SVKM’s of piracy. c) Where the theme is

SVKM’s
NMIMS

Institute
of Intellectual Property Studies, Mumbai.

 

A
Project Submitted

On

The
remake of Films and Related Copyright issues:

Hollywood
v. Bollywood

 

In
compliance with partial fulfilment of the marking scheme,

To

Faculty:
Prof.
Nazima Munshi

 

 

 

 

 

 

 

 

 

                                                          Submitted by:

                                                                                   
Mr. PARTH BHUTA

                                                       
   Course:
CCIP

                                                                                   
on 20th January 2018, 3 pm

Introduction

The
English film industry (having its largest hub at the United States, popularly
known as Hollywood) is now recognizing the Indian film industry (amongst them
mainly Bollywood), which has had a long tradition of remaking Hollywood movies so
as to serve a primarily South-Asian audience. .

The
era of synchronization of the two biggest film industries in the world has
arrived and Hollywood now clearly recognizes the value of the Indian market,
keeping in mind the strength of the audience in place, along with the fact that
India is reported to have the world’s fastest growing media and entertainment
industry.

The
Indian film industry (including Bollywood) has had a long history of ripping
off Hollywood and other foreign language films and the audience is used to this
trend. Now, from a past decade, it is evident that the Hollywood giant
production houses are collaborating with the Indian production houses. They
have realized not only the available market in the sub-continent but also the
fact that Indian filmmakers were already ripping off their story lines as a
cultural adaption.

When
it comes to Bollywood films it is always difficult to determine whether
there is a copyright infringement or not. Since, all comprises prominently a
similar concept of love story, song, action and emotional climax. The
interpretation of the Apex Court in R.
G. Anand v. Delux Films1
is primarily considered by judiciary, which lays down the following rules:

a)      There
can be no copyright in an idea, subject matter, themes, plots or historical or
legendary facts and the violation of the copyright in such cases is confined to
the form, manner and arrangement and expression of the idea by the author of
the copyright work.

b)      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.

c)      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 copyright
infringement arises.

d)     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 copyright infringement comes into existence.

e)      Where
however the question is of the copyright infringement of stage play by a film
producer or a Director, the task of the plaintiff becomes more difficult to
prove piracy.

f)       It
is manifested that, unlike a stage play, a film has a much broader perspective,
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, the copyright infringement
may be said to be proved.”

 

Literary Review

Given
the hegemonic role of domestic film productions in India, the Indian filmmakers
can readily assume that, with the possible exception of international
blockbusters and award winning films, most foreign films will be unfamiliar to
their Indian audiences, and they have used this circumstance to rework
copyrighted material without first acquiring the rights to it.2 Bollywood
has continuously evolved to increase audience appeal and developed films with
the intention of obtaining maximum ticket sales from the movie-going audience.3 Over
the last few decades, there has been a surge of immigration from India to
Western nations.4
With the diaspora rapidly assimilating to the cultures of the nations it now
inhabits, Bollywood has continued to find new ways to appeal to this
demographic for an expanded audience base.5
Bollywood viewed Hollywood films favourably; their themes appease the
increasingly diverse and westernized Indian audience.6
The United States had started to experience an influx of immigrants from India
after the passage of the Immigration and
Naturalization Act in 1965. As an increasing number of previously Indian
nationals began to call the United States home, Bollywood recognized it could
further expand its audience by appealing to non-resident Indians.7

The line needs to be drawn between taking inspiration and
actually infringing someone’s rights, something that the film industries have
almost forgotten. Our Copyright law provides a protection for an original work
and also against people trying to copy it.  It provides protection for
expression of an idea, but not to the idea itself. To plead a successful claim
in India the plaintiff must prove that the defendant’s work is a substantial
and material copy of the copyrighted work. Therefore, the Supreme Court of
India has said that the best way to determine whether a copyright violation has
occurred is to “see if the reader, spectator,
or 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.”8

It
is utmost crucial to perceive that the most important difference in copyright
law is between an idea and an expression. A man likes a woman and the woman
gets married to a third person – is an idea which has been the fundamental plot
in countless films. Take Bollywood for example – we have many films with the
same love triangle yet at least half of those films narrate the plot in their
own distinctive style. It is only when the expression itself is copied that the
requirements of copyright infringement are fulfilled. To their credit of most
of the alleged Bollywood “copycats”, they, wittingly or unwittingly, remake the
same existing storylines in new forms upon the big screen. It would therefore
be extremely difficult to successfully sue any of them for the issue of infringement
of copyright. While this may sound unfair to many existing suffering artists, the
reality is that copyright protection is weak in nature and should remain so as
the business of art depends on some healthy borrowing from the existing ideas
from the past.9

Unlike
the copyright law of many other countries, particularly in Europe and the U.S.,
the Indian Act does not include the term “derivative work”. However, the new
work which is created by way of an “adaptation” of the original work can be
construed as work in India which could correspond to the term “derivative work”
as defined in other jurisdictions.10

Under
the Indian law, where the owner grants a licence of a remake of a cinematograph
film to a third party, such a remake results in the creation of a new work by
the licensee and the copyright on such new work shall vest with the licensee
unless there is a contact to the contrary. In the event that the owner of the
original work wants to own the copyright in the remake, these rights shall have
to be assigned by the licensee to the original owner by way of explicit
contract.11

Where
the work is produced by the collaboration of two or more authors in which the
contribution of one author is not distinct from the contribution of the other
author or authors, it shall be a work of joint authorship. In the case of a
remake, if the original owner and the licensee collaborate with each other and
with a common design produce a new work, then they will be regarded as joint
authors and/or co-producers of the new work.

With
the recent controversies of the remakes of numerous movies coming to the
forefront, it is but a matter of time that procuring appropriate licences for
making of a remake shall be a matter of practice. The producers at large now
are not only vigilant in procuring licences but are ready to adopt all
appropriate measures in order to protect their rights in their original work.12

Comparative
Study: U.S. vs India

A.
International Standards for Intellectual Property Rights

Both
the United States and India are signatories to the Berne Convention for the Protection of Literary and Artistic Works, 1866
as revised by the aid of the Paris Act
of the Convention in 1971, which serves
as the basis of contemporary worldwide standards regarding intellectual
property rights. As member states of the World Trade Organization
(“WTO”), India and the United States are bound by the Trade-Related Aspects of Intellectual
Property Rights (“TRIPS”) agreement of 1994. TRIPS provides that
all WTO member states are required to comply with the provisions set forth by
the Berne Convention and Paris Act and incorporates intellectual property
rights into the world of trade. TRIPS aims at protecting expressions but not
“ideas, procedures, methods of operation or mathematical concepts,”
and this is reflected in the laws of both the United States and India. Creating
a private cause of action for copyright violations, the agreement allows the
owner of a copyright to initiate and bring suit directly within the courts of
member nations where the infringement is occurring, and requires member nations
to accord and recognise the same rights to nationals of other member states as
given to their own. Thus, since Hollywood and Bollywood films are marketed in both
the U.S. and India, claims of infringement may be brought in either nation’s
domestic legal system.

 

B.
What U.S. and Indian Copyright Law Protect

To
address with the copyright infringements involved in movies under both
Hollywood and Bollywood, the applicable provisions of the Berne Convention that TRIPS
makes binding recognition of the exclusive rights of authors to authorize
reproductions and variations of their original work, consisting of what is
known as cinematographic work. While a movie recognizably borrows the plot and
protected content material from a previous work, it is deemed to be a
“derivative work.” Unauthorized derivative works are generally considered
harmful if the audience as a whole perceives the derivative so similar to the
original that it adversely influences the demand for the original.

C.
Defining Infringement

Infringement
in both the U.S. and India takes place when a party engages in certain moves
reserved for the copyright owner. In the U.S., a plaintiff ought to show
ownership of the copyright and demonstrate that copying of protected material definitely
took place, and that the copying was so significant so as to render the
subsequent work considerably similar to the first. In India, copyright
infringement takes place if the chronologically second work is a substantial
and material reproduction of the first. Substantiality is measured with the aid
of weighing both quantity and quality of the work copied.

D.
Standard of Review:

In
determining whether there is substantial similarity between two works, Indian
and U.S. courts employ some variation of the “ordinary observer”
test. Essentially, the “ordinary observer” test states that two works
are substantially similar if an ordinary viewer of reasonable attentiveness
would conclude that the defendant unlawfully appropriated the plaintiff’s
protected expression. The “ordinary observer” standard in U.S. courts
originates from the audience test, first set forth in Daly v. Palmer13.
In Daly, the court examined whether a playwright’s basing of the climax scene
of his play on the highly successful climax of another play constituted
copyright infringement. Both scenes involve the protagonist tied to railway
tracks by the villain and then saved by a friend who breaks free from
imprisonment, rescuing the protagonist seconds before a train approaches. In analysing
this case, the court held that the creative elements of the original scene were
the same in the defendant’s scene. If the appropriated series of events conveys
substantially the same impressions and emotions in the same sequence, then the
subsequent work can be said to be substantially similar to, and an infringement
of, the first. Though the standard has been further defined in its present-day
application, all in all, the copied elements must be substantial and original.
If enough original elements are copied, even if individually insubstantial,
they may constitute copyright infringement in the aggregate. Indian Courts have
a similar standard of review, as held in R.
G. Anand v. Delux Films14.

Cases

The
following are the cases wherein Bollywood has allegedly made a remake of its
movies based on corresponding Hollywood movies:

i.                   
Twentieth
Century Fox Film vs
Sohail Maklai Entertainment Pvt. Ltd.15:
the petitioner 20th Century Fox claimed that producer Sohail Maklai’s movie ‘Knockout’ was a rip-off of Hollywood’s ‘Phone Booth’.

ii.                 
20th
Century Fox vs. BR Films: BR Films in 2009 made a film ‘Banda Yeh Bindaas Hai’ starring Govinda
and Tabu which was a copy of 20th Century Fox film ‘My Cousin Vinny’. The 20th Century Fox filed a suit against BR
films asking damage for Rupees 7 Crores but, later on, the matter was settled
outside the court with a settlement of 1.3 Crore Rupees.

iii.               
Bang
Bang, produced by Fox Star Studios was allegedly a remake
of the Hollywood blockbuster Knight and
Day.

iv.               
Raaz
(2002), was allegedly inspired by the Hollywood movie What Lies Beneath (2000)16.

v.                 
Partner was
considered to be allegedly a copy of Will Smith/Kevin James’ Hitch.

 

Even
Hollywood is not deemed to be clean when it comes to their copyright
infringements, wherein their movies have been substantially alleged to have
been copied over original Bollywood scripts. Some examples for the same as
stated below:

i.                   
A
Common Man, directed by Sri Lankan Director Chandran Rutnam,
had remade the hit Bollywood suspense thriller A Wednesday.

ii.                 
Rangeela,
the classic Bollywood blockbuster was remade by the western counterparts as Win a Date with Tad Hamilton, nine year
after the release of Rangeela.

iii.               
Jab
We Met served as a blueprint for the 2010 Hollywood’s
popular movie Leap Year.

iv.               
Just
Go With It (2011) was based on the plotline of Bollywood’s Maine Pyaar Kyun Kiya (2005).

v.                 
Chhoti
si Baat gave Hollywood one of its biggest hits, Hitch in 2005.

 

Conclusion and Recommendations

Both
Indian as well as U.S. laws treats film copyright as a signal copyright. The
United States and English judges have circuitously rectified this gap by
categorizing films and dramatic works. Since our domestic laws preclude this
method of dual protection, a Hollywood filmmaker suing a Bollywood filmmaker
for imitating visual sequences would be placed at a disadvantage. Nevertheless,
the broad concept of altered copying still gives such plaintiffs the
possibility to succeed in a claim based on screenplay-to-screenplay copying.

Some
recommendations to tackle the issue of copyright infringement are enlisted
below:

i.                   
The copyright-holders should take enough
precaution to protect copyright works and in case violations come to their
notice/knowledge, they should file complaints with the police. They should be
of assistance to the police in conducting raids and producing evidence during
the trial by the court.

ii.                 
The copyright industry
associations/copyright societies should launch an extensive campaign,
highlighting the adversities associated with the piracy, in schools, colleges,
universities and other places to create a consciousness among people against
the evils of piracy.

iii.               
The law enforcement authorities need to
be imparted proper training in copyright fields. Various provisions of the
Copyright Act are also to be taught apart from differentiating original
copyright products from the pirated ones.

iv.               
The registration of copyright works
should be encouraged as registering a work helps to establish ownership in a
work which, in turn, may be useful for the right holders to prove ownership in
cases of litigation.

v.                 
The video cassettes, CDs and cassettes
for cable should carry all necessary details as mentioned in the section 52A(2)
of the Copyright Act. Besides, they should also inscribe the duration of the right(s)
on such storage devices.

vi.               
A separate copyright cell in each state
should be formed and such cells should publicise their activities and carry out
mass campaign against the malady through pamphlets, seminars and related
dissemination activities.

vii.             
All the copyright industry associations
and copyright cells at states/UTs should have an anti-piracy hotline via which,
they should be able to provide information and register/record cases of piracy
and such hotline should be able to provide information on sources of acquiring
legal copies, various aspects of copyright laws in India and other related
matters.

 

Bibliography

Books/Journals:

·        
The
Oxford Handbook of Adaptation Studies, Thomas Leitch

·        
The
Values of Fantasy: Indian Popular Cinema through Western Scripts,
Sheila J. Nayar, (1997)

·        
Found
in Translation: From Hollywood Hits to Bollywood Blockbusters,
Ally Ostrowski

·        
Fingerprinting
Popular Culture: The Mythic And The Iconic In Indian Cinema,
Vinay Lal & Ashis Nandy

·        
Religion,
Ethnicity and Politics: Hindu and Muslim Indian Immigrants in the United States,
Prema Kurien (2001)

Articles:

·        

Hollywood v. Bollywood v. Tollywood: When is ‘plagarsim’ equal to ‘copyright infringement’?


 

·        
http://law.emory.edu/eilr/content/volume-26/issue-1/comments/is-bollywood-unlawfully-copying-hollywood.html

·        
http://www.oxfordbibliographies.com/view/document/obo-9780199791286/obo-9780199791286-0128.xml

·        
http://www.livemint.com/Consumer/d186iJClpc5OzQGizUj8EN/Movie-remakes-and-the-copyright-question.html

·        

Bollywood and Copyright- “Infringement or Inspiration”

 

Statues
and Treaties referred:

·        
Berne
Convention for the Protection of Literary and Artistic Works, 1866

·        
Trade-Related
Aspects of Intellectual Property Rights (“TRIPS”) agreement of 1994

·        
Paris
Act
of the Convention in 1971

·        
Copyright
Act of 1976 (U.S.)

·        
Indian
Copyright Act of 1957

·        
Immigration
and Naturalization Act in 1965

1 (1978) 4 SCC 118

2 The
Oxford Handbook of Adaptation Studies, Thomas Leitch, pg 259

3 Sheila J. Nayar, The Values of
Fantasy: Indian Popular Cinema through Western Scripts, 31 J. POPULAR CULTURE
73, 75 (1997)

4 Ally Ostrowski, Found in
Translation: From Hollywood Hits to Bollywood Blockbusters

5 VINAY LAL & ASHIS NANDY,
FINGERPRINTING POPULAR CULTURE: THE MYTHIC AND THE ICONIC IN INDIAN CINEMA
xi-xxvii

6 Nayar
Supra note 3

7 Prema Kurien, Religion,
Ethnicity and Politics: Hindu and Muslim Indian Immigrants in the United States,
24 ETHNIC & RACIAL STUDIES 263, 266 (2001)

8 https://selvams.com/blog/bollywood-copyright-infringement-inspiration/

9 https://spicyip.com/2009/08/hollywood-v-bollywood-v-tollywood-when.html

10http://law.emory.edu/eilr/content/volume-26/issue-1/comments/is-bollywood-unlawfully-copying-hollywood.html

11 http://www.oxfordbibliographies.com/view/document/obo-9780199791286/obo-9780199791286-0128.xml

12http://www.livemint.com/Consumer/d186iJClpc5OzQGizUj8EN/Movie-remakes-and-the-copyright-question.html

13 (C.C.S.D.N.Y. 1868)

14 (1978) 4 SCC 118

15 Suit No.2692 of 2010, Bombay
High Court

16 2002’s box office success RAAZ
was reviewed by Planet Bollywood as a retelling of WHAT LIES BENEATH (2000).
The web site further mentioned the director of RAAZ, Vikram Bhatt, has been
known to completely rip off Hollywood storylines in his past films.