There is no copyright in ideas and copyright can only be claimed in expression of the ideas as also that there must be a substantial similarity between the two rival works for the Plaintiff to claim copyright infringement.

The Delhi High Court recently reiterated the idea-expression dichotomy and upheld that an author cannot be granted copyright or monopoly over an idea. Copyright protects the expression of such ideas, and not ideas/themes and plots.

The issue arose in a suit filed by filmmaker and producer Bikramjeet Singh Bhullar against the Producers, Directors and Writers of the movie “SHAMSHERA” alleging copyright infringement of its original script ‘Kabu Na Chhadein Khet’ by the Defendants by copying the plots and themes and incorporating them into the film.

The Plaintiff alleged that the scripts of his work had been shared with Defendant No. 6, who is the Director of the impugned film under the Yash Raj Films banner, while he was employed with Defendant No. 2 and the same did not fructify into a film. However, there was later a substantial copying and imitation of the significant themes and plot points of the Plaintiff’s script in the impugned film.

Plaintiff’s contentions

1. A bare comparison of the script and impugned film establishes striking similarities between the two works.
2. Defendants had access to the Plaintiff’s scripts and have therefore plagiarized the same.
3. Various elements such as the genre, background of characters, the story, protagonist and antagonist etc. are similar in the two works.
4. Defendants have copied the songs “Fitoor” and “Ji Huzoor” and the idea and narrative behind the same from Plaintiff.
5. The changes made by Defendants in the impugned film are irrelevant as the core story of the Plaintiff’s has been copied.

Defendants’ contentions

1. The themes and expressions of the rival works are different.
2. To prove copyright infringement, the Plaintiff has to prove that the Defendants had access to the Plaintiff’s work and thereafter that there is substantial similarity between the rival works. Mere access to the Plaintiff’s work is not sufficient to establish copyright infringement by Defendants.
3. Plaintiff seeks to claim copyright/ monopoly over generic and common themes such as period dramas, revenge, two generations of father-son, suppression by foreign traders etc which have been incorporated by various third parties.
4. It is a settled principle of law that themes cannot be granted copyright protection, and many films follow the same themes such as the rival works.
5. There exists no co-relation in the description of the two songs in the Plaintiff’ script and the final version/ screenplay of the song in the Defendants’ films.

Court’s decision

The Court watched the film SHAMSHERA and analyzed the Plaintiff’s script ‘Kabu Na Chhadein Khet’ and observed –

1. While the Plaintiff owns copyright in his script, to prove copyright infringement, the Plaintiff needs to establish that the Defendants have substantially copied the Plaintiff’s work i.e., the Defendants have copied the substance of the Plaintiff’s work.
2. “Where the theme is the same and is presented differently, no question of violation of copyright arises.”
3. The story of the film SHAMSHERA is different from Plaintiff’s script and the Plaintiff cannot be granted copyright protection merely because the story is a period drama, especially when similar films have been made on the same genre.
4. “While the script is on the villages of Punjab and its inhabitants, facing oppression by Afghan invaders, the film centres on casteism i.e. upper caste oppressing the lower castes and forcing them to leave the main town and live in forests. Comparison of locations set in North India, as rightly contended by the Defendants, cannot be a ground to hold infringement of copyright and similarly features such as burning oil, water, birds, star for the purpose of navigation, secret underwater tunnels horses, ghaghra and its unswirling, sensuous scenes etc., have been used in movies from times immemorial and very many movies come to mind on this aspect readily and are hackneyed subjects of almost every fiction and matters of common grasp. There is no uniqueness in these ideas or expression and in the words of the judgements of this Court, almost every author of a fiction would conjure them as consequential concomitant effects, as a matter of common grasp and “Scenes a Faire” which carry no copyright.”
5. “The dissimilarities between the script and the film outweigh the alleged similarities and the similarities by themselves are not sufficient to raise a presumption of copyright infringement at this stage in favour of the Plaintiff.”
6. While dealing with the Plaintiff’s arguments on the copying of songs, the Court held that the rival works are to be compared as a whole and the works cannot be split and compared to come back on a finding of copyright infringement.
7. There exists no prima facie case in favor of the Plaintiff who has failed to establish any irreparable harm to him. Moreover, the balance of convenience also lies in favor of the Defendants since the Plaintiff only approached the Court three days before the release of the film despite being aware of the film’s production since May 2018.