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R.G. Anand Vs. Delux Films and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 147D of 1960
Reported in4(1968)DLT321
ActsCopyright Act, 1901 - Sections 1; Copyright (Amendment) Act, 1911; Copyright Law
AppellantR.G. Anand
RespondentDelux Films and ors.
Advocates: Sarjoo Parshad,; Rameshwar Nath,; Mohinder Narain,;
Cases ReferredLimited v. K. And J. Cooper
.....plaintiff complained that this work infringed her copy right in the book 'temporal power'.in the background of the passage qutoed above, the master of the rolls thought that the court must approach the case on the fotoing that defendant gray had the book 'temporal power' either under his eyes or in his memory when he wrtoe his sketch. (vii) buth the said play and the said film show the disruption of the cordial relations as soon as the heads of the families discover the existence of a love affair between their children. (xiv) in the said play reconciliation takes place when the children of the two families, who were in love, go out to commit suicide by drowning etc. at best it can only amount to similarity of idea and no more......the existence of a love affair between their children. (vili) in buth the said play and the said film, buth the parent warn their respective children nto to have any thing to do with each toher on pain of corporal punishment. (ix) the entire dialogue in buth the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of one province over the inhabitants of the toher. (x) in buth the said play and the said film, the girl is shown to be fond of music and dancing. '(xi) in buth the said play and the said film the hero is shown as a coward to the exrent that he has nto the courage to go to his parents and persuade them to permit [him to marry a girl hailing from antoher province. (xii) buth in the said play and in the said film, when the.....

I.D. Dua, C.J.

(1) The .Plaintiff has appealed to this Court from the judgment and decree of the learned District Judge. Delhi, dated 5th September, 1960 dismissing the plaintifi.appellant's suit for permanent injunction against the defendants, their agents and servants, restraining them from exhibiting the film 'New Delhi' at any place whatsoever and for accounts of the profits made by the defendants up to the dale of the suit.

(2) The plaintiff who is an architect by profession and carries on the said business in the panne ship under the name and style of M/S. Anand Apte and Jhabvala at Delhi, also claims to be a Playwright, Dramatist and producer of Stage plays. He claims to have written and produced at Delhi and toher places plays entitled 'Desh Hamara', 'Azadi' ''Elections' and 'Ham Hindustani', having produced several toher plays as well. The present litigation is concerned with the play 'Hum Hindustani' which, according to the plaintiff s case, was written by him in Hindi in or about 1953. It was produced by the plaintiff for the first time from 6th to 9rh February 1954 at Wavell Theatre, New Delhi, under the auspices of the Indian National Theatre. This play received great approbation from the press and the public and as a result of its popularity, was staged again from 11th to 14th February 1954 at Wavell Theatre, New Delhi and from 22nd to 29th September 1954 at the site of the Indian,National Theatre, New Delhi It was staged on the Prize Distribution Day of the National Drama Festival arranged by the Government of India explored the possibility of its exhibition on the screen In November, 1954, he received a letter dated 19th November. 1954 from Mohan Sehgal, defendant No. 2, informing the plaintiff that one Mr Balwant Gargi, a common friend of the parties, had supplied the said defendant with a synopsis of the play 'Hum Hindustani'. A request was made to the plaintiff to supply a copy of the said play with the object of producing it on the stage and also of exhibiting it on the screen. The plaintiff on 30th November, 1954 informed the said defendant that since this play had been selected for being staged during the National Drama Festival on 11th December, 1954, the said defendant sould come and see it for himself where after the ptoentialities that it possessed for its being screened could be discussed. Round about January, 1955, Mohan Sehgal, defendant No. 2, and Inder Raj Anand, defendant No. 3, came to Delhi and the plaintiff in his office read out to them and explained the entire play, the parties also discussing the ptoentialities for making a film. Mohan Sehgal, defendant No. 2, promised to let the plaintiff know his reaction in due course, but the plaintiff did nto hear from him in this connection thereafter. In or about May, 1955, Mohan Sehgal announced the production of a mtoion picture entitled 'NEW DELHI'. One Mr. Thapa, one of the artists in the play produced by the plaintiff, who was in Bombay at the relevant time informed the plaintiff that the proposed mtoion picture 'NEW DELHI', announced by defendant No. 2 was based on the plaintiff's play 'Hum Hindustani' On 30th May, 1955, the plaintiff's accordingly wrtoe to defendant No. 2 expressing his concern over the adoption of his play for the proposed mtoion picture 'NEW DELHI'. On 9th June 1955, defendant NO. 2 treatment, dramatic construction, characters, plto twists and dialogues of the mtoion picture had nto the remtoest association wilh the plaintiff s play. On this assurance, the plaintiff did nto pursue the matter further. The picture New DELHI' was announced to be released in Delhi and 15 stations of U. P. and Punjab on 7th September 1955 at various picture houses, including the picture-houses run by defendants Nos. 16 to 18 at Delhi and New Delhi. It was also announced to be released in Bombay in the cinema houses run by defendants Nos. 19 to 21 from 14th September 1956 Indeed, the picture was actually released on those dates. In the announcement, it was stated that defendants Nos. I and 2 were the producers of the said picture and defendants Nos. 2 to 8 had written the story and screenplay and defendants Nos. 5 to 15 were the distributors of the picture in the various territories in India and abroad. It is in these circumstances that the suit. out of which the present appeal arises was instituted by R. G. Anand plaintiff-appellant in September, 1956. In the plaint, 18 points were stated to bring out the act of piracy committed by the defendants by infringing the plaintiff's copyright in the play 'Hum Hindustani.' The defendants had in fact adopted the plaintiff's play as the subject matter of their film without the plaintiff's knowledge or consent.

(3) In a joint written statement by defendants Nos. I and 2. the plaintiff's contentions were controverter and it was pleaded that defendant No. 2, who was the sole proprietor of M/s. Delux Films, defendant No. I, was also a film director with two previous box-office successes to his credit viz , the films 'Aulad' and 'Adhikar'. In or about November, 1904, defendant No. 2 discussed with one Mr. BalwantGargi. a playwright of repute, some new ideas for the stage and the scrcen and during the discussion, defendant No. 2 told Mr. Gargi that the f rmer was interested in introducing a mtoion picture with 'provincialism' as its theme. In the context of this discussion, Mr. Gaigi enquired from defendant No. 2 if the latter was interested in hearing a play called 'Hum Hindustani' produced by Mr. Anand of New Delhi, which play had also 'provincialism' as its theme. On this occasion, Mr. Gargi narrated the list of the said play to defendant No 2. buth the defendants denied that Mr, Gargi had supplied to defendant No. 2 a synopsis of the play. According to the averments of these defendants, the plaintiff had read out to defendant No. 2 his play sometime in November. 1954 in the presence of Mr. Rajinder Bhalia and Mr. Mohan Kumar, who were working as Assistant Directors under the second defendant. After the plaintiff had read out his play to the second defendant, the ptoentialities for making it into a film were immediately discussed and the second defendant clearly indicated his mind to the plaintiff by telling him that the plav was all right for the amatour stage, but it was far too inadequate for the purpose of making a full-length commercial mtoion picture. In paragraph No. 6 by these two defendants, it was pleaded that the defendants would crave leave to refer to the whole of the appreciation of the plav when produced, it being added that mere similarity in theme, even if there be any, was nto sufficient for founding a cause of action for a suit for infringement of copyright The defendants also pleaded in paragraph No. 9 of the written statement that they would refer to the script of the play 'Hum Hindustani ' filed by the plaintiff in the Court and to the script of the picture ' New DELHI' to be filed in the Court by them and further to the duly censored print of the said picture for the purpose of determining whether there was any infringirent of the plaintiff's copyright, as alleged in the plaint. The comparison drawn by the plaintiff between the play aid the picture was, according to their plea, misconceived and ill founded. All the 18 points referred to in the plaint were commented upon and the plaintiff s pleas controverter. It is unnecessary to refer to the written statements filed by the toher defendants.

(4) In the plaintiff's replication to the written statement by defendants Nos. 1 and 2, it was pleaded that each similarity between the play and the film is nto to be taken in its isolation but the similarities are to be considered collectively to arrive at a finding as to whether or nto the film is an infringement of the copy-right of the plaintiff's play.

(5) The pleadings of the parties gave rise to the following issues : -

'1.Is the plaintiff owner of the copyright in the play 'Hum Hindustani' 2. Is the film 'NEW DELHI' an infringement of the plaintiff's copyright in the plav 'Hum Hindustani' 3. Have defendants or any of them infringed plaintiff's copyright by producing, or distributing or exhibiting the film 'NEW DELHI' 4. Is the suit had for misguide of defendant and causes of action 5. To what relief is the plaintiff entitled and against whom '

(6) The learned District Judge in an elabarate judgment dealt with all the 18 points of similarity urged at the bar and came to the conclusion that the incidents and dramatie situations were essentially different from those in the plav and it could, nto, thereforee, be said that there was any fraud or artful disguise on the part of the defendants. It was added that though it could he stated that the play 'Hum Hindustani' and the film 'NEW DELHI' dealt with the same idea and subject, the episodes and incidents which have been depicted in the play and the film to portray the idea and the sib]'ect are essentially different. On this view, the suit was dismissed, the parties being left to bear their own costs.

(7) On appeal, the learned counsel for the plaintiff-appellant has in a very clear cut and concise argument challenged the conclusions of the Court below and the laarned counsel for the respondents has in an equally able and logical manner addressed arguments supporting the lower Court's judgment. The submissions at the bar in this Court are really contined within very narrow limits, as the only point convassed relates to the amounts to an infringement of the plaintiff's play 'Hum Hindustani', no toher point having been raised at the bar of this Court in the present appeal. In so far as the legal position is concerned, the parties before us are nto at issue, though buth sides have drawn our attention to the decided cases and to certain sources of law. We consider it appropriate at this stage to refer to the cases cited at the oar and then to state what we consider to be the well cognised principles of law applicable to cases like the present. The first decision to which our attention has been drawn by the learned counsel at the bar is the well-known decision in Corelli v. Gray, a Judgment by the English Court of Appeal on appeal from the decision of Sargant. J. in the same case reported as Corelli v. Gray. The Court of Appeal, it may be pointed out, agreed with the decision of Sargant, J. who had granted an injuaction to the plaintiff and had also ordered an account of profits to be taken and further diecting the deliverying the infringing documents. The following passage from the decision of Sargant, J. was reproduced with approval by the Court of Appeal : -

'BUTthe combination of these ordinary materials may nevertheless be original, and when such a combination has arrived at a certain decree of complexity it becomes practically impossible that it should have been arrived at independently by a second individual.... In my jugdment the similarities and coincidences to be entirely inexplicable as the resule of mere chance concidence. In the reported case, defendant Gray was a composer of a sketch or play called 'The People's King' and the plaintiff complained that this work infringed her copy right in the book ' Temporal Power'. In the background of the passage qutoed above, the Master of the Rolls thought that the Court must approach the case on the fotoing that defendant Gray had the book 'Temporal Power' either under his eyes or in his memory when he wrtoe his sketch. It was still considered open to the defendant to say that he had nto infringed to copy right because he had only taken from the book something which was nto the subject of the copy. right, but, according to the Court of Appeal, when it appealed that nto merely one, two or three stock incidents had been used, but a combination of stock incidents, every one of which had been taken from the plaintiff's book it would be narrowing the law beyond what was reasonable to say that the plaintiff was nto entitled to be prtoected. Without going into the question as to whether all the situations, taken by the defendant were stock situations, in the Courts view, the mare fact that in a sketch of six scenes, there were nto found in any toher book, was quite enough to bring the case within section I of the Copyright Act of 1901. Hanfstaengl v. W. H. Smith and Sons,was a case in which the plaintiff, the owner of the copyrights in several works of art, inclading phtoographic illustration which appeared in the adveitisement portion of a wall known magazine was an infringement of his copyright in the said picture. Kekewich, J. in the course of his judgment made the following instructive observitions :- 'It is, I think, obvious that for the purpose of the Act under consideration the word copy' cannto be limited to a reprodu;tion of this character, but it is nto equally easy to say to what reproduions it ought to be extended. The authorities are by no means without instruction on this point, but much is left open for conside. ration and determination. It would be impossiole fully to state the law as expressed in these authorities, most of which were cited in argument, without going through them at greater length than is convenient to do here and comparing the language of different Judges. Each case deals with peculiar circumstances, and the endeavor of the Court in each was rather to apply the statutory provisions to the case in hand than to lay down principles or rules by which antoher Court might be guided in antoher case disclosing circumstances entirdy different.'

The case of painting, in our view involes, slightly different considerations from those which apply to the case of a cooyright in a play which is said to have been infinged by a film to be screened. Havker and Son (London), Limited v. Paramount Film Service, Limited. deals with the copyright in a musical composition. Consideration in the case of a copyright in a .musical composition is also nto likely to serve as a direct precedent. for the case ishand. Kingh Features Syndicate, Incor porated v. 0 Ana M Kleeman. Limited, was an actual for alleged infringement of the appellants copyright in sketches portraying a fictitious character known as 'Popeye, the sailor,' by the importation and sale of certain dolls and brooches. This case too cannto give us any direct assistance in the present cage. Mecmilan and Company, Limited v. K. And J. Cooper, is a decision of the Judicial Committee of the Privy Council in an appeal from Bombay, in which it is laid down that a reprint or selected passage from a noncopyright work may bean 'original literary work' within the meaning of the Copyright Act, 1911 and the subject of copyright there under. The head ntoe which gives us a clear clue to the decision is in the following terms :

'THEappellants published in India a book of which the text consisted of passages selected from North's Translation of Plutarch's Lite of Alexander, words being introduced in some instances in order that the text should form an unbroken narrative ; introductions and ntoes suitable for educational purposes were added. North's Translation consisted of 40,000 words ; the text of the appellants' book of 20,0(10. The appellants alleged that a similar bock published by the respondents, also with held, that there had nto been expended upon th. text of the appellants book sufficient knowledge, labour, judgment or literary skill to entitle them to copyright in it; but that they were entitled to copyright in the ntoes, and that as to them there had been an infringement by the respondents.'

(8) A Division Bench of the Calcutta High Court has in Mohni Molian Singh and tohers v Sita Nath Basak', considered the law and made some instructive observations. It is observed there that whether a woik is a colourable imitation of antoher, must necessarily be a question of fact, and that similarity is a great point to be considered in this connection, but mere similarity is nut enough as it may be due to mere hyptohesis than one. Four hyptohesis have been stated in that decision, viz.. to (1) mere chance, (2) buth works being taken from a common source, (3) the plaintiff's work being taken from the defendant's, and (4) the defendants work being taken from the plaintiff's, Each case must, thereforee, depend on its own circumstances. Head ntoes (b) and (d) of the reported decision deserve to be reproduced. They are :- (d) Though similarity is to a large extent inevitable in certain kinds of books, such as books on certain course of study prescribed and books on alphabets etc., and each one of the points of similarity may nto be worth anything. a conglomeration of so many points of similarity which, in the opinion of the defendant's own expert, constitutes a strange to copyright while dissimilarity may be part of the. defendants authors' fraud and artful disguise of what they ''had done.'.

'(D)There were strange coincidences, series of coincident reproductions, and although it could nto be said for certain that the defendant's work was a mere imitation of the plaintiff's 'woik, as there were differences and improvements in the later publication, the impression left was that the defendant in his work had largely copied the plaintiff's book. Although there has some exercise of individual choice and some judgment also in adding some new features which might be considered improvements on the plaintiff's books,'

(9) , At the bar reference has also been made to some passages from Copinger and Skone James on the Law of Copy-light and from the Law of Copyright by Rustom K. Dadachanji Article 3l7 of Coprus Jurisdiction, Volume 13, and paras 685 and 686 of Volume 8 of Halsbury's Laws of England have also been cited in argument.

(10) The legal position seems to us to be no longer in dispute and indeed there has been no difference of opinion in regard to the law as canvassed befor e us by the learned counsel for the parties. Broadly speaking, copyright is claimable only in original literary, dramatic, musical and artistic works. Ideas and opinions are nto the subject-matter of copyright. It is only the form, in which the ideas or opinions are expressed, that is prtoected by the law and that also to the extent that a substantial part of the form must nto be appropriation of the labours of one author by antoher person. The work to be prtoected must be original expression of though', but the owner of the copyright cannto claim a monoply in the subject-matter. In toher words, what is prtoected is nto original thought or information but the original expression of thought or information in some concrete form. Accordingly, it would be an infringement only if the defendant makes an unlawful use of the form in which the thought or information is expressed. As the .word 'copyright' itself indicates, the right, of which the owner can claim property, is confined to copying in some form the work to which the prtoection by the Copyright Law is afforded and the property right does nto extend to an independent production of the original. It is no defense to an action of infringement of copyright that no damage has been caused to the plaintiff, because the right of the owner of copyright is nto determined or measured by the amount of actual damage to him by reason of the infringement. The law being clear, it is only in its application to a given case that the real difficulty always arises, This difficulty is posed by the question of the extent of copying and the degree of resemblance necessary establish infringement in a given case. Very frequently, the alleged infringement does nto consist of an exact or verbatim copy of the whole or any part of the earlier work, but of mere resemblance in a greater or lesser degree. It is in such cases that the Court has to solve the difficult problem whether there has been copying at all, and, if so, does it amount to infringement of the plaintiff's copyright. In such a case, the question must essentially and besically before of cirumstancts of each case.

(11) Applying to the present case the rule of law just enunciated, we find that the analysis and conclusion of te learned District Judge are buth fair and reasonable. buth the parties hove produced in this Court in the course of the arguments a comparative analysis of the play and the film in question and whereas the appellant has tried to bring out promionently the features of similarity Justifying, according to the plaintiff's case, a conclusion of infringement, the respondents' counsel has pointed out various dissimilarties in the expression of the idea of evils of provincialism and various material differences in the settings in the plto. In the. light of the synopss produced before us, we have considered the 18 points of similarity alleged in the plaint which may appopriately be read at this stage :

'(I)Before the actual stage play, the producer gives a narrative. He stalls that although we describe ourselves as 'Hindustanis' we are nto really 'Hindustani'. He questions the audience as to what they are and various voices are heard. To say in toher own provincial languages that they are Punjabis, Banaglis, Gujratis, Marathas, Madrasrs, Sinohis, etc. Li the said Film the same ideas is conveyed and the here of the picture shown searching for a house in New Delhi and wherever be goes he is confronted by a lardlord who des- cribed himself nto as a 'Hindustani' but as a Punjabi, Bengali, Gujrati, Maratha, Madrasi or Sindhi, '(ii) buth the said play and the said Film deal with the sabject of provincialism (iii) buth the said play and the said Film evolve a drama around the lives of two families, one. a Punjabi family and the toher a Madrasi family. (iv) In buth the said play and the said Film, the name of the Madrasi father is Subramanyam. (v) buth the said play and the siid Film have their local in New Dehli (vi) buth the said play and the said Film show cordiality of relations between the two families. (vii) buth the said play and the said Film show the disruption of the cordial relations as soon as the heads of the families discover the existence of a love affair between their children. (vili) In buth the said play and the said film, buth the parent warn their respective children nto to have any thing to do with each toher on pain of corporal punishment. (ix) The entire dialogue in buth the said Play and the said film before and after the disruption is based upon the superiority of the inhabitants of one province over the inhabitants of the toher. (x) In buth the said Play and the said Film, the girl is shown to be fond of music and dancing. '(xi) In buth the said Play and the said Film the hero is shown as a coward to the exrent that he has nto the courage to go to his parents and persuade them to permit [him to marry a girl hailing from antoher province. (xii) buth in the said play and in the said Film, when the parents of the girl are discussing marrying her of to somebody, the girl is listening to the dialogue from behind a curtain. Thereafter the girl runs to the boy and explains the situation to him. (XIII) in buth the said play and the said film, the girl writes a letter of suicide. (xiv) In the said play reconciliation takes place when the children of the two families, who were in love, go out to commit suicide by drowning etc. whereas in the said film it is only the daughter who goes but to commit suicide by drowning hereself in the Jamna. (xv) In the said play the children are stopped from committing suicide by an Astrologer whereas in the said Film the girl is stopped from committing suicide by a friend of the family. (xvi) In the said play reconciliation between the two families takes place only after they have experienced the shock of their children committing suicide on account of their provincial feelings whereas in the film the father of the gill realised his mistake afterexperiencing the shock of his daughter committing suicide. (xvii) In buth the said Play and the said Film, stress is laid on the fact that although India is our country, yet there is acute feeling of provincialism between persons hailing from its various States even though they work to gether and live as neighbours. (xviii) buth in the said play and in the said Film, even the dialogue centeres around the same subject of provincialism.'

Having directed our most careful attention to th material on the record and the arguments addressed at the bar, we are unable to hold that the defendant's film can on any reasonale hyptohesis be considered an infringement of the plaintiff's play. The idea of bringinp into prominece the evils of narrow provincialism and impressing upon the p.ibliG that intrinsically a young Indian is averse to the nanow artifical barriers of provincialism, and similar is the case with the cider generation when.they apply their rational mind to this qustion, is of course common to buth the play and the film. The main artcls in buth are also cbildienofaPun1abiandaMadra^ilamily,but that by itself cannto, accordirg to the proposition of law settled above, constitute on infrin gement of the copyright. At best it can only amount to similarity of idea and no more. Even if the broad base of the play and the film may have some common elements, we are extremely doubtful if this degree of similarity of the idea and the broad base or even a broad outline of that were so can bring the defendant's film within the mischief of the law of copyright It is true that the defendants had taken some assistance or may have developed their idea of exposing the irrational basis of petty provincialism from the version of the plaintiff's play as conveyed to them but this is nto enough to entitle the plaintiff to relief on the plea of infringement of his copyright All the 18 points, on which emphasis has been laid by the plentiff do nto establish more than this.

(13) In the final result, thereforee, the judgment and the decree of the Court below seems to us to be unexceptionable, with the result that we affilm the same and dismiss the present appeal. In the peculiar circumstances of the case, however, we make no order as to costs.

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