Copyright Infringement in Media Entertainment
Updated: Aug 22
[This article is authored by Ritika Acharya, Maharashtra National Law University, Mumbai]
In recent years, the Hon’ble Bombay High Court has become the hotspot of origin of a large number of cases relating to the Intellectual Property Rights of the media and entertainment industry. Recently, vide its order dated 26th May 2020, the Court held the creators of the web series “Singardaan” liable for copyright infringement in the matter of Shamoil Ahmad Khan v. Falguni Shah & Ors.  (Ahmad Khan) This article aims firstly, to analyze the parameters required to establish a prima facie case of infringement of copyright and secondly, to examine the Court’s rationale in determining the quantum of liability to be attached to the defaulting party for the same.
The Plaintiff against alleged that a web series by the name of “Singardaan” created by Defendants, was an adaptation of the Plaintiff’s short story bearing the same title, that had been widely published in various books and magazines many years prior to the web series’ development. The Plaintiff submitted that the web series consisting of 6 episodes of a total duration of about 1 hour and 54 minutes, had been released by the Defendants on an application called “Ullu” as well as on YouTube. The makers of the series had copied not only the title but also the entire plot, narrative, and characters of his story by the same name. The Defendants vehemently denied the Plaintiff’s allegations and argued that even though the titles were the same, the Defendants’ work was an entirely original story; the premise, the storyline and character development in the two works were materially different.
Advocating that his copyright was infringed, the Plaintiff filed a commercial suit against the Defendants. He sought to recover damages from the Defendants along with an interim injunction restraining them from using the title “Singardaan”, or any other identical or deceptively similar title for their web series, so as to pass it off as the Plaintiff’s story.
The Judgment of the Bombay High Court
The Court first considered the issue of the title of the web series. The Hon’ble Supreme Court’s decision in Krishika Lulla v. Shyam Vithalrao Devkatta  was revisited. In this case, the Court had held that no copyright subsists in the title of a literary work per se and no case of copyright infringement can be urged against any other user of that title. Even if there exists a case of passing off, it is not sufficient for a Plaintiff to merely show that the Defendant has used an identical or a deceptively similar name or title; he has to further show that the title or name of his own work has acquired such reputation that the reading public is likely to identify it with the Plaintiff alone and none else, and, thus, the Defendant’s use would be likely to result in passing off of the title of the Plaintiff’s work by the same name. Going by the same line of thought in Ahmad Khan, the Court observed there was no proof that the Plaintiff’s title “Singardaan” had attained a high level of public recognition and reputation. Nothing in the Plaintiff’s arguments suggested that the term “Singardaan” was associated with the reading public with only his work. Thus, his argument regarding the infringement of the title “Singardaan” could not be sustained in the eyes of law.
Curiously, the same approach was employed by the Court in its order dated 22nd May 2020, in the case Sameer Wadekar v. Netflix Entertainment Services Pvt. Ltd.  (Wadekar), the facts of which are very similar to those of Ahmad Khan. In Wadekar, the Plaintiff filed a suit for copyright infringement, alleging that the Defendants had copied the title of one of his scripts called “Vetaal”, in the creation of their upcoming Netflix show titled “Betaal” . The Court opined that there was no case of copyright infringement because the word “Vetaal” found its origins in Hindu mythology, and referred to an entity with supernatural powers. It was not a creation of the Plaintiff and was not associated with or revered as the Plaintiff’s work by the general public. There was a minor difference in the facts of Ahmad Khan and Wadekar, in that the web series “Singardaan” had already been released prior to the institution of the suit in the former case whereas “Betaal” was scheduled to be released post the institution of the suit in the latter case. In spite of this, the Defendants in Ahmad Khan could still have used the Court’s reasoning in Wadekar to strengthen their rebuttals by showing that the Plaintiff never had a copyright over the title “Singardaan” in the first place.
The Court in Ahmad Khan proceeded to examine the Plaintiff’s story, whose protagonist had come into possession of a prostitute’s vanity box called “Singardaan” (that inspired the title of the story). After he took the box to his home, the protagonist’s wife and daughters started dressing up and behaving provocatively using the same mannerisms as a prostitute. This ultimately resulted in the protagonist getting rid of the vanity box. The Court compared the web series’ plot to the Plaintiff’s story and came to the conclusion that there were stark similarities between the two since the Defendants had substantially reproduced the Plaintiff’s story including its key elements and characters. The Court acknowledged the Plaintiff’s contention that the web series was an actionable copy of his literary work .
The Court went on to explain the dichotomy of a well-known idea versus its expression, an issue that is hugely prevalent in the current copyright law framework. One of the earliest formulations of this dichotomy was found in the case of Hollinrake v. Truswell , wherein the English Court had expressed that copyright does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied, the copyright cannot be said to be infringed. This maxim has been often repeated in later copyright cases and finds expression even in the celebrated case of R.G. Anand v. Delux Films  decided by the Indian Supreme Court, which recognized this dichotomy as fundamental to the doctrine of copyright.
The single-judge bench in XYZ Films v. UTV Motion Pictures  had also posited that copyright cannot be claimed of an overarching theme/central idea of a story. It can be claimed for an amalgamation of events and scenes which blend in together to form a manifestation of that theme or idea. In Ahmad Khan, the Court applied this idea-expression dichotomy. By the same logic, it held that the Defendants’ web series had all the essential elements of the Plaintiff’s theme, plot, and storyline. Minus a few minor differences in the plot that did not substantially distinguish the Defendants’ web series from the Plaintiff’s story, the characters in the web series behaved in the exact same manner as the characters in the Plaintiff’s story and the entire series unfolded in much the same way as the story.
The Court stated that if a person who had read the Plaintiff’s story, saw the web series, it would reasonably appear to be an adaptation of the Plaintiff’s story. The Defendants had adapted the Plaintiff’s story to a different format, namely, a web series. The Defendants’ work prima facie had material and substantial similarities with respect to the mode of expression adopted in the copyrighted work of the Plaintiff. The Court postulated that this was an ostentatious case of plagiarism.
Moving on to the relief aspect, the learned judge accepted the merits of the case in favor of the Plaintiff. The Court ruled that the Plaintiff was entitled to recover damages from the Defendants but was not entitled to an injunction against them, given that their web series “Singardaan” had already garnered commercial relevance on account of having been released over a year ago on 20th January 2019. The Court asserted that the suit is set down for trial in the interest of justice and directed the Defendants to maintain an account of the profits gained from the web series from the date of its release until completion of the trial. The Court also prohibited the Defendants from making any further adaptation of the web series or changing its format in any way.
It is commendable that the Court maintained a wholesome outlook and took into careful consideration the impact of its judgment on the Defendants. The bench delineated the concept of ‘balance of convenience’, weighing it in favor of the Defendant because their work had not only been fully made but also published for a sufficiently long period. If the work was withdrawn from the internet, greater harm would be caused to them than to the Plaintiff if it was not so withdrawn. Although the Plaintiff’s work was illegitimately used, the prejudice he suffered was not irreparable, it could surely be redressed by way of damages. Therefore, the Court concluded that monetary compensation was an adequate remedy for violation of the Plaintiff’s copyright.
References  Shamoil Ahmad Khan v. Falguni Shah & Ors. COMMERCIAL IP SUIT NO. 1193 OF 2019.  Krishika Lulla v. Shyam Vithalrao Devkatta MANU/SC/1774/2015.  Sameer Wadekar & Anr. v. Netflix Entertainment Services Pvt. Ltd. LD-VC-70 OF 2020.  Rintu Biju, Bombay High Court declines to stay May 24 release of Netflix web series “Betaal” in copyright infringement suit, BAR AND BENCH (May 24, 2020).  Nitish Kashyap, Bombay HC asks makers of web series ‘Singardaan’ to share profits with Plaintiff, LIVE LAW (Jun. 1, 2020).  Hollinrake v. Truswell (1894) 3 Ch.420.  R.G. Anand vs. Delux Films MANU/SC/0256/1978.  XYZ Films Vs. UTV Motion Pictures 2016 SCC OnLine Bom 3970.
©Image Courtesy: World Economic Forum, see here.