Topic: R.G Anand vs M/S. Delux Films & Ors - determining copyright infringement

R.G Anand vs M/S. Delux Films & Ors
Equivalent citations: 1978 AIR 1613, 1979 SCR (1) 218 - Bench: Fazalali, S Murtaza - Citation: 1978 AIR 1613 1979 SCR (1) 218, 1978 SCC (4) 118 - Date Of Judgment18/08/1978

Fazal Ali, J. has laid down the following general propositions:

1.There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts, and violation of copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted 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. Whether this is fundamental and substantial is to be judged.

3. Whether the reader gets the impression that the second work is the copy of the original.

4.Theme is same but presented and treated differently.

5. Apart from similarities, there are material and broad dissimilarities.

6. Proof by cogent and clear evidence as it is a piracy.

7. If it is violation of a stage play by a filmmaker it is more difficult to prove piracy.

ACT:
Infringement of a copyright in a play in a film-What are the tests-Whether copyright can be claimed in a theme. Suit for damages for infringement of a copyright-What are the principles.

HEADNOTE:

The appellant-plaintiff is a playwright, dramatist and producer of stage plays. The appellant had written    and, produced a number of plays. 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. 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. 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 inujunction against the defendants restraining them from exhibiting the film. The suit was contested by the defendants.     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. 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. 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.

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. The counsel for the appellant contended    (1) that the principles enunicated and the    legal inference drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India (2) the two 219

courts    have not fully understood the imports of     the violation of copy-right particularly when the similarities between the play and The film are so close that would lead to the    irresistible inference and unmistakable impression that the film is nothing but an imitation of the play. The counsel for the respondents submitted (1) that the two courts below have    applied the law correctly. (2) This Hon'ble Court may not    enter into the merits in view of the concurrent findings of fact given by    the two     courts. (3) Even on     the facts found it is manifest that there is a vast difference both     in the     spirit and the contents between the play and the film.

Dismissing the appeal by special leave the Court ^

HELD: (a)    In order to appreciate     the argument of the parties the court discussed the law on the subject. 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 play written by the appellant falls within the definition of copyright. [229 D-H 230 A-B]

The following is    summary     of the decided cases in England, America and India on the question of copyright.

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 tile author of the copy-righted work. [248 H, 249 A]

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 defendant's 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. 1249 A-C]

3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if 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. [249 C-D]

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. [249 D]

220

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 words are clearly incidental no infringement of the copyright comes into existence. [249 E]

6. As a violation     of copyright amounts to an act of piracy it must be proved By clear and cogent evidence after applying the various tests laid down by decided cases [249 F]

7. Where however the question is     of the violation of the copyright of a stage play     by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider     field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the Idea. Even so, if the viewer after seeing the film gets a totality of impression that the     film is by and large a copy of the original play,    violation of the copyright may be said to be proved. [249 F-H]

Hanfstaengl v. W. H. Singh & Sons, [1905] 1 Chancery Division 519; Bobbs-Merill Co.     v. Isdor Straus and Nathan Strau, 210 US 339; West Francis, (1822) 1 B & Ald. 737, 743; Ladbroke (Football) Ltd. v. William Hill (Football)    Ltd. (1964) 1 All. E.R. 465; Corelli v. Gray, 29 T.L.R.    570; Hawkes & Son (London)    Ltd. v. Paramount Film Service Ltd., (1934) 1 Ch. D. 593; Harman Pictures N. V. v. Osborne & Ors., (1967) 1 W.L.R.    723; Donoghue v. Allied Newspapers Ltd. (1937) 3 All. E.R. 503; Bobl & Anr. v. Palace Theatre (Ltd.) & Alir. 28 T.L.R. 72;    Tate v.     Fullbrook, 77     Law Journal Reports     577; Frederick. B. Chatterton     & Benjamin Webster v. Joseph Arnold Cave, (1878) 3 A.C. 483; Sheldon v. Metro-Goldwyn Pictures    Corp., 81 2d 19; Shipman v. R.K.o. Radio Pictures, 100 2d 533, Michael v. Moretti v. People of the State of Illionois, 248 2d 799=356 U.S.    947, Warner Bros. Pictures    v. Columbia Broadcasting System, 216 F 2d 945: Otto Eisenchiml v. Fawcett Publications,     246 2d 598; Dorsey v. Old    Surety.     Life Ins., Co., 98    F. 2d    872; Twentieth Century Fox Film Corporation v. Stonesifer, 140 2d 579; Oliver Wendel Homes v. George D. Hurst, 174 U.S. 82; Macmillan & Co. Ltd. v. K. &     J. Cooper, 51 I.A.    109; Florerlce A Deeks v. H. G. p Wells & Ors., 60 I.A. 26; N. T. Ragllunathan &    Anr. v.     All India Reporter Ltd., Bombay, A.I.R. 1971 Bom. 48,    K. R. Venugopala Sarma v. Sangu Ganesan, 1972 Cr. L.J.. 1098; The Daily Calendar Supplying Bureau, Sivakasi v. The United Concern, A.I.R.. 1967 Mad. 381; Hantsiaenql v. Bains & Co., 1895 A.C. 20 (25); C. Gunniah & Co. v. Balraj & Co., A.I.R. 1961 Mad.    111; Mohendra Ghundra Nath Ghosh & ors. v. Emperor, A.I.R. 1928 Cal. 359. S. K. Dutt v. Law Book Co. & Ors. A.I.R. 1954 All. 570; Romesh Chowdhry    & Ors v. Kh. Ali Mohammad Nowsheri & Ors., AIR 1965 J. & K.101 and Mohini Mohan Singh & Ors v. Sita Nath Basak, AIR 1931 Cal. 238; referred to. The learned trial Judge who had the advantage of seeing the picture was of the opinion that the film taken    as a whole is quite different. from the play written by     the appellant. This     Court also got the play read to the learned Judges and the learned     Judges also saw the film. The Court came to     the conclusion     that the essential features of the play are as under: [250 A-B, 251 G]

1. That the central idea of the     play is based on provincialism and parochialism. [251 G]

221

2. The evils of provincialism are illustrated by the cordial relations of the two families being marred because of an apprehended marriage tie which according to both the families WAS not possible where they belonged to different States. [251 H, 252 A]

3. That the Madrasi boy Amni is a coward and in spite of his     profound love     'or Chander he does     not muster sufficient courage to talk the matter out with his parents. [252 A-B]

4. That in sheer    desperation while the parents of the families are trying to     arrange a match for     the couple belonging to the same    State Amni and Chander enter into a suicidal pact and write letters to their parents intimating their intention. [252 B-C]

5. It was only after the     letters are perused by the parents that they realise he horror of parochialism and are repentant for having acted so foolishly. [252 C]

6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well. [252 D]

The Court    came to     the conclusion     that the essential features of the film are as under:-

(1) Two aspects of provincialism     viz. the role of provincialism in regard to marriage and in regard to renting out accommodation (2) Evils of a caste ridden society, and (3) the evils of dowry. [255 H]

It is true that there are following similarities in the two. [256 A]

(i) Before the actual stage play, the producer gives a. narrative.     He states that although we describe ourselves as     Hindustanis we are     not really Hindustanis. He questions the audience as to what they are and various     voices are heard. To say in their     own provincial language that they     are Punjabis, Bengalis, Gujarati, Marathas, Madrasis, Sindhis etc.    In the    said Film the same idea is conveyed and the hero of the picture is shown searching for a house in New Delhi and wherever he goes he is confronted by a landlord who describes himself not as a Hindustani but as     a Punjabi, Bengali, Gujarati, Marathi, Madarasi     or Sindhi. [256 C-D]

(ii) Both the said play and the said film deal with the subject of Provincialism. [256 E]

(iii)Both the said play and the    said film evolve a drama around    the lives of two facilities, one a Punjabi and the other a Madrasi family. 1256 E] (iv) In both the    said play and the said film the name of the Madrasi father is Subramanyam .[256 F] (v) Both the said play    and the said film have their locale in New Delhi. [256 F]

(vi) Both    the said play and the said film    show cordiality of     relations between the two families. [256 F-G]

(vii)Both the said play and the    said film show     the disruption of     cordial relations as soon as     the heads of the families discover the existence of a love affair between their children. [256 G] (viii) In    both the said play and the said film, both the parents warn their respective children not to have anything to do    with each other on pain of Corporal punishment. 1256 Hl.

222

(ix) The entire dialogue in both the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of     one Province over     the inhabitants of the others. [257 A]

(x) In both the said play and the said film the girl is shown to be fond of music and dancing. [257 B] (xi) In both the    said play and the said film the hero is shown as a coward to the extent that he has not the courage to go to his parents and persuade them to permit him to marry a girl hailing from another Province. [257 B-C]

(xii) Both     in the said play and in the said film, when the parents of the girl are     discussing marrying her off to some body the girl is listening to the dialogue from     behind a curtain. Thereafter     the girl runs to the boy and explains the situation to him. [257 C]

(xiii) In    both the said play and the said film, the girl writes a letter of suicide. [257 D]

(xiv) In the said play reconciliation takes place when the children    of the    two families, who were in love, go out to commit suicide by drowning etc., whereas in the said film, it is only the daughter who goes out to commit suicide by drowning herself in the Jamuna. [257 D-E]

(xv) In the said    play the children are    stopped from committing suicide by an astrologer whereas in the said film the girl is stopped from committing suicide by a friend of the family. [257 E-F] (xvi) In the said     play reconciliation between the two families takes place only     after     they    have experienced the shock of their children committing suicide on account of their provincial feelings whereas in the film, the father of the    girl realised his    mistake after experiencing the shock of his daughter committing suicide. [257 F-G] (xvii) In    both the said play and the said film, stress is laid on the fact that although India is one country, yet there is    acute    feeling     of provincialism between     persons hailing from     its various States even though they work together and live as neighbours. [257 G]

(xviii) Both in the said play and in the said film even the dialogue    centres around    the same subject of provincialism. [257 H]

However, 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[258 D-F]

(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

223

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. [258 F-G]

(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 [258 H, 259 A-B]

(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. [259 B-D] (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. [259 D-E] (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. [259 E-G]

The Court    came to     the conclusion     that 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. [259 G-H, 260 B]

Applying the principles mentioned     above to determine whether in this particular case there has been a violation of the copy right, the Court came to the conclusion that 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. [260 G-H, 261 A-B]

224

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. 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 the court finds that the judgments of the court below are absolutely correct. [261 C-D]

(Jaswant Singh, 1. concurring)

On     a careful comparison of the script of     the plaintiff's copyright play with the film, 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. [261 G-H, 262 A] (Pathak, J. concurring)

lt appears     from a comparison of the script of the play 'Hum Hindustani' and the script of the film 'New Delhi' that the authors of the film have been influenced to a degree by the salient features of the plot set forth in the    play script. 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. The theme of provincial parochialism is     illustrated only in the opposition to a relationship by     marriage between two families hailing from different parts     of the country. In the film    the theme is also illustrated by the hostile attitude of proprietors` of lodging accommodation towards prospective lodgers who do not belong to the same provincial     community. The plot    then extends to the evils of the dowry system which is a theme independent of    provincial parochialism. There are still other themes embraced within the plot     of the film.     The question can arise whether there is    an infringement of copyright even though the essential features of the play can be said     to correspond    to a part only     of the     plot of the film. In the attempt to show    that he     is not guilty of infringement of     copy right it is always possible for a person intending to take advantage of the    intellectual efforts and labour of another to so develop his own product that it     covers a wider field than the area included within the scope of the earlier product and in the common    area covered by the two productions to introduce changes in order to disguise the attempt at plagiarism. If a. reappraisal of the facts in the present case were open to this Court, the Court perhaps would have differed from the view taken on the facts by the High Court but in view     of the concurrent findings of the two courts below to the effect that     the appellant's copy right has not been infringed this Court is extremely reluctant to interfere with the concurrent findings of fact reached by the Courts below. In another, and perhaps a clearer    case it     may be     necessary for    this Court to interfere and remove the impression which may have gained ground that the copy right belonging to an author can be readily infringed     by making immaterial changes, introducing in    substantial differences     and enlarging     the scope of the original theme. so that a veil of appa- 225

rent dissimilarity is thrown around the work now produced. The court will look A strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation. [262 B-H, 263 A-C]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2030 of 1968.

Appeal by    special leave from the     Judgment and Decree dated 23-5-1968     of the     Delhi High Court at New Delhi in R.F.A. No. 147D of 1968.

S. N. Andley, Mahinder Narain and Rameshwar Nath, for the Appellant.

Hardyal Hardy, H. S. Parihar and     1. N.    Shroff,     for Respondents Nos. 1 and 2.

The following Judgments were delivered:

FAZAL ALI,     J.-This appeal by special leave is directed against the judgment of the Delhi High Court dated 23rd May, 1967 affirming    the decree of the District Judge, Delhi and dismissing the    plaintiff's suit for damages    against     the defendants on     the ground that they had violated     the copyrighted work of the plaintiff which was a drama called 'Hum Hindustani'.

The facts    have been succinctly stated by the District Judge in his judgment and summarised by the High Court, and, therefore, it is not necessary for us to repeat the same all over again. We would, however, like to give a brief resume of some     of the     striking facts     in the     case which may be germane for the purpose of deciding the important issues involved in this appeal. We might mention here that the High Court as also the District Judge negatived the plaintiff's claim and prima facie the appeal appears to be concluded by finding of fact, but it was rightly argued by Mr. Andley appealing for the appellant that the principles of violation of copy-right in the instant appeal have to be applied on the facts found and the inferences from proved facts drawn by the    High Court which is doubtless a question of law and more particularly as there is no clear authority of this Court on the subject, we should be persuaded to go into this question without entering into     findings of facts. Having heard counsel for the    parties, we felt that as the case is one of    first impression and needs to be decided by    this Court, we should enter     into the merits on the basis of the facts found and inferences drawn by the High Court and the District Judge.     It is true that both the District Judge and the High Court     have relied upon some well     established principles to determine whether or not in a particular case a violation of copy right has     taken    place,    but learned counsel for the appellant has challenged the validity of the principles enunciated by the High Court.

226

The plaintiff is an architect by profession and is also a playwright, dramatist and producer of stage plays. Even before Hum Hindustani the plaintiff had written and produced a number of other plays like Des Hamara, Azadi and Election which were staged in Delhi. The subject matter of     the appeal, however, is the play    entitled 'Hum    Hindustani'. According to the plaintiff, this play was written by him in Hindi in the year 1953 and was enacted by him for the first time on     6th, 7th, 8th and 9th February, 1954 at Wavell Theatre, New Delhi under the auspices of the Indian National Theatre. The play proved to he very popular    and received great approbation from the Press and the public as a result of which the play was re-staged in February and September, 1954 and also in 1955 and 1956 at Calcutta. In support of his case the plaintiff has referred to a number of comments appearing in the Indian Express, Hindustan Times, Times of India and other papers.

Encouraged     by the success and     popularity of     the aforesaid play     the plaintiff tried to consider     the possibility of    filming it. In November, 1954 the plaintiff received a letter dated 19th November, 1954 from the second defendant Mr. Mohan Sehgal wherein the defendant informed the plaintiff that he    was supplied with a synopsis of the play by     one Mr. Balwant Gargi a common friend of     the plaintiff and the defendant The defendant had requested the plaintiff to supply a copy of the play so that the defendant may consider the desirability    of making a film on it. The plaintiff, however, by his letter dated 30th November? 1954 informed the defendant that as the play had been selected out of    17 Hindi plays for National Drama Festival and would be staged on 11th December, 1954, the defendant should take the trouble of visiting Delhi and seeing the play himself in order to examine the potentialities of making a film, and at that time the matter could be     discussed by the defendant with the plaintiff.

The plaintiff's case, however, is that some time about January, 1955 the second and the third defendants came to Delhi, met the plain tiff in his office where the plaintiff read out and explained the entire play to the defendants and also discussed    the possibility     of filming it. The second defendant did not make any clear commitment but promised the plaintiff that he would inform him about his re-action after reaching Bombay. Thereafter the plaintiff heard nothing from the defendant.    Sometime in May, 1955    the second defendant announced the production of a motion picture entitled "New Delhi". One Mr. Thapa who was one of the artists in the play produced by the plaintiff happened to     be in Bombay at the time when the picture 'New Delhi' was being produced by the defendant and informed the plaintiff that the picture being produced by the defendant was really based on the 227

plaintiff's play 'Hum Hindustani'. The plaintiff thereupon by his    letter dated 30th May,     1955 wrote to     the second defendant expressing serious concern over the adaptation of his play into a motion picture called 'New    Delhi'.     The defendant, however, by his letter dated 9th     June,    1955 informed the plaintiff that his doubts were    without     any foundation and     assured the     plaintiff that the story treatment, dramatic construction, characters etc. were quite different and     bore not the remotest connection     or resemblance with the play written by the plaintiff. The picture was released    in Delhi in September, 1956 and the     plaintiff read     some comments    in the    papers which gave the impression that the picture was very much like the play 'Hum Hindustani' written by    the plaintiff.     The plaintiff himself saw the picture on the 9th September, 1956 and he    found that the film was entirely based upon the said play and was, therefore, convinced that the defendant after having heard the play narrated to him by the plaintiff dishonestly imitated the same in his film and thus committed an act of piracy so as to result in violation of the copy- right of the plaintiff. The plaintiff accordingly filed the suit for damages, for    decree for accounts of     the profits made by the defendants and a decree for permanent injunction against the defendants restraining them from exhibiting the film 'New Delhi'.

The suit was contested by defendants No. 1 and 2 as also by     other defendants who adopted    the pleas raised by defendants No. 1 and 2.

The defendants, inter alia, pleaded that they were not aware that the plaintiff was the author of the play 'Hum Hindustani' nor     were they aware that the play was very well received at Delhi. Defendant No. 2 is a film Director and is also the proprietor of     defendant No.    1 Delux     Films.     The defendants averred that in    November, 1954     the second defendant was discussing some ideas for his new picture with Mr. Balwant Gargi who    is a play wright of some repute. In the course of the discussion, the second defendant informed Mr. Gargi that     the second defendant     was interested in producing a motion film based on 'provincialism' as     its central theme. In the context of these discussions Mr. Gargi enquired of defendant No. 2 if the latter was interested in hearing the play called 'Hum Hindustani' produced by     the plaintiff which     also had the same theme of provincialism in which the second defendant     was interested. It    was, therefore, at the instance of Mr. Gargi that     the second defendant wrote to the plaintiff and requested him to send a copy of     the script of the play. The    defendant goes on to state that the plaintiff read out the play to the second defendant in the presence of    Rajinder Bhatia and Mohan Kumar, Assistant Directors of the second defendant when they had

228

come to     Delhi in connection with the release of their film "Adhikar". The second defendant has taken a clear stand that after having heard the     play he informed the plaintiff that though the play might    have been all right for the amateur stage, it was too inadequate for the purpose     of making a full length commercial motion picture. The defendants denied the allegation    of the    plaintiff that    it was after hearing the play written by the plaintiff that the defendants decided to make a film - based on the play and entitled it as 'New Delhi'.

The defendant thus submitted that there    could be no copy-right so    far as     the subject of provincialism is concerned which     can be     used or adopted by any body in his own way. He further averred that the S motion picture was quite different     from the play     'Hum Hindustani' both in contents, spirit and climax. The mere fact that there were some similarities between the    film and the play could be explained by the fact that the idea, viz., provincialism was the common source of the play     as also of the film.     The defendant thus    denied that there was    any violation of the copy right.

On the basis of the pleadings of the parties,     the learned trial Judge framed the following issues:

1. Is the plaintiff owner    of the    copyright in the play 'Hum Hindustani' ?

2. Is the film 'New Delhi' an infringement of the plaintiff's copyright in the play 'Hum Hindustani' ?

3. Have defendants    or any of them infringed the plaintiff's copyright by producing, or distributing or exhibiting the film 'New Delhi' ?

4. Is the suit bad for misjoinder of defendants and cause of action ?

5. To what    relief is the plaintiff entitled and against whom ?

Issue No.    1 was decided against the defendants and it was held by the trial Judge that the plaintiff was the owner of the copy-right in the play 'Hum Hindustani'. Issue No. 4 was not     pressed by the defendants and was     accordingly decided against     them. The main case however turned upon the decision on issues No.     2 and    3 which were however decided against the plaintiff as the learned Judge held that there was no    violation of the copyright of the plaintiff.     The plaintiff then    went up     in appeal to the Delhi High Court where a     Division Bench     of that Court affirmed the decision of the District Judge    and upheld the decree dismissing the plaintiff's suit. The findings     of fact arrived at by the learned trial Judge and the High Court

229

have not been assailed before us. The only argument advanced by h the appellant was that the principles enunciated and the legal inferences drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India. It was also submitted by Mr. Andley that the two courts have not fully understood the import of the violation of copy-right particularly when the similarities between the play and the film are so close and sundry that would lead     to the     irresistible inference     and unmistakable impression     that the film is nothing but an imitation of the play.     On the other hand, it was argued by Mr. Hardy counsel for    the respondents that the two courts below have applied the law correctly and it is not necessary for this Court to enter into merits in view of     the concurrent findings. of fact given by     the two courts. He further submitted that     even on the    facts found it is manifest that 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 order to appreciate the argument of both the parties it may    be necessary to discuss the law on the subject. To begin with there is no decided case of this Court on this point. Secondly, at the time when the cause of action arose Parliament had     not made any law governing copy-right violations and    the courts in the absence of any law by our Parliament relied on the old law passed by    the British Parliament, namely, the Copy Right Act of 1911. Section 1 sub- section (2) (d) defines 'copy-right' thus: "(2) For the purposes of this Act,     copy-right' means the    sole right to produce or reproduce the work or any substantial Part thereof in any material form whatsoever to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public. If the work is unpublished, to publish the work or any substantial part thereof; and shall include the sole right,

(d) in the case of     a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means or which the     work    may be     mechanically performed or delivered".

Section 2 provides the     contingencies    where a copy-right could be infringed and runs thus :-

"2(1) Copyright in a work shall be deemed to be in fringed by any person who, without the consent of the 230

owner or the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copy right".

It is,    therefore, clear that     the Act of 1911 defines 'copyright' and     also indicates     the various contingencies where copy-right cannot be in fringed. The statute    also provides exceptions which would not amount to violation of copyright.

In the instant case the play written by the appellant falls within section 1(2)(d) because it is a dramatic work. The learned District Judge has rightly held that 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     the learned Judge observed as follows:-

"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(1) 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". In Halsbury's Laws of England by Lord Hailsham Fourth Edition the following observations are made: "only original works are protected under Part I of the Copyright Act 1956, but it is not requisite that the work should be the    expression of    original or inventive thought, for Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of a literary work, with the expression of thought in print or writing.......... There is copyright in original    dramatic works     and adaptations thereof, and such copyright subsists     not only in the actual words     of the work    but in     the dramatic incidents     created, so that if these are taken there may    be an infringement although no words     arc actually copies. There cannot be     copyright in mere science effects or stage     situations which are     not reduced into some permanent form".

(1) [1905] 1 Ch. D. 519.

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 in fringement 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. In this connection the author observes as follows:-

"A further essential matter, and one which-rather strangely-is not anywhere precisely stated in the Act of 1956 is that there can be no infringement unless use has been     made,    directly or indirectly, of the plaintiff's work".

Moreover, it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment: "Thou shalt not steal" which forms the moral basis of the protective provisions of the Copyright Act of    1911. It is obvious 11' that    when a    writer or a dramatist produces a drama it is a result of his great labour, energy,     time and ability and if any other person is allowed to appropriate the labours of the copy-righted work, his act     amounts to theft by depriving the original owner of the copy-right    of the    product of his labour.     It is    also clear that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the    original in a     large    measure, is sufficient to indicate that it is a copy. In Article 418 Copinger states thus:-

"In many cases the alleged infringement does not consist of an exact, or verbatim copy, of the whole, or any part,    of the earlier work, but merely resembles it in a greater or lesser degree".

232

In Article 420 the author lays down the various tests to determine whether an    infringement has taken place     and observes as follows:-

"Various definitions of    'copy'     have    been suggested, but it is submitted that the true view of the matter is that, where the court is satisfied that a defendant has, in producing the alleged infringement, made a substantial use    of those features of     the plaintiff's work     in which copyright subsists, an infringement will be held to have been committed, if he has made such use, he has exercised unlawfully the sole right which is conferred upon the plaintiff." Ball in "Law of Copyright and Literary Property'` page 364 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:- "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".

Re: R.G Anand vs M/S. Delux Films & Ors - determining copyright infringement

The author further says that unless there is any substantial identity A between the     respective works in    the scenes, incidents and treatment a case of infringement of copyright is not made and observes thus:-

"But there was no substantial identity between the respective works in the scenes, incidents, or treatment of the common Them, the court held that the plaintiff's copyright    were not infringed    by the     defendant's photoplays".

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" To the    same effect are the following observations to` the author:

"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 infer red 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. 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"

Similar observations have been made in Corpus Juris Secundum VOL 18 at page 139 where it     is observation as follows :

"An author     has, at common law,    a property in     his intellectual production before it     has been published, and may obtain redress against anyone who deprives him of it, or, by improperly obtaining a copy, endeavours to publish or to use it without his consent". 16-520 SCI/78

234

"This right exists in the written seenario 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".

"Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright,     and,    therefore, protected by law,     and infringement of copy right, or piracy,    which is a synonymous term in this connection consists in     the doing by any person, without the con sent of the owner of the copyright, of anything the sole right to do, which is conferred by the statute on the owner of the copyright."

This view    was taken by the U.S. Supreme Court in the case of     Bobbs-Merrill Company    v. Isidor Straus and Nathan Straus.(1)

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:-

"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'.

"In cases involving motion pictures or radio or television broadcasts, it is frequently stated that an idea is not protected by a copyright or under     the common law, or that there is no property right in an idea, apart from the manner in which it is expressed". "When an idea is given embodiment in a tangible form, it becomes the subject of    common-law property rights which are protected by the courts, at least when it can be said to be novel and new".

It was also pointed out    in this book    as to    what constitutes colorable imitation. In this connection,     the following observations have been made:-

"Infringement involves a copying, in whole or in part, either in haec verba (sic) or by colorable variation . . . A copy

(1) 21 O U.S . 339.

235

as used in copyright cases, signifies a tangible object which is a reproduction of the    original work. The question is not whether the alleged infringer could have obtained the same information by going to the same source used by the plaintiff in his work, but whether he did in fact go to the same source and do his own independent research. In    other words, the test is whether one charged with the infringement made an independent production, or made     a substantial     and unfair use of the plaintiff's work".

"Intention to plagiarise is not essential to establish liability for infringement of a copyright or for plagiarism of     literary property in     unpublished books, manuscripts, or plays. One may be held liable for infringement which is     unintentional or which was done unconsciously".

Similarity of     the alleged infringing work to the author's or proprietor's copyrighted work does not of itself stablish    copyright infringement, if     the similarity results     from the fact that both works deal with the same subject or have the same common source .. Nevertheless, it is the unfair appropriation of     the labour of the author whose work has been infringed that constitutes legal infringement, and while identity of language will often prove that the    offence     was committed, it is not necessarily the sole proof; on the other hand, relief will be afforded, irrespective of the existence or non-existence of any similarity of language, if infringement in fact can be proved." "The appropriation must he of a 'substantial' or 'material' part of the protected work .. The test is whether the one charged with the infringement has made substantial and unfair use of the complainant's work. Infringement exists when     a study of two writings indicates    plainly     that the defendant's     work is a transparent rephrasing to produce essentially the story of the other writing, but where    there is no textual copying and there are differences in literary style, the fact that there is a     sameness in the tricks of spinning out the yarn so as to sustain    the reader's suspense, and similarities of the same general nature in a narrative of a long, complicated search for a lost article of fabulous value, does not indicate infringement. '

236

We shall now discuss some of the authorities that have been cited at the Bar as also some others with whom we have come across and which throw a flood of light on the point in issue.    Dealing     with the question of similarities    Lord Kekewich, J. in Hanfstaengl case (Supra) described various qualities of a copy and observed as follows:- "In west v. Francis(1) Bayley J. uses language coming, as     Lord Watson says, nearer to a definition than anything which is o be found in the books. It runs thus: "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 .;

If it were altered thus- "a copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it" -the substance of the definition     would     be preserved     and Lord Watson's criticism would be avoided.

The learned Judge aptly pointed out that an imitation will be     a copy     which comes so near to the original as to suggest the original to the mind of every person seeing it. In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant that    will be sufficient to constitute a violation of the copy-right.

In the case of Ladbroke (Football) Ltd. v. William Bill (Foot ball) Ltd Reid made     the following pertinent observations .

But, in my view, that is only a short out, and more correct approach is first to determine whether the plaintiff's work a     whole    is 'original'    and. protected by copyright, rand then to inquire whether the part taken by the defendant is substantial. A wrong result can easily be    reached     if one begins by dissecting     the plaintiff's work     and asking, could section A    be the    subject of copyright if it stood by itself, could section be protected it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be".

(1) [1822] r. B. & Ald. 737, 743.

(2) [1964] 1 All E.R. 465.

237

Lord Hodson expressed similar views at p. 475 in the following A words:-

The appellants have    sought    to argue that     the coupons can be dissected     and that on    analysis no copyright attaches     to any of their component parts and accordingly no protection is available. In my opinion this approach is wrong and the coupons must be looked at as a whole. Copy right is a statutory right which by the terms    of s. 2 of the Act of 1956 would appear to subsist, if at all, in the literary or other work as one entity".

This case clearly lays down that a similarity here or a similarity there is not sufficient to constitute a violation of the    copyright unless the imitation made by the defendant is substantial.

In the case of Corelli v. Gray(1) Sargent, J. Observed as follows:-

"The    plaintiff's case is entirely     founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may he due to any one of the four hypotheses-namely (1) to    mere chance, or     (2) to     both sketch and novel     being taken from a common source: (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any     of the     first three hypothesis would result in the success of     that defendant; it is     the fourth hypothesis alone that will entitle the plaintiff to succeed".

Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one in which the proof is cumulative. I am irresistibly forced to the conclusion that it is quite impossible     they    should    be due to mere chance coincidence and accordingly that they must be due to a process of     copying or appropriation by the defendant from the plaintiff's novel".

Thus it was pointed out in this case where     the aggregate of the similarities    between the copyrighted work and the copy    lead to the cumulative effect that     the defendant had     imitated the     original and that     the similarities between the two works are not coincidental, a reasonable inference    of colorable imitation or     of appropriation of the labour of the owner of the copyright by the defendant is proved. This case was followed by     the Master of Rolls in the case of Corelli v.Gray (2) . (1) 29 T.L.R. 570.

(2) 30 T.L.R. 116.

238

The case     of Hawkes and Son (London)     Limited v. Paramount Film    Service Limited(1) was     whether a musical composition made by the owner was sought to he 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 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."

Similar observations were made by Lord Slesser which may be extracted thus:-

"Any one hearing it    would know that it was the march called "Colonel Bogey" and thought it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital and an essential part which is there reproduced. That being so, it is clear to my mind that a fair use has not been made of its that is to say, there has been appropriated and published in a form which will or may materially injure the     copyright that in which the plaintiffs have a proprietary right".

In the case of Harman Pictules    N.V. v. Osborne & ors.(a) it was held that similarities of incidents and situation undoubtedly afforded prima facie evidence of copy and in    the absence of any explanation by the defendant regarding the sources, the plaintiffs must succeed. It: was however held that there was no copyright in ideas, schemes or systems or method and the copyright is confined only to the subject. In this     connection Coff, J.    Observed as follows:-

"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

(1) [1934]1 Ch. D. 593.

(2) [196711 W.L.R. 723.

239

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. In such cases the     plaintiffs, and that includes     the plaintiffs in the present     case,    are in     an obvious difficulty because of the existence of common sources". "But I have read the whole    of the script    very carefully and compared it with the book and I find many similarities of detail there also. .. ......Again it is prima facie not without significance that apart from the burial of Captain Nolan the play ends with The very quotation which Mrs. Wodham-Smith used    to end     her description of the battle .......... .....As Sir Andrew Clark points out, some of these might well be accounted for as being similar to other events already in the scripts, and in any event abridgment was necessary, but that may not be a complete answer."

Similarly    in the case     of Donoghue     v. Allied Newspapers(1) it was pointed out that there was no copyright in an idea and     in this connection Farwell, J. Observed as follows:-

This. at any rate, is clear, and one can start with This     beyond all question     that there is no copyright in an idea, or in ideas............. of the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words, or     any form of expression such as a picture or     a play, then there is no such thing as copyright at all. It is not until it is (If I may but it in that way) reduced into writing, or into    some tangible form, that you get any right to copyright at all, and the copyright exists in the particular form of language in which, or, in the case of a picture, in the particular     form    of the     picture by    which,     the information or the idea is conveyed to those who are intended to read it or look at it".

Similarly in the case of     Bobl and Anr. v. Palace Theatre (Limited) and Anr.(2)    Justice Hamilton observed as follows .-

"If similarity between two works was sufficiently strong the     evidence of copying would be so cogent that no one would believe any denial, but here the intrinsic evidence was

(1) [1937] 3 All E.R. 503.

(2) 28 T.L.R. 22.

240

really the     other    way......... The matter had    been considered     by Justice Scrutton     in his book on Copyright, and the conclusion there come (sic) to (Note h p. 83 of fourth edition) was that to which his own reflection during    the progress of this case would have led him. He considered,    therefore, that where     the similarity was a mere coincidence there was no breach of copyright."

In the case of Tate v.     Fullbrook(1) Lord Vaughan Williams observed as follows:- '.

I do    not think that I need go at length through the similarities     and dissimilarities    of the     two sketches. It is practically admitted that, so far as the words    are concerned the similarity is trifling.. .. All that we find here is a certain likeness of stage situation and scenic effect, which, in    my opinion, ought not    to he taken into consideration at all where there is appreciable likeness in the words". In the case of Frederick B. Chatterton and Benjamin Webster v. Joseph Arnold Cave(2) Hatherley observed as follows:-

"And if the quantity taken be neither substantial nor material if, as it has been     expressed by    some Judges, "a fair use only be made of the publication, no wrong is done and no action can be brought. It is not, perhaps, exactly the same     with dramatic performances. They are not in tended to be repeated by others or lc be used in such a way as a book may be used, but slill the principle de minimis    non curat lex applies to a supposed wrong in Laking    a part    of dramtic works, as well as in reproducing a part of a book.

"I think. my Lords, regard being had to the whole of this case to the finding of the Lord Chief Justice that the    parts which were so    taken were neither substantial nor material parts, and the impossibility of damage    being held to have accrued to the plaintiff from such    taking, and the concurrence of the other Judges before whom the case was,     brought that    this appeal should be dismissed, and dismissed with costs''. In     the case of     Sheldon v. Metro-Gclden Pictures Corporation(3)    Judge    Learned     Hand    stated    that while considering a case which is very similar to the case in this appeal observed as follows:-

(1) 77 L.J.R. 577.

(2) (1878) 3 A.C. 483.

(3) 81 F 2d 40.

241

"But it is convenient to define such a use by saying that others may "copy" the "theme" or "ideas", or the like, of a work, though not its "expression". At any rate so long as it is clear what is meant, no harm is done Finally, in concluding as we do that     the defendants used the play pro tanto, we need not charge their witnesses with perjury. With so many sources before them they might quite honestly forget what they took; nobody knows the origin of his inventions; memory and fancy merge     even in adults. Yet     unconscious plagiarism is actionable quite as much as deliberate." "The play is the sequence of the confluents of all these means, bound together in an inseparable unity; it may often    be most     effectively pirated by leaving out the speech, for which a substitute can be found, which keeps the whole dramatic meaning. That as it appears to us is exactly what the defendants have done here; the dramatic significance of thevwcenes we have recited is the same, almost to the letter ........... It is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate."

In the    aforesaid case    the Court held that there was no plagiarism or violation of the copyright. In the case of Shipman v. R. K. O. Radio Pictures(l) 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.     In this connection, Menton, J. Observed as follows.-

"The Court concluded that it was the idea or impression conveyed to the audience which was     the determining factor, and since the impressions were the same, held     there was an infringement... .....From this case stand     the modern law of copyright cases, with the result that it    is now     held that ideas are     not copyrightable but    that sequence    of events is;     the identity of impression must be capable     of sensory perception by the audience".

In the case of Michael V. Moretti v. People of     the State of Illinois(2) 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. A writ of certiorari was    taken against this judgment to the    U.S. Supreme Court which was denied. To the

(1) 100 F 2d 533.

(2) 248 F 2d 799=356 U.S. 947

242

same effect is an earlier decision in the case of Funkhouser v. Loew's(1) where the following relevant observations were made on the various aspects of the matter: "We are also mindful that the test used to determine infringement in cases of this case is whether ordinary observation of the motion picture photoplay would cause it to     be recognised as a picturisation of the compositions allow ed to have been copied, and not whether by     some hypercritical dissection of sentences and incidents seeming similarities are shown to exist........... ...It recognised that     there    were similar incidents     in the productions, but    such similarities were    due to    the nature of    the subject matter and     not to copying. Both the motion picture and plain tiff's story 'old John Santa Fe' were set in the same geo graphical area    and both had    the typical western    back    ground.............................. Appellant's attempt to show similarities by comparing a word or phrase taken from his` manuscript with the word or     words appearing in    the lyrics of     a song in appellee's motion picture is not in conformity with the test used in infringement     cases and to which we have referred to above. We find no merit in the contention that any of the songs in defendant's movie were taken from plaintiff's manuscripts.. .......Considering that both the movie and the manuscript presented activities of Harvey    Girls, and information concerning them was received from the same source, we think it reasonable that some    similarities in character portrayal could be discovered".

In view of the aforesaid observation too much stress cannot always be laid on similarities or similar situations. A writ of certiorari against the judgment of the U.S. Courts Appeal    to the U.S.    Supreme Court    was taken but     the certiorari was    denied and the     petition was    rejected in limine as it appears from 348 U.S. 843. This was also a case where a film was made on the basis of a play claimed to have been written by the plaintiff.

The case     of Warner Bros. Pictures    v. Columbia Broadcasting System(2) is another illustration of the manner in which a copyright can be violated. Dealing with    this aspect of the matter Stephens, J observed as follows:- "It is our conception of the area covered by the copy right     statute that    when a study    of the     two writings is made and it is plain the study that one of them is not in fact the

(1) 208 F 2d 185.

(2) 216 F 2d 945.

243

creation of the putative    authority, but    instead     has been copied in    substantial part exactly or in transparent phrasing to produce essentially the story of the other writing, it in fringes".

A writ    of certiorari was taken against the decision to the U.S. Supreme B, Court but was denied as reported in 348 U.S.

971.

In     the    case of Otto Eisenchiml    v. Fowcett Publications(1) Duffy, Chief Judge observed as follows:- "An infringement     is not     confined to literal and exact    repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colorable alterations to disguise     the piracy. Paraphrasing is copying and an infringement, if carried to a sufficient extent The    question of infringement of copyright is not one of quantity but of quality and value".

A writ    of certiorari against this decision was taken to the U.S. Supreme Court but     was denied which was reported on 2 L.Ed. 2d 260-355 U.S. 907.

In the case of Dorsey v.     Old Surety Life Ins. Co.(2) Phillips, J. 1 observed as follows:-

"The right secured by a copyright is not the right to the use of certain words, nor the right to employ ideas expressed thereby. Rather it is the right to that arrangement or words which the author has selected to express his ideas To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copy righted material should be required".

Similar observations were made     in the     case of Twentieth Century Fox Film Corporation v. Stonesifer(3) which are as follows:-

"In    copyright infringement cases involving original dramatic     compositions    and motion picture productions, in    as much as literal    or complete appropriation of the protected property rarely occurs, the problem before the court is concrete and specific in each case to determine from all the facts (1) 246 2d 598.

(2) 98 2d 872.

(3) 140 2d 579

Re: R.G Anand vs M/S. Delux Films & Ors - determining copyright infringement

and circumstances    in evidence whether there has been a substantial taking     from an original and copyrighted property, and therefore an unfair use of the protected work The two works involved in this appeal should be considered and tested, not hypercritically or    with meticulous     scrutiny, but by the observations     and impressions of the average reasonable     reader     and spectator.. We find and conclude, as did the court below, that the numerous    striking similarities in the two works    cannot in the light of all the evidence be said to constitute mere     chance. The deduction of material and substantial unlawful copying of appellee's original play in appellant's motion picture is more in consonance with the record and with the probabilities of the situation therein disclosed".

This authority    lays down in unmistakable terms the cases where an infringement of the copyright would take place and as pointed out that before the charge of plagiarism is levelled against the defendant     it must be shown that the defendant has taken a substantial portion of the matter from the original and have made unfair use of the protective work The two     works involved     must be considered and tested not hypercritically but with meticulous scrutiny. Similarly, in the case of Oliver     Wendell Holmes v. George D. Hirst(1) Justice Brown speaking for the Court and describing the    incidents of a violation of the copyright observed as follows:

"It is the intellectual production of the author which the    copyright protects, and not the particular form which such production ultimately takes". The Judicial Committee in the case of Macmillan & Company Limited v. K. and J.    Cooper(2) while pointing out     the essential ingredients of the infringement of copyright Lord Atkinson observed as follows:-

"Third, that    to constitute piracy of a copyright it must be shown    that the original has    been either substantially copied or to be so     imitated as to be a mere evasion of the copyright".

(1) 174 U.S. 82.

(2) 51 I.A. 109.

245

In the case of Florence A. Deeks v. H. G. Wells & ors(1)    Lord Atkin speaking for the     Judicial Committee summarised the nature of the evidence required to prove as a violation of copyright and observed as follows: "Now their Lordships are not prepared to say that in the case of two literary works intrinsic evidence of that kind    may Br not be sufficient to establish a case of copying, even if the direct evidence is all     the other way    and appears to     be evidence that can be accepted; but such evidence must be of the most cogent force before it can be accepted as against the oath of respectable and    responsible people whose evidence otherwise would be believed by the Court". In the case of N.T. Raghunathan    & Anr.    v. All India Reporter Ltd.,    Bombay(2) it was held that copyright law did not protect ideas but    only the particular expression of ideas. In that case, the Bombay High Court however held that the defendant had copied not only the ideas    but also the style of abridgment, the expression of ideas and the form in which they were expressed and thus held that     a case     for violation of copyright was made out.

K. R. Venugopalan Sarma v. Sangu Ganesan(3) was a case of infringement of copyright in picture and it was held that an infringement     of the     copyright was complete even though the reproduction was not exact, but the effect on the mind by study of the two pictures    was that the    respondent's picture was nothing but a copy of the plaintiff's picture. The Court while applying the    various     tests Observed as follows:-

"Applying this test, the degree of     resemblance between the two pictures, which is to be judged by the eye, must    be such     that the person looking at     the respondents' pictures must get the suggestion that It is the appellant's picture........ one picture can be said to be a copy of another    picture     only if a substantial part of the former picture finds place in the reproduction".

To the same effect is an earlier decision of     the Division Bench    of the    Madras High Court in the case of The Daily Calendar    Supplying Bureau, Sivakasi v.     The United Concern(4) where the Court observed as follows (1) 60 I.A. 26.

(2) A.I.R. 1971 Bom. 48.

(3) 1972 Cr. L.J. 1098.

(4) A.T.R. 1967 Mad'. 38!.

246

"What is essential is to see whether there is a reproduction of substantial part of the picture. There can be no test to decide what a substantial part of a picture is. One useful test, which has been followed in several decisions    of Courts, is the one laid down by Lord Herschel, L.C. in Hanjastaengl v. Bains & Co. (1) "..... it depends really, on the effect produced upon the mind by    a study     of the picture and of that which is alleged to be a copy of it, or at least of its design".

In the case of C. Cunniah and Co. v. Balraj & Co.(2) the Court applying the     test of resemblance observed as follows:-

"Applying this test, the degree of     resemblance between the two pictures, which is to be judged by the eye, must    be such     that the person looking at     the respondents' picture must get the suggestion that it is the appellant's picture. In this sense, the points of similarity or dissimilarity in the picture assume some importance .. We agree that this could not be the sole test, though, incidentally, the points of resemblance and dissimilarity assume some importance in the case of finding out whether, taken as a whole, the respondents' picture produces the impression in the mind of     any observer, which    amounts     to a     suggestion of     the appellants' picture".

"one picture    can be    said to be a copy of another picture only if a substantial part of     the former picture finds place in the reproduction". In the case of Mohendra Chandra Nath Ghosh and ors. v. Emperor(3) the Court while defining what a copy is held that a copy    is one    which is so near the original as to suggest the original to the mind of the spectator and observed as follows:-

"But    the question    is whether the offending pictures are copies of substantial portions of     the copyright picture    The figures may have been reduced in the offending pictures and slight modifications     may have been    introduced, or    the clothes and colours may have been     different, but there can be no doubt whatsoever that the main figures have an identi- (1) [1895] A.C. 20, 25.

(2) A.I.R. 1961 Mad. 111.

(3) A.I.R. 1928 Cal 359.

247

cal pose.    These are not, in my opinion, coincidences due to A the pictures being produced to represent common stock idea."

Similarly in the case of     S.K. Dutt v. Law Book Co. & ors.(l) it was held that in order to be an infringement of a man's copyright     there must be a substantial infringement of the work. A mere fair dealing     with any work falls outside the mischief of the Copyright Act.

Similarly, in the case of Romesh Chowdhry & Ors. v. Kh. Ali Mohamad Nowsheri &     Ors.(2) the Division Bench of the Court to which one of us (Fazal Ali, J.) was a party and had written the leading judgment it was thus observed : "It is well settled that in order to be actionable the infringement must be    a colorable imitation of the originals with the purpose of deriving profit". In the case of Mohini Mohan Singh & Ors. v. Sita Nath Basak(3) a Division Bench of the Calcutta High Court while laying    down the necessary concomitants of    a colorable imitation Mukherji, J. Observed as follows:- "The question there is where a colorable imitation has been made.     Whether a work is a colorable imitation of another must necessarily be a     question of fact. Similarly is a great point to be considered in this connection but mere similarity is not enough as it may be due to any one of four hypotheses as Copinger points out at p. 134, Edn. 6, viz., (1) to mere chance, (2) to both works being taken from a common force, (3) to plaintiff's work being taken from the defendant's and (4) defendant's work; being taken from the plaintiff's and each case must depend upon its own circumstances". Guha, J. Observed as follows:-

"It has to be determined whether in a particular case the work is a legitimate use of another man's publication in the fair exercise of    a mental operation deserving     the character of original work".

(1) A.I.R. 1954 All. 570,

(2) A.I.R. 1965 J & K. 101.

(3) A.I.R. 1931 Cal. 230.

248

Thus, the     position appears to     be that an idea, principle, theme, or     subject matter or historical or legendary facts     being common property cannot be the subject matter of copyright of     a particular person. It is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others. Where two writers write on the same subject similarities are bound to occur because the central idea of both are the single but     the similarities or     coincidences    by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist     Shakespeare most of whose plays are based    on Greek-Roman and British mythology or legendary stories like Mer chant of Venice, Hamlet, Romeo Juliet, Jullius Caesar etc. But the treatment of the subject by Shakespeare    in each     of his dramas is so fresh, so different, so    full of poetic exuberance. elegance     and erudition and so novel in character as a result of which the end product be comes an original in itself.    In fact, the power and passion of his expression, the     uniqueness, eloquence and excellence of his style and pathos and bathos of the    dramas become peculiar to Shakespeare     and leaves precious little     of the     original theme     adopted by him. It will thus be preposterous to level a charge of plagiarism against     the great play-wright. In fact, thoughout     his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of the dramas constitutes a master-piece of English literature. It has been rightly said that "every drama of Shakespeare is an extended metaphor". Thus, the fundamental fact which has to be    determined where a charge of violation of     the copyright is made by the. plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor changes or super additions or embellishment here and y there. Indeed, if on a perusal of the copyrighted work the defendant's work appears to be a transparent rephrasing; or a copy of    a substantial    and material part of     the original, the charge of plagiarism must stand proved. Care however must be taken    to see    whether     the defendant     has merely disguised piracy or has actually reproduced     the original in a different form,     different tone, different tenor so as to     infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.

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

249

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.

6. As a violation     of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case     law discussed above.

7. Where however the question is     of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a    wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the     film is by and large a copy of the original play,    violation of the copyright may be said to be proved.

17-520 SCI/78

250

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 learned trial Judge who had also had the advantage of seeing the picture was of the opinion that the film taken as a whole is quite different from the    play written by the plaintiff. In order to test the correctness of the    finding of the trial Court we also got the play read to us by the plaintiff in the presence of counsel for the parties and have also    seen the film which was screened at C.P.W.D. Auditorium, Mahadev Road, New Delhi. This was done merely to appreciate the judgment of the trial Court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the parties. To begin with, we     would like to give a summary of the play Hum Hindustani    which    is supposed to have    been plagiarized by    the defendants.     The script of the play Ex. P.1 has     been placed before us and we have gone through the same.

The main theme of     the play is provincialism and the prejudice of persons belonging to one State against persons belonging to other States. In the play however the author chooses two families, viz., a Punjabi family and a Madrasi family to show what havoc can be caused by provincial parochialism possessed    by the    two families.    The Punjabi family    and the Madrasi family were living as close neighbours having good and cordial relations    and are on visiting terms    with each other. The Punjabi consists of Dewan Chand, contractor, his wife Krishna, their grown up daughter Chander and son Tinnu aged about 8 or 10 years. The Madrasi family    however consists of Subramaniam, Government officials, his    wife Minakshi and grown up son Amni     and daughter Pitto    who is aged about 8 or 10 years. As a result or the close association between the two families it appears that Amni the son of Subramaniam falls in love with Chander the daughter of Dewan Chand of the Punjabi family. When the parents     are out Amni and    Chander     meet     and talk. Unfortunately, however, the parents of both Amni and Chander arc extremely adverse to the matrimonial union of Amni and Chander because     the two families belong to two different provinces. When     they get some scent of the    love affair between Amni and Chander the parents    of Chander make a serious attempt to find a suitable match for     her amongst their own caste namely     Punjabis. Similarly, the parents of Amni also try to arrange a match for him amongst Madrasis. For this purpose, the    services of a marriage broker named Dhanwantri are enlisted by both the parties without knowing 251

that Dhanwantri     was trying to negotiate marriages for both the couples. Later on, when    this fact is discovered the relations of the two families become    strained. Amni     and Chander also persuade Dhanwantri to assist there in bringing about their marriage by persuading their parents to agree. This gives a chance to Dhanwantri to make a lot of money out of the    two couples. Dewan Chand and his wife Krishna in sheer desperation hurriedly arranged the marriage of their daughter Chander to Bansi, a simpleton, son of Murari Lal who is    a friend of Dewan Chand. In fact, Dewan Chand is not very impressed    with Bansi but     in view of the critical situation arising out     of the love    affair    between his daughter and Amni he prefers Bansi to the Madrasi boy. When Chander and Amni come to know of this Chander asked Amni to speak to his parents in a free and frank manner and express his strong desire to marry Chander. Amni who appears to be a cowardly fellow     prefers to commit suicide rather than dare to talk     out this matter with his parents. Realising that no hope is left for Chander and Amni to go through the marriage ceremony both of them entered into a suicidal pact and wrote letters to their parents indicating    their intention to commit suicide    because they were not     prepared to marry anybody else. Dhanwantri, however, intervenes and persuades Chander and Amni not to commit suicide as according to him they were not destined to die unless they had been actually married. Meanwhile, the parents of Amni and     Chander on getting the suicide note mourn the loss of their children and it    now dawns upon them that they     had committed     the saddest mistake of their life in refusing to marry     the couple and repent for their act. Just at that time Amni and Chander appear    on the    scene after having been married to- each other. The marriage was performed by Dhanwantri himself. Thus ends the     story with the realisation by both the families that provincialism helps nobody. This in short is the story of the play written by the appellant. We might mention that before the play starts the author show some voices reciting various persons proclaiming that they come from different States like    the slogan that they belong to a particular state rather than that they belong to India.

Analysing therefore the essential features of the play the position is as follows:-

1. That the central idea of the play is based on provincialism and parochialism. .

2. The evils of provincialism are illustrated by the cordial relations of the two families being married because of an

252

apprehended marriage    tie which according to both the families    was not possible where they belonged to different States.

3. That the     Madrasi boy Amni is a coward and in spite of his profound love for Chander he does     not muster sufficient     courage to talk the matter out with his parents.

4. That in    sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into     a suicidal pact and write letters to their parents intimating their intention.

5. It was only after the letters are perused by the parents that they     realise the     horror     of parochialism and arc repentant for having acted so foolishly.

6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well.

As the play was read to    us by the appellant we find that it     was very exquisitely presented and the plot     was developed with    great skill. It must be noted however that the author in writing out the play has concentration only on one aspect of provincialism namely whether there can be a marriage between the persons belonging to one State    with those belonging     to other States. This is the only aspect of provincialism which has been stressed in the play. The play does not touch any other aspect nor does it contain anything to throw light on the evils of society or that of dowry etc. We have     mentioned these acts particularly because the film revolves around     not only the aspect of marriage but other aspects also which are     given the same importance as     the problem of marriage.

We shall now give     the summary of the film. The script of which is Ex. D-2. The film starts showing Anand a young graduate from Punjab who comes to New Delhi for a course in Radio Engineering. At the Railway Station Anand meets a Madrasi girl Janaki and due to some    misunderstanding an altercation between the two takes place, as a result of which Janaki feels that Anand was trying to tease    her. Thereafter Anand comes and stays in a Sarai    opposite the Railway Station, but he is allowed to stay there only for three days after which he was expected to find accommodation elsewhere. Thereafter Anand runs from house to house trying to get    some accommodation but is sadly disappointed because wherever he goes he finds that in every case the landlord is not prepared to give the house to any person who 253

does not belong to his province. We might mention here that this is     one of     the very important aspect of provincialism which pervades    through     the entire film, viz., that so parochial are the landlords that they were not even prepared to let    out their houses or rooms to any person coming from outside their State. This particular aspect is completely absent from the story    revealed in the play written by the appellant. One    Kumaraswamy a South Indian attendant at the Sarai comes to the rescue of Anand and suggests to him that he should attire as a South Indian and then go to any South Indian landlord to get the house. Thereafter Anand disguised as a South Indian approaches one Iyer for     giving     him accommodation and Iyer is only too glad to accommodate Anand on the ground that Anand is also a South Indian. Anand then meets Subramaniam father of Janaki the girl with whom he had all altercation     at the     station. The    film then proceeds involving several sequences of the meeting between Anand and Janaki, Murli Dhar the     Principal of a Dancing School takes Anand is his student and there he is introduced to Janaki who is    a Professor of Dance and Music in that Institute. Janaki then discovers that Anand is a good singer and is slowly and gradually attracted     towards him. Janaki invited him to    her house for the celebration of Pongal festival and Anand goes there as usual attired as South Indian to witness the dance performance of Janaki. He also comes to know that Janaki's father     Subramaniam does not hold any good opinion about the Punjabis. Thereafter Anand leaves the place after making an appointment with Janaki to meet near Rashtrapati Bhawan the following day. When Anand returns to his house he comes to know that     his father Daulat Ram had    been transferred to    New Delhi and was expected at     any moment. Daulat Ram was posted    as Manager in the same commercial company in which Subramaniam was employed ill a subordinate position. Anand     receives his    parents     and his grown up sister Nikki at the railway station and takes them to his house. He also brings    Kumaraswamy, the attendant, at     the Sarai to his own house as a cook. Thereafter Anand goes out on the    pretext of taking his sister Nikki around the city. When they reach the Red Fort    he meets Ashok Banerjee, a young Bengali painter whom he had met earlier in connection with the search for accommodation of    the house but     was refused accommodation because Anand did not happen to be a Bengali. Ashok    Banerjee is impressed by Nikki and requests her to    allow him to make Nikki's portrait.    Leaving     his sister there Anand meets Janaki and both of them come to the Red Fort. When Anand and Janaki meet Nikki and Ashok, Anannd in order to conceal his real    identity tells    Janaki    that Nikki is the     daughter of his father's friend, which naturally angers Nikki hut later Anand apologies to her and 18-520 SCI/78

254

explains that he did not want Janaki or her father lo know that he     was not a Madrasi and thus upset the love affair between Anand and Janaki. Subramaniam, father of Janaki takes a     fancy for Anand and asks Janaki to invite Anand's father to the house so that he could     negotiate Janaki's marriage with Anand. This puts Anand    in a most awkward position In order to save the situation Anand hits upon an idea by     introducing his cook Kumaraswamy to Subramaniam as his father. Just at that time     Daulat Ram happens to pass through Subramaniam's house and is called in by Subramaniam, but the     situation is saved by Kumaraswamy feigning illness as a result of     which he is taken to a room where he hides his face in a    blanket. Anand    leaves the house and returns with a    false beard posing as a doctor. Similarly, Ashok and Nikki get attached to    each other and Ashok     receives a telegram from his father summoning him to Calcutta. Before he leaves Ashok frankly declares his love to Nikki and gets her consent to marry him. The love affair of Nikki however is not     in the knowledge of     her parents.    Murli Dhar, Principal of the Institution of Dance and Music arranges a performance in    which the principal role is played by Anand and Janaki. Up to this time neither Janaki nor her father Subramaniam had     ever known the real identity of Anand but both of     them had taken him to be a South Indian. We might like to add that here the picture makes a complete departure from the story contained in the play where both the parents of the    couple knew the identity of each other. Before the performance starts Anand tries     to disclose his identity to Janaki but is unable to do so because Janaki is in a hurry. The performance     is applauded by The audience which includes Subramaniam, Daulat Ram and Kumaraswamy. In the theater hall where the performance is staged Kumaraswamy    is given a prominent place     as he    is taken to be the father of Anand. Daulat Ram resents this fact because    Kumaraswamy was     his servant. After     the performance Murli Dhar introduces Subramaniam Janaki's father to the audience. Murli Dhar then calls Kumaraswamy and introduces him to the audience as the father of Anand. This infuriates Daulat Ram who comes to the stage and gives a thrashing to Kumarswamy. It is at this stage that the entire truth is revealed and both Subramaniam and Janaki come to know that    Anand was not a South Indian hut a Punjabi and his father was Daulat Ram. Daulat Ram also does not like the relations of his son with Janaki because he thinks that if the son marries outside the caste that will create difficulties for the marriage of his daughter Nikki Subramaniam then starts negotiation for Janaki's marriage with a South    Indian boy. Anand goes to Janaki and asks her to delay the negotiations for about a month or two till Nikki's marriage is over after which he     would marry Janaki.

255

Janaki feels completely let down and when she goes home she is given a serious     rebuke     by her father. In utter frustration Janaki decides to    commit    suicide     and leaves suicide note. She proceeds to Jamuna    river. Before she is able to     jump into the river she is saved by Sadhu Ram, a Punjabi Ghee Merchant, and a friend of Subramaniam Sadhu Ram scoffs at the people's     preference for provincialism     and their lack of appreciation of intrinsic human values. He takes Janaki to his own house and tells Daulat Ram that she is her    niece and on that basis negotiates for the marriage of Janaki with     Anand.     Daulat     Ram accepts the proposal because Janaki    appears as a Punjabi girl on receiving the suicide note Subramaniam feels extremely sorry and realises his mistake. In the meanwhile when Daulat Ram returns to his house he finds Ashok Banerjee on very intimate terms with Nikki Daulat Ram gets    furious and turns out Ashok from his house. Thereafter Daulat Ram arranges the marriage of his daughter Nikki    with the son of one Girdhari Lal. After the marriage party    comes to the house of Daulat Ram, Girdhari Lal insists upon Rs. 15,000 as dowry from Daulat Ram. Daulat Ram does not have such a large sum of money and implores Girdhari Lal not to insist and to save his     honour     but Girdhari Lal is adamant. Daulat Ram tries to     enlist     the support of his caste men but    no one is prepared to oblige him. At     this juncture    Ashok Banerjee    appears on the scene and offers his mother's jewellery to Daulat Ram to be given in dowry to Girdhari Lal and thus seeks to save the honour of Daulat Ram. This act of Ashok Banerjee brings about a great mental change in the attitude of Daulat Ram, who stops Nikki's marriage with Girdhari Lal's son and turns them out along with the men of his brotherhood. Daulat Ram declares his happiness that he     has found a    bigger    brotherhood, namely, the Indian brotherhood and asks Ashok to marry Nikki at the same marriage Pandal. At that time Sadhu Ram requests Daulat Ram that Mohini who is none other than Janaki should also be     married to Anand. Sadhu Ram    discloses the    true identity of Janaki and     then Daulat Ram realises his short- sightendness and welcomes the idea of the marriage of Anand with Janaki.    Subramaniam who is present    there feels extremely happy and blesses the proposed marriage. Ashok and Nikki as also Anand and Janaki are then married and thus the film ends.

Analysing the story of the film it would appear that it protrays three main themes: (1) Two aspects of provincialism viz. the role of provincialism in regard to marriage and in regard to renting out accommodation (2) Evils of a caste ridden society,     and (3) the evils of dowry. So far as the last two aspects are concerned they do not figure at all in the play written by the plaintiff/appellant. A close 256

perusal of the script of the film clearly shows that all the three aspects mentioned above    are integral parts of     the story and it is very difficult to divorce one from the other without affecting the beauty and the     continuity of     the script of the film. Further,    it would appear that     the treatment of the story of the fills in many respects different from the story contained in the play. Learned counsel for the appellant however drew    our- attention to para 9 of the plaint at     pages 18-19 of the paper book wherein as    many as     18 similarities have    been detailed. The similarities may be quoted thus:- (i) Before the actual stage     play, the producer gives a narrative. He states that although we describe ourselves as Hindustanis we are not really Hindustanis. He questions their audience as to what they are    and various voices are heard to     say in their     own provincial language that they are Punjabis, Bengalis, Gujratis, Marathas,     Madarasis, Sindhis, etc. In the said film the same idea is conveyed and the hero of the picture is shown searching    for a house in New Delhi and wherever     he goes he is confronted by a landlord     who describes himself not     as Hindustanis but     as a     Punjabi, Bengali Gujrati, Maratha, Madarasi or Sindhi.

(ii) Both the     said play and the said film    deal with the subject of provincialism.

(iii)Both the said play and the said film evolve a drama around the lives of two families, one a Punjabi and the other a Madrasi family.

(iv) In both    the said play and the said film the name of the Madrasi father is Subramanyam. (v) Both the     said play and the said film    have their locale in New Delhi.

(vi) Both the     said play and the said film    show cordiality of    relations between the     two families.

(vii)Both the     said play and the said play and the said film show    the disruption     of cordial relations as soon as    the head of     the families     discover the     existence of    love affairs between their children.

(viii)In both     the said play and the said film, both the parents warn their respective children not to have anything to do with each other on pain of corporal punishment.

257

(ix) The entire dialogue in both the said play and the said film before and     after     the disruption is based upon the superiority of the inhabitants    of one     Province over     the inhabitants of the others.

(x) In both    the said play and the said film the girl is     shown    to be    fond of music     and dancing.

(xi) In both    the said play and the said film the hero is    shown as a coward to the extent that he has not the    courage to go to his parents and persuade them to permit him to marry a girl hailing from another Province.

(xii) Both in the said play and in the said film, when the     parents of the girl are discussing marrying her off to some body    the girl is listening to the dialogue from behind a curtain. Thereafter the girl runs to the boy and explains the situation to him.

(xiii)In both the said play and the said film, the girl writes a letter of suicide.

(xiv)In the said play reconciliation takes place when the     children of the two families, who were in love, go out to commit suicide by drowning etc., whereas in the said film, it is only    the daughter who goes out to commit suicide by drowning herself in the Jamuna. (xv) In the said play the children    are stopped from commit ting suicide by an astrologer whereas in the said film the girl is stopped from committing    suicide by a friend of the family.

(xvi)In the said play reconciliation between the two families takes place only after they have experienced the     shock     of their children committing suicide on     account of their provincial feelings whereas in the film, the father of the girl realised his mistake after experiencing the shock of his daughter committing suicide.

(xvii)In both     the said play and the said film, stress is laid on the    fact that although India is     one country, yet there is acute feeling    of provincialism between persons hailing from its various States even though they work together and live as neighbors. (xviii)Both in the said play and in the said film, even tho     dialogue centres around the    same subject of provincialism.

258

In the course of    the argument also our attention was Drawn to a comparative     compilation of     the similarities in the film and the play. The    learned     trial    Judge after considering the     similarities was of the opinion that     the similarities are on trivial points and do not have     the effect    of making the     film a substantial and material imitation of the play. Moreover apart from the fact that the similarities and coincidences mentioned above are rather insignificant as pointed out by the trial Judge and the High Court, in our opinion,     they are clearly explainable by and referable to    the central    idea,    namely, evils     of provincialism and parochialism which is common to both the play and the     film.    Nothing therefore turns upon     the similarities categorised by the plaintiff (in para 9 of the plaint), in the peculiar Facts and circumstances of    this case.

After having gone through     the script of the play and the film we are inclined to agree with the opinion of the Courts    below.     We have already pointed out that    mere similarities by     themselves are not sufficient     to raise in inference of colourable imitation on the other hand, there are quite a number of dissimilarities also, for instance: (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 him     self 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 is 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 Janaki 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 Janaki 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.

259

Furthermore, while in    the play Amni     and Chander 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 Janaki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last     scene    when Janaki'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. D

(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 parts of     the story.

The effect     of the     dissimilarities pointed out above clearly go to show that they tar outweigh the effect of the similarities mentioned    in para     9 of the plaint set     out above.    Moreover, even if we examine the    similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and     do not     appear to be of a substantial nature. The mere fact that the name of the Madrasi father    was Subramaniam     in both the film and     the play, is hardly of any signifi

260

cance because the name of a particular person cannot be the subject matter of copyright because these are common names. After careful consideration of the essential features of the    film and the play we are clearly of the opinion that the plaintiff has not    proved by clear and cogent evidence that the defendants committed    colourable imitation of the play and have thus violated the copyright of the plaintiff. It was lastly contended by counsel For the appellant that the correspondence between the     plaintiff and     the defendant would     show that defendant No. 2 himself was aware of the    story contained in the play even before he proceeded to make     the film in New Delhi. This     is undoubtedly so because defendant No. 2 admits in his evidence that he had come to Delhi and the entire play was narrated to him by the plaintiff. There is however a serious     controversy on     the question as to whether the defendant after hearing play said that the play was not suitable for being filmed as alleged. The plaintiff,    however, seems to suggest that defendant No. 2 was undoubtedly Attracted by the play and it was on the basis of this play that he decided    to make the film. However, there     is no reliable evidence to show    that defendant No. 2 at any time expressed his intention to film the play written by the plaintiff. There can     be no doubt that defendant No. 2 was aware of the story contained in the play and a part of the film was undoubtedly 6 to some extent inspired by the play written by the    plaintiff. But     the definite case of defendant No. 2 also is that he was in search of story based on provincialism and the play written by the    plaintiff may have provided the opportunity     for defendant No. 2 to produce his film though with a different story,    different theme, different characterisation     and different climaxes.

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 settled 261

that 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 result     is that the appeal fails and is accordingly dismissed. But    in the    circumstances there will be no order as to costs in this Court only.

JASWANT SINGH, J.-Bearing in mind the well recognised principles and    tests to determine whether there has been an infringement of the    law relating to copyright in, a particular case     which were brought to     our notice by     the counsel on both sides     and which have been     elaborately considered and discussed by my learned brother Murtaza Fazal Ali in    the course of the judgment prepared    by him, we proceeded at the re- quest of the counsel to hear the script of the play "Hum Hindustani' which WAS read out to us by the plaintiff himself in a     dramatic style     and to see the film "New Delhi" produced by defendants 1 and 2, the exhibition of which was arranged    by the defendants themselves.    On a careful     comparison of the    script    of the     plaintiff's copyrighted play with the aforesaid film, 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 plaintiff's copyrighted work. In fact, a large majority    of material incidents, episodes and situations portrayed by defendants I 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 262

and eradicated    by defendants 1 and 2 by means of their aforesaid film do not figure at all in the plaintiff's play. As such     I am in complete agreement with the     conclusions arrived at by my learned brother Murtaza Fazal Ali    that there has been no breach on the part of the defendants of the plaintiff's     copyright and     concur     with the judgment proposed to be delivered by him.

PATHAK, J.-It appears from a comparison of the script of the    stage play "Hum Hindustani" and the script of the film "New Delhi" that    the authors of the film script have been influenced     to a degree by the salient features of the plot set forth in the play script. There can be. little doubt from the evidence that the authors of the film script were aware of the scheme of the play. But on the other hand, the story portrayed by     the film travels beyond the    plot delineated in the play In the play, the theme of provincial parochialism is     illustrated only in the opposition to a relationship by     marriage between two families hailing from different parts     of the     country. In the film    the theme is also illustrated by the hostile attitude of proprietors of lodging accommodation towards prospective lodgers who do not belong to the same provincial     community. The plot    then extends to the evils of the dowry system, which is a theme independent of    provincial parochialism. There are still other themes    embraced within the    plot of the film. Nonetheless, the question can    arise whether there is an infringement of copyright even though the essential features of the    play can be said to correspond to a part only of the plot of     the film. This can arise even where changes     are effected while    planning the film so that certain immaterial features in the film differ from what is seen in the stage play. The relative position in which    the principal actors stand may be exchanged or extended and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play. All such matters fell for consideration in relation to the question whether the    relevant part of the plot in     the film is merely a colourable imitation of the essential structure of the stage play. If the treatment of the theme in the stage play has been made the basic of one of the    themes in the film story and the essential structure of that treatment is clearly and distinctly identifiable in the film story, it is not necessary, it seems to me, for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established. In the attempt to show that he is     not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so develop his own product that it     covers a wider field than the area included within the scope of the earlier product, and in the common area covered by the two productions

263

to introduce changes in order to disguise the attempt at plagiarism. If    a reappraisal of the facts in the present case had been open in this court, I am not sure that I would not have differed from     the view taken on the facts by the High Court, but as the matter     stands, the trial Court as well as     the High Court have concurred in the finding that such similarities as exist between the stage play "Hum Hindustani" and     the film "New Delhi" do not make out a case of infringement. The dissimilarities, in their opinion, are so material that it is not    possible to say that     the appellant's copyright has been     infringed. This Court is extremely reluctant to interfere with concurrent findings of fact reached by the Courts below and for that reason I would allow the judgment under appeal to stand. In another, and perhaps a clearer case, it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of     the original theme    so that     a veil of apparent dissimilarity is thrown around the work     now produced.    The court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation. The appeal     is dismissed,    but without any order as to costs.

P.H.P.     Appeal dismissed.