Themes and Copyright Law: A Complicated Relationship

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The Delhi High Court judgment on Lootcase which was delivered recently has brought the discussion in relation to “themes and copyright infringement” again to the forefront. The petition was filed for issuing an interim injunction on the grounds of copyright infringement which was rejected by the court. In this blog post, the author will analyze the stand of the judiciary in relation to copyright infringement and protection to themes.

Thematic, Tests and Judiciary

The discussion concerning whether the theme is copyrightable or not can be traced back to RG Anand vs Delux Films. It is presumably the first case where the court had stated something in relation to abstract ideas or themes being the subject of copyright law. The appellant in the instant case, i.e., RG Anand wrote a play titled ‘Hum Hindustani’ in 1953 which became quite successful to the extent that defendants and appellant even had a meeting in relation to prospects of it being made into a movie. But the consensus was not reached, and as a result Mr Anand never heard anything back from the defendants. In 1955 when the movie ‘New Delhi’ was started by the defendants, they assured Mr Anand that the storyline is not similar to his play. But when the film was released in 1956, the appellant felt that the movie is based on the same theme as his play; as a result, he filed a suit for copyright infringement against the appellant.

The district court in the matter held that the movie was not infringing the copyright of Mr Anand and the Delhi High Court upheld the judgment of the district court. Mr Anand, as a result, appealed to the apex court against the verdict and it is of importance what honourable Supreme Court said in relation to this:

The court held that in relation to different interpretations of the same idea, there are chances that the interpretations have some kind of similarities. In situations such as these, the court should determine whether fundamental or substantial aspects are literally reproduced with some changes here and there. If the answer to the same is yes, then it will amount to copyright infringement and otherwise, it will not.

A similar judgment was given by honourable Bombay High Court in Zee Telefilms Private Limited vs Sundial Communications Private Limited. The Court in the decision cited Talbot v. General Television Corporation Pvt. Ltd. The bench held that it agreed with one facet of the decision in the above-mentioned judgment, i.e., to protect the idea it must be sufficiently developed as a concept to seem attractive or capable of being realized as an actuality. However, the court added that though the idea may require extensive development in a few cases, but the synopsis of an entire project is not necessary in all cases. The court further held that originality of idea with respect to some significant element which is not in the realm of public knowledge is mandatory. Also, the court laid down the tests to determine copyright infringement.

The First test deals with the impression on the mind of the average viewer. It means that after watching a movie, a layman feels it is a copy of another, similar to the ‘Total Concept and Feel’ test developed in the USA.

And,

The Second test is known as a substance/ foundation/ kernel assessment test. In this test, it is examined whether the rest of the thing can stand without the part alleged to be causing copyright infringement. If yes then the substance in total is not infringing copyright of another party, and if not, then it is infringing. Copyright infringement implies that the material is a substantial reproduction of another person’s work although there are several dissimilarities. XYZ Films v UTV is one of the latest cases in which the court applied Kernel Test to determine whether the movie (Baaghi) has committed copyright infringement by copying the theme of another movie (Raid: The Redemption).

Singardaan Case: A Detraction from the Settled Principle?

The Shamoil Khan v Falguni Shah (Singardaan Case) is a peculiar case as it is the first time a copyright protection is granted to ‘thematic’. The instant case therefore, can be claimed novel by a few but on a careful perusal one will find that the court granted copyright protection to themes on which a full-fledged storyline is developed rather than just a central idea. Also, the court by applying the average viewer test held that the web series contained all the essential points in relation to the literary work and a layman while watching the series will assume that the series is an adaptation of the story published in the year 1993. Thus, though the court held that the series Singardaan has committed copyright infringement it never detracted from the settled principle as laid down in RG Anand v Delux Films.

Lootcase: Looting Copyright or Case of an Axe to Grind

In Vinay Vats v Fox Star Studios India Pvt Ltd (Lootcase Case) the writer (plaintiff) of an unreleased movie named Tukkaa Fitt argued that on comparison of the trailer of both the movies (Tukkaa Fitt and Lootcase) it can be deduced that the trailer of ‘lootcase’ was based on the same theme as of his movie. Thus, the entire movie is a result of copyright infringement. But on a careful perusal, one may find that the trailer of both movies had stark differences.

The Honourable High Court reiterated the judgment of the Supreme Court in RG Anand v Delux Films and rejected the plea of granting interim injunction. The Delhi Court also held that the idea which the plaintiff claims as his is ‘as old as the hills’ and therefore the claim of novelty by the plaintiff does not hold ground.

Apart from this court also noted that since the plaintiff already knew about the movie Lootcase from 2017 and the release date of the same also from much before, this suit to grant an interim injunction is just another example of misuse of the judicial process.

Author’s Perspective

The author believes that the viewpoint of various courts in relation to copyright of themes has been constant and in line with the apex court decision in RG Anand v Delux Films. The recent decision of Bombay High Court in Singardaan case has also as discussed above not detracted from the established precedents as it grants copyright protection to the theme which forms the building block of an entire storyline rather than the one which remains just a central idea of the plot. Also, these judgments act as a deterrent against the big corporates of the country who use the copyright protection law as a means to further their own selfish agenda and settle scores. There are various case laws in this regard (misuse of the judicial process), and it is to note that though the judiciary has come down heavily on them in the past, caution may still be applied. Lastly, the courts following the precedents and in rare cases distinguishing the same has established a settled principle of law, and a very narrow scope is left for overprotection in the copyright law field in India which is a good sign.