R.G.ANAND versus M/S. DELUX FILMS & ORS.

JASWANT J.-Bearing in mind the well recognised principles and tests to determine whether there has been an infringement of the law relating to copyright in a particular case which were brought to our notice by the counsel on both sides and which have been elaborately considered and discussed by my learned brother Murtaza Faza! Ali in the course of the judgment prepared by him, we proceeded at the request of the counsel to bear the script of the play "Hum Hindustani" which . was read out to us by the plaintiff himself in a dramatic style and to see the film "New Delhi" produced by defendants 1 and 2, the exhibition of which was arranged by the defendant& themselves. On a careful comparison of the script of the plaintiff's copyrighted play with the aforesaid film, although one does not fail to discern few resemblances and similarities between the play and the film, the said resemblances are not material or :Substantial and the degree of similarities is not such as to lead one to think that the film taken as a whole constitutes an unfair appropriation of the plaintiff's copyrighted work. In fact, a large majority of material incidents, episodes and situations portrayed by defendants 1 and 2 in their aforesaid film are :Substantially different from the plaintiff's protected work and the two social evils viz. caste system and dowry system sought to be exposed and eradicated by defendants 1 and 2 by means of their aforesaid film do not figure at all in the plaintiff's play. As such I am in complete agreement with the conclusions arrived at by my learned brother Murtaza Fazal Ali that there has been no breach on the part of the defendants of the plaintiff's copyright and concur with the judgment proposed to be deli)'ered by him.

pp. 261–262, margin E

J.-It appears from a comparison of the script of the stage play "Hum Hindustani" and the script of the film "New Delhi" that the authors of the film script have been influenced to a degree by the salient features of the plot set forth in the play script. There can be little doubt from the evidence that the authors of the film script were aware of the scheme of the play. But on the other hand, the story portrayed by the film travels beyond the plot delineated in the play. In the play, the theme of provincial parochialism is illustrated only in the opposition to a relationship by marriage between two families hailing from different parts of the country. In the film the theme is also illustrated by the hostile attitude of proprietors of lodging accommodation towards prospective lodgers who do not belong to the same provincial community .. The plot then extends to the evils of the dowry system, which is a theme independent of provincial parochialism. There arc \still other themes e.mbraced within the plot of the film. Nonetheless, the question can arise whether there is an infringement of copyright even though tlie essential features of the play can be said to correspond to a part only of the plot of the film. This can arise even where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play. The relative position in which the principal actors stand may be exchanged or extended and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play. All such matters fell for consideration in relation to the question whether the relevant part of the plot in the film is merely a colourable imitation of the essential structure of the stage play. If the treatment of the theme in the stage play has been made the basic of one of the themes in the film story and the e'ssentiaj structure of that treatment is clearly and distinctly identifiable in the film story, it is not necessary, it seems to me, for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established. In the attempt to show that he is not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so develop his own product that it covers a wider field than the area included within the scope of the earlier product, and in the .common area covered by the two productioru

p. 262, margin B

(Pathak, /.) to introduce changes in order to disguise the attempt at plagiarism. If a reappraisal of the facts in the present case had been open in this .court, I am not sure that I would not have differed from the view taken on the facts by the High Court, but as the matter stands, the trial Court as well as the High Court have concurred in the finding that such similaritie§ as exist between the stage play "Hum Hindustani" and the film "New Delhi" do not make out a case of infringement. The dissimilarities, in their opinion, are so material that it is not possible to say that the appellant's copyright has been infringed. This Court is extremely reluctant to interfere with concurrent findings of fact reached by the Courts below and for that reason I would allow the judgment under appeal to stand. In another, and pe.rhaps a clearer case, it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insub~­ tantial differences and enlarging the scope of the original theme so !hat a veil of apparent dissimilarity is thrown around the work now produced. The court will look strictly at not only blatant examples of ·copying bnt also at reprehensible attempts at colourable imitation.

p. 263

The appeal is dismissed, but without any order as to costs. P.H.P. Appeal dismissed.

p. 263, margin D