An individual’s work has the right to be protected under The Copyright Act, 1957. Stealing someone else’s work is illegal and so is copying it. To protect one’s original work, this act was introduced. It comes under Intellectual Property Rights. Copyright protects variety of works such as write ups, artistic work, products, content, songs or even films. A person creating original work can protect their work under the aforementioned act.
In this article, we will see the copyright and copyright infringement with respect to films; there have been cases of accusation of infringement or similarity. There are films which turn into adaptations too. Copying the work of an artist is unlawful and should be met with serious repercussions. Let us proceed to understand the concept of copyright and copyright infringement through case laws and theoretical concepts.
Copyright Infringement basically means using or copying someone else’s work as your own without the owner’s authority or consent. However, Section 53 of The Copyright Act, 1957, states,
“The following acts shall not constitute an infringement of copyright, namely,—
(a) a fair dealing with any work, not being a computer programme, for the purposes of—
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a lecture”
So, it will not be considered as copyright if it is used for some personal purpose; for criticism and for usage in delivering current affairs. Other than these stated situations any other act can result in a suit against the party as it takes away from the original work of the artist and deprives him of the profits thereof during the subsistence of copyright protection. The term of a copyright is not unlimited, it is limited and its term is throughout the life of the artist whose work is being copyrighted coupled with 60 years after his death.
Section 55 of the act states the remedies which one will be given in case of such infringement. The plaintiff or the copyright owner will be given all the ways to be compensated by the defendant if the copyright infringement has occurred; this includes injunctions, damages, accounts or any other way provided by the court of law.
Now let us proceed to understand concept of infringement in view of cinema. There have been many cases of copyright infringement in the past relating to songs and movies.
The landmark case of R.G. Anand v Delux Films is quintessential to mention here. Wherein, There was a play called Hum Hindustani written by R.G. Anand; the movie New Delhi was said to be a copy of the play made by the plaintiff. The court held that although some parts of the movie were similar but there were some other things that were completely different. Thus, it was not an exact copy of the play. The judgement was in favour of the defendants as they managed to present that the movie was not a copy and was original. The court also observed that copyright can only be filed for copying and executing the same idea not for the idea itself but its publication or expression too.
When the case is taken to court, the court looks at various aspects like:
• If the defendant had access to the original work of the author;
• The similarity index between the original work and the alleged copyrighted work.
The second factor is called the substantial similarity index. The court looks at the important points for where the similarity is present. This could prima facie uphold the suit of the infringement. The burden of proof to evoke the substantial similarity lies on to the plaintiff. There can be no copyright for an idea but infringement can be only for the expression of that idea. Hence, substantial similarity can be difficult to prove as the court has to observe the cause behind the idea on the defendant’s side. There are two methods to reach this decision.
EXTRINSIC AND INTRINSIC APPROACH
Extrinsic approach is when the court observes the fundamental ideas that could have caused the infringement. This methodology compares the ideas, the original work and the alleged infringed work. Intrinsic approach is where the similarity is matched with respect to expression or publication of both the works.
This is an audience test. The alleged infringed work is shown to an audience and their response is recorded. If they recognize the infringed work to be a copy of the original work and see the similarity then it could also be used as a vital point to prove the infringement.
This term is not given in the copyright act, so it is more of a concept. Moreover, this is helpful as it helps the court decide the cases of infringement.
Now, let us proceed to understand what may not constitute infringement, before that it is important for us to understand the concept of Adaption in copyright.
The right to make an adaption of the original work is granted under Section 14 (a)(vi) of The Copyright Act, 1957. This allows any person to make an adaptation of anyone’s original work with their permission. Consent for adaptation is a must. It can vary from work to work. For example- a book can be adapted into a movie or into a play.
Adaptation can include advancing or modification of the original work. The owner consents to the same. There cannot be an adaptation of an adaptation. Romeo and Juliet was written by William Shakespeare and it was later adapted into a play and a movie. Adaptation is not as same as a remake. Directors make a movie saying it is a ‘remake’ of another movie in another language. At first, this practice was not given much attention but as people saw that through this movie ideas were being stolen and expressed too, this has now expressly become illegal. It is only legal if there is an agreement to do the same; no agreement can pave way for suits.
Hence, under the umbrella of adaptation one cannot take on illegal activities like infringement and unlicensed remakes.
ZINDEL V FOX SEARCHLIGHT PICTURES, INC.
In 2017, the movie Shape of Water was released. Paul Zindel, the author of the play Let Me Hear You Whisper, filed a suit against the director and the writer of the movie Shape of Water accusing them of copying his work.
The director of the latter denied even knowing Zindel’s play. The court noted that although there were a lot of similar elements in the movie from the play but it however, did not constitute a copyright infringement.
XYZ FILMS V UTV MOTION PICTURES
In 2016 a Bollywood movie called, Baaghi was being released. XYZ Films accused Baaghi’s climax to be similar to that of Raid: The Redemption. The climax included the hero fighting the villain. The plaintiff wanted the court to issue an injunction against the defendants to stop the movie from releasing.
The court ruled in favour of the defendants as they found the hero-villain fighting plot to be very general in almost all the movies.
SHREE VENKATESH FILMS V VIPUL AMRUTLAL SHAH
Namastey London, released in 2009, was accused of being a copy of the Bengali movie ‘Poran Jaye Joliya Rae’. The plot line was similar and the plaintiff’s sought injunctions based on two cases namely, Star India v Leo Burnett and Zee Entertainment v Gajendra Singh.They also relied on the Total Concept and Feel approach as mentioned before, to gather that the plot of the movie is similar.
The Calcutta High Court at the time held that the movie was indeed similar and issued an injunction. There was prima facie infringement.
Copyright infringement is illegal and there can be dire consequences to the same. People do get around the law and try to get rid of the infringement by removing some similarities which fails the infringement test. This is a gross ethical violation. The owner(s) of the original work must be recognized and awarded their profits from the same.