Few are aware of the not so successful Indian movie ‘Hari Puttar’- partly because few have seen it, and partly also due to the fact that many mistake it to be an Indian spoof of the well known trademark of the character ‘Harry Potter’. However, this seemingly innocent movie sparked a spate of legislation pertaining to copyright infringement and highlighted a recent trend of Hollywood ‘adaptations’ in India- where Bollywood movies borrow heavily from Hollywood films. Earlier, this phenomenon was ignored by the English producers, but as the Hollywood watching audience in India grew and began to thus contribute a significant amount to the film’s revenue, litigation followed. The question that is raised here is that, in the absence of any licensing agreement signed between the Hollywood producer and the Indian producer, could these adaptations be termed as infringement? Movies are protected under Section 2 (f) of the Indian Copyright Act, under ‘cinematographic films’, and the copyright to such films vests with its producer, who would be termed as the author of the work- any Indian movie which wanted to adapt a Hollywood script would hence have to obtain a ‘license’ under Section 30 of the same Act. The reason for this lies with the fact that such an author- or producer- has the sole right to ‘adapt’ such a work under Section 14. Numerous Bollywood films have been made and touted as a Hindi ‘remake’ of English films- say for instance, Dhoom 3, said to be an adaptation of the Prestige, or the Hindi movie Partner, whose English counterpart was Hitch. Usually in the case of regional movies adapted in India, licensing agreements are executed- say for example, the Hindi remake of the Bengali movie ‘Rajkahini’ was titled ‘Begum Jaan’, but these are conspicuously absent in the case of American-to-Indian remakes.
When a license for such movies is not obtained, then in case a movie is suspected to be a copy of another, the Courts have developed certain tests to determine what constitutes infringement. The first such test came in the case of Daly v. Palmer, where the American Courts observed that, if after watching the movie, an unmistakable impression is made on the mind of an ordinary reasonable man that it is a copy of another, it would constitute infringement. The very same test was followed in the Indian case of R.G. Anand v. Delux Films. However, this ‘ordinary observer’ test was evolved in the case of Twentieth Century Fox Film Corporation v. Zee Telefilms, where it was stated that the infringing material must be looked at individually, then as a whole- if the theme was the same, however, the presentation was done in an entirely new manner, one could hardly call it infringement. This is the case in Indian adaptations- the presentation, the song and dance numbers, etc. vary the original English movie to often such an extent that it cannot be said to be copied.
In conclusion, one can be hopeful that such litigations indicate an impending need for the drafting and enforcement of more licensing agreements, and the Courts to be more conscientious about the future of IP rights with regard to adapted movies.
Published By – Biswajit Sarkar – Patent Lawyer India