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Bollywood, India’s Hindi-language film business, is one of the world’s largest and fastest-growing film industries, both commercially and culturally. Through its fascinating material, it has managed to maintain a foothold on its global audience. However, various complaints have surfaced in the industry, implying that there is a problem with unlicensed copying of Hollywood films. Adaptations or films inspired by Western cinema are used to describe these films. This article examines whether Bollywood writers/producers infringe on Hollywood production houses’ copyright while crafting remakes of Hollywood films in an exclusively Indian context.
The Copyright Act, 1957 (“the Act”) governs Indian copyright law, and Section 13 of the Act lists the works in which copyright exists, which includes cinematograph films under Section 13(1). (b). A cinematograph film is defined by Section 2(f) of the Act as a work including a visual recording and a sound recording, while Section 14(a) grants the author exclusive rights. The Act also includes provisions for copyright infringement under Section 51, which states that copyright infringement occurs when a work is a “substantial and material” copy of the first work. Section 52 specifies the exceptions to this rule.
The Delhi High Court found in Mrf Limited. vs Metro Tyres Limited that a film must be an original work in order to be granted a copyright under Section 13 of the Act, and that producing a film that is a replica of the original movie without the owner’s permission is an infringement. The court concluded in Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah & Ors that a ‘copy’ does not have to be a physical copy of a film, but can also be a substantial, fundamental, important, and material similarity to the original picture. The “substance, foundation, kernel of the film” must be examined to assess the infringement. In other words, a copy could now incorporate adaptations or inspirations in addition to the original.
BOLLYWOOD V. HOLLYWOOD
Bollywood has worked hard to broaden its appeal, expand its global reach, produce pictures that sell a lot of tickets and make a lot of money, and carve out a niche for itself in the international cinema business. Remaking Indian versions of Hollywood films has been one technique to boost box office success. This is mostly done to placate India’s massive westernised population. Due to Bollywood’s low profitability, India’s status as a developing country, and the presence of very different consumers for both film industries, the Western film industry first paid little attention to it. However, from 2005 and 2008, India enjoyed an economic boom. The Indian film industry has also joined the INR 300-crore club. In addition, as India grows as a worldwide economic force, the audiences for Bollywood and Hollywood are becoming increasingly entwined. As a result, the Western film industry has begun to pay special attention to Indian films.
Partner (2007), an Indian film, was a clear rip-off of the Hollywood film Hitch. The creators of Partner received cease-and-desist letters from Overbrook Entertainment and Sony Pictures, and they were considering filing a lawsuit against them. The Bombay High Court granted an order to prevent the release of Partner, but the two parties reached an out-of-court deal before the court could make a ruling. However, until 2007, Bradford v. Sahara Media Entm’t Ltd was the only case in which an Indian court allowed a copyright dispute to be heard. As a result of the lack of judicial pronouncements offering clarification on the subject matter, or even ruling in favour of Hollywood production houses, Overbrook decided against initiating cases.
Twentieth Century Fox filed the first legal cinematography infringement complaint against BR Films for creating Banda Yeh Bindaas Hai, which was supposedly a “substantial duplication” of their film My Cousin Vinny. However, before the Court could make a judgement, both parties agreed to an out-of-court settlement in which both producers agreed to assign their rights to legally reproduce the My Cousin Vinny adaptation. Because it was the first time a Bollywood studio was made to pay for an illegal remake, this case received a lot of media attention. Because of the ambiguous judicial precedents, out-of-court agreements were preferred. Furthermore, under this circumstance, the Hollywood production houses have a better possibility of earning more money.
The distinction between an idea and its expression is known as the idea/expression dichotomy. Only the forms of expression, not the ideas, are protected under Copyright law. The concept is intangible and abstract, yet it is materialised and given a physical form through expression. This is the essence of copyright legislation. If concepts are likewise protected, individuals’ freedom to produce their own manifestations based on the same idea will be severely limited. This would neither stimulate nor reward the free flow of ideas. As a result, it is critical to assign copyright exclusively to the artists’ physical forms of work (which may be used as solid evidence) rather than their thoughts.
Because the Indian Copyright Act is silent on the idea/expression dichotomy, case law is relied upon to grasp this concept. The important case of R.G. Anand v. Delux Films & Ors established Indian jurisprudence on the subject. In this case, the Supreme Court gave a broader interpretation to the term “copying” and set guiding principles for determining what constitutes a copyright infringement. It stated, first and foremost, that no copyright protection can be applied to any idea, plots, themes, subject matter, legends, or historical facts. The idea’s form, structure, and expression are all considered protected art. Second, if the same notion is expressed in different ways, there will be some similarities. The main factor to consider is if the similarities are fundamental.
In the aforementioned case, the ‘Lay Observer Test’ was created, which stipulates that infringement occurs if the observer has the “unmistakable impression that the following work seems to be a duplicate of the first” after witnessing the chronologically second piece. It would not be considered a copyright infringement if “a person with common memory can identify between the original and copied work after watching or reading a work.” When two works contain the same core idea, but the treatment and presentation of that central theme differs, there is no question of infringement. In the recent case of Mansoob Haider v. Yashraj Films, the Bombay High Court concluded that the residue left after eliminating the dissimilarities between the two works in question is the idea, which is not copyrightable, and therefore mere resemblance would not entail a straight violation.
The Fox Studio also filed a lawsuit against Sohail Maklai Entertainment for releasing Knockout, a knockoff of their film Phonebooth.[i] There was no settlement agreement this time, and the Bombay High Court differed from the anti-western stance of the Calcutta High Court. The Bombay High Court relied on US copyright law in this case, titled Twentieth Century Fox for Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. and Anr., due to a lack of Indian copyright case laws on the subject. It found that “a person seeing both films at various times would come to the clear conclusion that the Defendants film is a copy of [PhoneBooth]” and awarded damages to Fox Studios. This was the first time that an Indian Court ruled in favour of a Hollywood production house and accepted infringement by the Bollywood studio.
However, numerous Indian films that could be considered unlicen sed duplicates of Hollywood films have never been prosecuted. Dhoom 3, for example, borrows the concept of twin brothers performing in a circus from the film Prestige. Ghajini is yet another film based entirely on Memento. Knight and Day, a Hollywood film, is also adapted in Bang Bang. Most Bollywood production firms claim that they ‘Indianized’ Hollywood films by employing Indian actors and actresses, adding song and dance sequences, romanticising the plot, and expanding the narratives to include emotions specific to Indian culture. In such circumstances, maintaining that the phrase takes the same shape in both films becomes problematic. Furthermore, due to the Merger Doctrine (where the idea merges with the expression and the work cannot be copyrighted) and Scènes à faire (where certain elements (incidents, characters, and scenes) are so intrinsically connected with the idea that they cannot be separated from the expression and thus are not copyrightable), certain elements (incidents, characters, and scenes) are so intrinsically connected with the idea that they cannot be separated from the expression and thus are not copyrightable). According to Bollywood, certain moments or themes/plots cannot be shot without blurring the line between idea and expression. Similar concepts presented in different ways will undoubtedly yield similarities, but the differences are so significant that they cannot be considered infringement. Due to the complexity of proving an infringement in such circumstances, it is difficult to conclude that one has occurred.
In recent decisions, such as Shamoil Ahmad Khan v. Falguni Shah & Ors., the Supreme Court discussed the phrase “extraction,” which is used to separate the idea from the expression by removing all layers of ornamentation until the fundamental idea is apparent. It stated, citing the case of Nichols v. Universal Pictures Corp.,that characters and locations aid in the transformation of a concept into a finished story. These are a collection of different aspects that give any work substance. If these aspects are removed or stripped away, what is left is a concept
that is not protected by copyright. In the matter of XYZ Films LLC v. UTV Motion Pictures, the Court was instructed to utilise its own knowledge of the subject matter to the aforementioned statement It is up to the court to decide where the line of extraction between abstraction and expression should be drawn. The principles should not be implemented uniformly, but rather tailored to the facts and circumstances of each instance. If a tale’s primary idea, theme, and storyline are its “life and blood,” without which the story would lose its actual meaning and, if replicated, would result in a case of actionable plagiarism.
In the case of Hollywood and Bollywood films, copyright infringement is evidently rarely decided by the courts. Even if they are challenged, the idea/expression dichotomy, Merger Doctrine, and Scènes à fait may lead to a court ruling in favour of the Bollywood party. Bollywood can continue to plagiarise some moments and sequences without permission. Cinema is a type of art that entails discovering and presenting fresh creative and unique content, but it is also very expensive and has a business element to it, which tempts producers to plagiarise from other sources rather than creating their own original expressions. The explanation for this could be that, in recent years, producers’ priorities have switched from content-driven films to films that make more money, even if this means plagiarising someone else’s work. Only when Bollywood writers plagiarise the whole narrative of Hollywood blockbusters will they face legal action under Indian Copyright Law.
As a result, copying an idea from Hollywood and repurposing it is totally permissible under Indian Copyright law. In terms of morality and ethics, such lifting could be considered unethical. It also detracts from the work’s author’s efforts. The Indian Copyright Law allows these producers to continue drawing ‘inspiration’ from Hollywood, Indianize it, and make it digestible to their target audience. For monetary and territorial benefits, creative integrity and moral issues are ignored. The Indian courts, on the other hand, have an international legal obligation to follow the TRIPS Agreement and the Berne Convention, both of which India is a signatory to. These agreements protect the writers’ original works while also punishing infringers. Furthermore, Indian law has lately changed and has liberally defined the term “copying,” thus exposing Bollywood producers to liability if they get away with copying works from other sources.