Bollywood copying Hollywood: Protection of Intellectual Property in Film Industry

The phenomenon of remaking and borrowing ideas is not new to the film makers around the world. It has been present in the film making process since the birth of cinema. Earlier the audience reach of film industries was restricted to certain geographical areas. As Hollywood[i] was restricted to English speaking countries, likewise Bollywood[ii] was restricted to India and its neighboring countries. But globalization and the record breaking developments in Information Technology and the worldwide reach of internet has taken the films beyond nations.

At present, copyright infringement of the protected film scripts has become the main conflict between the two largest film industries of the world Hollywood & Bollywood. Hindi films have often been accused of copying entire frames from their Hollywood predecessors; leading legal scholars recognize this practice as copyright infringement. Until the summer of 2008, no lawsuit was ever filed by a US studio against an Indian film for violation of the studio’s intellectual property rights. The reason was Bollywood’s lack of profitability, India’s status as a third world country and traditionally distinct audiences, which never allowed Bollywood movies to get surfaced on Hollywood’s radar. But recent boom in Indian economy, increase in the profitability of Bollywood and overlapping audiences reversed the views of Hollywood studios towards Bollywood movies.

A long list of Bollywood movies is present where they have been accused of being copied from some Hollywood blockbuster. In 2007, Sony Entertainment, holding the copyright of Hitch (2005), threatened a lawsuit against Partner (2007), a Bollywood film, for infringing content.

In August 2008, Warner Bros. filed suit against the producers of a Bollywood film Hari Putter: A Comedy of Terrors, claiming that the title was too similar to the Harry Potter brand. The Delhi High Court ruled in favour of the defendants largely on Warner Bros. delay in filing the suit[iii].

In 2010, for the first time, a successful suit was filed by Twentieth Century against Sohail Maklai Entertainment for the unlawful remake of Twentieth Century’s 2002 thriller Phone Booth, into Knock Out. It was for the first time when an Indian court ruled that Bollywood infringed a Hollywood copyright. The Bombay High Court awarded Twentieth Century injunctive relief until Sohail Maklai Entertainment paid $340,000 in damages[iv].

On being accused of copyright infringement by Hollywood studios, Indian filmmakers argue that when they adopt a Hollywood film for remake for the Indian audience they make the film undergo a transitory process of “Indianisation” by adding songs, dance and other Indian stuffs which in all together results in an inherently distinct product from the original. 

Legal framework available

India’s copyright law, as laid down in the Indian Copyright Act, 1957 later amended by Copyright (Amendment) Act, 1999, is compatible to the Berne Convention on Copyrights, to which India is a party. Copyright consists of the following rights:

1. Economic Rights – Right of reproduction, public performance, adaptation, broadcasting, translation etc.
2. Moral Rights – Right of author against any alteration in his work that might be injurious to his reputation.

 The following come under the purview of copyright protection:

1. Original literary, dramatic, musical and artistic works
2. Cinematograph films
3. Sound recordings
4. Computer programmers 

The Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886) are the two conventions which serve as the basis of current international standards regarding intellectual property rights. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1994, is built on these century old principles. United States and India being a member of World Trade Organization (WTO) are bound by the TRIPS[v] Agreement.

The relevant provisions of Berne Convention which is embodied in the TRIPS Agreement provide exclusive rights to author to grant or allow for reproductions and adaptations of their original work. When a film’s storyline is borrowed which is recognizably borrowed is known as “derivative work”.[vi],[vii] But when it is used without the knowledge or authorization of the author/creator it is known as unauthorized derivative works which is not only harmful for the author/creator but it will adversely affect the demand for the original work.

In both the U.S. and India, infringement of copyright takes place when a party engages in actions reserved for the copyright owner. In US, for copyright infringement the copyright owner needs to prove that he holds the ownership of the copyright and that substantial matter has been copied from his protected material. In India, copyright infringement takes place if the work of the defendant is a substantial and material copy of the first. Substantiality is measured by weighing both quantity and quality of the work copied.

The Indian and U.S courts had used the “ordinary observer” test to determine the presence of substantial similarity between two works. According to the “ordinary observer” test two works are considered as substantially similar if an ordinary viewer of reasonable attentiveness concluded that the defendant unlawfully encroaches the protected expression of the plaintiff.

The U.S. courts originated the “ordinary observer” standard from the audience test in Daly v. Palmer (1868)[viii]. In this case the Court observed, “If enough random original elements are copied, even if individually insubstantial, they may constitute copyright infringement in the aggregate”.

The Supreme Court of India established the same standard test in the R.G.Anand vs. Delux Films (1978)[ix]. The Supreme Court observed that, “...in order to be actionable, a copy must be a substantial and material one that immediately demonstrates that an infringement has occurred. While simple additions, omissions, or modifications to the original work do not defeat the infringement claim, if the similarities between the two works appear coincidental and enough dissimilar elements exist to negate the intention to copy the original, infringement cannot be said to have occurred”. Courts in both countries thus analyze the quantity as well as quality of the copying in applying their respective versions of the ordinary observer tests.

Article 9.2 of TRIPS confirms that copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. This concept has been incorporated in both the legal system of US and India.  This Agreement empowers the author/ creator to bring private cause of action for infringement in any member country where the infringement is occurred or occurring. Further, this Agreement says that member countries are bound to accord same rights to the author/ creator of other member country as it gives to their own[x]. Hence, it can be understood that Indian or American film-makers could bring a suit of infringement in either nation’s domestic courts.

Conclusion

Bollywood’s appeal is no longer limited to the South-Asian subcontinent. Bollywood’s international appeal is on the rise. The success of recent movies pertaining to South-Asian themes and culture such as Slumdog Millionaire and Bend It Like Beckham, while not Bollywood productions, have helped Bollywood receive more international attention. Therefore, Bollywood’s reputation and viewership among international audiences will benefit from original scripts and productions. Originality will ultimately lead Bollywood to greater revenues than copying does. Remaking and borrowing ideas from other countries is nothing new and is not altogether a bad phenomenon, so long as proper authorization is obtained from the right holder. Borrowing ideas, scripts and remaking them in different cultural contexts are a part of international cinema but the right way to do it is to obtain the proper license. It should also be noted that mere copying of idea cannot be considered as copyright infringement, as under TRIPS agreement only expressions are protected and not the ideas. So, for proving the infringement the plaintiff should prove that there is copying of both ideas and expression.

By Arvind Kumar

For Biswajit Sarkar

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[i] Film industry of USA.

[ii] The mainstream Indian film industry based in Mumbai, formally Bombay.

[iii] Warner Bros. Entertainment Inc. v. Harinder Kohli and Ors. [IA No.9600/2008 in CS(OS) 1607/2008]

http://delhicourts.nic.in/Sep08/WARNER%20BROS%20ENTERTAINMENT%20VS.%20HARINDER%20KOHLI.pdf

[iv] Twentieth Century for Film Corp. v. Sohail Maklai Entm’t Pvt. Ltd., NM-2847 (Bombay H.C. 2010)

http://bombayhighcourt.nic.in/data/original/2010/NMS284710141010.pdf.

[v] TRIPS: A More Detailed Overview of the TRIPS Agreement

http://www.wto.org/english/tratop_e/TRIPS_e/intel2_e.htm

[vi] 17 U.S.C. Section 106- copyright owner has exclusive rights to prepare derivative works based upon the copyrighted work;

Copyright Act of 1957 Section (14)(a)(vi) (India)-a copyright owner has the exclusive right to authorize adaptations of the work.

[vii] 17 U.S.C. Section 101-Defines a derivative work to be one based upon one or more preexisting works;

Copyright Act of 1957 Section 2(a)(v) (India)-defines an adaptation as:  “in relation to any work, the use of such work involving its rearrangement or alteration.”.

[viii] Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868) (No. 3,552)

[ix] R.G. Anand v. Delux Films (1978) 4 SCC 118

[x] Article 5 (1) of Berne Convention. This requirement is in compliance with the WTO’s goal of guaranteeing most-favored nation status to member countries and non-discriminatory treatment by and among members.

Registration and Protection of Designs in India

In India registration and protection of Designs are regulated by Designs Act 2000 and Designs rules 2001. Design is defined under Section 2 of Designs Act 2000 as only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957(14 of 1957).  A design is prohibited from registration on the grounds mentioned under Section 4 of the relevant Act, i.e.,

a) that the design is not new

b) that it has been previously published in India or in any other country by publication in tangible form or by use in or in any other way prior to the filing date, or where applicable, the priority date, or where applicable, the priority date of the application for registration; or 

c) that it has been significantly distinguishable from known designs or d) comprises or contains scandalous or obscene matter.   Further, a design is subject to cancellation on the grounds mentioned under Section 19 of the relevant Act, i.e., a) that the design has been previously registered in India, 

b) that it has been previously published in India or in any other country prior to the date of registration or c) that the design is not a new or original design or c) that the design is not registrable under this Act; or 

e) that it is not a design as defined under clause (d) of section 2. 

Although in India design has not been classified further into categories according to Designs Act 2000, but it has been observed that Indian Courts classify the design in question into aesthetic and functional. An aesthetic design is one which is applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof. A functional design means any design applied to any article, whether for the pattern or the shape or the configuration thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied is to perform. In India the landmark judgment which acted as precedent for subsequent cases was passed in Bharat Glass Tube Limited v. Gopal Glass Works Limited. In this case the the Court gave interpretation of Section 2 (d) stating “Designs has been defined in Section 2(d) which means that a feature of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process. That means that a feature or a pattern which is registered with registering authority for being produced on a particular article by any industrial process whether manual, mechanical or chemical or by any other means which appears in a finished article and which can be judged solely by eye appeal.  The definition of design as defined in Section 2(d) read with application for registration and rule 11 with form 1 makes it clear that the design which is registered is to be applied to any finished article which may be judged solely by eye appeal. A conjoined reading of these three provisions makes it clear that a particular shape or a particular configuration is to be registered which is sought to be produced on any finished article which may be judged solely by eye appeal.[1] However the judgment passed in Interlego v. Tyco Industries,[2] the landmark British case which was pertaining to designs of toy bricks originated in Hong Kong and eventually was filed before the Privy Council in the United Kingdom acted as guiding principle for cases in India. In that the Privy Council observed that the bricks qualified for registered design protection, and thus did not qualify for copyright protection. Lord Oliver observed as follows -

“Inevitably a designer who sets out to make a model brick is going to end up by producing a design, in essence brick shaped. […] There is clearly scope in the instant case for that argument that what gives the Lego brick its individuality and the originality without which it would fail for want of novelty as a registrable design is the presence of features which serve only the functional purpose of enabling it to interlock effectively with the adjoining bricks above and below”.

The court further held that design drawings were a combination of both artistic and literary works. The written matter on such a drawing comprised the literary matter, and the graphics the artistic matter.

The only changes made to the drawings were alterations to some radii and to the dimensions of some elements. Lord Oliver further observed-

“Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgement and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no-one would reasonably contend that the copy, painting, or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgement merely in the process of copying cannot confer originality.”

In India designs are protected by two legal rights, they are as follow:

1)      Registered Designs

2)      Artistic Copyright

 

Design registration in India gives the owner, a monopoly on his or her design, i.e. the right for a limited period to stop others from making, using or selling the design without the owner’s permission and is additional to any design right or copyright protection that may exist automatically in the design.

           Under Section 6 

           (1) a design may be registered in respect of any or all of the articles comprised in a prescribed class of articles. 

        (2)Any question arising as to the class within which any article falls shall be determined by the Controller whose decision in the matter shall be final.

         (3)Where a design has been registered in respect of any article comprised in a class of article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall the registration thereof invalidated—

Under Section 7 the Controller shall, as soon as may be after the registration of a design, cause publication of the prescribed particulars of the design to be published in such manner as may be prescribed and thereafter the design shall be open to public inspection.

           Under Section 11when a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during ten years from the date of registration.

           To conclude with, a design is entitled to be registered and protected from being copied and applied on the same article and of the same class of articles which is not merely functional but has an aesthetic appeal to eye. At the same time a design is entitled of copyright which is absolutely original and has not been copied from any other class of articles.

By Ranidipa Ghosh

For Biswajit Sarkar

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[1] 2008 AIR 2520

[2] [1989] AC 217