IN THE HONBLE SUPREME COURT OF INDIA

R.G AnandAPPELLANTVs.M/S. Delux Films & OthersRespondenT

ON SUBMISSION TO THE SUPREME COURT OF INDIA

Memorial on behalf of the RESPONDENTM/S. Delux Films & Others

vinay kumar sahuBatch-11roll no- 169

______________________________________________TABLE OF CONTENTSIndex of Authorities.............................03 Books................03 Dictionaries......03 Statutes and other authorities....03 Websites......................................................................................03 Judicial Decisions.03

Statement of Facts.............................................................................................04Questions Presented...........................................................................................05Summary of arguments..............................................................................................06___________________________________________________________________________Written Submission............07___________________________________________________________________________PRAYER FOR RELIEF...16

INDEX OF AUTHORITIES

BOOKS1). Ahuja V.K, First Edition, Law Relating to Intellectual Property Rights.

Dictionaries1. Blacks Law Dictionary (West Group Publishers, 2002).2. The Law Lexicon, Bakshi, P. M., Ashoka Law House, New Delhi.

Statutory and Other Authorities1. The Indian Copyright Act, 1957.

Websites1. www.manupatra.comJudicial decisionsForeign Judgments1. Hanfstaengl v. W. H. Smith and Sons2.Bobbs-Merrill Company v. Isidor Straus and Nathan Straus3.Hawkes and Son (London) Limited v. Paramount Film Service Limited4.Donoghue v. Allied Newspapers5.Michael vs. Moretti vs. People of the State of Illinois6.Shipman v. R. K. O. Radio PicturesNational Judgments1.Harman Pictures N.V. v. Osborne & ors. Synopsis Of Facts1). The appellant-plaintiff is a playwright, dramatist and producer of stage plays. The appellant had written and, produced a number of plays. 2). The subject matter of the appeal however, is the play entitled (Hum Hindustani'. This play was written by him in the year 1953 and was enacted in the year 1954 and thereafter the play proved to be popular. 3). In November 1954 the appellant received a letter from the second defendant-Mr. Mohan Sehgal requesting the appellant to supply a copy of the play so that he could consider the desirability of making, a film on it. Thereafter, the appellant and defendant No. 2 met at Delhi. In May, 1955 the second defendant announced the production of a motion picture entitled "New Delhi". The picture was released in Delhi in September 1956. The appellant saw the picture. 4). The appellant filed a suit alleging that the film "New Delhi" was entirely based upon the play "Hum Hindustani", that the play was narrated by the appellant to defendant No. 2 and he dishonestly imitated the same in his film and thus committed an act of piracy as to result in violation of the copy right of the plaintiff.The appellant, therefore, filed the suit for damages, for decree for accounts of the profits made by the defendant and a decree for permanent injunction against the defendants restraining them from exhibiting the film. The suit was contested by the defendants. 5).The defendants pleaded that defendant No. 2 is a film director and producer and director of Delux Films defendant No. I that at the instance of a common friend Mr. Gargi the defendant No. 2 met the appellant and saw the script of the play, that the play was inadequate for The purpose of making of a full length commercial motion picture. The defendants contended that there could be no copy right so far as the subject of provincialism is concerned which can be used or adopted by anybody in his own way. 5). The defendants further contended that the motion picture was quite different from the play both in contents, spirit and climax. The mere fact of some similarities between the firms and the play could be explained by the Fact that the idea, provincialism was the common source of the play as also of the film. 6). The trial court raised several issues and came to the conclusion that the appellant was the owner of the copy right in 'Hum Hindustani' but there was no violation of copy right of the appellant.7). Thereafter the appellant filed an appeal in the Delhi High Court. A Division Bench of the Delhi High Court upheld the decree dismissing the appellant's suit.

QUESTIONS PRESENTED

Issues:

1).Whether their is infringement of copyright by the defendant or not.

Summary of Arguments

1. No, their is no infringement of copyright in the film by the defendant.

__________________________________________________________________Written SubmissionsContention- 1

At the time when the cause of action arose in the present suit, the Indian Parliament had not made any law governing copyright violation and therefore the court relied on the old law passed by the British Parliament viz., the Copyright Act of 1911. S. 1 sub-sec. (2)(d) defines copyright as including in the case of a literary, dramatic or musical work, to make any record, performed roll. cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered. S. 2(i) defines that copyright in a work shall be deemed to be infringed by any person who without the consent of the owner of the copyright, does anything, the sole right to do which is by this Act conferred on the owner of the copyright. The trial court raised several issues and came to the conclusion that the appellant was the owner of the copy right in 'Hum Hindustani' but there was no violation of copy right of the appellant. Similar judgement was given by the Delhi High Court. A Division Bench of the Delhi High Court upheld the decree dismissing the appellant's suit. As there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by tile author of the copy-righted work. The Court found following dissimilarities:- (i) In the play provincialism comes on the surface only when the question of marriage of Amni with Chander crops up but in the picture it is the starting point of the story when Anand goes around from door to door in search of accommodation but is refused the same because he does not belong to the State from which the landlord hails as a result thereof Anand has to masquerade himself as a Madrasi. This would therefore show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which not developed or stressed in the play.(ii) similarly in the play the two families are fully aware of the identity of each other whereas in the film they are not and in fact it is only when the dance Performance of Janki and Anand is staged that the identity of the two families is disclosed which forms one of the important climaxes of the film. Thus, the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play.(iii) In the film there is no suicidal pact between the lovers but only a suicide note is left by Janki whereas in the play both the lovers decide to end their lives and enter into a suicidal pact and leave suicide note to this effect. Furthermore, while in the play Amni and Chunder get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janki's real identity is disclosed and Subramaniam also finds out that his daughter is alive.(iv) The story in the play revolves around only two families, namely, the Punjabi and the Madrasi families but in the film there are three important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat Ram.(v) The film depicts the evil of caste ridden society and exposes the hollowness of such a society when in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play.(vi) The film depicts another important social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial part of the story. The number of similarities by themselves are not sufficient to raise an inference of colourable imitation. The similarities are trivial and touch insignificant points and do not appear to be of substantial nature. The appellant has failed to prove that the defendants committed colourable imitation of the play. The film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff. The treatment of the film and the manner of its presentation on the screen is quite different from the play written by the appellant at the stage. No prudent person can get the impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play viz. provincialism is undoubtedly the subject matter of the film along with other ideas also. It is well settled that a mere idea cannot be the subject matter of copy right. The two courts of fact having considered the entire evidence, circumstances and materials before them have come to a, finding of fact that defendants committed no violation of the copyright.Although one does not fail to discern a few resemblances and similarities between the play and the film, the said resemblances are not material or substantial and the degree of similarities is not such as to lead one to think that the film taken as a whole constitutes an unfair appropriation of the appellant's copyright word;. In fact a large majority of material `incidents, episodes and dramatic situations portrayed by defendants 1 and 2 in their aforesaid film are substantially different from the plaintiff's protected work and the two social evils viz. caste system and dowry system sought to be exposed and eradicated by defendants 1 and 2 by means of motion film, do not figure at all in the appellant's play. There has been no breach on the part of the defendants of the appellant's copyright.There can be little doubt from the evidence that the auth-ors of. the film script were aware of the scheme of the play. But, the story portrayed by the film travels beyond the plot delineated in the play. There is a vast difference both in the spirit and the content between the play 'Hum Hindustani' and the film 'New Delhi' and no question of violation of the copy- right arises.In the instant case the play written by the appellant falls within section 1(2)(d) because it is a dramatic work. Emotions like mere ideas are not subject to pre-emption because they are common property. Quoting from the law of copyright and Movie-rights by Rustom R. Dadachanji -"It is obvious that the underlying emotion reflected by the principal characters in a play or look may be similar and yet that the characters and expression of the same emotions be different. That the same emotions are found in plays would not alone be sufficient to prove infringement but if similar emotions are portrayed by a sequence of events presented in like manner expression and form, then infringement would be apparent".Similarly in the case of Hanfstaengl v. W. H. Smith and Sons[footnoteRef:2] it has been held by Bayley, J. that "a copy is that which comes so near to the original as to give to every person seeing it the idea created by the original". As no prudent person can get the impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. In Halsbury's Laws of England by Lord Hailsham, Fourth Edition[footnoteRef:3] as there cannot be copyright in mere science effects or stage situations which are not reduced into some permanent form". [2: [1905] 1 Ch. D. 519] [3: Page 231.]

Similarly, it was pointed out by Copinger in his book on Copyright, 11th Edition that what is protected is not the original thought but expression of thought in a concrete form. In this connection, the author makes the following observations based on the case law:"What is protected is not original thought or information, but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must to be liable, have made a substantial use of this form; he is not liable if he has taken from the work the essential, ideas however original, and expressed the idea in his own form, or used the idea for his own purposes." The author also points out that there is no infringement unless the plaintiff's play-wrighted work has been actually used so, that it may be said that the latter work reproduces the earlier one. Ball in "Law of Copyright and Literary Property'[footnoteRef:4] points out that where the defendant materially changes the story he cannot be said to have infringed the copyright. In this connection, the author observes as follows:- [4: page 364.]

"In such a composition the story is told by grouping and representing the important incidents in the particular sequence devised by the author whose claim to copyright must depend upon the particular story thus composed; and not upon the various incidents, which, if presented individually, without such unique sequential arrangement, would be common literary property. Consequently another dramatist who materially changes the story by materially varying the incidents should not be held to be infringer'. It is also pointed out by Mr. Ball that sometimes even though there may be similarities between the copy-righted work and the work of the defendant they may be too trivial to amount to appropriation of copyrighted material. The author observes thus:-"When two authors portray in literary or dramatic form the same occurrence, involving people reacting to the same emotions under the influence of an environment constructed of the same materials. Similarities in incidential details necessary to the environment; or setting are inevitable; but unless they are accompanied by similarities in the dramatic development of the plot or in the lines or action . Of the principal characters, they do not constitute evidence of copying. They are comparable to similarities in two works of art made by different artists from the same original subject, and in the usual case are` too trivial and unimportant to amount to a substantial appropriation of copyrighted material".Dealing with the infringement of copyright of a play by a motion picture which appears to be an identical case in the present appeal. the author observes as follows:- "In an action for the alleged infringement of the copy right of a play by a motion picture, wherein it appeared that both authors had used life in a boys' reform school as a background, but the only similarity between the two productions consisted to a few incidents and points in dialogue, such as one would expect to find in stories set against the same background, there was no infringement of copyright"."Where the only evidence of similarities between two plays was based upon the author's analysis and interpretation of an extensive list of "parallel", from which he inferred that many incidents, scenes and characters in the alleged infringing play were adapted from the plaintiff's copy righted play but no such resemblance would be apparent i.e to an ordinary observer, it was held that the meaning or interpretation which the author gives to his literary work cannot be accepted as a deciding test of plagiarism; and that, in the absence of any material resemblance which could be recognised by an ordinary observation. Each play must be regarded as the independent work of the named author"."This right exists in the written scenario of a motion picture photoplay and in the photoplay itself as recorded on the photographic film. There is, however, no common-law literary property right in the manner and postures of the actors used by them in performing the play".This view was taken by the U.S. Supreme Court in the case of Bobbs-Merrill Company v. Isidor Straus and Nathan Straus[footnoteRef:5] in the American Jurisprudence also it is pointed out that the law does not recognize property rights in abstract idea, nor is an idea protected by a copyright and it becomes a copyright work only when the idea is given embodiment in a tangible form. In this connection the following observations are made:- [5: 21 O U.S . 339.]

"Generally speaking, the law does not recognize property rights in abstract ideas and does not accord the author or proprietor the protection of his ideas. which the law does accord to the proprietor of personal property'.Similarity of the alleged infringing work to the author's or proprietor's copyrighted work does not itself establish copyright infringement, if the similarity results from the fact that both works deal with the same subject or have the same common source .The case of Hawkes and Son (London) Limited v. Paramount Film Service Limited[footnoteRef:6] was whether a musical composition made by the owner was sought to be imitated by producing a film containing the said composition. An action for violation of the copyright was fired by the owner. Lord Hansworth, M. R. found that the quantum taken was substantial and a substantial part of the musical copyright could be reproduced apart from the actual film. In this connection, Lord Hansworth observed as follows - Having considered and heard this film I am quite satisfied that the quantum that is taken is substantial, and although it might be difficult, and although it may be uncertain whether it will be ever used again, we must not neglect the evidence that a substantial part of the musical copy right could be reproduced apart from the actual picture film." [6: [1934]1 Ch. D. 593]

In the case of Harman Pictules N.V. v. Osborne & ors.[footnoteRef:7] it was held that in this connection Coff, J. Observed as follows:- [7: (1967) 1 W.L.R. 723]

"There is no copyright in ideas or schemes or systems or methods; it is confined to their expression.......... But there is a distinction between ideas (which are not copy right) and situations and incidents which may be........ one must, however, be careful not to jump to the conclusion that there has been copying merely because of a similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history.Similarly in the case of Donoghue v. Allied Newspapers[footnoteRef:8] it was pointed out by Farwell, J. that there was no copyright in an idea. [8: (1937) 3 All. E.R. 503]

In the case of Shipman v. R. K. O. Radio Pictures[footnoteRef:9] which holding that an idea cannot be the subject of copyright great stress was laid on the impression which the audience forms after seeing the copy. [9: 100 2d 533]

In the case of Michael vs. Moretti vs. People of the State of Illinois[footnoteRef:10] it was held that law does not recognise property rights in ideas but only in the expression of the same in a particular manner adopted by the author. [10: 248 F 2d 799=356 U.S. 947]

Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:1.There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.3.One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.We would now endeavour to apply the principles enunciated above and the tests laid down by us to the facts of the present case in order to determine whether or not the plaintiff has been able to prove the charge of plagiarism and violation of copyright levelled against the dependant by the plaintiff. The film taken as a whole is quite different from the play written by the plaintiff.Thus, applying the principles enunciated above and the various tests laid down to determine whether in a particular case there has been a violation of the copyright we are of the opinion that the film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff. We also find that the treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage. We are also satisfied that after seeing the play and the film no prudent person can get an impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play, namely, provincialism is undoubtedly the subject matter of the film along with other ideas also but it is well settledthat a mere idea cannot be the subject matter of copyright. Thus, the present case does not fulfil the conditions laid down for holding that the defendants have made a colourable imitation of the play.On a close and careful comparison of the play and the picture but for the central idea (provincialism which is not protected by copyright), from scene to scene, situation to situation, in climax to anti- climax. pathos, bathos, in texture and treatment and purport and presentation, the picture is materially different from the play. As already indicated above, applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the play. Apart from this the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright. This Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, we feel that the judgment of the courts below are absolutely correct. The story portrayed by the film travels beyond the plot delineated in the playtherefore their is no violation of copyright by the film at all.

________________________________________________________Prayer

Therefore, in the light of facts of the case, issues raised, arguments advanced and authorities cited, this Court may be pleased to adjudge and declare that:1). Their is no violation of the Copyright in the film by the Defendant.

All of which is respectfully submitted.

Place: New DelhiDate: 5th April, 2014Vinay Kumar Sahu(On behalf of the Respondent)

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