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Beyond What We See On The Screen
The Copyright law of India has very clearly stated that copyright subsists only to expressions, not to ideas. The Indian filmmakers generally base their argument on the fact that there can be no copyright for ideas when they copy or borrow from the original work of some other creator. Here, the tussle between ideas and expressions come into the picture. The line between ideas and expressions is so thin that even the courts have not been able to give any straightjacket formula for the same.
The assemblage of a different set of beliefs regarding a subject matter is said to be ideas and the execution of those ideas can be termed as expressions, and it goes without saying that a similar thought on a specific subject matter can have various articulations. Further delving into the idea-expression dichotomy, the Indian film Industry has been borrowing posters, songs, tunes and even scripts from Hollywood, Korean and other film industries from a very long time. Some illustrations of the same are Mere Yaar Ki Shaadi Hai which is an impression of My Best Friend’s wedding; Wanted, which copied Pokiri or Ghajini, which is a transcript of Memento. With a substantial number of films reaching the 100 crore club, the Indian film industry claims itself to be one of the most humongous film industries of the world in terms of revenue. Being a million-dollar industry, there needs to be a strong IP regime that protects the rights of the people involved in the complex film making the process.
Harry Potter v. Hari Putter- IP Protection to movie titles
The protection given to original dramatic, artistic and cinematograph films by the Copyright Act, 1957 nowhere mentions safeguards for movie titles. This could be inferred from the very wordings of Section 2(f) which excludes movie tiles from the purview of cinematograph films under the Act.
A similar observation was made in Krishika Lulla & Ors v Shyam Vithalrao Devkatta & Anr where the defendants accused the plaintiffs of copying the title of their original work Desi Boys and infringing their copyright in the title by releasing their original creation with the name Desi Boyz. The court while analysing the definition of literary work in the present case, declined the protection to movie titles under the ambit of copyright law, stating it to be too trivial and insignificant to be granted protection.
This leads us to the examination of trademark protection attributed to movie titles in India. Analysing the definition of ‘marks’ provided under the Indian trademarks act, 1999, it can be deduced that film titles which could be differentiated from one another are indisputably included under the ambit of trademarks. Same was affirmed in the landmark Sholay Media case where the characters of the film like GABBAR and the movie title SHOLAY picked up a significant ubiquity among the masses. The court, in this case, held that the vast marketing and publicity over a long duration of time coexistent with its huge fan base and stature has helped the title Sholay attain the position of a trademark.
As can be inferred, movie titles can be protected under the trademark act provided there is some inherent or acquired distinctiveness in the title. The Trademarks Act, 1999 clearly states that marks that have such a probability of interconnection between them which leads to confusion in the minds of the general public regarding the uniqueness of the trademark, shall not be protected under the Act.
The case Warner Bros Entertainment Inc and Anr Vs Harinder Kohli and Ors. further cleared the air regarding protection to movie titles. The case involved the conflict between the movie title Harry Potter and Hari Puttar where the plaintiff accused the defendants of wrongfully duplicating the film title for creating a wrong impression on the audience. The court, however, dismissing the plaintiff’s plea held that the language of the movie Hari Puttar being Punjabi is completely distinct from the English movie Harry Potter; moreover, phonetic dissimilarity of the films will remain intact regardless of they being translated to English to Hindi or vice versa. Therefore, the above case further affirms that inherent distinctiveness is required for claiming trademark protection over a movie title. The study also asserts that trademark law protecting titles in India is far stronger than the copyright regime.
The Invisible Man v. Mr India- IP Protection to movie characters
Furthermore, apart from movie titles, one more sphere which invites much controversy regarding copyright protection are characters. Be it Mickey Mouse or the Iron Man; Amitabh Bachchan as Vijay Deenanath Chauhan or Hrithik Roshan as Rohit; the offbeat qualities of such characters have become a part and parcel of our lives. IP protection to character of a cinematograph film has become an exceptional trend. The character to have protection under any of the IP regimes must have the capability of possessing such distinct features that separate it from another character. Same was observed in the case of Detective Comics v Bruns Publication where the court held that the makers of the character Wonderwoman have infringed the copyright of the makers of Superman by copying more than the general features and ideas of the character Superman. Therefore, declining protection to the general ideas regarding a character, the court opined that for a character to be conceded protection it must be legitimately characterised and depicted in detail.
Besides this, several tests have been laid down by the courts from time to time for specifying whether copyright can be granted to a character or not. One such test, viz., the Character Delineation Test was applied in the case of Walt Disney Productions v. Air Pirates where the famous Disney characters were applied in the inappropriate milieu. The court laid down the test examined the visual similarities and subsequently, the personalities of the cartoon characters; held the defendants guilty of copyright infringement. The character delineation test determines whether the distinctive features of the character are adequately portrayed so that protection is justified to them.
The above cases are an apparent manifestation of the fact that a character shall only be given protection if it is unique, peculiar and have a way with creating an impression on the minds of the potential audience to make them differentiate it from other characters.
A similar phenomenon could be seen where the names Gabbar Singh, Basanti and Thakur along with popular names associated with actors, for instance, Prem for Salman Khan and Rahul for Shahrukh Khan are so well developed that it makes them adequately portrayed, with distinctively identifiable attributes so as to justify copyright protection.
An identical instance was observed in the famous case of Malayala Manorama v. V T Thomas where the plaintiffs claimed the ownership over the cartoon characters Bobby and Molly that were sketched by the defendant for the plaintiffs. The court dismissing the plea of the plaintiffs decided that the copyright of the cartoon characters would remain with the defendant as the characters were created by him before getting employed by the plaintiffs; provided the characters had been created by him after coming in employment of the newspaper, then the plaintiffs could have acquired the rights over them.
Hence, after analysing both the Indian and American scheme of the copyright protection for characters, it can be inferred that there is some amount of parallelism among both the laws; that establishes the application of the character delineation test in India as well.
The above discussion leads us to another segment of protection to characters i.e. parodic works.
The fundamental aim of a parody is to expose the flaws of the original work by imitating it using exaggeration and humour. A parody’s basic nature is copying from the existing work but it is not considered copyright infringement of the original work.
The rationale behind this protection is the provision of fair use that grants protection in cases where the copyrighted work is specifically being criticised or analysed. Campbell v. AcuffRose Music elucidating the essence of the fair use provision where the plaintiffs were accused of substituting the original song lyrics of Oh, Pretty woman with obscene and indecent ones. The court observed that the fair use defence could not be used here even if due credit is given to the original composer considering the commercial exploitation of the parody creating a ground against it.
After analysing the pattern of different IP regimes in India considering movie titles and characters, it can be deduced that while copyright law protects movie titles under its aegis, trademark law does not attribute any protection to them.
Moving on, even after the Indian Film Industry is an assemblage of different film industries like Tamil, Telugu, Bengali etc., the Hindi film industry (also known as Bollywood) remains the most gigantic of them all. Copying film plots and music tunes and labelling them as borrowing has become a pattern that Bollywood has been following since long. From Zinda being borrowed from the Korean movie Old Boy, Ek Villain borrowed from I Saw The Devil and Chachi 420 from Mrs Doubtfire; the list is endless. Not to forget the guitar tune of the song Bulleya being ridiculously copied from the song Last Resort and Tum Se Hi from the song In your mind of the Indonesian artist Angunn. Even the film posters of movies like Anjana Anjani, Dishoom and Murder 3 are copied from the movie posters of international movies, viz., An Education, Due Date and Jennifer’s Body respectively. This practice of the Indian Film Industry has posed big questions on the creativity and innovation that they showcase. Furthermore, India must learn from filmmakers from countries like Taiwan and Malaysia in imposing penalties for infringing the IP regulations in film media. Lastly, for the sake of ensuring a stricter form of IP regime and an increased level of individuality, India has to take firm steps as far as the copyright enforcement and awareness of the copyright and trademark laws are concerned.
ABOUT THE AUTHOR
Vasundhara Singh has completed LL.M. from the West Bengal National University Juridical Sciences, Kolkata.
In content picture credit: Medium