Issue:

Whether Ms. Earl Greys Bohemian Rhapsody has infringed copyright?

I.

Ms. Earl Grey has Copyrights protection for Bohemian Rhapsody

Originality for the purpose of Copyright Law relates to the expression of thought.
Copyright subsists in expression, not in ideas. Idea is not a subject matter of
Copyright1. It is not necessary that the work should be the expression of the original
or inventive thought, as the Copyright Act is not concerned with the originality of
ideas, but with the expression of thought, and in case of a literary work, with the
expression of thought in print or writing2 and the Act does not require that the
expression must be in an original or novel form, but that the work must originate
from the author3 and the object of Copyright is not to create any legal or intellectual
property rights in the idea but in the final object or the work which is created as a
result of the effort made to give a physical shape to an idea 4.
Originality is a matter of degree depending on the amount of skill, judgement or
labour that have been involved in making the compilation 5.
One of the surest and the safest way 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 knows that the other is not mere copy and does not
have an impression of copyright infringement6.
Original, as the term is used in copyright law, means only that the work was
independently created by the author and that it possess at least some level of
creativity. The requisite level of creativity is extremely low; even a slightest amount
would suffice. A Work may be original even though it closely resembles other works
so long as the similarity is fortuitous, not the result of copying 7.

1 Twentieth Century for Film Corporation v. SohailMaklai Entertainment Pvt. Ltd &
another, 2010 (44) PTC 647 (Bom) at p.651(2011) 1 Bom CR 750
2 Camlin Private Limited v. National Pencil Industries, 96 (2002) DLT 8 : 2002 (24)
PTC 349 (Del) (DB)
3University of London Press Ltd v. University Tutorial Press Ltd, (1916) 2 Ch 601 and
N.T.Raghunathan v. All India Reporter Ltd., Bombay, AIR 1971 Bom 48
4 2007 (34) PTC 668 (Del)(DB) at p.672
5 Dr. Reckeweg& Co. GMBH v. Adven Biotech Private Ltd.
6 R.G Anand v. Delux films, AIR 1978 SC 1613

Originality requires only that the author makes the selection or arrangement
independently and that it displays some material with minimum level of creativity.
To support a copyright there must be at least some substantial variation, not merely
a trivial variation8.
There are three requirements to qualify for copyright protection: (1) the collection
and assembly for pre-existing data; (2) selection, coordination or arrangement of
the data; and (3) the resulting work that comes into being is original, by virtue of
selection, coordination or arrangement of the data contained in the work 9.
Invention or Innovative Idea is not the requirement for protection of copyright but it
does require minimal degree of creativity 10.
In Donoghue v. Allied Newspapers, Ltd, it was held that an idea however brilliant it
may be, it is nothing more than an idea
In Hollinrike v Truswell11, Lord Lindley observed that the defendant might have got
her own idea from the plaintiffs chart, but the defendant had not copied more than
the plaintiffs method of copying and if the expression of the author was not copied
then the copyright is not infringed12.
Protection of Fictional Characters:

In Taylor Bradford v. Sahara Media Entertainment Ltd 13, Court pointed out that the
law protected originality of expression and not originality of the central idea due to
the balancing of two conflicting ideas. The first policy was that the law must protect
originality of work, thereby allowing the authors to reap the fruits of their labour and
7Feist Publications Inc v. Rural Telephone Service Co. Inc., 499 US 340: 113 L Ed 2d
358: 111 S Ct 1282:18 USPQ 2d 1275 (1991)
8 Emergent Genetics India Pvt. Ltd v. ShailendraShivam and Others, 2011 (47) PTC
494 (Del) at pp.505-06.
9 Key publications, Inc. v. Chinatown Today Publishing Enterprises, Inc,945 F 2d 509
(2d Cir 1991).
10Eastern Book Company v. D.B.Modak, AIR 2008 SC 809:2008 (36) PTC 1: (2008) 1
SCC 1
11 See also, Prestige Housewives (India) Limited & Another v. Prestige Estates and
properties & others, 2002 (25) PTC 108 (Karn) at p.120
12Harnam Pictures N.V v. Osborne, (1967) 1 WLR 723
13 Barbara Taylor Bradford v. Sahara Entertainment Ltd., 2004 (38) PTC 474 (Cal)
(DB)

second policy was that the protection must not become an over protection, thus,
curbing down future creativity. If mere plots and characters were to be protected by
copyright, an author could not write anything original at all, on a similar plot or on
similar characters. The Court observed that: If plots and ordinary prototypes
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. The Court further observed that where a person copied a plot ,
be it consciously or unconsciously, he must also weave into the plot sufficient
creations of his own imagination and literary skill, to make his own work.
In Warner Brothers Pictures v. Columbia Broadcasting Systems 14, the court held that
no character was protectable under copyright law unless the character was
extremely well-delineated as to constitute the story being told rather than a chess
man in the game of telling the story. In Universal City Studios v. Kumar Industries,
the character ET was held copyrightable because of its being unique and distinctive
character about whom the movie revolved15.

Substantial Taking:
The defendant has every right to use the basic idea involved in the work of the
plaintiff, but he is not permitted to express that idea in the same form and the same
manner in which it has been done by the plaintiff. The test to be applied in
infringement cases is to ascertain not as to whether the work of a defendant is an
exact reproduction of the work of the plaintiff, but whether a person who comes
across the work of the defendant would form an opinion that it was the work of the
plaintiff or not and the degree of resemblance between the two marks should be
such that it suggests an impression in the mind of the observer that the work of the
defendant is not a mere copy of the plaintiff 16.
In Zee Telefilms Ltd. V. Sundial Communications Pvt. Ltd., the Bombay High Court
observed that in order to find out the similarities in the two concepts what was to be
seen was the substances, the fundamental test was as to whether the reproduction
was substantial to see if the rest could stand without it. If it could, then they wont
be liable for the substantial reproduction 17.
In FE Engineering & Consultancy Pvt. Ltd & Another v. LG Cable Ltd. &Another, The
Delhi High Court stated that the law on infringement of copyright was well settled
14216 F 2d. 945 [9th Cir. 1954]
15 Universal City Studios v. Kamar Industries, 1982, Copyright L Decisions (CCH)
25,452
16 Mother Diary Fruit & Vegetable Pvt Ltd. V. MallikarjunaDiary Products Pvt Ltd.,
2012 (49) PTC 346(Del) at p.351
17 2003 (27) PTC 457 (Bom)(DB)

and well crystallised. Quality and Substantiality are the basis on which the
allegation are to be tested. The Court held that although there were few similarities
at the first two pages of the manual, the same could not be said as a substantial
reproduction of the works and therefore, no injunction was to be granted.
The test laid down in R.G Anand v. Delux Films 18, was applied by Kerala High Court in
R Madhavan v. S.K Nayar19, the Court held that no prudent person who had seen the
film and read the novel would form the impression that the film AvaluteRavukal and
its theme, scenes or situations were copied from the novel Alayazhi. Not only was
there any resemblance or similarity in the theme, scenes or situations of the film
and the novel were substantially and materially different from the situations,
incidents and scenes portrayed in the plaintiffs novel.

18 Supra
19 AIR 1988 Ker 39.