HOLLYWOOD v. BOLLYWOOD: COPYRIGHT INFRINGEMENT
This post under the RFMLR Blog Series on Evolving Landscape of Intellectual Property Rights is authored by Nandini Modi, a fourth-year student of B.B.A.LL.B. (Hons.) at Jindal Global Law School, Sonipat.
The Indian Hindi-language film industry, Bollywood, is one of the largest film industries in the world and has been growing both commercially and culturally. It has managed to maintain a stronghold on its global audience through its engaging content. However, the industry has been plagued with numerous allegations suggesting the problem of unauthorised copying of Hollywood films. Such films are either labelled as adaptations or as being inspired from Western movies. This article aims to analyse whether Bollywood writers/producers infringe upon the copyright of the Hollywood production houses while making remakes of Hollywood films in a strictly Indian context.
2. LEGAL FRAMEWORK
The Indian copyright law is governed by the Copyright Act, 1957[i] (“the Act”), and Section 13 of this act lists the works in which copyright subsists, which includes cinematograph films under Section 13(1)(b). Section 2(f) of the Act defines a cinematograph film as a work containing a visual recording accompanied by a sound recording,[ii] while Section 14(a) extends exclusive rights to the author. The Act also contains provisions for copyright infringement under Section 51 which prescribes that copyright infringement occurs when the chronologically subsequent work is a “substantial and material” copy of the first.[iii] Exceptions to this are laid down under Section 52.
In the case of MRF Limited v. Metro Tyres Limited, the Delhi High Court had held that, in order to grant a copyright to the film, under Section 13 of the Act, it should be an original work, and producing a film which is a copy of the original movie without the owner’s prior authorization is an infringement. In Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah & Ors, the court held that a ‘copy’ is not limited to a physical copy of a movie, but also includes the substantial, fundamental, essential, and material resemblance to the original film. To determine the infringement, the “substance, foundation, kernel of the film” must be looked at. In short, a copy could now also include adaptations or inspirations from the original works.
3. BOLLYWOOD v. HOLLYWOOD
Bollywood has continuously tried to increase its audience appeal, global reach, produce films to sell multiple tickets and earn maximum profits, and secure a niche place for itself in the international movie industry.[iv] One way to increase the box office hits has been by remaking Indian versions of Hollywood films. This is mainly done to appease the vast westernized Indian audience. The Western film industry initially did not pay much heed to it owing to Bollywood’s low profitability, India being a developing nation, and the presence of highly distinct audiences for both film industries.[v] However, lately, India has experienced an economic boom between 2005-2008. The Indian cinema has become a part of the INR 300 Crores club, too. Furthermore, with India’s emergence as a global economic power, the audiences for Bollywood and Hollywood are increasingly overlapping with each other. Therefore, the Western movie industry has started paying close attention to Indian cinema.[vi]
The Indian Film, Partner (2007), was a blatant copy of the Hollywood movie, Hitch.[vii] Overbrook Entertainment and Sony Pictures sent cease-and-desist letters to the producers of Partner and contemplated a lawsuit against them. An injunction was issued by the Bombay High Court to delay the release of the film Partner, but the two parties resorted to an out-of-court settlement before any decision was made by the court.[viii] However, the only case until 2007 where an Indian Court had provided an opportunity to hear the matter of copyright was Bradford v. Sahara Media Entm't Ltd. Therefore, considering the lack of judicial pronouncements providing clarity on the subject matter or even deciding in favour of Hollywood Production houses, the idea of filing lawsuits was dropped by Overbrook Entertainment, and the parties settled the matter outside court.
The first legal cinematography infringement case was brought by Twentieth Century Fox against production company BR Films for producing Banda Yeh Bindaas Hai, which was allegedly a “substantial reproduction” of their film My Cousin Vinny.[ix] However, before the Court could issue a decision, both parties agreed to an outside court settlement where both the producers entered into an agreement of assignment of rights to legally remake the adaptation of My Cousin Vinny.[x] This case garnered a lot of media attention because it was the first time a Bollywood Studio was forced to pay for its unlawful remake.[xi] Out-of-court settlements were preferred because of the vague judicial precedents. Further, in this scenario there is a higher chance to earn more money for the Hollywood Production houses and, less damage is caused to the reputation of Bollywood.
4. IDEA/EXPRESSION DICHOTOMY
The idea/expression dichotomy is the distinction between an idea and its expression. Under Copyright law, only the forms of expression are protected and not the idea. The idea is intangible and abstract which is materialised and given a tangible form by way of its expression. This is the central essence of copyright law. If the ideas are also to be protected, it would severely restrict the freedom of individuals to create their expressions stemming from the same idea. This would neither encourage the free flow of ideas nor reward creativity. Therefore, it becomes important to grant copyright only to the physical forms of work by the creators (which can be used as valid evidence) and not the thoughts present in their minds. [xii]
The Indian Copyright Act is silent on the idea/expression dichotomy, and therefore, for understanding this concept, reliance is placed on case laws. The Indian jurisprudence on the topic was conceived through the landmark case of R.G. Anand v. Delux Films & Ors. The Hon’ble Supreme Court in this case connoted a broader interpretation to the term ‘copying’ and provided guiding principles to infer what would infringe copyright. It specified that firstly, there can be no copyright protection in any idea, plots, themes, subject matter, legendary or historical facts. Merely, the form, arrangement, and expression of the idea fall under protected work. Secondly, if the same idea is expressed differently, some similarities are bound to appear. The determining aspect would be whether the similarities form the fundamental part of the expression adopted of the copyrighted work.
In the aforementioned case, the ‘Lay Observer Test’ was also established which states that if the observer on seeing the chronologically second work gets an “unmistakable impression that the subsequent work appears to be a copy of the first” then it would amount to infringement.[xiii] If the “person with common memory after watching or reading a work is able to distinguish between the original and copied work” then it would not be held a copyright infringement. A question of infringement does not arise when two works have the same theme, but the treatment and presentation of that central theme are different. This was affirmed in a recent case of Mansoob Haider v. Yashraj Films, where the Bombay High Court held that the residue left after the elimination of the dissimilarities between the two works in question is the idea which is not copyrightable and mere similarity would not mean a straight infringement.
Another case was filed by the Fox Studio against Sohail Maklai Entertainment for producing Knockout, which was a copy of their film, Phonebooth.[xiv] This time there was no settlement agreement and the Bombay High Court opined differently than Calcutta High Court’s anti-western view. In this case, titled Twentieth Century Fox for Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. and Anr., the Bombay High Court relied on the U.S. copyright law due to the dearth of Indian copyright case laws regarding this subject matter. It held that “[t]here is little doubt that a person seeing both the films at different times would come to the unmistakable conclusion that the Defendants film is a copy of [PhoneBooth]” and awarded damages to Fox Studios.[xv] This was the first time that an Indian Court ruled in favour of a Hollywood production house and accepted infringement by the Bollywood studio.[xvi]
However, there are still many Indian movies that can be held to be unauthorised copies of Hollywood films but have never been litigated. For instance, Dhoom 3 adopts its idea of twin brothers performing in a Circus from the movie, Prestige. Ghajini is yet another film being wholly adapted from Memento. Bang Bang is also an adaptation of the Hollywood film, Knight and Day.[xvii] Most Bollywood production houses take the defence that they have ‘Indianized’ the Hollywood films by casting Indian actors/actresses, adding music and dance sequences, romanticizing the plot and the narratives are expanded to include emotions that are tailored to the Indian culture.[xviii] In such cases, it becomes difficult to hold that the expression undertakes the same form in both films. Moreover, owing to the Merger Doctrine (where the idea merges with the expression and the said work cannot be copyrighted) and Scènes à faire (certain elements (incidents, characters, scenes) are so intrinsically connected with the idea that they cannot be separated from the expression and hence are not copyrightable). Bollywood argues that there are certain scenes or themes/plots which cannot be shot with creating a demarcation between the idea and expression. Same ideas that are manifested differently will definitely create similarities, but the dissimilarities are so substantial that they cannot amount to infringement. [xix] In such cases, it becomes difficult to hold that an infringement has taken place, owing to the huge cultural differences demonstrated in the movies.[xx]
6. RECENT EVOLUTION IN JURISPRUDENCE
In recent judgements such as the Shamoil Ahmad Khan v. Falguni Shah & Ors., the Court discussed the term ‘extraction’ which is used to separate the idea from the expression by eliminating all the layers of embellishment until the bare idea becomes visible. It cited the case of Nichols v. Universal Pictures Corp. to state that the characters and settings help an idea turn into a final story. These are a combination of various elements which give any work a substance to it. If these elements are extracted or stripped, then what would remain is the idea that is not protected under copyright. In the case of XYZ Films LLC v. UTV Motion Pictures, it was held that the Court must apply its own knowledge of the subject matter to the said expression. It is the discretion of the court to decide where they want to draw the line of extraction between the abstraction and expression. The rules should not be applied in a blanket manner but should be specific to the facts and circumstances of the case. If the central idea, theme, plot of a story are the “life and blood” of the story without which the story would be extracted of its true meaning and if copied, it would attract a case of actionable plagiarism.[xxi]
Evidently, the issue of copyright infringement is rarely decided by the courts in the context of Hollywood and Bollywood films. Even if they will be litigated, there could be a possibility of the courts holding in favour of the Bollywood party because of the idea/expression dichotomy, Merger Doctrine, and Scènes à faire. Bollywood can continue to copy certain scenes/sequences in an unauthorized fashion. Cinema is a form of art that involves exploring and presenting new creative and innovative content but at the same time, it is also extremely expensive and has incorporated a commercial side to it which tempts the producers to copy from other sources instead of coming up with their own original expressions. The reason could be the fact that in contemporary times the focus of producers has shifted from content-driven movies to movies that generate more money even if the latter leads to copying someone else’s work.[xxii] Punishment is attracted under Indian Copyright Law only when Bollywood writers lift the entire plot verbatim from Hollywood films.
Hence, the lifting of an idea from Hollywood and formulating another expression is perfectly legal under Indian Copyright law. Such lifting might be wrongful with respect to morality and ethics.[xxiii] It also undermines the efforts of the author of the work. Indian Copyright Law gives the right to these producers to keep drawing ‘inspiration’ from Hollywood, Indianize such inspiration and make it palatable to its audience. Creative integrity and moral considerations are overlooked for monetary and territorial gains. However, the Indian Courts have an international legal obligation to adhere to the TRIPS Agreement and Berne Convention to which India is a signatory party. These Agreements offer protection to the original works of the authors and punish infringers. Moreover, the Indian Jurisprudence has recently evolved and has liberally interpreted the term ‘copying’ which could impose liabilities on the Bollywood producers who get away with copying works from other sources. [xxiv]
[i] Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
[ii] Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
[iii] Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
[iv] Hariqbal Basi, Indianizing Hollywood: The Debate over Copyright Infringement by Bollywood, 18 UCLA Ent. L. Rev. 33 (2010).
[vi] BASI, supra note 6.
[vii] Arjun Shah, Is Bollywood Unlawfully Copying Hollywood, Why, What Has Been Done about It, and How Can It Be Stopped, 26 Emory INT'l L. Rev. 449 (2012).
[ix] SHAH, supra note 9.
[xi] SHAH, supra note 9.
[xiv] SHAH, supra note 9.
[xvii] SHAH, supra note 9.
[xviii] BASI, supra note 6.
[xxii] Apurva Bakshi & Ravi Kiran, Copyright Violations in Indian Cinema: Why Barfi! Denotes All That's Wrong with Bollywood, 4 Queen Mary j. Intell. Prop. 310 (2014).
[xxiii] K M Gopakumar & V K Unni, Perspectives on Copyright, The ‘Karishma’ Controversy, 38 E.P.W. 2935, 2936 (2003).