By TIOL News Service

MUMBAI, OCT 29, 2015: THE issue is - Whether a plaintiff has the locus standi to file a suit for infringement, when the work was created through commissioning under a contract for services. The second important issue is whether comparable similarity exists between the original script and the alleged infringing script when motive and tone of the scripts are quite different. NO is the High Court's answer.

Facts of the case

The Plaintiff is a limited liability partnership created by a person named, Mr. Vipul Kothari and his spouse Nanditaa Kothari. The latter is a member of the Film Writers’ Association, Mumbai. The Plaintiff claimed that it had initiated a concept note for a proposed television serial called "Ye Tera Ghar Ye Mera Ghar". This concept was disclosed to the 1st Defendant, Star India Private Limited, who did not showed interest in developing this concept. Then Plaintiff took the script to another production house, Zee Entertainment Enterprises Limited ("Zee"), who showed interest in this concept. According to the Plaintiff, while it was working with Zee on the development of a serial based on its concept note, 1st Defendent introduced a television show entitled "Zindagi Abhi Baki Hai Mere Ghost" which was too similar to the Plaintiff’s concept note. Hence Zee abandoned further development under its contract with the Plaintiff. The Plaintiff sent a notice to the Defendant, complaining of the infringement. The Defendant denied the Plaintiff’s claim. The plaintiff filed suit and moved for ad-interim reliefs. The Plaintiff claimed to have copyright in a concept note for a proposed television programme and pleaded that their was an infringment of copyright and breach of confidentiality by the Defendant. The Plaintiff claimed that Ms. Kothari was the sole author and absolute owner of the literary work in question. The Defendants contested that the Plaintiff did not have any subsisting copyright in the concept note, those rights if at all exist would belong to the Zee. The Court noted that the Plaintiff acquired an assignment of this copyright only very recently, between June and July 2015. This concept note was registered with the Film Writers’ Association. In year 2012, Ms. Kothari, partner in Plaintiff firm, applied for a registration of this work in her name under the Act.

DECISION

The High court was not satisfied that the Plaintiff had made out a case for the grant of an interim injunction. Hence the appeal was dismissed.

REASONING

Claim to sole authorship

1. The Plaintiff itself was an assignee of the copyright claimed by Ms. Kothari under a Deed of Assignment. This was apparently the work that was registered with the Film Writers’ Association. One of the annexure submitted in the court with Affidavit in Rejoinder was copy of a email. That email suggested that one of the scriptwriter sent several documents/files to the Plantiff titled "characters of T.docx"; "Ye Tera Ghar ye Mera Ghar.docx" and "Tera Ghar Mera Ghar Episodes.docx". to Ms. Kothari who seems simply to have forwarded these to her husband, her fellow partner with the Plaintiff, a few days later. There is nothing to show that Ms. Kothari employed or commissioned the said scriptwriter. The Plaintiff only says that she was 'the sole author’ and 'absolute owner’ of the copyright, i.e., that she wrote it all herself. But evidences depict altogether different view.

2. Section 48 of Act says that the Register of Copyrights is prima facie evidence of the particulars entered in it. On its own, this means that there is only a presumption, albeit a strong one, nonetheless rebuttable about the correctness of the entries. That presumption can always be shown to be incorrect. Further, Section 48 is not an acknowledgement of actual authorship being proved, but only of copyright having been applied for and granted. If Ms. Kothari's own sole and absolute ownership and authorship are in doubt, she could not have passed absolute title to the Plaintiff.

3. From the data available it was not at all clear what precisely Ms. Kothari had assigned to the Plaintiff and whether she was in fact the sole author of the work so assigned. The Court noted this because Assignment to the Plaintiff said that the work in Schedule I was assigned and that Schedule blandly states only "Yeh Tera Ghar Yeh Mera Ghar". This was not qualified to be the work prior to Ms. Kothari’s engagement before Baba Arts, nor can that be deduced from this document.

Assignment to third party

4. The Plantiff entered into the Development Agreement with Zee. Schedule 1 to this Agreement include a copy of the concept note in which the Plaintiff claimed copyright. The Court assumed that this concept note was the same as the one for which Ms. Kothari obtained copyright registration. The said agreement makes it clear that the "Development Work" is the outcome or result of further work done on or services rendered by the Plaintiff on the "Developed Concept", and the "Developed Concept" is not something entirely new or different but is based on and includes the "Initial Concept". All of this was assigned irrevocably and in perpetuity to Zee. The agreement also says that these rights survive any termination of that Agreement. The Plaintiff’s case was that Zee abandoned the project when it learnt of the Defendant’s show and that immediately on that abandonment by Zee, there was a reversion of the copyright assignment to the Plaintiff. But court rejected this contention. All that Clause 6.6 said that there will be a sort of 'cooling off’ period of six months following the expiry of the Agreement or on failure of the parties to agree on the terms of the production. After that period, the Plaintiff was to have 'the right to exploit the Initial Concept’. This was, at best, a limited right. It was not in any sense a reassignment of the "Initial Concept". Therefore, there was nothing to show a formal termination of the Plaintiff’s Agreement with Zee except for a mere pleading, it was impossible to accept that there was, as of the date of the suit, any copyright that though once assigned to Zee had now reverted to, and vests in, the Plaintiff. To maintain this suit, the Plaintiff would need to have in its hands, at a minimum, a formal termination by Zee, and a re-assignment of the copyright in the Initial Concept.

Disclsoure in confidence

5. Ms. Kothari was a Creative Consultant to or a Creative Director with Baba Arts. The Plaintiff did not disclose that one Nikhil Tanwani signed a Release Form on behalf of Baba Arts. All the mails sent to the Defendent by the Plantiff were copied to Mr. Tanwani Via email dated 18th June 2013, Ms. Kothari sent a profile of Baba Arts Ltd to Star India. There was no suffient evidences to proof that Ms. Kothari was contacting Star India on her own. Clause 2 of the Release Form warrants that the Proposer (evidently Baba Arts) is the sole creator/author/owner of the Proposal and that to the best of its knowledge, no rights vest in any other party.

Similarity in works

6. Two documents were produced by the Plaintiff to show the similarity of its work with the work of the Defendent. The first is the 'literary work’ and the second is the powerpoint presentation said to have been sent to Star India. The Court did not found the similarity in work. The Defendent work seemed to have at least an underlying pathos and a definite edginess or menace. The Plaintiff’s work was lighter in tone, and directed more to comedy. In neither version of the Plaintiff’s work there was revenge motive. As a matter of law, when copyright infringement is alleged in this form, and in relation to a concept, there must be an established comparable similarity between the work in which copyright is said to subsist and the work said to be infringing. A person cannot claim copyright in some work, and then contrast the defendant’s work with some entirely different work of unknown provenance and at a very great intellectual and literary remove from the work in which copyright is said to exist.

(See Full text of Decision 2015-TIOL-2478-HC-MUM-IPR)