Allahabad High Court Refuses to Suspend ‘Chehre’ Film Release; Drops appeal by writer Uday Prakash in copyright infringement case
The Allahabad High Court recently refused to grant a stay on the release of Amitabh Bachchan star “Chehre” in an appeal filed by writer Uday Prakash alleging copyright infringement by producer Anand Pandit and director Rumi Jaffery.
Judge JJ Munir refused to grant interim relief in the appeal against the order issued by District Judge Jitendra Kumar Sinha, in which he dismissed the request for a temporary injunction.
In the prima facie view of this Court, there are, apart from the fundamental elements of the basic theme which appear to come from a common source, no distinguishing feature in the copyrighted version which has been plagiarized at first sight.
Hindi poet, scholar, filmmaker and journalist Uday Prakash filed a lawsuit in December 2019, in which a request for a temporary injunction was filed against the infringement of a copyright held by the Prakash regarding a story-script. dialogues for a feature film, registered with the Copyright Office in New Delhi as “Highway-39” in 2007.
Prakash had discussed the copyrighted work with one of his acquaintances, Mazhar Kamran, who at the material time was working with the plaintiff as a cameraman on several audiovisual projects that the plaintiff had. in hand during the years 2000-2005.
Mazhar Kamran had assured Prakash that he would show the copyrighted work to a few prominent producers, including Anand Pandit, respondent # 1 in this appeal. Pandit is a well-known producer and owner of Anand Pandit Motion Pictures, while Rumi Jaffery, Respondent # 2. is a well-known director of Saraswati Entertainment Pvt. Ltd., Bombay.
In June 2019, the appellant learned from reliable sources in the film industry that respondent # 1 was making a film with the title of ‘Chehre’ under the direction of Respondent No.2, who was based on exactly the same “plot and premise” as his copyrighted work .
The appellant then sent a “cease and desist” notice to the defendants on June 14, 2019, to which a response was responded to on June 29, 2019, denying the infringement of the copyrighted work. .
This is the case with the appellant that the respondents signed high profile artists like Amitabh Bachchan, Emraan Hashmi and Rhea Chakraborty to work in the feature film without obtaining their permission to use their copyrighted work and to convert their literary work into a film.
Findings of the courts:
The Court compared the copyrighted script provided by the appellant with the script on which the feature film was based.
“There is no doubt that they share a common theme. But, it is also true that the two are separate and individual treatments of the same subject and theme developed by different individuals in their own way, due to their individual intellectual endeavors. . The two scripts at first glance are distinctly different treatments of the same theme “, remarked the Bench.
What had to be seen, the Court added, was whether the appellant’s treatment of the topic in its original manner had been plagiarized.
âThe law seems to be that copyright infringement is not about the novelty of the work, but its originality. A very old theme can receive a different and distinctive creative development in the hands of different people. Both would be entitled to the copyright of their originality. The commonality of the theme would offer no cause of action for infringement. “
The Court then referred to the case of RG Anand v. Delux Films and others where the Supreme Court considered what would constitute copyright infringement.
â2. When the same idea is developed in a different way, it is obvious that the source being common, similarities are inevitable. In such a case, the courts should determine whether or not the similarities relate to fundamental or substantial aspects of the mode of expression adopted in the protected work. If the defendant’s work is nothing more than a literal imitation of the copyrighted work with some variations here and there, that would amount to copyright infringement. In other words, to be liable to prosecution, the copy must be substantial and material which leads both to the conclusion that the defendant is guilty of an act of piracy ……..
4. When the theme is the same but is presented and treated differently so that the next work becomes an entirely new work, no question of copyright infringement arises. “
A comparison between the two scripts showed at first glance that although the main theme was common, there were a multitude of differences in the script leading up to the feature film.
âSo there is prima facie a significantly different and distinctive development and treatment of the same theme in the two scenarios. In the prima facie case of this Court, there are, besides the basic tenets of the basic theme which appear to have come from a common source, no distinguishing feature in the copyrighted version which has been plagiarized. At first glance”, added the court.
Munir J. added that whatever comparison was made was by no means a final expression of a substantive opinion regarding distinctive similarities or dissimilarities.
“This is something that has to wait for the trial, where sound evidence would now be provided. All remarks here are limited to the decision of the temporary injunction case and nothing more,” added the court.
In addition, the Court considered the question of what would happen if at the hearing the claimant were ultimately to succeed.
“Would damages be enough on their own? Reparation is requested by way of an order restoring the accounts of the advance received by the defendants from distribution companies, television channels, OTT platforms, television networks by selling distribution rights / streaming rights from along footage, infringing the copyright of the applicant. Said decree would entitle the applicant, if successful, to a proportionate deposit, as it can be determined that the film wins. But, other than that, if copyright is ultimately found to be infringed at trial, monetary compensation may not be sufficient reward. “
With this thought in mind, the Court held that if the plaintiff (current appellant) is successful, all other screenings of the feature film will have to bear recognition, appropriately to be shown that the film is based on the copyrighted work. ‘author, which is the paternity of the applicant.
The court also ordered that the prosecution’s trial be expedited.
The district judge was therefore tasked with setting a date per week and striving to conclude the trial within four months.
Case title: Uday Prakash v Anand Pandit and another
Click here to download the order.