1. The Plaintiff has fled the present suit alleging infringement of copyright by the Defendants in the Plaintifffs script of the play ‘The Laboratoryf, the script of a cinematographic flm based on the script of the play, the revised script/refned version of the script of the cinematographic flm and the Plaintifffs further work towards a screenplay running into 90 pages which has been fled in a sealed cover in the Court. These are hereinafter referred to as “the Plaintifffs work”.
2. The case of the Plaintiff as crystalized in the Written Submissions is that the Defendantsf flm “Umeed” is a substantial reproduction and/or an altered copy of the Plaintifffs works and violates the Plaintifffs copyright in her literary works. It is the Plaintifffs contention that if one were to read the play script and the flm story and thereafter watch the Plaintifffs play and the Defendantsf flm, one would walk away with the unmistakable impression that the Defendantsf flm is nothing but a substantial and material copy of the Plaintifffs works.
3. The Plaintiff has fled the present Notice of Motion in the Suit seeking restraint on the release of the flm produced by the Defendants.
4. The brief facts as set out by the Plaintiff and relevant for the purpose of deciding the present Notice of Motion are as under :
4.1. The Plaintiff is a well-known writer/director who has been actively involved in the flm industry since 2000. The Plaintiff has written / directed signifcant works on topics of public interest such as unethical drug trials, suicide and mental health, breast cancer awareness, and Alzheimerfs. The Plaintiff has set out some of the plays written and/or directed and/or produced by the Plaintiff, in the Plaint. The Plaintiff has also written feature flms, documentary flms and television serials, which have been set out in the Plaint
4.2. The plays written and/or directed and/or produced by the Plaintiff have been performed all over India and in some prominent theatres and have also featured at numerous performing art festivals.
4.3. The Plaintiff created the script of the play ‘The Laboratoryf in the year 2007. According to the Plaintiff, the script of the play was original and novel. The salient features of the script of the play are referred to in paragraph 10 of the Plaint, which reads as under :
“(i) The play has the following characters :
(a) A young idealistic doctor who is gutted about the fact that she is used as a pawn in the unethical clinical trials racket prevalent in the pharmaceutical industry. She decides to take on a multinational pharmaceutical corporation and mounts a trial against it.
(b) A fearless journalist-cum-reporter who is the boyfriend of the protagonist. He helps her to investigate the dark underbelly of unethical clinical trials.
(c) A ruthless, corrupt, proft mongering CEO of a multinational pharmaceutical corporation who is behind the unethical drug trials.
(d) A mentor of the protagonist who is hand in glove with the multinational pharmaceutical corporation indulging in unethical drug trials.
(e) The protagonist’s mother who loses her life in an unethical drug trial in a quest to earn a modest amount of money to sustain the protagonist’s education and pay her medical college fees.
(ii) “The Laboratory”, with its tagline “What if someone you loved was used as a guinea pig in a drug trial ” is a medical thriller revolving around unethical drug trials carried out on Indians using them as guinea pigs, and the importance of informed consent in a country which is largely illiterate
(iii) The protagonist comes from a poor family.
(iv) She aspires to become a doctor.
(v) Her mother (who is perfectly healthy) without the knowledge of the protagonist volunteers for a drug trial by a multinational pharmaceutical corporation to earn money to pay for her daughter’s medical college fees. The mother develops complications on account of the clinical trial. The mother is not told about the fatal side efects of such drug used at the clinical trials and she ends up losing her life.
(vi) The protagonist is unaware of the reason which caused her mother’s death. She subsequently discovers the reason through her uncle who is a CEO of a multinational pharmaceutical company. He informs her that the drug which was being consumed by her mother was not available in the market since it was still at the stage of testing and clearances were awaited.
(vii) The protagonist’s boyfriend is a journalist. With his help, she decides to investigate the dark side of unethical drug trials so as to build a case against the multinational pharmaceutical corporation of which the protagonist’s uncle is CEO.
(viii) The CEO of the pharmaceutical company inducts the protagonist’s mentor (a senior doctor and eminent pharmacologist) into the said multinational company, making him a stakeholder. This is not known to the protagonist.
(ix) As a doctor, the protagonist volunteers to help a tsunami relief camp by disseminating drugs free of cost. She does not know that the said drugs are also drugs which are banned abroad or are still under testing and have fatal side efects.
(x) The protagonist’s boyfriend breaks this news to her that she was being used as a pawn in the system to carry out an unethical drug trial without her knowledge or consent and also without the knowledge or consent of innocent people to whom such drugs were being supplied.
xi) The protagonist fnds out that her mentor is responsible for sanctioning unethical drug trials, and confronts him for violation of the code of ethics of informed consent.
xii) The protagonist is disillusioned and commits suicide. The trial instituted by the protagonist comes up for hearing after her death.”
4.4. The Plaintiff has claimed the script of her play to be original and claimed copyright therein. The Plaintiff registered the script of the play with the Screenwriters Association on 25th June 2008. The play has been performed on numerous occasions at prominent locations by well known actors, between October 2007 and April 2010.
4.5. The script made into a play was extremely well received by the general public and experts in the industry and has been complimented in reviews in prominent newspapers. The newspaper articles also elucidate what were considered to be the essential and material features of the Plaintifffs play script by the critics and the public at large.
4.6. Given the success of the play, the Plaintiff published it in the form of a book titled ‘the Laboratory and Other Playsf (‘the Bookf) alongwith two other plays which was released in February 2013. A second launch event for the said Book which was attended by well-known personalities was held at a widely publicized event at a popular bookstore, viz. Kitab Khana at Flora Fountain, Mumbai.
4.7. The Plaintiff wrote a script in 2012-13 for the purpose of a cinematographic flm. This is also claimed to be an original and novel work and built upon the uniuue expression of the idea of unethical medical trials as captured in the play. The script of the cinematographic flm was circulated to various people in the flm /theatre industry.
4.8. According to the Plaintiff, the script of the Plaintifffs cinematographic flm is fundamentally the same as the script of the play, but there are some slight variations. The Plaintiff decided that in the cinematographic flm the protagonist would not commit suicide and that, with her boyfriendfs help, she would see the court proceedings through successfully and get the CEO of the pharmaceutical company sentenced to imprisonment. The Plaintiff claims copyright protection in the script of the cinematographic flm, the essence of which is set out by the Plaintiff in paragraph 20 of the Plaint as under :
“(i) In addition to the characters in the play, this story has additional characters of children who die on account of an unethical drug trial and their parents who have sufered on account of the same.
(ii) The story line is largely similar to that of the script of the play apart from certain diferences indicated above.
(iii) The script of the movie is dominated by court room drama which shows the protagonist and her boyfriend taking the CEO of the multinational pharmaceutical company to task and ultimately bringing him to the book.
(iv) There are several hearings of the case. The protagonist’s mentor and the CEO of the pharmaceutical corporation are both present in court.
(v) The narrative is interspersed with docudrama-style interviews of poor people helpless against an exploitative system and heartbreaking news reports of helpless villagers being duped by a big pharmaceutical company.
(vi) One of the children who dies is the child of one of the employees at the pharmaceutical corporation responsible for the trial. The child’s father comes forward to provide facts and evidence that turn the case around.
(vii) The protagonist goes from village to village garnering support for her protest movement against big pharma, hospitals local goons and all who are in the nexus.
(viii) The protagonist holds candlelight vigils, and organizes and leads angry marches of poor villagers and city dwellers bearing banners and slogans such as “Leave our children alone”.
(ix) The media take up the protagonist’s cause and start recording the nation-wide protest movement.
(x) The pharmaceutical corporation loses the case and the CEO of the pharmaceutical corporation is sentenced to life imprisonment. The protagonist and the journalist eventually triumph with the truth.”
4.9. The Plaintiff applied to the Screenwritersf Lab with her story on 5th March 2014 and also pitched the story to people from the flm / theatre industry.
4.10. The Plaintiff registered a refned version of the story (to which also the Plaintiff claims copyright) with the Film Writers Association on 29th March 2016 and also shared her work with the flm and television industry.
4.11. The Plaintiff claims that she further worked towards a screenplay running into 90 pages in or about June 2016. The Plaintiff has fled the said screenplay in a sealed cover. However, the Plaintiff has declined to make the said screenplay available to the Defendants on the ground that the same is confdential. Even in the course of arguments, no reliance was placed on the said screenplay.
4.12. The Plaintiff chanced upon the trailer of the Defendantsf flm “Umeed” on 28th August 2017 and noticed that the Defendantsf flm had startling similarities with both the script of the Plaintifffs play as well as her script for the cinematographic flm. The Plaintiff immediately wrote to the Film Writers Association raising her grievance in this regard. The Plaintiff also got in touch with Defendant No.1 on the same day i.e. 28th August 2017. Defendant No.1 agreed to arrange a screening for the Plaintiff at the earliest. However, despite the Plaintiff following up with Defendant No.1, the Defendant No.1 failed to screen the Defendantsf flm for the Plaintiff.
4.13. The Plaintiff therefore fled the present Suit on 16th September 2017. The Plaintiff highlighted the similarities between her works and the trailer of the Defendantsf flm in the Plaint. The Plaintiff also fled the above application seeking ad-interim / interim reliefs
5. On 18th September 2017, the Plaintiff was directed to remove all ofce objections and to give notice to the Defendants. However, the Defendants were not present at the hearing on 21st September, 2017 despite notice. This Court heard the Plaintiff and directed the Defendants to screen the Defendantsf flm for the Plaintiff. Defendant No.1 screened the Defendantsf flm for the Plaintiff on 23 rd September 2017
6. On 6th October 2017, the Plaintiff tendered in Court a Chart of purported similarities between the Plaintifffs works and the impugned Film.
7. On 13th October 2017, the Defendants appeared before this Court and sought time to fle a reply. The Defendants were permitted to fle reply but, on considering the Plaintifffs case for ad-interim reliefs, this Court granted an ad-interim order in favour of the Plaintiff restraining the Defendants, inter alia, from making, broadcasting, distributing and telecasting the Impugned Film.
8. The Defendants fled their reply dated 17th November 2017 to the present Notice of Motion and opposed the grant of ad-interim/interim reliefs in favour of the Plaintiff. The Plaintiff thereafter fled her Afdavit in Rejoinder dated 30th November 2017. The matter was thereafter fnally heard, from time to time.
9. The learned Advocate appearing for the Plaintiff submitted :
9.1 That the Plaintiff is the author and owner of copyright in the Plaintifffs work which constitute original literary work. The script of the play and the cinematographic flm is essentially one single work and that the Plaintiff has merely adapted the script of the play to suit a cinematographic flm and has made such changes necessary for the success of a cinematographic flm. However, the fundamentals of the play and the flm are nearly identical.
9.2 That there are striking and admitted similarities between the rival works as set out in a Chart annexed to the Afdavit fled by the Plaintiff. This cannot be by mere chance. Both the Plaintifffs as well as the Defendantsf works deal with a female protagonist who is made a pawn by a large pharmaceutical corporation to conduct unethical drug trials. The female protagonist, on realizing this, launches a legal battle against the pharmaceutical corporation and initiates a mass countrywide protest in support of the issue. After several adverse hearings, she eventually wins the case, despite the pharmaceautical corporationfs violent attempts to stop her and an initially unsympathetic judge, only because of the change of heart of someone she considered her mentor. This is the substance, foundation and kernel of the Plaintifffs works and the Defendantsf flm is substantially similar in this respect to the Plaintifffs works.
9.3 That the dissimilarities introduced by the Defendants in the Defendantsf flm are of no relevance since, if the aforesaid kernel is removed, those dissimilar elements cannot stand.
9.4 That the Defendants have in fact admitted that the plot lines of the Plaintifffs and the Defendantsf work are similar. However, the Defendants have sought to caveat the same by stating that these similarities are ‘incidentalf, ‘inevitablef, ‘indirectf, ‘co-incidentalf, ‘vaguef and ‘genericf which are just an attempt to obfuscate the issue.
9.5 That the Defendants have not provided any proof of them having independently worked on their flm to prove that the same was an original work. The Plaintiff has submitted that there is no material produced on record to show that the co-authors had allegedly worked on the Defendantsf script.
9.6 That the Defendants have not produced any alleged common source which the Defendants have referred to while writing the script and on account of which they claim that the rival users contain same similarities. The material produced by the Defendants which is annexed to the Afdavit in Reply are certain internet sources downloaded in 2017 and the Defendants have no where averred that these were the materials they relied on.
9.7 That the Defendantsf case that they had not come across the Plaintifffs works is inconceivable as the Plaintifffs play has been in public domain since 2007. Since the Plaintiff has circulated the script of the cinematographic flm in movie circles, there is a very high chance that the Defendants have come across it. Further, it is submitted that the Defendants have cut various scenes from their flm, which was shown to the Plaintiff during the screening and which had been pointed out by the Plaintiff to be similar to the Plaintifffs works. According to the Plaintiff, this conduct of the Defendants is malafde and was a misguided attempt to reduce the extent of the similarity.
9.8 That the characters in the Defendantsf flm are not based on real life personalities as alleged by the Defendants. The character of “Mia”, the protagonist in the Defendantsf flm, cannot be said to be based on Reita Faria Powell. Ms. Powell was at no point of time concerned with unethical drug trials and though she was a beauty contest winner, she went on to become a doctor. The character “Mia” just happens to be a beauty contest winner, who happens to be associated with unethical drug trials but who does not become a doctor. The character of “Eliza Moore”, a British Journalist in the Defendantsf flm, has been falsely stated to be based on Zeina Awad. The ethnicity of the character in the Defendantsf flm is completely different from that of Zeina Awad and the character of Eliza Moore has not been shown to be like Zeina Awad, who was a very accomplished journalist. The character of “Dr.Bali” is falsely stated to be based on Dr. Satinath Sarangi. It is submitted that the Defendants have failed to establish any inspiration for the characters that are part of the Defendantsf flm.
9.9 That it is sufcient if the Plaintiff proves that the Defendantsf flm is a substantial and material copy of the Plaintiffsf work and in order to fnd out the similarity in the works, what is to be seen is the substance, the foundation and the kernel of the work and to see if the rival work can stand if what is copied is deleted from it. In this connection, the observations made in the case of R.G. Anand vs. M/s. Delux Films & Ors.1 (extracted subseuuently), Zee Teleflms Ltd. & Anr. vs. Sundial Communications Pvt. Ltd. & Ors.2 (paragraph 28), Urmi Juvekar Chiang v. Global Broadcast News Limited3 and Twentieth Century for Film Corporation vs. Sohail Maklai Entertainment Pvt. Ltd. and Ors.4 (para 22) were relied upon. The Defendantsf case, that the Plaintiff is seeking protection over ideas, is unfounded. The Plaintiff has relied upon the judgments of the House of Lords in the case of Designer Guild Limited v. Russell Williams (Textiles) Limited5 , Jerome Metcalf v. Steven Bochco 6 and Beyond Dreams Entertainment Pvt. Ltd. and Ors. v. Zee Entertainment Enterprises Ltd. and Ors. 7 to contend that the Plaintifffs uniuue expression of her ideas is entitled to copyright protection and even though the subject chosen by both parties is unethical drug trials, the treatment of this idea by the Plaintiff is uniuue.
9.10. That the appearance of so many similarities, many of which have been admitted, cannot be coincidental and must be presumed to be due to copying. The Plaintiff has relied upon the judgment in the case of Faber Castell Aktiengesellschaft and Ors. vs. Cello Pens Pvt. Ltd.8 (paragraph 15). The Defendants have made trivial variations in their flm to make the infringing work an altered copy and the same are irrelevant. Reliance was placed on the judgments in the case of Designer Guild Limited v. Russell Williams (Textiles) Limited (supra), C. Cunniah and Co. v. Balraj and Co. 9 (paragraph 9) and R.G. Anand v. M/s Delux Films and Ors. (Pathak J., concurring) (supra) in this regard,
9.11. That in order to prove infringement of copyright, the Plaintiff need not prove that the entire work of the Plaintiff is copied but it is sufcient if it is proved that there is substantial copying. In this regard, apart from the judgments referred to above, the Plaintiff has also relied on the judgments in the case of Ram Sampath v. Rajesh Roshan & Ors.10 and Twentieth Century for Film Corporation vs. Sohail Maklai Entertainment Pvt. Ltd. and Ors. (supra) and in particular paragraph 16 thereof.
9.12. That in the Afdavit in Reply the Defendants have admitted to the occurrence of several similarities between the works of the Plaintiff and the Defendants but have not been in a position to explain the reason for the occurrence of such similarities. The Plaintiff has relied upon the judgment in the case of Herman Pictures N.V. v. Osborne11, and submitted that in the said case the Court held that the similarities of incidents and situations afforded prima facie evidence of copying and that it is for the Defendants to explain the presence of similarities.
9.13. That in the case of V. Govindan vs. E.M. Gopalakrishna Kone12 it is interalia held that it is for the Defendant to show the common sources which he alleges to be available in the market and that the Defendant in fact utilized the information in these sources. That in the present case, the Defendants have not even contended that they have used the alleged sources which are available in the public domain. The printouts show that the same were taken out in November 2017 and thus could not be the material on the basis of which the Defendants allegedly authored their work. The material produced also does not in great detail deal with the idea of unethical drug trials.
9.14. That in light of the facts of the case and submissions made in the Plaint, the Plaintiff is entitled to the protection of its copyright in the script of the play and the cinematographic flm and entitled to reliefs prayed for in the present Notice of Motion.
10. In response, the learned Advocate appearing for the Defendants submitted :
10.1 That before adverting to the facts of the present case, it may be appropriate to consider the law and test to be applied to a case of copyright infringement. The Defendants relied upon the judgments in the case of Amit Kalyanaram v. M/s Gurfateh Films & Ors.13 and Mansoob Haider v. Yashraj Films14 apart from the judgment in the case of R. G. Anand (supra).
10.2 That the Plaintiff claims that the Defendantsf flm “Umeed” infringes the copyright of the Plaintiff in a script for a play and in the script of a cinematographic flm, which was developed from the script of the play. It is the Plaintifffs case that thereafter the script of the cinematographic flm was further evolved which is at Exhibit N, page 277 of the Plaint. The Plaintiff also claims that the script of the cinematographic flm was further developed in June 2016 into a screenplay of about 90 pages, which is not furnished to the Defendants by the Plaintif on the ground that the same is confdential. The Plaintiff claims copyright in all these four works and alleges that the Defendantsf flm infringes the copyright of the Plaintiff in these four works.
10.3 That paragraphs 10 and 20 of the Plaint shows the Plaintifffs own understanding of the essence of the script of the play as opposed to the essence of the script of the cinematographic flm. The statements of the Plaintiff in the Plaint demonstrates that the Plaintiff has strained to show similarity between the script of the Plaintifffs own play and the cinematographic flm.
10.4 That what is important is what the Plaintiff understood as the essence of her story, much prior to the fling of the suit. In support, an attention of the Court is drawn to the substance of the story as narrated by the Plaintiff when the Plaintiff applied to a Screenwritersf Lab with her story on 5th March 2014 ( Exhibit L, page 257 of the Plaint) ; the brief synopsis of the play and the flm which the Plaintiff claims to have shared with various people from the flm industry (page 266 of the Plaint) ; and also the emails dated 20th June 2014 (page 271 of the Plaint) and 2nd April, 2018
10.5 That from the material produced by the Plaintiff herself, it is apparent that the essence of the Plaintifffs script is a story of a little girl having a drunkard father and a very troubled background, who grows up to become a doctor and avenges the death of her mother, who was used as a guinea pig in a clinical trial. The protagonist is a girl named “Joy” whose father is a drunkard and the family has no money for her education. Her mother goes to Joyfs uncle (her fatherfs brother) – Ralph who is the CEO of a leading pharmaceutical company for help. Ralph introduces Joyfs mother to Dr. Pereira who subjects her to clinical trials for money. In the meanwhile, Joyfs father tries to steal the money which her mother earns and is thrown out of the house by his wife to be taken in later against threats. With the money that the mother earns, she pays for the medical education of Joy. Dr. Pereira becomes Joyfs mentor and she also falls in love with a journalist Arjun. Joyfs mother fnally dies because of clinical trial and Joy subseuuently comes to know how her mother was subjected to an illegal clinical trial by her uncle and her mentor. Joy fles a case against her uncle and his company. In the play she dies pending the court case. This is where the play ends. In the script of the cinematographic flm, it is further shown that the decision of the Court goes against Joy and she battles right till the Supreme Court, where she succeeds. In the midst, there is a lot of drama. In the initial script for the flm, both Ralph and Dr. Pereira are put behind the bars and the plant of the pharmaceutical corporation is shut down. The same is said to have been developed later to a situation where Dr. Pereira takes a bullet to save an attack on Joy. There are car chases with attempted hit and run etc. Thus, the entire story is a story of revenge by a daughter for her motherfs death, who underwent illegal clinical trial to earn money for her daughterfs education. It is a story of a girl who and whose family have been cheated and let down by her uncle and her mentor and how she battles against them to have them fnally delivered to justice. The case has very complex nuances of relationships including a drunkard father and a devious uncle. This is in effect the essence of the story.
10.6 That as against the above, the Defendantsf story is essentially that of a protagonist who with her sister had a happy go lucky life without any family complications. They lived in a small town and the protagonist Mia always aspires to go to a big city. When her sister, Trisha gets a job in an NGO in Mumbai, Trisha insists that their father permit Mia to come to Mumbai with her. In Mumbai, Miafs dreams unfold and she ends up winning the Miss India contest. There is a parallel story running about the same time with intercuts about one Eliza Moore (character based on a real life journalist Zeina Awad) who is an out spoken humanitarian journalist shown to be in London and who wants to go to New York to complete her report about a white collar mafa. When Eliza is close to uncovering the malpractices of an influential and powerful US based pharmaceutical company, she and her key informants including one Dr. Bali (based on real life character, Dr. Satinath Sarangi) are murdered. One of Elizafs well-wishers contacts a friend in FBI to investigate the matter, who fnds out that the pharmaceutical company has been testing its drugs on poor Indians. Dhruv, the right hand of Dr. Bali meets the FBIfs forensic expert. He comes to know that the pharmaceutical company is sponsoring the Miss World India competition which is won by Mia. When Mia attends a camp as a part of her duties as Miss World India, Dhruv scoffs at her for being a party to a criminal act of the pharmaceutical company. This is when Mia, her sister and Dhruv get-together and battle against the powerful and rich opponent. The pharmaceutical company fles a case against Mia for breach of contract which is later withdrawn by it.
10.7. That in the Defendantsf story there is no case of any troubled background of any child or the protagonist in any manner being personally affected by the clinical trials or any of her family members being subjected to the clinical trial, nor is there any story of revenge as in the Plaintifffs case. There is no court case fled by the protagonist against the pharmaceutical company or its CEO for having them arrested. There is only a case of breach of contract fled against the protagonist which she defends successfully. That there is no similarity whatsoever between the Plaintifffs work and the Defendantsf flm. The entire storyline, its characters and its essence are completely distinct and different. There is no copying leave alone a substantial copy. There is no appropriation whatsoever of any part of the Plaintifffs works leave alone any appropriation of any substantial or material part of the protected work. The chain of events, the storyline and the characters are materially and demonstrably different.
10.8. That the Defendantsf script has been independently written and developed by Defendant No.1 and Sanyukta Roy after refering to extensive material on the subject of clinical trials, which is available in the public domain including the reports of the Rajya Sabha as well as news articles and the June 2010 issue of Asian Bioethics Review.
10.9. That there can be no monopoly of copyright in the idea or subject of a flm based on the theme /subject of clinical trial which is a part of public domain.
10.10. The characters in the Defendantsf flm are inspired from real persons, details of which along with photographs form a part of the Afdavit in Reply as under :
table
10.11 That the character of Dr. Bali has been even made to look like Dr. Satinath Sarangi in real life.
10.12. That the characters of the two flms are completely different which would be apparent from the following :
"(a) The protagonist Joy, in the Plaintifffs script of the flm is a doctor and the protagonist Mia, in the Defendantsf flm is a model.
(b) Joy has a lover, Arjun with whom Joy has a romantic relationship in the Plaintifffs script of the flm. There is no such romantic relationship between Mia and Dhruv. While Arjun is a journalist who gathers specifc facts against the CEO, Ralph and his company for the case, Dhruv is a lawyer who argues in the Court using data available in the public domain.
(c) There is a mentor in the Plaintifffs script of the flm, Dr. Pereira who betrays Joy which results in Joy committing suicide in the play. Whereas, in the Plaintifffs script of the flm, he subseuuently takes a bullet for her and saves her life. His betrayal is a very important facet of the Plaintifffs script of the flm. In the Defendantsf flm, Mia does not have any mentor. There is no such betrayal. Dr. Bali is based on a real-life character. The Plaintiff has wrongly stated that Mr. Irani and at some place Mr. Rahul Sharma is the mentor of Mia. Mr. Irani is a legal Counsel representing a pharmaceutical company, Times of Hindustan newspaper, etc. on a case to case basis. Mr. Rahul Sharma owns a newspaper called Times of Hindustan who signs Mia for a brand endorsement deal involving his newspaper, an ad agency and a pharma company. He has no direct interest in any clinical trials or their outcomes. Both these characters are not mentors of Mia.
(d) Joyfs mother was an illiterate housewife who had to offer herself for clinical trials to earn money. She is betrayed by her brother in law Ralph/his company. She is a very important character and the story revolves around Joyfs revenge for her motherfs death, which is the kernel of the Plaintifffs flm and play. Miafs mother was a social and highly educated lady from a well to do family. Her character is shown in the flm only for 30 seconds. She was a social worker who dies due to depression. Her death has nothing to do with the future course of events.
(e) The character of the father of Joy and Mia are completely different. Miafs father is an alcoholic who troubles his children. He is a prominent character whereas Miafs father has no effective role and is shown as a loving and caring father.
(f) In the Defendantsf flm there is no character of the devious uncle of Mia who uses his own sister in law for a clinical trial.
(g) In the Defendantsf flm there is a very important character of a journalist, Ms. Eliza Moore who is based on a real life journalist Zeina Awad. She has more than 10 scenes in the flm and her investigation is an important facet of the flm. In the Plaintifffs script of the flm, the character is of a news reporter who is unimportant and almost used as a prop. There is also the character of Dr. Bali, which is based on the real life character of Dr. Satinath Sarangi.
(h) There is a glamour element involved in the Defendantsf flm which involves models etc. which according to the Plaintiff also is absent in the Plaintifffs script of the flm."
10.13. That the Plaintiff approached this Court in haste only after viewing the trailer of the Defendantsf flm. There was no warrant for the Plaintiff to have approached this Court based on a trailer when the Defendant had offered the Plaintiff a viewing of the flm to allay the fears of the Plaintiff immediately when the Plaintiff approached the Defendants on 28th August 2017 with a reuuest for screening. That the chart served on 11th October 2017, after viewing the flm, reflects an exercise which is impermissible in the consideration of a matter of infringement of copyright. The Plaintiff has sought to compare and draw similarities in dissected portions. The similarities drawn by the Plaintiff are non-existent and in any case do not constitute an infringement of copyright as the same relate to scenes commonly occurring in flms especially of the nature authored by the Defendants. The learned Advocate for the Defendants has relied upon some of the comparisons drawn by the Plaintiff to argue that the same are completely absurd and cannot be the basis of a case for copyright infringement. For example, in item 7 at page 31, the Plaintiff has relied on an alleged similarity by pointing out that when the mother of the protagonist dies, she cries sitting on the floor and that in the Defendantsf flm also when a child dies, her mother too is shown sitting on the floor and crying. That such instances can never be the basis of the copyright infringement case.
10.14. That there is neither any allegation nor proof for the fact that the Defendants had access to the Plaintifffs works. The Plaintifffs case that the play was extensively performed would not in any manner prove access as it is an admitted position that the script for cinematographic flm has been evolved after the play and that the entire seuuence relating to the court trial and the developments thereafter were absent in the play. To all these further developments in the script of the flm, the Defendants could not have any access and nor is there an allegation to this effect.
10.15. That on 4th January 2018, the Plaintiff made an incorrect statement in court that the Defendantsf flm had already been released and in support of the same, the Plaintiff relied upon purported reviews of the Defendantsf flm given by 14 individuals purportedly on mouthshut.com. Though the Plaintiff was directed to fle an afdavit setting out these facts forthwith and the Defendants were given two days time to fle a reply, the Plaintiff fled an afdavit only on 11 th January 2018. It is submitted that the purported reviews are false and if the reviews are taken to be true, then the flm can be said to be released in more than 10 cities across 7 States. The viewers in the reviews falsely claimed to have watched the flm in PVR and Inox Cinemas. By email dated 6th January 2018, the Programming Head of PVR has confrmed that the flm has not been released in any PVR screens throughout the country. It is submitted that the reviews are false and fabricated. The Plaintiff took no steps to verify whether the flm was released. The Plaintiff has addressed emails and letters to persons not in-charge of responding to uueries of the nature raised by the Plaintiff. For example, the email addressed to PVR has been addressed to the Company Secretaryfs ofce of PVR Group. The letter addressed to the Central Board of Film Certifcation is addressed to its Chairman when the website clearly mentions the name of their Chief Information Ofcer Mr. Sanjay Jaiswalfs contact details. The Plaintiff has not made any enuuiries with Inox cinemas. The Plaintiff had made a positive statement before this Court on 4th January 2018 that the Defendantsf flm has been released, whereas in the afdavit, the Plaintiff has made guarded statements like “…the reviews seem to sugest that the movie was released …”, “…if the movie has indeed been released”.
10.16. That the contention of the Plaintiff that the Defendants have in any manner admitted in the Afdavit in Reply that there are similarities between the works is completely erroneous and a misreading of the Defendantsf Afdavit. The Defendants have categorically stated that Defendant No.1 along with one Sunyukta Roy has written the story which is their original work. The Defendants have in the reply shown a series of differences between the works of the Plaintiff and the Defendants and that there is no admission of any similarity as suggested by the Plaintif.
11. I have considered the submissions made by the parties and perused the documents relied upon by the parties. I have seen the flm of the Defendants, which was furnished to the Court. I have also seen the video recording of the play which was provided by the Plaintiff. I have also gone through the scripts submitted by both the parties.
12. As far as the aspect of the matter concerning delayed screening of the flm and release of the flm in breach of orders is concerned, the emails exchanged between the parties especially the email dated 28th August 2017 addressed by the Defendants does show that the Defendants were willing to provide screening of the flm. Since the Plaintiff fled a complaint with the Screenwriters Association on 1 st September 2017, a date was fxed by Screenwriters Association for the screening on 19th September 2017 and the Plaintiff approached this Court on 18th September 2017 before the said screening. Considering the facts and non-appearance of the Defendants, an Order dated 21st September 2017 for screening was passed. As far as the allegation of release of the flm, the Plaintiff has relied upon reviews of certain persons from mouthshut.com. These reviews do not appear to be genuine as they relate to the release of the flm in more than 10 cities across 7 States. Even the Censor Certifcate has been issued subseuuent to the Afdavit and the ad interim order and as such the uuestion of it having been released in theatres earlier does not arise. In these circumstances, it cannot be held that the Defendantsf flm was released.
13. I shall now deal with the submissions made by the parties on the merits of the matter.
14. The Plaintiff had written the script of the Plaintifffs play “the laboratory” in 2007 and registered the same with the Screenwriters Association under Registration No. 140915 dated 25th June 2008.
15. The theme of the Plaintifffs play pertains to unethical drug trials and how the poor and needy fall prey to agreeing to the same for little money. Pharmaceutical companies are shown to be villainous and exploitative of the underprivileged. The Plaintifffs play revolves around one such case of exploitation where the mother of the protagonist agrees to drug trials being conducted on her without being informed of the harmful and fatal side effects of intake of such drugs. The mother of the protagonist volunteers for these drug trials to earn money to pay for the protagonistfs medical college fees. The protagonist is not informed by her mother that she would be undergoing drug trials. The mother develops complications and dies due to the drug trials. The protagonist, who is an idealistic doctor, is unaware of the reason of her motherfs death and subseuuently discovers that it is her uncle, who is the CEO of the multinational pharmaceutical company. On becoming aware of the reason, the protagonist, together with her boyfriend who is a journalist, decides to investigate into the dark side of unethical drug trials and build a case against the multinational pharmaceutical company. The protagonist initiates a court case against the company. The protagonistfs uncle in the meanwhile inducts her mentor who is a senior and eminent pharmacologist into the said company, making him a stakeholder. This is not known to the protagonist. The protagonist volunteers to help at a tsunami relief camp by disseminating drugs free of costs. The protagonist learns through her boyfriend that the drugs distributed were banned abroad or under testing and the distribution was a ploy to carry out unethical drug testing without the knowledge or consent of the innocent victims who were consuming the drugs. The protagonist realizes that she was used as a pawn in this ploy. The protagonist also becomes aware that her own mentor is responsible for sanctioning unethical drug trials and confronts him. The protagonist is completely disillusioned and commits suicide. The trial instituted by the protagonist comes up for hearing after her death.
16. The Plaintifffs script for the play ended here. The script of the cinematographic flm does not end with the death of the protagonist prior to the commencement of the trial. The script of the cinematographic flm contains a detailed courtroom drama, with several hearings of the case where the protagonistfs mentor and the CEO of the pharmaceutical company are present in Court. The protagonist is shown to take active steps to spread awareness of the drug trials and visit villages. The protagonist holds candlelight vigils, organizes and leads angry marches and garners support from people. Additionally, there are characters of children who die on account of unethical drug trials and their parents who are shown to suffer on account of the same. There are documentary style narratives and news reports of poor people and the exploitative system. The media also takes interest and records and reports these events. Ultimately, the protagonist and her boyfriend are successful in winning the case against the CEO of the multinational pharmaceutical company in the Supreme Court and he is sentenced to life imprisonment.
17. The events described in the previous paragraph are stated by the Plaintiff in paragraph 20 of the Plaint to be the essence of the script of the cinematographic flm. However, what is pertinent is the Plaintifffs own understanding of the essence of the Plaintifffs works before she fled the Suit. This is apparent from her application to the Screenwriters Lab on 5th March, 2014 and emails dated 4th January, 2014, 20th January, 2014 and 2nd April, 2014 which she addressed to third parties. When these are perused, it is apparent that the Plaintifffs own understanding of the essence of her works was much different from what she seeks to portray in the Plaint.
18. The Plaintifffs script for the play is a personal story, which revolves around a girl, who suffers, who aspires to be a doctor, does become one and eventually commits suicide because of the death of her mother on account of unethical drug trials. The mother of the protagonist undergoes an illegal drug trial to raise funds for the education of her daughter. Interspersed with this is the drunkard father of the Plaintiff who adds to her problems. There is emphasis on the unhappy domestic life of the protagonist. The protagonist feels betrayed when she fnds that her uncle and her mentor were directly involved in conducting drug trials on the protagonistfs mother and though she fles a case against her uncle and the doctor, she is overwhelmed with emotions and commits suicide. The play is targeted to this emotional journey of the protagonist.
19. The Plaintifffs flm on the other hand focuses on her fght to defeat the drug companies and how she and her boyfriend are successful in winning the Court case because of their relentless efforts. There are various twists added where her father also joins the fght in some way or her mentor sacrifces his life to save hers. The Plaintifffs script of the cenematgrophic flm shows that initially the protagonist loses the Court battle against her uncle and his company but fnally she succeeds in the Supreme Court and her uncle is brought to justice. In every narration of the Plaintiff, there is a great emphasis on the sacrifce of her mother and the deceit by her uncle and mentor
20. In the Defendantsf script of the flm there are characters of two sisters, Mia and her adopted sister Trisha who hail from a small town. Mia loses her mother at a very young age. Trisha writes several articles and blogs on “consented treatment” and eventually gets an opportunity to work with an NGO in Mumbai headed by Dr. Bali. Trisha feels that Mia would be left alone and insists that their father permit Mia to come to Mumbai with Trisha. Trisha meets a lawyer, Dhruv in Mumbai who is associated with Dr. Bali and who informs Trisha that they would be leaving the city after submitting some important paper work in the Bombay High Court. In the meanwhile, Mia is shown to become a beauty contest winner and has a number of camps to visit and social appearances to make for causes of which she has no clue. There is also a character of a journalist, Eliza who raised issues about malpractices of pharmaceutical companies. When Eliza gets too close to uncovering the truth, Eliza, Dr. Bali and Dr. Nisha are murdered. Elizafs well-wisher, Trehan, who is an FBI forensic psychology expert decides to uncover the cause of Elizafs death and comes across information with respect to fraudulent testing of a drug on poor Indian subjects without them being informed about the full nature of the harmful side effects. Trehan supplies this information to Dhruv and informs him that the pharmaceutical company is coming to India and the new drug will be announced during the unveiling of Miss World India, when Mia would be crowned as such. Dhruv and Trisha inform Mia of the intent of the pharmaceutical company and how she was being used in their entire agenda. Mia together with Trisha and Dhruv decides to battle against the company. Mia decides to terminate her endorsement contract with respect to the harmful drug and a case is fled by the ad agency handling the marketing of the company against Mia for breach of contract and defamation for rescinding the endorsement contract. This case is withdrawn by the company in the court of frst instance.
21. Before considering the aspect of infringement, it would be appropriate to advert to judgments cited by both the learned Advocates appearing for the parties on the tests to be applied while comparing the rival works in an action for infringement of copyright. On a perusal of the judgments, it is clear that in an action for copyright infringement, the Plaintiff is reuuired to prove substantial copying of its work. The Plaintiff need not prove that the entire work is copied. If it is proved that the substance or kernel of the Plaintifffs work is copied, the same would amount to infringement of copyright. What is to be considered is, if this substance or kernel which is copied in the Defendantsf work is deleted, whether the Defendantsf work can stand. The rival works are to be compared as a whole and not dissected into small fractions bearing no originality on their own. In a situation like the present one, where the rival works are based upon a common theme/ subject, what is to be remembered is that there are bound to be similarities to some extent when works dealing with the same subject/theme are compared. However, what is to be considered is the treatment of the subject/theme, the manner in which the idea is expressed and not the idea itself. The protectable story elements in the rival works must be considered, which do not necessarily flow from the subject/theme and which as such are uniuue. It is the uuality of the work copied and not the uuantity that would determine infringement of the work or a substantial part thereof. The dissimilarities introduced in the infringing work should not be deliberate, introduced by an intelligent copier only to create a farce of an independent work, which are trivial in nature and are inconseuuential to the determination of copying and/or substantial copying
22. Following test laid down in the case of R.G. Anand vs. Delux Film (supra) is relevant
"R.G. Anand v. Delux Films , (1978) 4 SCC 118 [LQ/SC/1978/209] at page 140 of the copyright infringement in flm related matters.
“46. 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 such cases is confned 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 diferent 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 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.
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 flm producer or a director the task of the plaintiff becomes more difcult to prove piracy. It is manifest that unlike a stage play a flm has a much broader prospective, wider feld and a biger 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 flm gets a totality of impression that the flm is by and large a copy of the original play, violation of the copyright may be said to be proved.
(emphasis supplied)”
23. Keeping the aforesaid principles in mind and on considering the works of the Plaintiff and the Defendants, in my view, a fnding that the Defendantsf work is a substantial copy of the Plaintifffs script of the cinematographic flm as originally written and developed from time to time cannot be arrived at. Though both stories are based on the common theme of unethical drug testing and the malpractices followed by large pharmaceutical corporations where harmful drugs are tested on poor and needy individuals without obtaining their informed consent, the treatment of the subject and the fleshing out of the story and characters is very different in the rival works. On comparing the scripts as a whole, there does not appear to be substantial similarity between the two works. The entire plot of the two flms and the story line is very different.
24. The crucial points of distinction between the two flms is that the story of the Plaintiff revolves around the personal struggle of the protagonist who and whose family are victim of an illegal drug trial. The story revolves around the death of the mother of the protagonist being caused due to drug testing, a drunkard father and the family problems, which are absent in the Defendantsf flm. The character of the uncle and the mentor and their deceitful actions of enticing the mother of the protagonist to undergo drug trials and the shock and the emotional distress that the protagonist faces on account of the betrayal of her trusted persons i.e. mentor and her uncle are also absent in the Defendantsf flm. This is one of the main reasons that the protagonist in the Plaintifffs flm becomes determined to take on the pharmaceutical company and it is to a great extent a personal fght for the protagonist in the Plaintifffs flm. This storyline is the substance of the Plaintifffs play and is extremely crucial in the Plaintifffs flm. This entire story line is absent in the Defendantsf flm. The Defendantsf flm is about the journey of a small town girl who had a very happy childhood. Her journey is from being a small town girl with dreams and aspiration to becoming a very successful model in Mumbai. This transition is also emphasized. The entire glamour element and the character of a beauty contest winner, who is one of the protagonists, and the manner of her association with the pharmaceutical company because of her obligation to endorse the drug as a beauty contest winner, is completely different. Though there is a character of a journalist in the Plaintifffs flm, the character is shown as the boyfriend of the protagonist and is completely different from the character of the journalist based in England in the Defendantsf flm who is unrelated to any of the protagonists and is on a mission to bring out the truth about malpractices of pharmaceutical corporations before the world and is eventually murdered in this pursuit. The court case in the Plaintifffs flm is very dramatic with the uncle and mentor of the protagonist being a part of the Court room drama, there are seuuences of attempted hit and run and eventually the protagonist and her boyfriend Arjun are successful in putting the CEO of the pharmaceutical corporation, the uncle of the protagonist behind bars, before the Honfble Supreme Court. As against this, in the Defendantsf flm, the Court case is not initiated by the protagonist but by the ad-agency of the pharmaceutical corporation for defamation and breach of contract, which the protagonist successfully defends, and the company withdraws the case in the Court of frst instance.
25. I have seen the pictures of some characters in the Defendantsf flm particularly Dr. Bali who is said to be based on the real life person Dr. Satinath Sarangi and fnd that there is a striking similarity. The Defendants have produced material like photographs to substantiate that the crucial characters of their flm Mia Banerjee, Dr. Bali and Ms. Eliza Moore are inspired from real life characters of Reita Powell, Dr. Satinath Sarangi and Ms. Zeina Awad respectively. The portrayal and manner of appearance of these characters in the Defendantsf flm do prima facie show that these characters are inspired on real life persons. The Plaintiff has criticized this contention by stating differences in the real life person and the character in the flm. If a character of a flm is inspired by a real life person, it is not necessary that the entirety of that personfs personality should be reproduced.
26. The differences between the rival works cannot be said to be trivial or inconseuuential or deliberate as an attempt to escape an allegation of copying as sought to be contended by the Plaintiff. The differences are material and change the nature of the rival works. The comparisons drawn by the Plaintiff and the reliance placed by the Plaintiff on the Afdavit in Reply as an alleged admission of similarities does not advance the case of the Plaintiff any further. The Plaintiff has sought to dissect the rival works into fragments of unprotectable elements. The presence of common elements like a common plot line of unethical drug testing, a Court case, nationwide movements against the illegalities committed by the pharmaceutical company, the depiction of death of children as a result of drug testing, do not by themselves individually or taken together establish substantial copying. The comparisons drawn by the Plaintiff are extremely strained and, in some cases, not correct, like the allegation of presence of a mentor in the Defendantsf flm. At some places, the Plaintiff alleges that Dr. Bali is the mentor of Mia in the Defendantsf flm and at other places, Mr. Rahul Sharma, who owns a newspaper is claimed to be the mentor. Then again, one Sharon is alleged to be the other mentor. Scenes of people crying on the happening of an unfortunate event like death are claimed to be similar. In my view, the comparisons drawn are extremely strained by dissecting the rival works into a series of unprotectable elements. On this basis, I am not dealing in detail with the charts of similarities/dissimilarities presented by the parties. This is not permissible in determining infringement of copyright and the Plaintiff has failed to prima facie prove any similarities in the substance or protectable elements in the rival works. In the Written Submissions, the Plaintiff has sought to cull out the essential features from the various reviews printed. I do not fnd that the same is a correct analysis of the reports. In any case, I have reached the view taken by me after seeing the flm and play and also considering the scripts.
27. As regards the screenplay of the cinematographic flm, which the Plaintiff claims to have worked on in or about June 2016, the same was fled in a sealed cover in this Court. However, the Plaintiff did not provide a copy of the same to the Defendants on the ground that the same is confdential. In any case, apart from fling the script in Court, no reference was made to the same in the course of arguments except stating that the Plaintiff worked on the screenplay. In any case, the Plaintiff claims to have worked on the screenplay in or about June 2016 which is much subseuuent. In such circumstances, it is not open to the Plaintiff to rely on the same. In any case, I have seen the screenplay and in light of my observations hereinabove, the same does not advance the case of the Plaintif
28. The learned Advocate for the Plaintiff strongly contended that the Defendants have admitted to several similarities and has even sought to analyze the said response in the said Written Submissions. The said Chart does not tantamount to any admission and in fact when the chart is read in its entirety, it is apparent that the Defendants have denied similarities and highlighted differences. In any case, such a dissected analysis as sought to be done by the Plaintiff is not the test to be applied in a case for infringement of a copyright.
29. It is also contended by the Plaintiff that the Defendants have not shown any evidence of the Defendants having put in any labour and that there is no evidence having consulted any common source. In the Afdavit in Reply fled by the Defendants, it is categorically stated by Defendant No.1 that the story, script, screenplay and dialogues of the flm were written by Defendant No.1 and one Sanyukta Roy after years of laborious research and labour. It is also contended that Defendant No.1 has interviewed several activists, doctors, victims etc. and tried making the Defendants flm as close to reality as possible. It is also the contention of the Defendants that the Defendants have also based some of the characters in the flm based on real life personalities. Merely because various material had been printed in 2017 for production in court does not mean that the same could not have been accessed earlier. Thus, this contention of the Plaintiff is clearly devoid of merits.
30. The Plaintiff has relied upon the judgments in the case of Osbrone and Govindan (supra) to contend that the Defendants have failed to provide any explanation for the presence of similarities and the burden is on the Defendants to prove that they have referred to independent sources and expended independent labour and skill to arrive at their work. Firstly, prima facie the rival works do not contain any substantial similarities or similarities in protectable elements. Secondly, the Defendants have in the present case produced material like Rajya Sabha reports and recommendations on the alleged irregularities in the conduct of studies using HIV virus, news articles on the internet with reference to a specifc scene and the June 2010 issue of Asian Bioethics Review which records that Tsunami victims have been experimented upon. The Defendants have stated that the authors have referred to these materials while working on the script. There appears to be material in the public domain on the theme/plot of the rival works. In any case, there cannot be a monopoly on a theme of illegal drug trial or big pharmaceutical companies indulging in it. The works are not substantially similar. Having seen the flm, the video recording of the play and having read the scripts, I do not get an impression that the Defendantsf work is a reproduction of the Plaintifffs work, leave alone a substantial reproduction. The treatment and presentation and the storyline and plot of the two stories are very distinct and different. I do not fnd on reading the scripts and watching the play and flm that one would walk away with an unmistakable impression that the Defendantsf flm is substantially and materially a copy of the Plaintifffs work. In my view the Defendants have prima facie proved that their work is original and has been independently arrived at.
31. As far as the Plaintifffs contention of deletion of a scene, it has been contended that in the Plaintifffs flm Dr. Pereira and the uncle of the protagonist Ralph Fernandes drink together, whereas in the Defendantsf flm also some people are sitting and drinking together. The Defendants have explained that the scene in the Defendantsf flm is where a media baron, who fled a case against Mia along with his legal counsel, and the Judge are sitting together and having a drink while the case is pending. It is stated by the Defendants that this scene was deleted pursuant to objections being taken by the Censor Board which was apparently because it showed an inappropriate interaction between a lawyer and a judge. In my view, these scenes cannot be said to be similar and in any case are not protectable elements in any work. Scenes of devious persons sitting together to plot against the protagonist is not uncommon. The deletion of the scene has been explained by the Defendants and their explanation cannot be brushed aside. The mere deletion of the scene even when taken in conjunction with the other factors argued by the Plaintiff, do not take the case of the Plaintiff much further.
32. The Defendantsf reliance on the judgment in the case of Mansoob Haider v. Yashraj Films (supra) is also apposite. Though access by the Defendants to the Plaintifffs work is not necessary for grant of reliefs in an action for copyright infringement, it is one of the factors that the court must take into consideration while granting reliefs. Without access to the Plaintifffs work the degree of proof reuuired to establish an allegation of copying is much higher on the Plaintiff. In the present case, the Plaintiff has contended that the script of the flm was shared with some people from the flm industry, however, the Plaintiff has been unable to show access of the same uua the Defendants. In fact, there is no direct allegation to that effect. The last evolution of the script of the flm has not even been shared by the Plaintiff or produced before the court as the same is claimed to be confdential.
33. As far as the allegation that the script of the play has been substantially copied in the Defendantsf flm, it is true that the play has been publicly performed on several occasions since 2007. However, the script of the play is all the more different from the Defendantsf flm. In fact, the Plaintiff herself recognizes that the script of the Plaintifffs play is different from the script of the Plaintifffs flm with respect to certain key elements, which form a major portion of the Plaintifffs flm. In the play, the protagonist commits suicide and the entire court room drama, events surrounding the same, change of heart of the uncle who takes a bullet for the protagonist are absent. The Plaintifffs play and flm have a common genesis but are uuite apart. The Defendantsf flm is that much further away from the Plaintifffs play. The common theme of unethical drug testing remains. But, as stated above there cannot be copyright in an idea. The expression of the idea is completely different in the Plaintifffs play and the Defendantsf flm. The Plaintiff has failed to make out a prima facie case of infringement of copyright by the Defendants in the script of the Plaintifffs
34. In light of the aforesaid, the balance of convenience is strongly in favour of the Defendants. The Defendantsf flm has been ready for release for a long time and any continuation of ad interim reliefs will cause grave prejudice to the Defendants.
For the reasons stated above, the present Notice of Motion fled by the Plaintiff is dismissed. There shall be no order as to costs.
After the above judgment is pronounced, the Advocate appearing for the Applicant / Plaintiff has reuuested that the judgment and order be stayed since the Applicant / Plaintiff may want to test the judgment and order in appeal. Advocate S.K. Jain i/b. S.K. Jain and Associates appearing for the Defendants has opposed the application for stay. As stated hereinabove, the Defendantsf flm has been ready for a long time and any continuation of ad-interim reliefs will cause grave prejudice to the Defendants. However, the Defendants shall release the movie on or after 31st January, 2020.
