 21 of 63

Signed By:KAMAL KUMAR
Signing Date:25.12.2023
18:26:33

46. Thus, on a careful consideration and elucidation of the various
authorities and the case law on the subject discussed above, the following
propositions emerge:
1. 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.
2. 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.
3. 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. 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. 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
works are clearly incidental no infringement of the copyright comes into
existence.
6. 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 the case-law discussed above.
7. Where however the question is of the violation of the copyright of
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
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CS(COMM) 483/2022 Page 22 of 63

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Signing Date:25.12.2023
18:26:33

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.”


33. Coming now to some of the provisions of the 1957 Act, Section 13
thereof provides that subject to the said Section and other provisions of the
said Act, copyright shall subsist throughout India in original, literary,
dramatic, musical and artistic works, cinematograph films and sound
recording. ‘Work’ is defined in Section 2(y), to include literary, dramatic,
musical or artistic work, cinematograph film and sound recording. Section
14 defines copyright to be an exclusive right to do or authorize the doing of
the acts in respect of a work or any substantial part thereof as provided in
Clauses (i) to (vii) therein. In Eastern Book Company and Others v. D.B.
Modak and Another, (2008) 1 SCC 1 , the Supreme Court held that the
word ‘original’ does not mean that the work must be the expression of
original or inventive thought. Copyright Acts are not concerned with
originality of ideas, but with the expression of thought and the 1957 Act
does not require that the expression must be original or novel, but that the
work must not be copied from another work i.e. it should originate from the
author. Relevant paragraphs are as follows:-
“32. The word “original” does not mean that the work must be the
expression of original or inventive thought. The Copyright Acts are not
concerned with the originality of ideas, but with the expression of thought,
and in the case of literary work, with the expression of thought in print or
writing. The originality which is required relates to the expression of the
thought. But the Act does not require that the expression must be in an
original or novel form, but that the work must not be copied from another
work—that it should originate from the author; and as regards
compilation, originality is a matter of degree depending on the amount of
skill, judgment or labour that has been involved in making the
compilation. The words “literary work” cover work which is expressed in
print or writing irrespective of the question whether the quality or style is
high. The commonplace matter put together or arranged without the
exercise of more than negligible work, labour and skill in making the
Signed By:KAMAL KUMAR
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CS(COMM) 483/2022 Page 23 of 63

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18:26:33

33. While considering the question whether the copyright protection is
available to the work created as a whole or the fragment of the work
would be considered piecemeal and individually apart from the whole, the
House of Lords said as under: (Ladbroke case [(1964) 1 WLR 273 :
(1964) 1 All ER 465 (HL)] , All ER p. 469 B-D)
“… One test may be whether the part which he has taken is novel
or striking, or is merely a commonplace arrangement of ordinary
words or well-known data. So it may sometimes be a convenient short
cut to ask whether the part taken could by itself be the subject of
copyright. But, in my view, that is only a short cut, and the more
correct approach is first to determine whether the plaintiff's work as a
whole is ‘original’ and protected by copyright, and then to inquire
whether the part taken by the defendant is substantial.
A wrong result can easily be reached if one begins by dissecting
the plaintiff's work and asking, could Section A be the subject of
copyright if it stood by itself, could Section B be protected if it stood by
itself, and so on. To my mind, it does not follow that, because the
fragments taken separately would not be copyright, therefore the whole
cannot be.”

34. The law is no longer res integra that to be actionable the copy of the
Plaintiff’s work by the Defendant must be substantial and the surest and
safest test to determine whether there is a substantial copy is to see if the
reader, spectator or viewer after having read or seen both the works is
clearly of the opinion and gets and unmistakeable expression that the
subsequent work appears to be a copy of the original. Where the theme is
the same and is presented differently, no question of violation of copyright
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Signed By:KAMAL KUMAR
Signing Date:25.12.2023
18:26:33

arises. In R.G. Anand (supra) , the Supreme Court perspicuously observed
that the Court should determine whether or not similarities are on
fundamental or substantial aspects of the mode of expression adopted in the
copyrighted work. In other words, the copy must be a substantial and
material one, which at once leads to the conclusion of piracy by the
Defendant. Earlier, the Judicial Committee in the case of Macmillan &
Company Limited v. K. and J. Cooper [51 IA 109: AIR 1924 PC 75] ,
pointing out the essential ingredients of copyright infringement, observed
that to constitute piracy of a copyright, it must be shown that the original
has been either substantially copied or to be so imitated as to be a mere
evasion of the copyright. This leads to an ancillary but an important
question on what would be the test of substantial similarity. From the
conspectus of various judicial pronouncements, it emerges that the test of
substantial similarity entails comparison of the rival works in their entirety
and it is not permissible to split or dissect the works into parts. [ Ref.:
Twentieth Century Fox Film Corporation (supra); Star India Private
Limited v. Leo Burnett (India) Private Limited, 2002 SCC OnLine
Bom 942; and Barbara Taylor Bradford & Anr. v. Sahara Media
Entertainment Ltd. & Ors., 2003 SCC OnLine Cal 323 ] . It is relevant to
note the observations in this context of Bombay High Court in Mansoob
Haider v. Yashraj Films Pvt. Ltd. and Others, 2014 SCC OnLine Bom
652 that commonality must not be in dissected and disparate elements but
in what lies at the heart and core of the competing works. Plaintiff has to
show that an average person reading the two scripts or reading his script
and seeing the movie would inevitably conclude that the film was a copy,
lifted from the Plaintiff's work. Relevant para of the judgement is as under:-
“28. It does not seem to me in the least clear what it is precisely that the
Plaintiff claims to have a monopoly on. Is it the fact of there being a
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Signed By:KAMAL KUMAR
Signing Date:25.12.2023
18:26:33

35. I may first examine the exposition of law in respect of the contention
of the Plaintiff that Defendant No.5 and later other Defendants had access
to his script, which be it noted, is admitted by the Defendants today, on a
factual note. This issue came up before the Bombay High Court in
Mansoob Haider (supra) . Relying on the judgment in R.G. Anand (supra) ,
the Bombay High Court observed that there is a singular test for copyright
infringement and which is that if we remove all scenes to which no
originality attaches, such as all “scène à faire”, then are the two works still
substantially similar and has the subsequent work copied substantial part of
the earlier work. The Court carved out three crucial questions/legal tests as
follows: (a) has the Plaintiff proved that the defendant had access to his
work? (b) on considering the two works, would an ordinary person
inevitably conclude that the defendant had copied the plaintiff's work? ( the
subjective or intrinsic test ); and (c) is there a substantial and material
overlapping or commonality of the original elements in the plaintiff's
work? The Court thereafter held as under:-
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Signed By:KAMAL KUMAR
Signing Date:25.12.2023
18:26:33

36. Therefore, what follows from the above observation is that access
alone cannot be a ground to come to a conclusion that there is copyright
infringement and Plaintiff will require to establish substantial similarity
albeit even if the Plaintiff fails on the question of access, he may succeed if
substantial similarity is established but the converse cannot be accepted.
With these principles in the backdrop, I may now proceed to examine the
case on its facts and the charge of violation and infringement of copyright,
levelled by the Plaintiff against the Defendants.
37. The trigger of filing the present suit was the release of the trailer of
the impugned film on YouTube on 24.06.2022, whereafter Plaintiff sent an
e-mail seeking purview of the film followed by a legal notice on
06.07.2022, when there was no response. The suit was essentially a qua
timet action filed prior to the theatrical release scheduled on 22.07.2022.
Since the suit was filed on the basis of a trailer, the plaint contained limited
pleadings as well as a comparative of the Plaintiff’s work in KNCK and
Defendants’ impugned film. Right was reserved in the plaint to file a
detailed comparison after viewing the actual film. On 02.08.2022, while the
assurance by the Defendants that they will not release the film on OTT
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Signed By:KAMAL KUMAR
Signing Date:25.12.2023
18:26:33

Platforms was continued, Defendants had undertaken to provide to
Plaintiff’s counsel and the Court a link on which the encrypted version of
the movie could be viewed. It is an undisputed fact that the impugned
film was released in the theatres on 22.07.2022, as no injunction was
granted by the Court. Subsequently, Defendants No. 1, 3, 8 and 9 prayed
that Defendant No. 1 be permitted to release the film on various OTT
Platforms as the release was scheduled on 19.08.2022 on the ground that
failure to do so would amount to breach by the said Defendants of the
contractual obligations qua third parties and irreparable injury shall be
caused to Defendant No. 1 while Plaintiff could always be compensated in
terms of money if he succeeds. Considering the totality of circumstances
and the fact that the film had been released in theatres, Court permitted
Defendant No. 1 to release the film on OTT Platforms. However, to
balance equities, Defendant No. 1 was directed to deposit a sum of Rs.1
crore with the Registrar General of this Court. This was, needless to state,
without prejudice to the rights of either party. After the movie was released
and viewed by the Plaintiff, amended plaint was filed in which a detailed
comparative was drawn in a tabular form bringing forth the similarities
between the script of the Plaintiff and the film of the Defendants.
Defendant No. 1 has also brought forth in the written statement a detailed
comparative between the script and the film pointing out the similarities
and the differences.
38. Having carefully perused the script of the Plaintiff and having
viewed the movie including the detailed comparative tables made by both
parties on which they have spent considerable labour, I would first give a
summary of the scripts of the Plaintiff. Be it noted that admittedly the script
of the Plaintiff has five versions and this too was one of the serious
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objections of the Defendants.
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39. Coming to the scripts of the Plaintiff and seen holistically, the theme
and concept of Plaintiff’s work titled KNCK is a tale of valour of the
th
Sikh community set in the backdrop of 18 century with a particular
geographical location i.e. the border of India with Afghan territories. The
script focusses on a tribute to the community for its role played in
defending the onslaught of Afghan invaders since the geographical location
made them the first target of the Afghan invasions. The story draws
inspiration from the fact that the Sikhs were instrumental in stopping
repeated Afghan attacks including the Battle of Sialkot in 1763 when the
Afghan army was defeated and focusses on the role of inhabitants of a
single village, Noorpur and the lead character Kartar.
40. The script begins with a narrative of the rise of foreign invaders,
Afghans and Mughals with a focus on the villages of Punjab. An Afghan
leader, Rashid Khan attempts to take over the villages in Punjab and during
one such raid, comes across rebellious Guddaan in village Dittopur. When
Rashid Khan threatens to wipe out the village in the absence of the
villagers unable to answer his questions, Guddaan insults Rashid Khan in a
verbal battle. Rashid Khan takes a liking for Guddaan and takes her as a
prisoner along with other girls from the village. Kartar is a rebellion in
another village of Punjab, Noorpur, and is trained by the Nihaang army
from his childhood. The character is portrayed as an ill-tempered, regular
drinker, with bitterness against his family members i.e., mother,
grandfather and stepfather and as the plot unfolds, it is revealed that his
stepfather was the uncle of Kartar who had married his mother after the
death of his biological father. Kartar always disliked his stepfather while
the latter lived in the hope that relationships may improve. Kartar has a
group of friends namely, Ronak, Bhulla, Dhartidhak (a wrestler) and
Signature Not Verified
Nihaal, Fazlu (handicapped), Manga (deaf), Rangeela, Mohana, Dharam,
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Jaangu (a pro at slingshot) and enjoys playing sports such as wrestling and
tug of war. Kartar is a strong contender in the sporting events and enjoys a
dominating/ decision making position amongst his friends, much to the
dismay of one of his friends Dharam Singh. Kartar and his friends raid the
Afghan convoy camping at the riverside of Noorpur village and using their
arms and weapons to secure the supplies of grains, dairy, poultry etc. the
raids are intentionally conducted in the night to take the Afghans by
surprise and affect their preparedness for the next day. Afghans including
Rashid Khan and his brother Dilawar are engaged in revelry on the night of
rebellion led by Kartar. While camping, Rashid Khan orders Guddaan,
whom he had taken captive to be sent to his tent. Guddaan is furious and
ready to kill herself rather than be given to Rashid Khan. Though Rashid
tries to force himself on her, Guddaan manages to attack him with a dagger
as he gets distracted due to the commotion outside on account of the raid
by Kartar and his friends.
41. In the fight that follows, Kartar and his friends slaughter the sleeping
Afghan soldiers and manage to get hold of the loot and also free the girls
taken as prisoners including Guddaan. Guddaan is, however, not accepted
in the village as according to the villagers she was impure after being taken
captive by the Afghans. Guddaan is infuriated on the allegations and
insults levelled on her by her relatives. Realising that Guddaan could not be
abandoned, Kartar’s friends disguise her as a boy named, ‘Guddu’ and take
her back to their village, Noorpur where she is introduced to everyone
including Kartar who, impressed by Guddu, takes Guddu under his wing.
Kartar’s family accepts Guddu as a part of the family and Guddu also
begins to understand Kartar’s actions in the light of his past and sees him in
a new light.
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CS(COMM) 483/2022 Page 30 of 63

Signed By:KAMAL KUMAR
Signing Date:25.12.2023
18:26:33

42. Guddu and Kartar become good friends and Guddu’s skill in sports
continues to impress Kartar. Rashid Khan on the other hand continues to
search for Guddaan and arrives at Noorpur but is unable to find her.
Meanwhile, mistakenly, Guddu’s identity becomes known to Kartar when
he goes in search of Guddu and chances upon her in the washroom. Kartar
is furious on his friends for having brought Guddaan back to village as a
boy but eventually mesmerized by her beauty. Kartar demands that either
he or Guddaan will stay in the house and eventually, leaves the house in
anger. Guddaan learns more of Kartar’s past from his mother who confides
in her including how Kartar’s father Shamsher died trying to save a
helpless girl from the clutches of the Afghan singularly. On returning
home, thoroughly drunk, Kartar takes Guddaan on a horse to return her
back to her relatives, however, during the journey, he has a change of heart
when Guddaan convinces him of the blessings he had in the form of his
family. Kartar inquires about his father from an old guard in Noorpur who
reminisces about Shamsher as being a great hero contrary to what Kartar
thought of him. As a changed person for good, Kartar returns to the village
and changes his way of life and his family is overwhelmed to see this
change in his personality. Dharam Singh, his friend, is however agitated by
this change. Kartar and Guddaan fall in love with each other.
43. The next plot is again about Rashid Khan inquiring desperately for
Guddaan, in furtherance of which he sets up a camp near Noorpur. Dharam
Singh sees this as an opportunity to attack the Afghans, without the
authority of Kartar and finally, he and his gang are tortured and killed by
the Afghans. Dilawar learns about Guddaan’s presence in the village and
attacks the villagers in a heated pursuit for the girls. Kartar and his friends
come across Dharam and Bheeshan’s bodies hanging from poles outside
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the village and realizing the trouble rush to the village to save the girls.
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Kartar and his friends overpower Dilawar and his soldiers and tie them to
the walls of the haveli as a negotiation strategy, should Rashid Khan attack
the village. Dilawar is beheaded by Kartar in a fit of anger. This triggers a
battle between Rashid Khan and the villagers and Kartar seeks aid from the
Nihaang Army.
44. Before the final battle, Kartar reconciles his differences with the
family. While Afghan soldiers tried to climb a wall to enter the village,
they find themselves covered in boiling oil and faced stone pelting at the
hands of Jangu along with other children of the village. Unable to gain
access to the village, Rashid Khan enters Noorpur from the village
community well. In the middle of the battle, Rashid Khan tries to negotiate
with Kartar that the entire village will be spared if he hands over Guddaan,
which offer is declined. Rashid Khan takes Kartar’s father as a hostage,
who expresses his readiness to die in exchange for Guddaan. Nihaang army
arrives at the right time and finally the one-to-one combat between Rashid
Khand and Kartar ends in the death of Rashid Khan. The final battle results
in the victory of the villagers of Noorpur and the screenplay ends with a
description of the formation of the courageous Sikh empire under the
leadership of Maharaja Ranjit Singh.
45. The Defendants’ film, on the other hand, is a work of fiction based in
th
the 19 century India and the theme is caste division and plight of the
lower caste communities constantly tortured and harassed by people from
the higher caste. The caste in question in the Film is titled “KHAMERAN”.
The story begins with a depiction of territorial boundaries that existed in
Rajputana State during 1570s. The Khameran tribe were known for their
valour and courage displayed alongside the Rajputs in the battles against
the Mughals. Despite their best efforts, Rajputs were decimated by the
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Khamerans did not have any army or a leader and begged for shelter in
Kaza, in the northern Province of India now Rajasthan. Shunned away by
the upper caste, Khamerans lived in the forests surrounding Kaza and
survived on looting the upper castes. The story depicts the era of 1871when
the looting activities of Khamerans were at the peak and leadership was in
the hands of Shamshera, a powerful and good man. Tired of the looting
activities of the Khamerans, the upper castes approached the British
commander in Kaza and sought help offering gold as compensation as price
for the help. Shuddh Singh, Antagonist, who was an Indian police officer
working under the British, Daroga and belonged to the upper castes offered
to help. In the battle that pursued, both sides lost equal number of people
and Shamshera captures a senior British officer. Shuddh Singh pretends to
offer peace by asking the Khamerans to surrender and stop looting, in
exchange of which they would get a permanent residence and return to a
normal life. Shamshera and his tribe of Khamerans agreed to accept and
surrender and are taken to Kaza Fort. Upon entry, when the gates of the
Fort are shut, Shamshera realizes his mistake that the offer of settlement
was only a ploy to get them captive. The enslaved Khamerans are bound by
metals chains, made to do manual labour and subjected to inhuman
conditions. Seeing their plight, Shamshera signs a document by which the
British would allow the Khamerans to escape if they were given double the
quantity of gold that the upper castes had given them to stop the Khameran
menace. Shamshera devises a plan to exit and in his pursuit of locating a
secret tunnel, is wounded by bullets and caught by the British. Before
leaving, he extracts a promise from his wife to disown him if he is caught.
Shuddh Singh plays a trick and portrays Shamshera’s attempt to escape as
an act of cowardice “Bhagoda” and exhorts the Khamerans to pelt stones at
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herself and their unborn child and the entire tribe, endorses Shuddh Singh’s
version, resulting in Shamshera being killed by his own people. The only
two persons who know the reality are Pir, Shamshera’s trusted friend and
his wife.
46. From here the story is fast forwarded to 25 years later when Balli,
son of Shamshera, is a grown man and the character is portrayed as a
mischievous man with a childlike heart, who trains children to steal small
possessions of inhabitants of Kaza fort. He is loved and liked by the
womenfolk and children in Kaza Fort but is condemned by the elders who
taunt him as ‘bhagode ki aulaad’. Balli is troubled by his legacy but dreams
big of becoming a Police Officer. Pir trains him. Balli makes a fervent but
unsuccessful attempt to impress Shuddh Singh but when he is beaten up, he
confronts his mother to reveal his father’s credentials. His mother and Pir
narrate the actual story and the valour and goodness of Balli’s father. Upon
learning the reason and cause of his father’s death, Balli makes an identical
attempt to exit the fort through a tunnel and succeeds to reach the bank of
the Azaad River. Basis the map given to him by Pir, Balli locates the Kaza
town and lost companions of Shamshera, who ask Balli to return to earlier
ways of looting gold in order to free the members of the tribe locked in the
fort. This is a beginning of a new chapter for Balli. In the meantime, Sona a
female dancer/entertainer who had met Balli earlier starts aiding him in his
activities. She is captured by Shuddh Singh but saved by Balli/Shamshera,
the new name and both get married and have a child. The upper caste
Indians are troubled and angered by re-emergence of Shamshera and again
requests Shuddh Singh and the new British commander, Freddie, to
intervene. Balli accepts a challenge from Freddie for a sporting fight and
defeats him. Balli tells Freddie to look into the background of Khamerans
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treaty. Despite heavy security at the event of Shuddh Singh’s wedding,
Balli and his friends loot the gold and jewellery. The group now lies low
for a while, however, one of the band members betrays them and in the
attack that follows most of the members of the gang are killed. Sona who
had just delivered a child is also captured. As the movie proceeds, Balli
steals the crown of the Queen in his zeal to exchange the same as a price
for Sona’s freedom. Before Freddie could help, in exchange of the crown,
Shuddh Singh tricks and gets him, and the British soldiers are killed by the
Indian police, who are under Shuddh Singh’s control. During the fight
between Shuddh Singh and Balli, members of Khameran tribe, who have
assembled and locked behind the huge fort gates, learnt of the true story of
valour and sacrifice of Shamshera from Pir and Balli’s mother. This
triggers them to break the shackles of their slavery and the fort gates and
attack. Shuddh Singh is defeated by Balli and the entire tribe moves out of
the Kaza fort.
47. The above is a short summary and narrative of the script and the
film, respectively. Analysing the script of the Plaintiff and the film of the
Defendants closely on a prima facie view, the Court finds that the KNCK
script revolves around fights and battles between the Afghans who
repeatedly made attempts to invade Indian territories and the Sikhs in the
th
18 century with the ultimate defeat of Ahmad Shah in 1763. The storyline
portrays Sikhs as fearless independent people unwilling to compromise on
the security of their motherland and willing to make any sacrifice for the
sake of their people. The protagonist is the central character as in any other
Bollywood film and in addition to the invasions, the theme centres around
the lady love of the protagonist and the fight and the lust of the antagonist
to achieve her. Kartar’s father is not the central theme of the story albeit
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there are references at some places in the scripts. Looting which is the
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centre theme of the film Shamshera is a stray solitary incident in one of the
scripts and does not flow with the story. Film, on the other hand, is a story
of oppression of the lower caste at the hands of the upper caste and this
thread runs in the entire film. From the beginning to the end, the oppression
of the lower caste is inextricably woven into the story from their being
outcasted into the desert and finally into the Jungle from the main town and
the other elements include, being tricked and taken captive in the Kaza
Fort; looting the upper caste in retaliation and finding a leader to fight the
upper caste etc. The angle of a love relationship between the main character
and the lady is not central to the movie. The entire focus is on achieving
freedom from oppression, be it at the expense of looting gold and giving
the same in exchange for freedom to the Indian policeman who is the
central character in oppression and instigating the British. Character of the
father Shamshera is central to the film and his past legacy is the backdrop.
The film focusses on relationships between a father and a son spanning
over a period of 25 years and a realisation by the son of the sacrifice and
valour of his father whom he all through believed was a coward. The
treatment meted out to the story of the film, in many ways, makes it
different from the script.
48. Learned Senior Counsel for the Plaintiff had laboured hard to
contend that the film was a copy of the script and thus there was copyright
infringement and in this context, drew the attention of the Court to the
similarities brought forth in the plaint and other documents in the form of
photographs as well as lyrics of two songs in the movie. For a ready
reference, some of the similarities brought forth in the plaint, as an
illustration, are extracted hereunder:-

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similarity lies in both works being Period Dramas, underdogs, set in North
India and centring on oppression with an active protagonist and a legend
antagonist. Both stories involve revenge, enslavement and span two
generations of father and son. Commonality lies in use of burning oil, hot
water, birds, North star to navigate and secret underwater tunnels. The
antagonists in both according to the Plaintiff are barbaric, foreign invaders
who pillage and plunder the village while the protagonists fight for
freedom. Death of the father and son carrying on the legacy is also claimed
to be a similarity. It is also urged that lead characters are initially bad
characters who have a change of heart. Defendants have aptly responded to
the alleged similarities and in my prima facie view, rightly so, by
contending that there can be no copyright in a story on account of being a
Period drama. Similarly, there cannot be a copyright protection in
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themes/plots/ideas. There are multiple examples of films in the past within
this genre including the one with which the Plaintiff initially had problem
i.e. Kesari but had given up the objection fairly on finding the same to be
substantially different. While the script is on the villages of Punjab and its
inhabitants, facing oppression by Afghan invaders, the film centres on
casteism i.e. upper caste oppressing the lower castes and forcing them to
leave the main town and live in forests. Comparison of locations set in
North India, as rightly contended by the Defendants, cannot be a ground to
hold infringement of copyright and similarly features such as burning oil,
water, birds, star for the purpose of navigation, secret underwater tunnels
horses, ghaghra and its unswirling, sensuous scenes etc., have been used in
movies from times immemorial and very many movies come to mind on
this aspect readily and are hackneyed subjects of almost every fiction and
matters of common grasp. There is no uniqueness in these ideas or
expression and in the words of the judgements of this Court, almost every
author of a fiction would conjure them as consequential concomitant
effects, as a matter of common grasp and “Scenes a Faire” which carry no
copyright.
50. Likewise, movies relating to father-son relationships and spanning
over generations are most common in Bollywood. As rightly contended on
behalf of the Defendants, character of Shamsher Singh in the script is not
the theme on which the story revolves, which is really about the resistance
of Kartar to the invasions of Afghans. He does not carry forward his
father’s legacy though in one of the plots a treaty is signed between the
British and Shamshera for which Khameran had to pay the price of
freedom. Character of the father is an important part of the movie, while in
the script it is not very pronounced or significant. Prima facie , this Court
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also does not find merit in the contention of the Plaintiff that the lead
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characters in both are initially shown as bad characters. Defendants rightly
point out that the character sketch of lead characters is completely different
in the script and the film. Regardless of whichever one script one peruses,
Kartar has been shown as a caretaker of the community and village and
even in the extreme villain avtar, he was concerned about the village girls
being returned to safety in the village. Balli, on the other hand, in the film
initially did not care for the tribe since they had condemned him as
‘bhagode ki aulaad’ and it was later that he had a change of heart. Balli
does not lead the rebellion against the British and merely reinitiates the
looting activity against the upper caste to buy freedom for the Khameran
tribe.
51. Therefore, to my mind, the dissimilarities between the script and the
film outweigh the alleged similarities and the similarities by themselves are
not sufficient to raise a presumption of copyright infringement at this stage
in favour of the Plaintiff. In R.G. Anand (supra), the Supreme Court has
held that idea, principle, themes or historical or legendary facts being
common property cannot be the subject matter of copyright of a particular
person. It is always open to any person to choose an idea as a subject and
develop it in his own way giving an expression to the idea by treating it
differently. Where two writers write on the same subject, similarities are
bound to occur because the central idea of both is the same and therefore
similarities or coincidences by themselves cannot lead to an inevitable
conclusion of piracy or plagiarism. Therefore, the fundamental fact which
has to be determined by the Court is to see whether the Defendant adopted
only the idea of the copyrighted work or also the manner, arrangement,
situation to situation, scene to scene with minor changes. The Supreme
Court further observed that one of the surest and safest tests to determine
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having read or seen both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work is the copy of the
original. However, where the theme is the same but is presented and treated
differently so that the subsequent work is a new work, violation of
copyright does not arise. Significantly, the Supreme Court also observed
that where apart from the similarities in the two works, there are also
material and broad dissimilarities, which negative the intention to copy, the
two works are clearly incidental and no infringement comes into existence.
52. In this context, it would be useful to refer to a few passages from the
judgment of this Court in Twentieth Century Fox Film Corporation v. Zee
Telefilms Ltd. & Ors., 2012 SCC OnLine Del 3524, as follows:-
“86. In NRI Film Production Associates (P) Ltd. v. Twentieth Century
Fox Film Corpn., ILR 2004 Kar 4530 relied on by the defendants, the
plaintiff filed a suit for declaration that the movie ‘Independence Day’
produced by the defendants is the infringement of the copyright of the film
script ‘Extra Terrestrial Mission. In this film the plaintiff was the author of
the film script E.T.M and acquired registered copyright in the year 1986.
It was alleged that the defendants' movie I.D. was a plagiarized version of
E.T.M. The plaintiffs pointed out various similarities between the script of
E.T.M and the movie I.D. The storey line was that Phil Talon a U.S. Army
Captain saves Diana, a Vietnam citizen from a sexual assault during the
Vietnam War. Love blossoms and they get married. They are now working
together for the rehabilitation of Vietnamese war affected children at U.S.
Aliens descend on earth on a rescue good will mission and informs Phil
Talon about an impending nuclear blast conspired by a Christian priest at
the site of a mosque at Jerusalem and requests him to negotiate with the
President of U.S. for preventive action. The President takes an egoistic
stand, refuses alien interference in the affairs of earth and directs war
against the aliens. First round of war the nuclear arsenal is substantially
exhausted and the aliens appear invincible. The aliens successfully prevent
the nuclear holocaust and resists the U.S. attacks. The President of U.S.
confers with U.S.S.R., France etc. and launches a second round of attacks
with too is thwarted by the aliens. Desperate, the President calls for a
truce. The aliens having established their triumph, voluntarily returns.
Whereas the storyline of I.D was that Aliens attack the earth bombarding
buildings including the White house and nuclear installations killing
several people. Space ships of 15 miles diameter descend on several
important cities. A huge mother space ship stationed in the space at quite a
distance control the smaller space ships. The U.S. Air Force attacks in
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vain exhausting substantial nuclear arsenal. A scientist accidentally hits
on the idea of implanting a virus in the mother ship thereby making all the
space ships vulnerable. The scientist and an expert war pilot takes the
journey to the mother ship in an old captured spaceship and successfully
implants the virus. The president gets directly involved in the war, as a
pilot to attack the spaceships. The virus is activated and the spaceships
become vulnerable to attacks and starts crumbling. In this case it was
held:
“……the idea and portrayal of sequences like traffic jams, disruption
of communication, dazzling effects of the nuclear missiles are
hackneyed subjects of every scientific fiction and matters of common
grasp. There is no novelty or uniqueness either in the idea or in
expression. In variably every author of a scientific fiction would
conjure them as consequential concomitant effects as a matter of
common grasp and “Scenes a Faire” which carry no copyright.”
xxx xxx xxx
88. In another judgment relied on by the defendant, Barbara Taylor
Bradford v. Sahara Media Entertainment Ltd. 2004 (28) PTC
474 (Cal)(DB), the plaintiff was the authoress of the book ‘A Woman of
Substance’. She sought an interim injunction against the defendant from
infringing her copyright in the book by broadcasting the serial ‘Karishma-
The Miracle of Destiny’. At the time of filling the suit the defendants had
already completed and made ready for telecasting 80 episodes of the
serial. About 100 crores had already been invested and 11 crores taken as
advance from advertising agents. One episode had been telecast before the
Single Judge had issued the injunctive order. The only material on which
the plaintiffs had based their claim for infringement was the interview
taken by a freelance journalist named Ms. Pammi Somal of Respondent
No. 2, Akashdeep Sabir who was the creative Director and producer of the
serial, wherein he had mentioned that the serial was based on the book ‘A
Woman of Substance’. The Court had observed that the law protects
originally of expression but not originality of the central idea, not merely
because of the balancing of two conflicting policies. Those policies are
that the law must protect originality of artistic work, thereby allowing
artists to reap the fruits of their labour and stopping unscrupulous pirates
from enjoying those fruits. The second policy is that the protection must
not become an over protection, thus, curbing down future artistic activity.
If mere plots and character were to be protected by copyright, on original
artist could not write anything “original” at all, on a similar plot or on
similar characters. The rationale behind the basic copyright law is that
you can borrow the idea of another author, but not the expression. The
theme can be borrowed. The originality in the theme is not protected.
There is no protection given by the law to the first writer who is not really
the first writer at all. The plot being common, perhaps too common, and
being the possible field for operation of future and different literary works
and plays, should not be blocked of by the law of copyright. If plots and
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ordinary prototype characters were to be protected by the copyright law,
then soon would come a time in the literary world, when no author would
be able to write anything at all without infringing copyright.
xxx xxx xxx
95. The plea of the plaintiff to establish prima facie case is that the
defendants have substantially copied the serial of the plaintiff ‘24’. In
considering the question of substantiality, the similarity between the
programs can also to be considered individually in certain situations and
then to consider whether the entirety of what had been copied represented
a substantial part of the plaintiff's program. Even regarding the
substantial copy by the defendants, what is to be decided is by its quality of
copy rather by its quantity. This has not been disputed by both the parties
that under the Copyright Act protection for an original work does not
extend to any “idea, procedure, process, system, method of operation,
concept, principle, or discovery” regardless of the form in which it is
described, explained, illustrated or embodied in such work. A statutory
protection does not extend to the intellectual conceptions apart from the
thing produced. The protections of Copyright Act are not intended to
either enlarge or to contract the scope for Copyright production and the
basic dichotomy between the idea and its expression remain unchanged.
The rules of the Copyright provide that ideas, plans, method, systems, or
device, as distinguished from the particular manner in which they are
expressed or described in a right, are not copyrightable.
96. Although, there is no copyright protection for an idea, concept,
principles or discovery, there may be a valid copyright in an original form
of expression of an idea, concept or discovery. It is equally true that a
mere outline or theme is not copyrightable since it is only an idea, nor is
there any protected property right in the “theme” of a work, or in locale
or setting of a story. But a distinctive treatment of a plot or theme is
copyrightable as a literary work or as a dramatic work.
xxx xxx xxx
108. As already held the plaintiff cannot claim a copyright on the basis
of the presentation techniques which are enabled by the use of modern
technology e.g. splitting the screen which is possible by advance camera
and editing technique, inserting clock to show time which is very easy in
modern cameras and the use of “Real Time” format a story told are 24
hours. How does one distinguish between a copy of an idea or a plot,
which is permitted, and the copy of an expression of the author, which is
protected and which is his or her own? Where does idea end and
expression begin? These are the questions which are the most difficult to
answer or even to explain at the interim stage. These are situations for
legal assessment after parties lead exhaustive evidence. Just as there is no
mathematical formula for finding out when it is just and convenient to
appoint a receiver, similarly, although at a more refined level of
intellectual operation, there is no final and exact way of determining what
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is a copy, or what is a copy of the expression, or what is a copy of the idea,
or what is a copy of the idea only. It was observed that in copyright cases
especially, the judgments should be read as a whole. It is possible to find
apparently contradictory statements within the very same copyright
judgment. The subject is such that exact dealing is not easily possible.
109. The plaintiff also prima facie cannot claim the copyright on the
basis of the general story line even taking the entirety of the defendants'
serial ‘Pradhan Mantri’, ‘Pradhan Mantri Time Bomb’ & ‘Time Bomb’. It
is apparent to an ordinary person that the serials of the defendants are
different from the serial of the plaintiff “24”. Similarities which have been
pointed out by the plaintiff appear to be superficial and such type of
similarity can be inferred in many different serials. Terrorism, attacks on
country heads has already been subject matter in various movies and
serials and the plaintiff cannot claim exclusivity in respect of the same.
From the defendants' serial “Time Bomb”, it is apparent that it revolves
around the India and Pakistan. There is definite co-relation between the
serial “Pradhan Mantri” which was recast as “Pradhan Mantri Time
Bomb” and thereafter “Time Bomb”. Characters between these three
serials are quite common and the story continues after three years later.”

53. In Barbara Taylor Bradford (supra), the Division Bench of the
Calcutta High Court while dealing with two rival plays formulated the
following questions and answered thus:-
“ 84. Why is it that the theme of a play, like the marriage of an heir
contingent to a beggar girl does not create a copy right?
85. Why is it that the plot by itself is usually not the subject-matter of a
copyright?
86. Why is it that identical characters, like a villain cousin and the
devising ancestor wishing his legatee to marry a young, these do not
create copyright?
87. The answer is two-fold. The first answer is that these characters
are common, no doubt, but too common. Therefore, there is no protection
given by the law to the first writer who is not really the first writer at all.
The above idea of the risk of a fortune being lost to others, the other idea,
of, say, two persons looking alike, are not the subject of the author's
original literary work. The second reason for not giving protection in this
regard is even more important. If plots and ordinary prototype characters
where to be protected by the copyright law, then soon would come a time
in the literary world, when no author would be able to write anything at
all without infringing copyright. Fathers, mothers, revenge, lust, sudden
coming into fortune. Court of Monte Cristo themes, beggar girl marrying
rich boy, rich girl marrying poor boy, and one thousand such themes,
characters and plots would become the subject-matter of copyright and an
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intending author, instead of concentrating upon the literary merit of his
expression, would be spending his life first determining whether he is
infringing the copyright of the other authors who have written on this topic
or that. The law of copyright was intended at granting protection and not
intended for stopping all literary works altogether by its application.
88. So far so good. We understand fairly that the plot being common,
perhaps too common, and being the possible field for operation of future
and different literary works and plays, should not be blocked of by the law
of copyright. Once we understand this, the other side of the problem raises
itself. In its extreme form, the next question would be, that since no literary
work is ever exactly copied, except for naked piracies by unauthorised
printing law at all? Should not a particular author be free to devise his
own story, characters and plots, just as he pleases provided he does not
actually copy an earlier work, exactly or almost exactly?
89. Again the law cannot become this law. It would pave the way to
plagiarism and the labours of the authors would be freely picked up by
unscrupulous persons. They would utilise the fruits of originality, not the
authors themselves. Therefore, even if the plot is copied, the person who
copies it, be it consciously or unconsciously, must also weave into the plot
sufficient creations of his own imagination and literary skill, to make the
work his own and not a copy of the work which might have inspired him in
the first place.
90. The third and last point is, how does one distinguish between a
copy of an idea or a plot, which is permitted, and the copy of an
expression of the author, which is protected and which is his or her own?
Where does idea end and expression begin? These are the questions which
are the most difficult to answer or even to explain. The best answer is that
there are no final answers yet, and there is no hope that there will be any
final answers ever. These are situations of legal assessment. Just as there
is no mathematical formula for finding out when it is just and convenient
to appoint a receiver, similarly, although at a more refined level of
intellectual operation, there is no final and exact way of determining what
is a copy, or what is a copy of the expression, or what is a copy of the idea,
or what is a copy of the idea only. This is why copy has never been
attempted to be defined in any of the copyright acts either here or in
England, or to the best of our knowledge (which is not much), anywhere
else in the world. It is an exercise doomed to failure from the very
beginning. It will either become too long for an Act, seeking to encompass
in it all the judicial pronouncements of value of all the civilized countries
in the world in all the different cases, or it would be short, simple and
wrong.
91. But the situation is not totally hopeless. It is not that because copy
cannot be defined, there cannot be guidances and helpful suggestions
which might be usefully considered by Judges when determining whether
one work is a copy of another or not. The best way of finding these
guidances is in the reported decisions. Several of these decisions were
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cited before us and we propose to deal with each and every one of those
hereafter. With the reading of every new case of copyright, one becomes
more confused, more uncertain of oneself, and in our opinion, certainly
more equipped to decide according to copyright law in copyright actions.
Before we deal with the cases one by one, we wish to sound one note of
warning. In copyright cases especially, the judgments should be read as a
whole. It is possible to find apparently contradictory statements within the
very same copyright judgment in almost all cases. The subject is such that
exact dealing is impossible. The judgments, therefore, have to be read in
full and the dicta have to be understood in their context, hardly anywhere
is the dictum more important that judgments are not to be read or
construed like Acts of Parliament but as expressions of opinion on cases
before the Court which are circumstanced by special events and special
features.
xxx xxx xxx
116. The above is only a matter of interest to us. What concerns us is
statements on the idea—expression theme. Lord Reid extracted one of the
passages quoted by us above from the judgment of Mr. Justice Peterson,
where His Lordship explained that Copyright Acts are not concerned with
the originality of ideas, but only with the expression of thought. Lord
Evershed said as follows at page 473:—
“It is not in doubt that what amounts in any case to substantial
reproduction within the meaning of section 2(5)(a) and section 49 of
the Copyright Act, 1957, again cannot be defined in precise terms but
must be a matter of fact and degree. It will, therefore, depend not
merely on the physical amount of the reproduction but on the
substantial significance of that which is taken.”
117. Lord Hodson said at page 477:—
“……the undoubted truth that copyright is concerned not with
originality of ideas but with the expression of thought, and in the case
of literary work, with the expression of thought in print or writing.”
xxx xxx xxx
164. Before we pass on to the other topics, we would like to add two
more illustrations to explain the idea/expression dichotomy a little further.
The purpose of giving these illustrations is this. The law protects originally
of expression but not originality of the central idea, not merely because of
the balancing of two conflicting policies. Those policies are as follows.
The first is that the law must protect originality of artistic work, thereby
allowing artists to reap the fruits of their labour and stopping
unscrupulous pirates from enjoying those fruits. The second policy is that
the protection must not become an over protection, thus curbing down
future artistic activity. If mere plots and character were to be protected by
copyright, an original artist could not write anything “original” at all, on
a similar plot or on similar characters.
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165. The law recognizes these policies but the law is also in accordance
with, what could be called the idea of fair protection, even if that idea of
fairness were to be formed by an artist or a writer, who does not know
even a single thing about copyright law. The two illustrations that we
given below show this. It will also show at least in this one instance, that
the law is not, as some and laymen and even some lawyers sometimes
jocularly say, an ass; but the law regards, sometimes, as in this case, the
layman's concepts of copying as the concepts of an ass, because copying of
ideas is not copying the artist. Both lawyers and artists would follow it,
and also people of understanding, but not those who make only a
superficial assessment.
166. The first illustration concerns a play by Henrik Ibsen called “An
enemy of the people”. Inspired by this book late Satyajit Ray, made a
Bengali film called “Ganashatru”. That word means in Bengali exactly
the same thing as an enemy of the people.
167. The central story of the Ibsen play is that there were two brothers.
The elder brother was a city father of a watering place which owed its
prosperity wholly to the tourists' visits who came to use the renowned
waters of the place.
168. The younger brother was a scientist. He discovered that the waters
were in fact foul, and not at all healthy. He wanted to disclose this to the
public. There arose a conflict between the two brothers. It was also a
conflict between two policies. The policy of the elder brother was to
protect the economy of the place, if necessary at the cost of the health of
the tourists. According to him, many people of the watering place would be
ruined if the truth were made open. The younger brother's policy was, that
the truth must be told, whatever the consequences. It was morally
impermissible to permit or invite tourists to use the foul waters and allow
them to ruin their health, when the fact of the waters being foul, had been
found out finally. The end of the play does not find victory for the younger
brother. He makes two nice statements which read roughly as follows in
the Modern Library English translation, which is all that I have read. One
is, that the majority is always wrong; and the second is, that one is never
stronger than when fighting alone.
169. In the film ‘Ganashatru’, the prosperity of the place is owed to a
temple which is very popular and constantly visited. Its ‘Charanamrita’
meaning the waters which are obtained by washing the feet of the Deity,
were found by the scientist to be foul and likely to cause disease of the
stomach.
170. A similar conflict as in. The enemy of the people arose. The film
ends on the note that the people, especially some students, prepare to
support the scientist, who had quite given up hopes of obtaining any public
support.
171. A superficial examiner would say from a comparison of the play
and the movie, that the film has been copied. That might be the reaction of
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the layman, no doubt. But it is not a copy, according to the copyright
lawyer. Although the central theme is the same, it is but an idea. The idea
is novel and no doubt the idea is central to the creation of a dramatic
conflict. Once the idea of this conflict is conceived by a dramatist, it
becomes much easier for a future dramatist to write a play on the same
theme.
172. But the point is, that this is permitted by the copyright law. The
theme can be borrowed. The originality in the theme is not protected. Had
it been otherwise, and Ibsen's play had continued to have a life of
copyright at the time the film was conceived, the film would never get
made; people who appreciate these things, would be the poorer, if the film
could not be made because of an over protecting copyright law.
173. The second illustration is from Othello. To the best of my
knowledge, the story of Othello was originally a sordid Seaman's tale.
There was this strong man returned from many wars, who fell in love with
a prized and beautiful lady. They fell in love and got married but the man
was made jealous…………by insinuations and falsity. The jealousy rose,
and he killed her. Thereafter he rued his deed, but it was too late.
174. Nobody would say, that even if the seaman's tale hypothetically
was protected by copyright, Othello would be an infringement of it. The
idea and the story are totally borrowed. The character of the Moor is lifted
from the story. The fair and frail lady is also in the story. But there is in
Othello much more than the story. It has become a classic and is read by
students of drama and English literature, not because of the story, nor
because of the characters, but because the story was unfolded and fold in
the manner done by the great dramatist. Even people like me, who never
read literature seriously, know of such ‘ordinary’ lines as, she loved him
for the dangers he had passed, and he loved her because she did pity them;
or, put out the light, then put out the light. I do object however, to the great
bard describing the killing of Daesdemona as the casting away of a
pearl by a “base” Indian, the pearl being richer than all his tribe;
Indians do not cast away pearls and the intuition had, just this once
failed Shakespeare because, no fault of his, he had never visited India in
his time.
175. That the central idea, the story, the central theme is not at all
everything to the art, is sufficiently explained by these two illustrations. So,
even if what Sabir says is true, and the serial is based on “A Woman of
Substance”, and even there is a certain “commonality of characters” as
the Hon'ble First Judge records in His Lordship's judgment, the prima
facie case of the plaintiffs still does not even begin to take off. The
copyright lawyer would simply say, a common theme, common characters,
all these there might be, but so what? That simple and single question
would finish of all prima facie case of the plaintiffs and cause them to fail
on this primary ground alone. We go on to the other topics now.”

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54. In Mansoob Haider (supra), the Bombay High Court once again
reiterated that in order to succeed in a claim of copyright infringement, the
Plaintiff must prove that the identity between two works is ‘substantial’.
Relevant paragraphs are as follows:-
“38. Applying all the tests in sub-paragraphs 2 to 7, the Plaintiff must be
held to have failed. I have, as I have said, seen the film and read both scripts.
They are entirely different works. It is impossible to say that the film is a copy
of the Plaintiff's original work. Again, following the same judgment of the
Supreme Court, even if the treatment be different, no question of violation of
copyright would arise. So too where there are material and broad
dissimilarities that negative the intention to copy. Minor or co-incidental
commonalities do not equate to infringement. What the Plaintiff must do is
establish his case by clear and cogent evidence. There have been cases before
our Court and before the Supreme Court where such commonality was
demonstrated. That is not the case here. The key elements that I have
summarized above in the Plaintiff's work are certainly not original in
themselves. Mr. Modi's contention that the sequencing is entirely original is
somewhat like his client's protagonist's magic trick, smoke and mirrors,
illusion and deception; for the story lines and premises of the two works are
entirely dissimilar.
39. The Supreme Court's decision in R.G. Anand contains a
comprehensive review of the law both in India and in England. It has been
accepted as a matter of law that the identity between the two works must be
substantial. The appropriation must be of a substantial or material part of the
protected work. Infringement exists when a study of the two works plainly
shows that the answering defendant's work is a transparent reproduction (or
translation into another medium) of the plaintiff's protected work.
Coincidence or similarity may be due to one or more of several factors. Mere
chance is only one of them. They may both have a common inspiration or
source. To claim copyright in the expression of an idea, one must be careful
not to attribute copyright protection to the narration or use of what I will call
standard or stock incidents such as those that abound in everyday life, history
and traditional fiction. For instance, in order to establish that a particular
scene from a particular film is set in Bombay, a film-maker may chose to
show a view of the CST Railway Station. The fact that he has done so does
not mean that no other film-maker can do so. That level of protection would
be absurd and would result only in stifling creativity. That is not the intention
of copyright protection law. What the law protects is originality. It may be
originality in the expression of one particular idea or in the juxtaposition of a
series of ideas, but these must be shown to be not only original but also to
have been copied in order for an action to succeed. Where, on the other hand,
it is demonstrable that the two works are materially different in what they
intend to portray and the manner in which they do it, the coincidence of
certain elements, especially if they be of the scène à faire variety, will not
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constitute copyright infringement. Here, the very idea of the two works is
different; so is their premise, their story line, their plot line. On the R.G.
Anand tests, the Plaintiff must fail.
55. Relevant would in this regard also to refer to another judgment of the
Bombay High Court in Urmi Juvekar Chiang (supra), where the Court
relying on the principles elucidated by the Supreme Court in R.G. Anand
(supra), held as follows:-
“21. Thus understood, to answer the claim of the plaintiff for grant of ad
interim relief, it will have to be ascertained whether the work of the
defendants is similar in material and substantial aspects with that of the
plaintiff. While examining this, as noted by the Division Bench of our High
Court in Zee Telefilms (supra), it will have to be borne in mind that “it is
enough that substantial parts were lifted; no play right can excuse wrong for
showing how much of his work he did not pirate”. This quotation is extracted
from the case of (Sheldon v. Metro Goldwyn Pictures Corporation), reported
in 1993 (81) F 2nd 49. The standard to be applied, therefore, is not to
compare the two works with hypercritical and meticulous scrutiny but from
the stand point of the observations and impressions of an average viewer. As
presently advised, there are striking similarities in the work of the plaintiff as
that of the work of the defendants. The programme is not news, it is a reality
show (programme). That is the stand now taken by the defendants on
affidavit.”

56. Therefore, tested on the anvil and touchstone of the law laid down in
the aforementioned judgments, Plaintiff is required to prove substantial
copying of its work i.e. show that the substance or kernel of Plaintiff’s
work is copied in order to succeed in his claim of copyright infringement.
In the present case, by a comparison of the rival works, this Court is unable
to reach a prima facie conclusion at this stage that Defendants have
substantially copied the script of the Plaintiff to make the impugned film.
57. There is another aspect of the matter. Plaintiff calls upon the Court to
split and dissect the script and then compare and analyse song by song and
scene by scene including stock elements and come to a conclusion that
copying is substantial. It is a settled law that the rival works have to be
compared as a whole and a single entity. It is not permissible to split or
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dissect or compartmentalise the works into parts and then compare them to
come to a finding of infringement. In this context, I may refer to a passage
from the judgment in Star India Private Limited (supra), as under:-
“26. The issue then is whether if the whole of the respective works is
compared and not only parts, factually or materially as it stands, is there
copying or substantial copying. I am not at this stage also not considering
whether the “work” as an episode or all the episodes which have to be
considered in totality. Even for arguments sake if an episode is considered as
a ‘work’, still what is to be compared is the whole work as a single entity. It is
not permissible to split or compartmentalize or dissect the plaintiffs' work
into parts, then seek to compare such parts against the alleged infringed
work. What is to be seen is the entirety of each work. It may be made clear
that I am not considering an issue whether a particular part of the film or a
scene in the film which may have a striking resemblance, if copied, would
amount to a substantial copying of the film. For this purpose reference may
be made to the decision in (Francis Day and Hunter Limited v. Twentieth
Century Fox Corporation Limited), 1940 A.C. 112 (Privy Council);
(Ladbroke (Football) Limited v. William Hill (Football) Limited), 1964 (1)
W.L.R. 273; (Merchandising Corporation of America Inc. v. Harpbond
Limited), 1983 F.S.R. 32; R.G. Anand v. Delux Films supra and (Fritco Lay
Limited v. Uncle Chips Private Limited), 2000 P.T.C. 341. Applying the tests
on the material as it stands there is no substantial copying on facts.
58. The judgments relied upon by the Plaintiff, do not inure to his
advantage. Reliance on the judgment of the Supreme Court in R.G. Anand
(supra), does not further the case of the Plaintiff since the Supreme Court
has clearly elucidated therein that there is no copyright in ideas and
copyright can only be claimed in expression of the ideas as also that there
must be a substantial similarity between the two rival works for the
Plaintiff to claim copyright infringement. In the present case, as noted
above, the ideas in the script of the Plaintiff cannot be given copyright
protection and more so in the stock elements. A comparison of the script
and the impugned film does not leave an impression that one is a
substantial copy of the other. For the same reason, judgment in Twentieth
Century Fox Film Corporation v. Sohail Maklai (supra), does not aid the
Plaintiff. Reliance was placed on the judgment to argue that even small
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portion of a film can constitute copyright infringement as the test is quality
and not quantity and thus the dissimilarities pointed out by the Defendants
can be of no avail. The judgment deals with a novel concept in a film
where a person was held hostage in a phone booth with a sniper, which idea
had not been expressed in any other film. The Court examined the rival
works in depth and came to a conclusion that there were substantial
similarities in the rival works. In fact, in the said judgment, the Court has
observed that resting on the main theme, what would be the substantial part
of the copyright is to be seen and therefore the principle of substantial
similarity was reiterated and not negated albeit there can be no quarrel with
the proposition that it is the quality and not the quantity of similarity which
is the benchmark, which the Plaintiff fails to achieve. Relevant paragraphs
of the judgment are as under:-
“19. The defendants contend that only a tiny part of the film “no matter
that it is the basic concept of the film” happens to be similar to the
plaintiff's film and that there is no infringement of the substantial part of
the plaintiff's film. Of course, the length of the film only shows that a
rather good part of it is additional and consequently different. Resting on
the main theme, what would be the substantial part of the copyright is to
be seen.
20. In Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., 1964
AER 465 (HL), this aspect came to be considered. It was the case of
reproduction of a part of the literary work containing coupons showing
matches played each week by a firm of Bookmakers. There were various
lists of selected matches for as much as 148 different varieties of bets. A
great deal of skill, judgment, experience and work was required in
designing the coupons. The infringer adopted a closely similar form of
making 15 lists as against the 16 lists which were almost identical though
was not copied. Holding that that would amount to a substantial part of
the copyright which was infringed, it was observed that substantial part
depends much more on the quality than on the quantity of what he has
taken.
21. Reproduction in Halsbury's Law of England, Fourth Edition 2006
Volume 9(2) at page 316 shows the requirement of sufficient objective
similarity between two works and also some casual connection between
them.
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22. Consequently, it is the quality of the copied work and not the
quantity that would determine infringement of the work or substantial part
thereof.
xxxx xxxx xxxx
31. The defendants have indeed shown several dissimilarities because
they are additions to the film. The plaintiff has no objection to those parts
being filmed or broadcast, but without the plaintiff's novel idea of a caller
in a phone booth held hostage by a sniper on a roof. If that portion is
deleted and if the defendants' film can be exhibited upon such editing the
plaintiffs have no complaint and the Court cannot injunct such work. But
until that is done the defendants' work does come under the mischief of the
plaintiff's copyright in its script.”

59. Reliance was placed on India TV Independent News Service Pvt.
Ltd. (supra) and Shemaroo Entertainment Limited (supra), in relation to
the application of the de minimis doctrine to support the argument that even
the minimum similarity in the two songs in Defendants’ film i.e. Ji Huzoor
and Fitoor with the Plaintiff’s script constitutes copyright infringement. D e
minimis non curat lex is a fair use exemption or defence adopted in suits of
copyright infringement, where copying is trivial or minimal to the Court’s
eyes. To apply this doctrine, it is essential that Defendant admits having
copied the Plaintiff’s work but sets up a defence that he may be allowed to
continue to use the same as the use is covered by the maxim. In the present
case, Defendants are disputing the claim of the Plaintiff that there is a copy
in the film including the songs and the doctrine has no application. It was
rightly pointed out by the Defendants that it is not the pleaded case of the
Plaintiff that the two songs are qualitatively the substantial part of
Plaintiff’s work and this becomes pronounced since Plaintiff’s work
comprises of five versions of the script and four out of the five versions do
not have the description of the song sequence Fitoor . Plaintiff’s description
of the two songs in the script as brought forth by the Plaintiff in a tabular
form is as follows:
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SONG 1: Fitoor

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lovers engaged in a sensuous song sequence in the backdrop of snow and
wrapped in a red dari. The description being an idea is not protectable and
as brought forth by the Defendants is common, having been used in
numerous songs in films like Lamhe, Chandni and other films under Yash
Raj Films banner. It is also prima facie correct that the Fitoor song has no
correlation to the theme of the film and has been shot with detailed
expression on a bigger canvass of a generic love sequence typical of
Bollywood songs on a plateau with sand, consistent with the topography of
the place on which the story of the film unfolds. Likewise for the song in
the film titled Ji Huzoor, the commonality is in use of the ghaghra in the
dance sequence, but the plots play out differently in the two works. As the
script unfolds, 30 to 40 dancers are hidden under the ghaghra, which when
ordered to be lifted by Rashid Khan reveals the hidden dancers, while in
the film, Balli is thrown up in the air and perches himself at an open
window of a mud house to flirt with the lady and when pushed off by a
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man, catches hold of a piece of clothing which turns out to be a ghaghra
and helps him to land safely. Upon landing, the children who were playing
with him hide under the ghaghra and emerge out seconds later. Ghaghras
have been used historically in several Bollywood songs and in some as the
centre theme of the song sequence and lyrics and no monopoly can be
claimed. The song sequence has the protagonist, dancing with children and
a mischievous tilt, he jumps and latches to the clothing to cushion his fall,
none of which is in the script. Therefore, what distinguishes the case of the
Plaintiff from the facts of the judgments relied upon is that the Plaintiff
claims monopoly in period drama; father-son story where the two look
alike; use of children, birds, hot oil, horse, underground tunnels and the
plot based on son’s revenge and rebellion against foreign invasions, which
is common to most Bollywood movies and agreeing with the Plaintiff
would amount to granting monopoly over ideas, which would be contrary
to the principles elucidated in R.G. Anand (supra). For the same reason,
the other judgments relied on do not advance the case of the Plaintiff.
Reliance was placed on the judgment in Kapil Chopra (supra) by the
Plaintiff to argue that a writer should be treated with dignity and should not
be left remediless. There can be no doubt that writers must be given their
due. However, Plaintiff has been unable to make out a prima facie case of
copyright infringement and thus no relief can be granted in favour of the
Plaintiff injuncting the Defendants from continuing with the telecast of
their film on the OTT Platforms.
61. Insofar as balance of convenience is concerned, Plaintiff has pleaded
and admitted awareness of making of the film since May, 2018 and that in
October, 2020 Defendant No. 6 had reached out to him for the script, yet
the Plaintiff approached the Court 03 days prior to the release. Applying
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(supra) , the balance tilts in favour of the Defendants. The third element of
irreparable harm and injury also goes in favour of the Defendants, who will
suffer an irretrievable harm if injunction is granted while Plaintiff can
always be compensated in terms of money, if he finally succeeds.
62. For all the aforesaid reasons, the application is dismissed with the
usual caveat that observations in the present judgment will not impact the
trial or the final adjudication of the suit on merits. Defendants shall,
however, file an affidavit disclosing their up-to-date revenues earned from
the telecast of the film within 6 weeks from today.
63. Application stands disposed of.
CS(COMM) 483/2022 & I.A. 14869/2022
64. List on 16.01.2024 before the Roster Bench, subject to orders of
Hon’ble the Acting Chief Justice.


JYOTI SINGH, J
DECEMBER 20 , 2023/ shivam/kks

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