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Case notes/comments

Case Name: Jyoti Kapoor V. Kunal Kohli 2016(1)ALLMR239


Court: High Court of Bombay
Hon'ble Judge: S.C. Gupte, J.
Acts/Rules/Orders: Copyright Act, 1957 - Section 16

Cases Referred:

1. Zee Telefilms Ltd. and Film and Shot and v. Sundial Communications Pvt. Ltd.
2003(5)BomCR404
2. Beyond Dreams Entertainment Pvt. Ltd. Vs. Zee Entertainment Enterprises Ltd.
2015(4)ALLMR518

ABSTRACT:
It is well settled that copyrights protect expression and expression alone. No intellectual property
protection flow from mere ideas. Idea is required to have some concrete flesh on it to be put
under the domain of copyright. Copyright protection flows from an original work of author
which should be in some tangible form (written on paper, typed on computer etc) and not
just a mere idea. This ratio decidendi form the basis of plethora of cases. Jyoti
Kapoor V. Kunal Kohli 2016(1)ALLMR239 is one of such case in was reasoned on the same
ground but the difference being that it was a case concerning copyright emerging from a film
script.

There can be no copyright in an idea or information per se, if the idea or information has been
sufficiently formed and has been acquired by a person under such circumstances that it would be
a breach of good faith to publish or use the same without authority from the person from whom it
has been so acquired, the Court may in an appropriate case protect the idea or information by
granting an injunction
FACTS OF THE CASE:

1. In this case the Ist Plaintiff was a film and screen writer by profession who around
2010, decided upon a plot and story line for a new and original story for a romantic
comedy film with a title 'R.S.V.P'.
2. The 1st Plaintiff initially registered the synopsis of the story line with, the first draft of
the screenplay and the final version of the screenplay with Film Writers Association
('FWA'), Mumbai in 2010, 2011 and 2012 respectively.
3. The 1st Plaintiff thereafter approached the Ist Defendant being a film director of repute
for production of a cinematograph film based on the screenplay of 'R.S.V.P.
4. On 19 January 2013, the complete screenplay of 'R.S.V.P was shared via mail with the
1st Defendant, who liked the same and offered to acquire the rights to make a
cinematograph film on the same plot. However, no agreement could be reached.
5. The Ist Plaintiff later pitched the original screenplay of R.S.V.P to the 2nd Plaintiff,
who own a production house and a formal agreement dated 13 June 2014 was entered
into between the Plaintiffs. The 2nd Plaintiff, thereafter, started working on the film. At
that stage, the Plaintiffs came across news articles about the 1st Defendant's new film
to be launched under the title 'Phir Se'.
6. From the excerpts of interview of the Ist Defendant, the Plaintiffs realized that the 1st
Defendant had utilized the 1st Plaintiff's screenplay for making his movie. Thereupon,
a complaint was filed by the 1st Plaintiff with FWA for infringement of her copyright
in the original screenplay of 'R.S.V.P.
7. On 8 November 2014 a letter was send to the Ist Defendant asking him to stop all
shooting till the matter was resolved. On 25 November 2014, FWA gave a ruling in
favor of the 1st Plaintiff, by taking into account the various points of similarity in the
work of both the parties.
8. Despite of the order by FWA the Defendants appear to have gone ahead with the
making of the film 'Phir Se'.
9. Under these situations the Plaintiffs approached the High Court inter alia for a
permanent injunction against release of the Defendants' film 'Phir Se'.

CONTENTION ON THE BEHALF OF THE PLAINTIFFS:


1. She is the author and first owner of copyright in the original literary work, being the
script and screenplay for a film, 'R.S.V.P which was disclosed in circumstances of
confidence to the 1st Defendant, who made unauthorized use of the same to produce a
film, 'Phir Se', without the Plaintiffs' consent.
2. The Plaintiffs seek an interlocutory injunction against release of the film 'Phir Se',
complaining of both breach of confidence and infringement of copyright.

CONTENTION ON THE BEHALF OF THE DEFENDANT:

1. He commenced the work on the script of their feature film 'Phir Se' prior to meeting
the 1st Plaintiff and there was no question of their being influenced by the Plaintiff's
script.
2. There are various dissimilarities between the respective screenplays of 'Phir Se' and
'R.S.V.P.
3. The setting, the treatment and the climax of the film 'Phir Se' are completely different
from 'R.S.V.P'.
4. The similarities in the plot, characters or dramatic conflict that are found in both the
plot, are based on public knowledge or what is available in public domain and over
which the Plaintiffs cannot claim any right.
5. The screenplay of 'R.S.V.P' is not a 'novel plot'. There have been several films based on
the theme of 'R.S.V.P'.

OBSERVATION MADE BY THE COURT:

1. Section 16 of the Copyright Act, 1957, expressly recognizes that though no person
shall be entitled to copyright in any work, whether published or unpublished, otherwise
than under and in accordance with the Copyright Act, 1957, that does not imply
abrogation of 'any right or jurisdiction to restrain a breach of trust or confidence'.
Though copyright is now a pure statutory right but still the common law rights
concerning breach of trust or confidence are very well available to a plaintiff.
2. An essential ingredient of every copyright action that the plaintiff must first express the
idea or a plot in such form, which is accorded copyright protection and not the idea or
plot itself.
3. If a defendant is proved to have used confidential information obtained from the
plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an
infringement of the plaintiff's rights.
4. The court took the observation made in case Beyond Dreams Entertainment Pvt.
Ltd. Vs. Zee Entertainment Enterprises Ltd. 2015(4)ALLMR518 (para 7) and
came to the conclusion that Protection of confidence is a broader right than the
proprietary right of a copyright.
5. There can be no copyright in an idea or information per se, if the idea or information
has been sufficiently formed and has been acquired by a person under such
circumstances that it would be a breach of good faith to publish or use the same
without authority from the person from whom it has been so acquired, the Court may
in an appropriate case protect the idea or information by granting an injunction. The
two rights naturally have different incidents.
6. The information was communicated by the 1st Plaintiff to the 1st Defendant in
circumstances of confidence is not disputed by the Defendants.
7. In order to decide upon the case of infringement and breach of confidence, the court
took into the view of both the two rival screenplays, namely, the final version of the
screenplay of 'R.S.V.P.' produced by the Plaintiffs and about to be completed film 'Phir
Se' for comparison.
8. Both the screenplay involved the concept of a second marriage between two divorcees
which cannot be either a subject matter of copyright or even the law of confidence. A
story based on the theme of two divorcees meeting, falling in love, deciding to get
married, calling off the marriage only to realize later that they actually like each other
is not 'novel' per se. 'Novelty' or 'Originality' of an idea or work of art or literature does
not imply that it should not have been derived from what is already available as public
knowledge but the maker of the work must be using his brain. In other words, the
novelty depends on the outcome of combining the constituent elements in a unique
manner.
9. In the screenplay of the R.S.V.P the combination of individual elements like their
separation, and their final coming together provide a unique combination which lends
'novelty' or 'uniqueness' to the material. Once the work is found to be 'new' it is capable
of being protected both as copyright and confidence. The screenplay/script of R.S.V.P
can be appropriately termed as 'novel' or 'unique' so as to merit recognition as
'confidential information'.
10. For granting interlocutory relief, there must be a strong prima facie case and the balance
of convenience, in favor of the plaintiff. The plaintiff has a strong prima facie case as the
essential elements of the screenplay / script of 'R.S.V.P' appear to have been used in the
Defendants' film 'Phir Se'. The uncanny similarities of characteristics make an arguable
case in favor of the Plaintiffs.
11. The fact that the 1st Plaintiff actually shared the final version of the screenplay of
'R.S.V.P' with the 1st Defendant does not make the similarities between the two scripts
based on pure chance or fortuitous circumstances. Defendants, clearly appear to have
used the the story contained in the confidential information as a springboard for
working around the material and coming up with their film 'Phir Se'.
12. Even the balance of convenience is clearly in favor of the Plaintiffs. Here is a case
where the Plaintiffs' work is unpublished and they themselves are in the process of
making a cinematograph film. It is quite clear that once the Defendants are permitted to
exhibit and distribute their film 'Phir Se'', whatever novelty is there in the Plaintiffs'
screenplay and script of 'R.S.V.P' will be altogether lost. In fact, such damages would
be irretrievable and not capable of being compensated in money

COURT HELD:

The court granted ad-interim injunction till the final disposal of the case.

APPEAL BEFORE THE SUPREME COURT OF INDIA:

A Civil Appeal was filed before the Supreme court arising out of the impugned final judgment
and order dated 2.7.2015 which was passed by the High court of Bombay. The learned
Counsel for the parties submitted that they have arrived at a settlement which would amount
to disposal of the suits. The terms of the settlement were as follow:
a. The respondent will show in the credits of the film, that is, "Phir Se" by stating
"Story/Idea by Jyoti Kapoor.
b. The respondent shall pay a sum of Rs. 25 lacs in full and final settlement to the
Appellant
c. The Respondent, would pay a sum of Rs. 35 lacs to India Stories Media and
Entertainment Pvt. Ltd
d. The Respondent, Bombay Film Company Pvt. Ltd. shall deposit a further sum of Rs.
10 lacs before the Bombay High Court within 4 weeks.
e. All other suits pending between the parties are, deemed to have been disposed of.
f. The film "Phir Se" produced by the Bombay Film Company can be released after
following the due procedure as required in law.
The settlement arrived at between the parties was appreciated by the court as it was done in
the field of art and creativity.

CASE ANALYSIS:

Copyright is a right given to or derived from a work, it a protection in form and not in idea.
There is no copyright in idea. It is an established law that copyright subsists only in the materials
form to which the ideas are translated. When a person produces something with his skills and
labor then he earns a right to protect his work from being copied by other and to prevent others
from exploiting it. The object behind copyright is not to protect a novel or legal idea, but it is
more concerned with the final object of the work which is created with some skill and labor put
forth by a person. Physical shape of an idea is the main element under copyright. It is the form
in which a particular idea which is translated that is protected. Since no copyright exist in idea,
so no infringement of copyright will take place, if the same idea is adopted by another person
into the form of any publications. A person may have a brilliant idea for a story, but if the same is
shared or communicated, then the copyright will be given to the person who has clothed the idea
in a physical form.

In Bollywood, writers, scriptwriters, screenplay writers like Jyoti are considered one of the main
blocks for making a film. There was time in Indian cinema where the writers were paid more
than the actors in a film. Every film industry in required to respect writers as much as they
respect actors or directors but that is hardly visible. Writers do become victims of plagiarism.
Many directors do lift the ideas of script writers but without acknowledging them. In this film
industry, writers' fraternity has to fight to get its credit on the screen. Remuneration is another
issue for which a writer always remains at the receiving end.

Getting into a legal fight with a director on the allegations of plagiarism by a script writer in
India seems so unreal, but such an event has taken place, and by everyones surprise the writer
has won the case. Learned counsel of Jyoti well remembered the point that protection under
copyright is available only with respect to the physical form of the script which she shared via
mail with the director in confidence which later misused the script and came up with another
movie Phir Se. It wasnt an idea or a rough draft. It was a detailed script. If the case would
have been Jyoti sharing simply the idea for any film in confidence, then court would have tied
their hands without any scope for Jyoti to won against such powerful production houses.

This case even put the director Kunal at stake as his almost completed film have left to be
hanged in mid way, as the Bombay high court put a stay on its release. The investment made by
Kunal for his movie was not being converted into revenue. Even though being a strong prima
facie case on part of Jyoti, the battle was not as easy for her as it got stretched till long tedious
eight months copyright battle. Mostly many writers get busted down in mid way and the same
thing happened with Jyoti. She had almost lost hope before the High Court of Bombay.

The issue whether the screenplay itself was novel or whether it merely comprised of elements
already in the public domain was dealt by the high court of Bombay in an extensive manner.
The Court stating that while individual elements of the screenplay might not be novel, the
combination of all these elements creates a new and unique story is worth noting. The
screenplay of Jyoti was a document meriting protection as confidential information. This case
is a blend of copyright infringement and right of confidential protection.

No doubt no one can get copyright on any theme, in this case- the theme was two people
getting divorced and then remarrying again was not unique, but the style of presenting the
theme before the public mixed with other elements is something new. Kunal movie Phir se
had copied not only the theme but even the style of presenting the movie. Kunal had adapted
the whole script written by Jyoti. When there is substantial similarity and the other party has
no evidence to rebut the same in his favor, then there is infringement of copyright.
When the same idea is being developed in a different way, it is a manifest that the source
being common, similarities are bound to happen. But if the defendant work is nothing but
literal imitation of the copyrighted work of the plaintiff with minimal variations then it a sure
case of the violation of copyright. This very thing happened in this current case.

The court did read the two scripts and saw the movie Phir se in totality and ended in finding
of many similarities. Even the mails shared between the parties were put for record.
In India, a writer always faces the dilemma as to whether go to court to grab back the rights
which has been exploited because the fight for the rights in court wont come easy way. They
even fear being blacklisted from the industry.
Supreme Court verdict clearly is a vindication of writers stand. This judgment is an important
judgment which stems from the fact, that this ruling will give some hope, boost the spirit and
will give confidence to many writers to pursue for their copyright infringement who due to the
power and wealth of the director get disheartened to knock the door of the court or get
strapped for the funds.
This case even throw light upon the weakness of the Dispute Settlement Committee of the
Film Writers Association, who was not able to stop the defendant from continuing upon the
film despite a clear violation of the writers copyright. The competence of such dispute
settlement committee to enforce their award is too feeble thus making many writers like Jyoti
to knock the door of the court and get trapped into all legal procedure including long drawn
court battles. Most of such writers do not have plenty of funds and for them approaching the
courts seems like calling for mounting bills. The settlement made in this very case that is Rs.
25 Lakh by Mr. Kunal Kohli is worth to be given credit for Jyoti story Idea. This case can
be well termed as Writers Victory. The verdict given by the Supreme Court clearly proved
that even though the film industry is dominated by stars and wealthy directors with powerful
production houses, script writers also have protection with regard to their literary work. This
settlement conveys the concept of culture of acceptance and settlement in society.
After this case coming into limelight, budding writers will be extra cautious while sharing their
ideas with any film maker. Courts ruling had come as a moral and legal victory against
plagiarism which is rampant in the Indian entertainment industry. This ruling is not just a ray of
hope for struggling writers, but an affirmation that law does not always favor the big production
houses.

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