Introduction
In the recent judgment given (on August 20, 2015) in the case of Narendra Mohan Singh v. Ketan Mehta1, the Honorable Bombay High Court had to adjudicate on an application for an injunction against the release of the film “Manjhi – The Mountain Man” which was based on and inspired by the life of Dashrath Manjhi, a poor labourer from a village in Bihar, widely acknowledged to have spent 22 years in single-handedly carving a road (360 feet long, 25 feet deep and in places about 30 feet wide) between the Atri and Vazirganj blocks of
Gaya town.
The injunction was sought on the plaintiff’s claim that there was an infringement of a copyright in the plaintiff’s script and a breach of confidence because one of the plaintiffs had shared an early “basic” screenplay of the film with one of the defendants who was ultimately credited with having written the script on which the film was made.
The notice of motion seeking the injunction was ultimately dismissed by the Court. The update provides an elucidation and analysis of the case and decision of the Court in this regard.
Plaintiff’s Case (in brief)
In 2007, the 2nd Plaintiff (Manish Jha) learned of the life and work of Dashrath Manjhi and wrote a script inspired by his life. The 2nd Plaintiff claimed that the amount of information then available was limited and hence he fictionalized large parts of the story. About 2 (two) years later, the 2nd Plaintiff approached the 1st Plaintiff (Narendra Mohan Singh) and asked him to produce a film based on his script, with the 2nd Plaintiff as its writer and director. The 1st Plaintiff agreed to do so and made some payment to the 2nd Plaintiff in that behalf. The 2nd Plaintiff completed the writing of his script/screenplay in January 2010. On 11th January 2010, he obtained registration of copyright of his script on 27th August 2010.
The 2nd Plaintiff and the 3rd Defendant, Mahendra Jakhar, were acquaintances for a few years. On 1st July 2010, the 2nd Plaintiff shared his script or screenplay with the 3rd Defendant. On 18th June 2012, the 2nd Plaintiff assigned his rights in the script and screenplay to the 1st Plaintiff. The 1st Plaintiff, he had since then been investing time, effort and money in developing the script into a cinematographic film.
In August 2012, the Plaintiffs learnt that the 1st Defendant was about to start shooting a film inspired by Dashrath Manjhi’s life and based on a script by the 3rd Defendant. Apprehending an infringement of their copyright, the 1st Plaintiff sent an email to the 1st Defendant on 31st August 2012, followed by a legal notice on 15th October 2012. The Plaintiffs claimed to have got no response. On 14th July 2015, i.e., about three years after the aforesaid legal notices of 2012, the Plaintiffs saw the trailer of the 1st Defendant’s film and the Plaintiffs realized that there was indeed an infringement of copyright and breach of confidence.
Plaintiffs claimed that the narrative structure in terms of a repeated and constant movement back and forth in time was one that was first put out by the Plaintiffs in their script. The characterization of the principal players, i.e., Dashrath Manjhi and his wife and the treatment given to each of these characters in the Plaintiffs’ script was unique. The incident of Dashrath Manjhi’s wife falling while on the mountain and later dying for want of quick medical care was an entirely fictional incident which was introduced by the Plaintiffs’ script and served as a pivotal plot point and which provided the fictional impetus in the Plaintiffs’ work.
The Plaintiff inter alia relied on the decisions of the Bombay High Court given in the case of Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd. & Ors., Beyond Dreams Entertainment Pvt. Ltd. & Ors. v Zee Entertainment Enterprises Ltd. & Ors on the question of doctrine of confidence and statement of law on breach of confidentiality.
Based on the “spring board doctrine”4 acknowledged in the Beyond Dreams case (supra), it was argued by the Plaintiffs that at least one key element in the Plaintiffs’ script was indubitably the mother lode for the Defendants’ film. This key or central element is the incident of Dashrath Manjhi’s wife, pregnant at the time with a female child, losing her footing on the mountain. She falls and is seriously injured. Manjhi takes her to the nearest hospital that lies on the other side of the mountain. She dies; the infant survives. This, according to the Plaintiff’s was the kernel to the entire story and was entirely fictional and original dramatic work of the Plaintiff. Everything else was irrelevant embellishment and were used in that very manner, but without a license, in the Defendants’ film.
Defence of the Defendants
The Defendants firstly relied on the landmark judgment of RG Anand v. M/s Delux Film and Ors. which is locus classicus on copyright infringement in India that an idea, principle, theme, or subject matter or historical or legendary facts being common property could not be the subject matter of copyright of a particular person. It was 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 wrote on the same subject similarities were bound to occur because the central idea of both are the same but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy.
There was no sharing in confidence as claimed by the Plaintiffs and that there was in fact no similarity between the two works, that none of the items that the Plaintiffs describe as original were in fact so, and that there was no case of made of “springboard” or “germ of an idea” being adopted by the Defendants.
The entire narrative of the Plaintiffs that the script was shared in confidence and that they did not receive any reply from the Defendants in response to the Plaintiff’s legal notice was deliberately misleading. There was not only correspondence from the Defendants denying the Plaintiffs claims but also caveats were being filed in the High Court and the City Civil Court. The same was suppressed by the Plaintiffs.
Judgment of the Court
On the question of confidentiality
In the case of Zee Telefilms, Court reiterated the principles set out in CMI Centers for Medical Innovation GMBH and Anr. v Phytopharm PLC as to what a plaintiff in a breach of confidence action must address, viz.: (i) to identify clearly the information relied on; (ii) to show that it was handed over in circumstances of confidence; (iii) to show that it was information that could be treated as confidential; and (iv) to show that it was used, or threatened to be used, without his licence. The plaintiff must demonstrate, at a minimum, a seriously arguable case in relation to each of these four aspects.
Material which was present in public domain could not be regarded as confidential. Precision, originality, and fullness. All three must be seated at the heart of the plaintiff’s cause in a breach of confidence action. Based on the facts, the Court came to the conclusion that the Plaintiffs had failed both the aforesaid tests.
On the question of similarities between the works of Plaintiff and Defendants and on the question of infringement
What is to be ascertained is if the two completed works display so sufficiently substantial a similarity as to lead to the ineluctable conclusion that the offending work is an illicit copy of the original.
The Court observed that the Plaintiffs’ screenplay was extremely basic and which was evidenced by the email sent by Plaintiff 2 to Defendant 3 in which the screenplay described was a basic screenplay. It was a skeletal outline of the beginning of a narrative. The visualizations in the screenplay were not yet fully realized. The 3rd Defendant’s screenplay was, in contrast, a much more substantial work. There was a considerable amount of detail in regard to shot selection, mis-en-scene, camera work, visuals and dialogue. The structure was more complex and there was considerably more detail than one found in the Plaintiffs’ script. The film itself was by no means a shot-by-shot adaptation of the 3rd Defendant’s script. Though it seemed to have been based on that script but differed from it markedly.
The Court took note of a newspaper items reported on “bollywoodhungama.com” and then in the web edition of the Indian Express on 12th July 2013 which quoted that the 2nd Plaintiff as accepting the fact that the 1st Defendant was making this very film and the 2nd Plaintiff was said to have blamed himself for the alleged leak of the story. He was also quoted as saying that the 1st Defendant had in all likelihood done a fine job.
Based on the evidence, the Court refused to believe the claims of Plaintiff that a large portion of the Plaintiff’s story was fictionalised. The Plaintiffs had failed to prove that their case was “seriously arguable” or that there was a “spring board” in the Plaintiff’s script. The Court held that true ‘springboard’ was the real-life accident that Manjhi’s wife, Phaguni Devi, suffered while on the mountain. It was not the 2nd Plaintiff’s imagination of it as an eventual fatality during her pregnancy that can be said to have inspired the film. The fact of the accident itself, in 1959, and the lack of prompt and close medical care were well documented in the public domain.
The Defendant’s film was very different work from the script of the 2nd Plaintiff. The screenplay of the Plaintiff was very basic, preliminary and abbreviated. The film on the other hand had layers of complexity that were well beyond the Plaintiff’s script or anything hinted at in it.
The film not only dealt with love story and of an unswerving dedication to a loved one lost too soon, but it also dealt with the politics of caste, zamindari, shifting political realignments, Kafkaesque bureaucracies and even rape used to assert power and dominance. There were subtleties and nuances in the film that were wholly missing in the Plaintiff’s script which was considerably ‘flatter’ and one-dimensional. The film was not merely a series of ‘immaterial changes’, ‘insubstantial differences’ or a ‘veil of dissimilarity thrown around’ the script of the Plaintiff, but an entirely different and independent work in its own right.
On the question of balance of convenience
The Court noted the submissions of the Defendants that 500 prints were already out. Advance bookings had opened. The 4th Defendant had put out over Rs. 4 crores already toward print promotion, advertising, marketing, radio and television promotion and publicity. All of this could not be held to ransom by a last-minute foray by the Plaintiffs on a case so insubstantial and hence there was no question of the balance of convenience being with the Plaintiffs.
Analysis and Comments
The judgment of Bombay High Court effectively highlights the fundamental test for establishing copyright infringement as laid down by the Honorable Supreme Court of India, that 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.
The judgment throws light on various important aspects of a copyright infringement suit witnessed in media and entertainment (M&E) industry, namely, (i) originality in expression of ides, (ii) breach of confidence, (iii) principles of germ of an idea and spring board, (iv) common law right arising out of breach of confidence, (v) delay in filing the suit and (vi) balance of convenience. Another interesting aspect of the judgment is the Court’s acceptance of newspaper reports and Wikipedia entries for determining whether or not a prima facie case of infringement was made out.
The judgment of the Court is of course welcomed by the producers who after investing a colossal amount of money in making the film have to face a potential injunction on the release of the film just a few days before the release, on the plaintiff’s claim of breach of confidence and / or copyright infringement. The peculiar feature of the judgment, in this regard, is the Court’s observation that the Plaintiffs had made an deliberate attempt to wait till the end and file the suit just before the release of the movie despite having the knowledge of making of the movie.
The Bombay High Court had to deal with a similar situation in the case of (i) Beyond Dreams Entertainment v. Zee Entertainment8 in which Zee had breached the confidence of Beyond Dreams by using their scripts and production concept notes in the development of their show and the judgment was given in favour of Beyond Dreams; and (ii) Jyoti Kapur v. Kunal Kohli in which the Plaintiffs had disclosed the script and screenplay for a film in confidence to the defendants who made unauthorized use of the same to produce a film, ‘Phir Se’. The parties ultimately arrived at a settlement in the Jyoti Kapur Case (supra) which was recorded by the Supreme Court and in which the defendants agreed pay an aggregate sum of Rs. 60 lakhs to the Plaintiffs.
As rightly remarked by the High Court in Jyoti Kapor’s case (supra) the question of breach of confidentiality by far is the most difficult question which the Court has to address. A distinguishing feature, perhaps, in this case that what was shared was only a very basic screenplay which did not contain the entire and detailed story and secondly, the information being in public domain, the element of confidentiality was reduced. It is essential however, to refer to the Bombay High Court’s judgment given in the case of Jyoti Kapor (Supra) in which the Court relied on the judgment of Lord Green, M.R., in Saltman Engineering Co. Ltd. Vs. Campbell Engineering Co. Ltd that it is perfectly possible to have a confidential document, which is the result of work done by the maker upon materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process. The Court in the said judgment also relied on the decision given in the case of Coco Vs. A.N. Clark (Engineers) Ltd. in which it was held that “something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself, and not upon the quality of its constituent parts. Indeed, often the more striking the novelty, the more commonplace its components”.
It is the basic principle that it is the expression of idea which is protected and the not the idea itself. It is also well established that in a suit of copyright infringement, it is essential to prove substantial and material copying; Off late, however, cases of copying have become so common in media and entertainment sector in which the producers take the kernal of the plot or the story contained in the confidential information and use them as a “springboard” for working around the material and coming up film which is ultimately regarded as “novel” work in itself and hence gets immunity from an action of infringement. Therefore, it becomes of paramount importance that Courts focus not only on the dissimilarities between the two works in question, but also evaluate whether or not amidst all the embellishments done in the film, the basis plot / idea / story remains unchanged.
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