The Bombay High Court on Wednesday held that there can be no monopoly of copyright in the idea or subject of a film based on the subject of clinical trial which is a part of public domain and dismissed a notice of motion filed by writer Shivani Tibrewala in a suit alleging copyright infringement on behalf of makers of the movie Umeed, which is based on unethical clinical trials.
The plaintiff alleged that script of the movie Umeed was a substantial reproduction and/or an altered copy of the plaintiff's works and violates the copyright in her literary works.
Justice SJ Kathawalla concluded that the plaintiff had failed to make out a prima facie case of infringement of copyright by the defendants (makers of Umeed) in the script of the plaintiff's play 'The Laboratory'.
According to the plaintiff, there are striking and admitted similarities between the script of his cinematographic film, the play and defendant's film 'Umeed'. The suit contends that plaintiff wrote the script of his play "The Laboratory" in 2007 and it was registered with the Screenwriters Association on June 25, 2008. Between October 2007 and April 2010. the play has been performed on numerous occasions at prominent locations by well-known actors.
The play was successful and in February 2013 a book entitled 'the Laboratory and Other Plays was published along with two other plays which was released. Following this, the same year, script of a cinematographic film, fundamentally the same as the script of the play with slight variations was also completed by the plaintiff.
Thereafter, the petitioner claims that she watched the trailer of "Umeed' on August 28, 2017 and noticed "startling similarities with her work and immediately raised her grievance with the Film Writer's Association. Although, 'Umeed' Director Rajat Mukherjee agreed to arrange a private screening for the plaintiff initially, the same did not materialize.
Aggrieved by all this, plaintiff filed the present suit.
Advocate Rukmini Khandekar appeared on behalf of the plaintiff and Dr.Birendra Saraf for the defendants.
Khandekar submitted that it cannot be by mere chance that the plaintiff's as well as the defendant's work deal with a female protagonist who is made a pawn by a large pharmaceutical corporation to conduct unethical drug trials. The female protagonist, on realizing this, launches a legal battle against the pharmaceutical corporation and initiates a mass countrywide protest in support of the issue. After several adverse hearings, she eventually wins the case, despite the pharmaceutical corporation's violent attempts to stop her and an initially unsympathetic judge, only because of the change of heart of someone she considered her mentor. This is the substance, foundation and kernel of the plaintiff's works and the defendant's film is substantially similar in this respect to the plaintiff's works.
She relied on the following judgements in support of her arguments-
Faber Castell Aktiengesellschaft and Ors. vs. Cello Pens Pvt. Ltd., Designer Guild Limited v. Russell Williams (Textiles) Limited, C. Cunniah and Co. v. Balraj and Co. and R.G. Anand v. M/s Delux Films and Ors.
Dr.Saraf on the other hand argued that at there is no similarity whatsoever between the plaintiff's work and the defendant's film. The entire storyline, its characters and its essence are completely distinct and different. There is no copying leave alone a substantial copy. There is no appropriation whatsoever of any part of the plaintiff's works leave alone any appropriation of any substantial or material part of the protected work. The chain of events, the storyline and the characters are materially and demonstrably different, Saraf argued.
After considering the submissions of both parties and case laws cited by them, Court observed-
"On a perusal of the judgments, it is clear that in an action for copyright infringement, the Plaintiff is required to prove substantial copying of its work. The Plaintiff need not prove that the entire work is copied. If it is proved that the substance or kernel of the Plaintiff's work is copied, the same would amount to infringement of copyright. What is to be considered is, if this substance or kernel which is copied in the Defendant's work is deleted, whether the Defendant's work can stand."
What is to be considered is the treatment of the subject/theme, the manner in which the idea is expressed and not the idea itself. The protectable story elements in the rival works must be considered, which do not necessarily flow from the subject/theme and which as such are unique. It is the quality of the work copied and not the quantity that would determine infringement of the work or a substantial part thereof."
After perusing through the decision in R.G. Anand vs. Delux Film, Justice Kathawalla observed-
"Keeping the aforesaid principles in mind and on considering the works of the Plaintiff and the Defendants, in my view, a finding that the Defendant's work is a substantial copy of the Plaintiff's script of the cinematographic film as originally written and developed from time to time cannot be arrived at. Though both stories are based on the common theme of unethical drug testing and the malpractices followed by large pharmaceutical corporations where harmful drugs are tested on poor and needy individuals without obtaining their informed consent, the treatment of the subject and the fleshing out of the story and characters is very different in the rival works. On comparing the scripts as a whole, there does not appear to be substantial similarity between the two works. The entire plot of the two films and the story line is very different."
Dismissing the motion, Court said-
"The presence of common elements like a common plot line of unethical drug testing, a Court case, nationwide movements against the illegalities committed by the pharmaceutical company, the depiction of death of children as a result of drug testing, do not by themselves individually or taken together establish substantial copying. The comparisons drawn by the Plaintiff are extremely strained and, in some cases, not correct."
Court refused the request made by the plaintiff's lawyer seeking a stay on the judgment in order to appeal. The court clarified that since the movie's release has been delayed since 2017, no further stay can be granted but directed the makers not to release the movie before January 31.
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