Shri Venkatesh Films Pvt. Ltd vs. Vipul Amrutlal Shah & Ors

CASE BRIEF

Shri Venkatesh Films Pvt. Ltd

vs.

Vipul Amrutlal Shah & Ors

Appellant- Shri Venkatesh Films Pvt. Ltd

Respondant- Vipul Amrutlal Shah & Ors

Decided On: 1.09.2009

Statues Referred:-

Section 2(f), Section 14(d) of the Copyright Act, 1957

Case Referred:-

1. Star India Private Limited vs. Leo Burnett (India) Private Limited, 2003(27) PTC 81 (Bom)
2. Zee Entertainment Enterprises Ltd. vs. Gajendra Singh & Ors., 2008(36) PTC 53 (Bom)
3. Raghunath Rai Bareja & Anr. vs. Punjab National Bank & Ors., (2007)2 SCC 230
4. R.G. Anand vs. M/s. Delux Films & Ors., reported in AIR 1978 SC 1613 

Facts:-

1. A Hindi film titled as ‘Namastey London’ was released by the plaintiff/respondent, that is Vipul Amrutlal Shah & Ors. It was a run away success. According to the averments made in the interlocutory application, the film earned more than Rs.100 crores in box office collections.
2. It appears that as early as on 22nd July, 2009 before the release of Bengali film titled as ‘Poran Jaye Joliya Rae’, newspapers i.e., The Hindustan Times and others reviewed and warned the readers that the said Bengali film, in their opinion, is nothing but a ‘copy’ of the Hindi film “Namestey London” which was known to the plaintiff/respondent.
3. On 24th July, 2009 the said Bengali film was released. On the basis of the prima facie evidence, the plaintiff/respondent knew that a potentially infringing film or work was about to be released. Yet no suit was filed till it released.
4. It is also the case of the plaintiff/respondent that after release of the said Bengali film, negotiations were made by the plaintiff/respondent with the Bengali film producer on 28th July 2009 for assignment of rights in their favour, which did not fructify. 
5. The suit and the interlocutory application were filed some ten days after release of the film. And, upon satisfaction of the producer that the Bengali film is a success and a revenue earning enterprise, the producer applied for injunction to restrain exhibition of the film on the ground that his copyright was being infringed.
6. So, the Hon’ble First Court solely on the basis of its impression on viewing the film and on the basis of the prima facie finding that the Hindi film could at best be “plagiarism” and not “infringement of copyright” passed an ad-interim order of stopping exhibition of a Bengali film titled as ‘Poran Jaye Joliya Rae’ against the appellant/defendant, that is Shri Venkatesh Films Pvt. Ltd.
7. Further, the defendant/appellant appealed against the ad-interim order of injunction passed in a copyright suit on 10th August, 2009 by this Hon’ble Court after which the respondent/plaintiff was asked to establish the prima facie case of infringement of copyright, as the appeal was merely a continuation of the proceeding before the trial court. 

Contentions by Parties:-

1. The appellant/defendant had denied before the trial court that they had any ownership of the copyright or any right to sue and had also alleged that the respondant/plaintiff’s film was itself a copy of the 1970 Hindi film Purab Aur Paschim and hence did not enjoy any copyright.
2. The appellant/defendant contended that in the stay petition no such proof of their entitlement to copyright was annexed by the respondent/plaintiff. 

Issue:-

Whether the appellant/defendant has infringed the respondents/plaintiff’s Copyright by copying their work for making a cinematographic film?

Judgment:-

1. The Calcutta High Court observed that where there is an alleged substantial similarity in the film taken as a whole with another film, in the opinion of the said viewer there is infringement of the copyright in the film. A part of a film, e.g. story and screenplay may similarly enjoy copyright. In the context of a cinematograph film, the word ‘copy’ must be given a broad meaning. It is true that Section 14(d) of the Act states that infringement of copyright of a film would take place by its copying where the physical film or any electronic form of it is ‘carbon copied or replicated’ but the court held that the words, ‘to make a copy of the film’, do not mean just to make a physical copy of the film by a process of duplication, but it also refers to another film which substantially, fundamentally, essentially and materially resembles/reproduces the original film.
2. It was further observed that the Court would have to compare ‘the substance, the foundation, the kernel’ of the two advertisements to consider whether one was ‘by and large a copy’ of the other and whether an average viewer would get an unmistakable impression that one work was a copy of the other.
3. The court further said that a scene by scene comparison of the two films has been done and thus prima facie held that the Bengali film is substantially if not a verbatim, copy of the Hindi film as a whole. The court also went through the story of Purab or Paschim and prima facie held that there is substantial innovation in the story of Namastey London. So, prima facie there is infringement of its story and screenplay in the Bengali film.
4. Thus, the High Court held that the ad interim order was rightly passed by the Hon’ble First Court and further restrained the appellant from making any copy version or adaptation of the film in any regional language.

Rule of Law:-

The provision of the law which was under scrutiny by the Hon’ble High Court of India was the infringement of copyright law due to ‘copying’ as per Section 14 of the Copyright Act, 1957.

Conclusion:-

To conclude, it can be said that after the Calcutta High Court broadly described the meaning of the term ‘copy’, it brings India’s copyright laws in line with the Berne Convention, of which India is a party and which is one of the most important treaties on copyrights, aimed at protecting the literary and artistic works and under which a cinematograph work is to be treated as an original work and the owner or producer of such work is to be given same rights as any other copyright holder.