One of the well known doctrines used
for the purpose is the “spring board” doctrine. It may well be that the defendant
uses the plaintiff's idea as a spring board and then devises some additional
material to produce a work. If the original idea was conveyed by the plaintiff to the
defendant as a matter of confidence and the defendant uses it as a spring board
to develop his own work, in an appropriate case, the defendant may still be liable
for breach of confidence. This was explained by our Court in Zee Telefilms
(supra), as follows :
“12. With regard to the requirement of form and degree of
development of information or ideas, learned counsel for the
plaintiffs placed strong reliance on Seager v. Copydex Ltd.,
(1967) 2 All ER 415. In this case the plaintiff, in the course of
discussion with the defendants of a carpet grip described as
'the germ of the idea' for a different form of carpet grip which
the plaintiff had devised. Later the defendants developed and
marketed the carpet grip which was unwittingly based on the
plaintiff's alternate type of grip. The Court of Appeal concluded
that the plaintiff's idea was 'the springboard' which enabled the
defendants to devise their own grip and held that the
defendants were liable for breach of confidence. The learned
counsel also referred to a judgment of Megarry J in Coco v.
A.N. Clark (Engineering) Ltd. (1969) RPC 41 where springboard
doctrine was elaborately discussed. He also referred to a
judgment in Franchy v. Franchy (Extension Ch D), (1967) 5
Reports of Patent and Design and Trade Mark Cases 149
where Cross J. observed:-
"Clearly a claim that the disclosure of some information would
be a breach of confidence is not to be defeated simply by
proving that there are other people in the world who know the
facts in question besides the man as to whom it is said that his
disclosure would be a breach of confidence and those to whom
he has disclosed them." ”
Lastly, it must be noted that at the prima facie stage, the Plaintiff is
not required to prove these matters. What he needs is to address them and show
that he has a seriously arguable case in relation to each of them.
ORDINARY ORIGINAL CIVIL JURISDICTION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NOTICE OF MOTION (L) NO. 785 OF 2015
IN
SUIT (L) NO. 251 OF 2015
Beyond Dreams Entertainment Pvt.Ltd. & Ors.
vs.
Zee Entertainment Enterprises Ltd. & Anr.
CORAM : S.C. GUPTE, J.
25 MARCH 2015
This suit is filed by the Plaintiffs inter alia for preventing misuse of
confidential information and also infringement of copyright. The present order
disposes of the Plaintiffs' ad-interim application for protection pending the hearing
and final disposal of the Notice of Motion.
2
Plaintiff No.1 is a production house engaged in production of
entertainment content for television including TV serials. Plaintiff Nos.2 and 3 are,
respectively, the Chairman and Managing Director, and Chief Creative Director of
Plaintiff No.1.
3
The gist of the Plaintiffs' case is this : In or about March 2011,
Plaintiff No.2 developed a concept for a TV show, which was at that time called
“Paachva Mausam Pyaar Ka”. The concept was reduced to a concept note and
was also registered with the Film Writer Association on 11 June 2013. The
concept note registered by the Plaintiffs with the Association is reproduced
verbatim in the plaint. The Plaintiffs thereafter worked from time to time and
developed the concept and fleshed the same out extensively so as to convert it
into a full-fledged TV series to be produced by Plaintiff No.3. The title of the
concept note underwent a few changes and eventually became “Badki Bahu” with
a tag line “aaude main sabse chhoti.. umar main sabse badi... hai toh gharki
chhoti
bahu
magar
kehlaygi-Badki
Bahu”.
The
various
versions
and
developments of the concept note are to be found in Exhibits A-1 to A-12, which
are all, according to the Plaintiffs, original literary works developed in various
forms for a television series planned by the Plaintiffs, and which are themselves
copyrighted works. It is the Plaintiffs' case that between 11 June 2013 and about
March 2014, the Plaintiffs worked on the various versions and presentations of
ig
the concept notes, which are to be found in Exhibits A-1 to A-12, which contain
the developed concept, story, pitchline, plot, tracks, family, characters, names,
set design, jewellery design, etc. The Plaintiffs from time to time shared the
concept notes with Defendant No.1. It is submitted that this sharing was in
circumstances of confidence and was on the basis that Defendant No.1 promised
the Plaintiffs that the former would telecast a serial based on the Plaintiffs'
concept notes and that the production of this serial would be entrusted to Plaintiff
No.1. In the course of this period, even a Letter of Intent was executed between
Defendant No.1 and the Plaintiffs for production of the serial “Badki Bahu”. It is
submitted by the Plaintiffs that when the television serial was ready to be
launched by Defendant No.1, Defendant No.1 insisted that the Plaintiffs take on
board a co-producer and recommended a few names in this regard. The parties
discussed the modalities, but the Plaintiffs never accepted the proposal for taking
a co-producer on board and instead withdrew the concept notes from Defendant
No.1. It is the Plaintiffs' case that at this stage, Defendant No.1 offered to buy the
Plaintiffs' concept outright or alternatively, pay the Plaintiffs royalty on a per
episode basis. Again, none of these two alternatives was accepted by the
Plaintiffs, who insisted on total withdrawal of the concept notes shared with
Defendant No.1. It is the Plaintiffs' case that in the course of the correspondence
in this behalf between the parties, the Plaintiffs proposed that the Plaintiffs'
concept, story, pitchline, plot, tracks, family tree, characters, names, set design,
jewellery design, etc., which were developed
by the Plaintiffs, and
communicated during the talks between the parties for commissioning the serial
titled “Badki Bahu”, would not be used by Defendant No.1. On this footing, the
Plaintiffs even offered to consider transferring the title (only name of the show) to
Defendant No.1 as desired by the latter. It is the Plaintiffs' case that Defendant
No.1, on its part, was prepared to accept this proposal only with the exception of
the tag line and the setting of the serial in Kolkata. No agreement could, however,
be reached between the parties in this behalf. It is the Plaintiffs' case that despite
this correspondence, Defendant No.1 has proceeded to announce a new serial to
be launched on its new television channel in the name of “Badi Devrani”, which
serial, the Plaintiffs submit, is entirely based on the concept notes prepared by
the Plaintiffs and shared with Defendant No.1, as noted above. In the premises,
At the hearing of the application,
it is submitted by Mr.Janak
4
the Plaintiffs have applied for an injunction against the telecast of the serial.
Dwarkadas, learned Senior Counsel appearing for the Plaintiffs, that the
offending serial is being produced by Defendant No.1 through Defendant No.2,
which is a rival production house, with the use of the information shared by the
Plaintiffs with Defendant No.1 in the form of the various concept notes, Exhibits A
and A-1 to A-12 of the plaint, in circumstances of confidence, which implied an
obligation on the part of Defendant No.1 to maintain the same as confidential and
not to use it otherwise than under the authority of the Plaintiffs. It is submitted that
the serial being produced by Defendant Nos.1 and 2 is made by using the
concept notes without the authority of the Plaintiffs. It is submitted that the
various concept notes had already reached the stage of being a saleable
commodity, namely, material which could be actually used for converting into a
TV serial. It is also the case of the Plaintiffs that the concept, developed in
Exhibits A and A-1 to A-12 of the plaint, together with its tag line and the various
aspects of the TV serial forming part of the concept notes, is copyrighted work
belonging to the Plaintiffs and that the Defendants' proposed serial is an
infringement of the Plaintiffs' copyright in it. Learned Counsel relies upon the
judgments of Zee Telefilms Ltd. vs. Sundal Communications Pvt.Ltd. 1, Anil
Gupta vs. Kunal Dasgupta2, and Urmi Juvekar Chiang vs. Global Broadcast
1 2003(3) Mh.L.J.
695
2 2002 (25) PTC 1 (Del)
Dr.Virendra Tulzapurkar, learned Senior Counsel appearing for
5
News Ltd.3 in support.
Defendant No.1, whilst opposing the Plaintiffs' application for ad-interim reliefs,
submits that, in the first place, the Plaintiffs have not identified what is the
confidential material which they seek to protect. It is submitted that anything and
everything which forms part of the concept notes, purportedly shared by the
Plaintiffs with Defendant No.1, cannot be a subject matter of confidence.
Secondly, it is submitted that to claim confidentiality, the Plaintiffs have to make
out a case of uniqueness of the material shared by the Plaintiffs with Defendant
No.1. It is submitted that the purported material is not unique in any way. Thirdly,
it is submitted that the concept notes, which are produced as Exhibits A-1 to A-
12, have all been developed in discussions between the Plaintiffs and
representatives of Defendant No.1 and are based on inputs given by the latter. As
for the case of the alleged infringement of copyright, it is submitted that there is
no copyright in an idea or a thought. Learned Counsel for Defendant No.1, in this
behalf, relies upon the judgment of the Supreme Court in the case of R.G. Anand
vs. M/s.Delux Films4. Lastly, it is submitted that there is neither a case of breach
of confidentiality nor a case of infringement of copyright, since the Defendants
have not used any material, which forms part of the Plaintiffs' concept notes, for
producing their serial. It is vehemently urged by Dr.Tulzapurkar that to consider
whether or not the Defendants have used any material from the concept notes
shared by the Plaintiffs, it is imperative for this Court to actually see the ten
episodes of the serial produced by the Defendants and find for itself whether or
not the spectator or viewer, after seeing the work, is likely to get an unmistakable
impression that the Defendants' work is a copy of the concept notes of the
Plaintiffs.
6
Mr.Virag Tulzapurkar, learned Senior Counsel appearing for
Defendant No.2, adopts the submissions of the learned Counsel for Defendant
No.1 and in addition, submits that it is not possible merely on the basis of the
3 MANU/MH/0315/2007
4 AIR 1978 SC 1613
material placed before this Court to determine either breach of confidentiality or
copyright. Relying on the American judgment of Livia MILANO vs. NBC
UNIVERSAL, INC.5, it is submitted by Mr.Tulzapurkar that for ascertaining the
similarities between the two works, the Court must only consider the articulable
similarities, that is to say, the actual concrete elements that make up the total
sequence of events and relationships between major characters. It is submitted
that unprotectable elements, which include general plot / ideas as also scenes
that flow naturally from such unprotectable basic plot premises, cannot be
considered for comparing the two works both from the point of view of breach of
7
confidentiality and infringement of copyright.
Let me first consider the Plaintiffs' claim of breach of confidence,
which, according to me, is the main plank of the Plaintiffs' case at this stage. It is
now well known that the law of confidence is different from the law of copyright. In
fact, as observed by various reputed international authors, as also held in various
pronouncements by Courts in India and abroad, that publication of a work can
very well be restrained on the basis of a breach of trust or confidence; that
protection of confidence is in fact a broader right than the proprietary right of a
copyright. Whereas there can be no copyright in an idea or information per se, if
the idea or information has been sufficiently formed and has been acquired by a
person under such circumstances that it would be a breach of good faith to
publish or use the same without authority from the person from whom it has been
so acquired, the Court may in an appropriate case protect the idea or information
by granting an injunction. The two rights naturally have different incidents.
Whereas the copyright is good against the world at large, sharing of confidence
casts a duty only on the recipient of the information or idea to maintain
confidentiality and not publish or use the same without the authority of the
originator.
8
There are three important elements of such a claim for protection of
confidence. Firstly, it must be shown that the information itself is of a confidential
nature. Secondly, it must be shown that it is communicated or imparted to the
5 584 F.Supp.2d 1288
defendant under circumstances which cast an obligation of confidence on him. In
other words, there is a relationship of confidence between the parties. Thirdly, it
must be shown that the information shared is actually used or threatened to be
used unauthorizedly by the Defendants, that is to say, without the licence of the
Plaintiff. Each of these three basic elements involve their own peculiarities and
sub-elements, which shall be noted presently.
9
As far as the first element is concerned, namely, confidentiality of
the information, there are at least three sub-elements, which need to be
considered. The first is identification of the confidential information itself. For
without identification, it will not be possible to hold the information to be
confidential. Secondly, the information shared must be original and not be in
public domain. The originality itself has some nuances to be considered. Firstly,
the idea, to claim protection, must be sufficiently developed so that it is capable of
being realised as an actuality. Our Court in the case of Zee Telefilms Ltd.
(supra) noted in this behalf the observations of the English Court in the case of
Fraser vs. Thames Television Ltd.6 These observations are quoted below :
“I accept that to be capable of protection the idea must be
sufficiently developed, so that it would be seen to be a concept
which has at least some attractiveness for a television
programme and which is capable of being realized as an
actuality (see per Harris) in Talbot’s case (1981) RPC 1 at 9).
But I do not think this requirement necessitates in every case a
full synopsis. In some cases the nature of the idea may require
extensive development of this kind in order to meet the criteria.
But in others the criteria may be met by a short unelaborated
statement of an idea. In Talbot’s case itself I do not think the
detailed submission (at 5) added very much of substance to the
idea which is set out in one sentence (also at 5).
Unquestionably, of course, the idea must have some significant
element of originality nor already in the realm of public
knowledge. The originality may consist in a significant twist or
slant to a well-known concept (see Talbot’s case). This, I think,
by analogy, consistent with the statements in Saltman’s case
and Coco’s case that novelty in the industrial field can be
derived from the application of human ingenuity to well-known
concepts.”
6 (1983) 2 ALL E.R. 101
It is to be immediately noted that sufficiency of development itself is
not a matter of precise definition. There may well be cases, as noted by the
English Court in Fraser case, where considering the nature of the idea and the
use to which it is to be put, in a given case, an extensive development of the idea
may be necessary to meet the criteria, whilst in another case, a short
unelaborated statement of the idea may itself meet the criteria of sufficiency.
11
Unquestionably, of course, as noted by the Court, the idea must
have an element of originality. It should not be an idea in the realm of public
knowledge. But this originality may not be in the sense that it is not derived from
what is already available as public knowledge. What makes an idea unique so as
to make out a case of confidentiality is the fact that the maker of the work has
used his brain and, even whilst using what was already in the public domain, has
produced a result which can be produced by somebody who goes through such
process. The case of Delhi High Court in Anil Gupta (supra) , popularly known as
the Swayamvar case, and the case of Zee Telefilms Ltd. (supra) are cases in
point. In the case of Anil Gupta (supra), the idea was of producing a reality TV
programme of match making to the point of an actual spouse selection, in which
real everyday ordinary persons would participate before a TV audience. The
programme was titled as “Swayamvar”, since a large number of people would
associate the name with the idea of a woman selecting a groom in public fora,
recalling mythological Swayamvar. In this case, this idea per se with its
minimalistic details was sufficient to make the same unique and confidential. This
is what the Delhi High Court said in paragraphs 27 and 29.
“27. In the modern day, when the small screen has taken
over the earlier means of mass communication like radio,
idea/concept/script of a broadcaster has wider potentiality of
capitalizing revenue and if that idea/concept or script is not
protected then in a given case, a person who has conceived an
idea to be translated into the reality TV show which could be
key to its success with audience then channels with their
enormous resources could always be in a better position to take
the idea/theme/concept from any author and then develop at
their own end and the original author of the concept will be left
high and dry, in appropriate cases interlocutory injunction may
be issued restraining such breach o confidentiality of the theme,
concept or scripts otherwise it would be catastrophic for the
television industry. One has to bear in mind that persons who
create an idea/concept or theme which is original, laws must
ensure that such like people are rewarded for their labour. A
concept for reality show on television was given to the
company, which in this case is the defendants. Creator provides
raw material to the entertainment industry, themes or concepts,
originates from the person who has conceived the same,
protection is vital for the functioning of the industry. Otherwise
authors of the idea who are individuals, their ideas can be taken
by the broadcasting companies or channels owning companies
and the persons who have conceived the same, would be
robbed of its labour.
29.
An idea per se has no copyright. But if the idea is
developed into a concept fledged with adequate details, then
the same is capable of registration under the Copyright Act. The
novelty and innovation of the concept of the plaintiff resides in
combing of a reality TV show with a subject like match making
for the purpose of marriage. The Swayamvar quoted in Indian
mythology was not a routine practice. In mythology, we have
come across broadly understood only two Swayamvars, one in
Mahabharat where the choice as not let on the bride but on the
act of chivalry to be performed by any prince and whosoever
succeeded in such performance got the hand of Draupdi.
Similarly, in Ramayana choice was not left to the bride but again
on performance of chivalrous act by a prince who could break
the mighty Dhanusha (Bow). Therefore, originality lies in the
concept of plaintiff by conceiving a reality TV programme of
match making and spouse selection by transposing
mythological Swayamvar to give prerogative to woman to select
a groom from variety of suitors and making it presentable to
audience and to explore it for commercial marketing. Therefore
the very concept of matchmaking in view of concept of the
plaintiff giving choice to the bride was a novel concept in
original thought capable of being protected.”
In the case of Zee Telefilms (supra), however, it was not the idea which
was sufficient per se. That was a case, where a unique programme was
conceived by the name of “Kanhaiyya” which was renamed by the Defendants as
“Krish Kanhaiyya”, which showed a young child “Bal Krishna” residing in a family
whose life was disturbed, and proceeding to solve all troubles. This idea, though
novel, was not per se sufficient to lend uniqueness and confidentiality. What was
important, however, was that it was developed in details as set out in Exhibits B
and C of the plaint in that case. The idea was developed into an expression.
There were various concept notes, character sketches, detailed plot of the first
episode and ten episodes. Based on this material, which was shared with the
Defendants, it was held that the material was both unique and confidential, and
12
was entitled to the protection of the Court.
The next question is of handing over of the information in
circumstances of confidence or in a relationship of confidence between the
parties. Not much elaboration is necessary for this particular element. It would
always be a question of fact whether or not it is so.
The next important question is, whether the material shared by the
13
plaintiff with the defendant is actually being used or threatened to be used by the
defendant unauthorisedly, i.e. without the licence of the plaintiff. Even here a
couple of difficulties present themselves in most cases. There is ordinarily no
difficulty if one has to compare two completed artistic works or literary works. It is
for the Court then to find out whether the form, manner of presentation or
expression of the two works display a sufficient and substantial similarity so as to
form an impression that the offending work is a copy of the original work. The
difficulty arises when it is not two completed works of art or literary works that we
need to compare. If we were to compare, let us say, a story and a play or movie
which is said to use or plagiaries the story disclosed in confidence, these
difficulties would ordinarily be presented. For in that case, there will be several
distinguishing features which set apart a completed work of art, namely, a play or
a movie, from the story used to create it, which would be dissimilar or which
would be different from the story per se. There will be different scenes, different
characters or elements introduced, different dialogues, and yet the play or the film
may be a complete rip off or a close adaptation of the story. The Courts have
grappled with such cases in various ways. One of the well known doctrines used
for the purpose is the “spring board” doctrine. It may well be that the defendant
uses the plaintiff's idea as a spring board and then devises some additional
material to produce a work. If the original idea was conveyed by the plaintiff to the
defendant as a matter of confidence and the defendant uses it as a spring board
to develop his own work, in an appropriate case, the defendant may still be liable
for breach of confidence. This was explained by our Court in Zee Telefilms
(supra), as follows :
“12. With regard to the requirement of form and degree of
development of information or ideas, learned counsel for the
plaintiffs placed strong reliance on Seager v. Copydex Ltd.,
(1967) 2 All ER 415. In this case the plaintiff, in the course of
discussion with the defendants of a carpet grip described as
'the germ of the idea' for a different form of carpet grip which
the plaintiff had devised. Later the defendants developed and
marketed the carpet grip which was unwittingly based on the
plaintiff's alternate type of grip. The Court of Appeal concluded
that the plaintiff's idea was 'the springboard' which enabled the
defendants to devise their own grip and held that the
defendants were liable for breach of confidence. The learned
counsel also referred to a judgment of Megarry J in Coco v.
A.N. Clark (Engineering) Ltd. (1969) RPC 41 where springboard
doctrine was elaborately discussed. He also referred to a
judgment in Franchy v. Franchy (Extension Ch D), (1967) 5
Reports of Patent and Design and Trade Mark Cases 149
where Cross J. observed:-
"Clearly a claim that the disclosure of some information would
be a breach of confidence is not to be defeated simply by
proving that there are other people in the world who know the
facts in question besides the man as to whom it is said that his
disclosure would be a breach of confidence and those to whom
he has disclosed them." ”
14
Lastly, it must be noted that at the prima facie stage, the Plaintiff is
not required to prove these matters. What he needs is to address them and show
that he has a seriously arguable case in relation to each of them.
15
Let us now see how this law is to be applied to the facts of our case.
In the first place, it is clear from the averments of the Plaintiffs in paragraphs 11
and 78 of the plaint that the confidential information, which was shared by the
Plaintiffs with the representatives of Defendant No.1, was in terms of the concept
notes being Exhibits A-1 to A-12, and this information was shared in
circumstances of confidence, particularly having regard to the Defendants’
promise that the television series would
be produced by Plaintiff No.1 and
telecast by Defendant No.1, based on the Plaintiffs’ concept notes. Each of the
emails, by which the concept notes forming part of Exhibits A-1 to A-12 were
shared by the Plaintiffs in confidence from time to time in view of the launching of
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the plaint.
the television series “Badki Bahu”, has been produced by the Plaintiffs along with
The averments in the plaint and the material produced therewith
sufficiently establish the first two aspects of confidentiality for the purposes of this
ad-interim application. There is an identification of the information claimed to be
confidential and this information was conveyed in circumstances of confidence to
Defendant No.1. Let us now consider whether the information was unique or
novel and not forming part of the public domain. The information in the form of
Exhibit A, which was the original bare concept note, and further developments of
this concept note into different versions and materials in the form of Exhibits A-1
to A-12, prima facie indicate that this information or material is new and not
ig
already in public domain. Learned Counsel for the Defendants submits that there
is nothing new about an older girl marrying a younger boy and the resultant
difficulties faced by them in their family during the marriage. Learned Counsel
would also have us compare this material with the Defendants’ own TV serial
called “Astitva”, where a much older girl marries a younger boy and some
problems ensue as a result. Whilst there is nothing new in this idea or thought or
indeed in the idea of the Defendants' own TV serial “Astitva”, it is the setting in
which the story is cast, the characteristics and backdrop of the family,
the
characterization of the protagonists and other important characters, the trigger
points leading to different dramatic situations and the handling of these situations
by the two protagonists with its accompanying dramatic elements are all matters,
which lend a certain uniqueness to the material. It is these elements, as may be
seen from the material produced with the plaint, which are peculiar to the
Plaintiffs' concept and make it both unique and subject matter of confidence. On
the other hand, a broad comparison with the Defendants' serial “Astitva” with the
Plaintiffs' concept notes makes it abundantly clear that the various essential
elements of the two works, namely, the serial “Astitva” and the concept notes of
the Plaintiffs, are materially different. All elements of confidentiality of the
information are, in my opinion, thus, adequately satisfied at least at this prima
facie stage. There is identification of the confidential material; and this material is
shown to be original and not already forming part of public domain; and having
potential uniqueness and attractiveness from the point of view of a new TV serial.
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In this behalf, the Defendants' contention made through the affidavit
16
nmsl 7852015.doc
of one Ms.Dorris Day also needs to be considered. It is submitted by the
Defendants through this affidavit that the various important elements forming part
of the purported concept notes of the Plaintiffs were actually developed through
inputs given by the Defendants. At this prima facie stage, it is not possible to
believe this statement. As indicated by me above, each of the concept notes
forming part of Exhibits A-1 to A-12 has been submitted by the Plaintiffs to
Defendant Nos.1 and there has always been a one-way traffic in this behalf.
There is nothing on record to suggest that the Defendants had at any time before
the disputes arose between the parties actually took the position or claimed that
ig
any of this material was in fact generated by the Defendants. In fact, the admitted
fact that Defendant No.1 went as far as to place an offer before the Plaintiffs to
either buy the concept outright or pay a per episode royalty puts paid to the
Defendants' case that the material was actually generated by the Defendants.
17
The circumstances of the case, noted above, and particularly
indicated in paragraphs 11 and 78 of the plaint, clearly imply that the information
was parted with by the Plaintiffs in circumstances of confidence, which cast an
obligation on the Defendants to maintain confidentiality and not use the material
without the licence of the Plaintiffs.
18
That brings us to the important topic of whether or not the
information is actually used or threatened to be used by the Defendants.
Dr.Tulzapurkar, as noted above, submitted that it was not possible for this Court
to arrive at any conclusion as to the breach of either confidentiality or copyright
without first actually seeing the Defendants' material, which is available in the
form of the first 10 episodes of the serial expected to run about 780 episodes.
Just as Dr.Tulzapurkar vehemently submitted that I must actually see the
episodes, I have steadfastly refused to do so. And there is a good reason for
doing so. We are not, as noted above, comparing here two completed artistic or
literary works. In the case of two completed works, as noted by me above, what
we have to see is the form and the manner of presentation or expression, and the
various actual dramatic features forming part of the two works, to make up our
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mind as to whether or not the offending work is a copy of the original. In such a
case, we essentially deal with the form of expression and the various nuances
respectively used by the two works to bring out and develop the theme, but in this
case, we are concerned, on the one hand, with a concept note in the form of the
concept or theme of the serial, the broad story line, pitchline, the plots, tracks,
family tree, characters, set design, jewellery design, etc. which are all matters of
concept, yet sufficiently developed to lend a certain uniqueness and
confidentiality to them and on the other, with the completed work of the
Defendants in the form of first ten episodes of the serial. The elements of the
concept notes cannot be appropriately compared against the various nuances
ig
and elements of detail developed by the Defendants to portray the material. In
fact, if at all, the Defendants’ material will have to be stripped of all these nuances
and embellishments and seen as a conceptual material so far as the theme, the
story, the plots, the characters etc. go and then to compare the two works to see
if the offending material in fact copies the Plaintiffs' concept notes. And for this
exercise, there is already adequate material before this Court, placed by both the
parties. Even if we consider the common material emanating from both the
versions, namely, the version of the Plaintiffs and that of the Defendants, it is
possible to make out a case that the Defendants’ work is an imitation or a rip off
of the Plaintiffs' concept notes. The Defendants no doubt have shown that there
are several characters in the Defendants' serial, which do not exist in the
Plaintiffs' work. So also, there are various elements and embellishments, which
are not to be found in the Plaintiffs' concept notes. For example, it is claimed that
the characters of the great grandfather or his elder brother, the great
grandmother, the third son or the third son’s daughter-in-law, which exist in the
Plaintiffs' concept notes of “Badki Bahu”, are not there in the Defendants' story of
“Badi Devrani”. So also there are some characters, which are not to be found in
the Plaintiffs' concept such as the elder son, his son, elder son's daughter-in-law,
etc. These are insignificant matters. So long as the Defendants' work portrays the
Plaintiffs’ concept notes, additions or deletions of a few characters here and there
do not really matter. So also, the Defendants tried to make out a case that even
the characterization of the two protagonists and the other characters in the two
works are dissimilar. For example, the Defendants point out that whereas the
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male protagonist of the Plaintiffs’ concept notes is a fun loving person, pleasant
and full of energy, but directionless, though joking and playing around, yet
undecided about what he wants to do in life. The Defendants’ male protagonist is
actually mature and sensitive, though his ways are immature. He is very chilled
out and is not aimless and has new ideas but at his age, his ideas are not crisp
and clear. The Plaintiffs’ protagonist respects his elders a lot, but lives as per his
norms and believes in trying out new things and explores new avenues as he is
still discovering what he wants to do so in life, whilst not taking any
responsibilities. The Defendants’ protagonist believes in change and accepts the
new ways of living, but would also keep the family values in mind. We can go on
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endlessly in this fashion. What is important and clearly emerges is this : The two
characters are essentially similar and portray an identical personality. Not only
just the male protagonist, but all other important characters including the female
protagonist in the works exhibit uncanny similarities of characteristics and
mannerisms. So also, if one goes by the essence of the first ten episodes, which
is described by the Plaintiffs (and even if one were to go by the Defendants’
overall version of the episodes), what emerges is that the essence of the
Defendants' material is clearly taken from the Plaintiffs' concept notes. Based on
the material, which is produced by both the parties before the Court, I have come
to a prima facie conclusion that all the important elements from the Plaintiffs'
concept notes are copied in the Defendants' work. The following makes it clear:
(i)
The Defendants introduce the older woman (female protagonist)
and a younger man (male protagonist) in a setting of a Marwari family
based in Kolkata (same as the Plaintiffs' literary work at pages 48, 56,
108 and 109 of the plaint);
(ii)
The male protagonist introduced is a 22 year old, fun-loving son
of the family, who is modern in his approach with no interest in his
family business, but trying out new things and exploring new avenues.
He is sensitive and good natured and rooted, yet hasn’t assumed his
responsibilities (same as in the Plaintiffs' concept notes at pages 52,
68, 69, 74, 82, 90, 107, 111of the plaint);
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The character of the female protagonist introduced as a 27 year
old MBA graduate, matured, positive, unmarried girl, carrying the
burden of a past rejection which happened some years back from a
prospective groom, and as a result of which, parents of the protagonist
are eager to get her married without even minding to hide her real age
so as to settle her in her life (same as the Plaintiffs’ work at pages 68,
The male protagonist's family shown to be an orthodox
traditional
family, whilst the
female protagonist's family is a
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(iv)
69, 88, 109);
comparatively progressive, influential affluent family, yet deeply rooted
to tradition, with the father being very influential in the Marwari
community (same as Plaintiffs' literary work at pages 76, 88, 108);
A prospective alliance suggested by a close relative and such
(v)
meeting to happen at a common wedding to be attended by both
families (same as the Plaintiffs' literary work at pages 89 and 110);
(vi)
The business troubles of the male protagonist's family around
the same time (same as the Plaintiffs' work at page 111);
(vii)
Coming of face to face of the two protagonists, at a common
wedding, where the female protagonist is slated to meet a male
chauvinist natured prospective groom (same as the Plaintiffs' literary
work at Pages 89, 110);
(viii)
Insulting of the female protagonist at the same venue by a close
family member of the male protagonist, leading to so much bitterness
as to make the female protagonist’s father announce that he would get
his daughter wedded in the next 10 days (same as the Plaintiffs’ literary
work at pages 89, 111).
There is enough evidence at this prima facie stage to show that the Defendants
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are actually using the Plaintiffs' concept notes whilst making their new TV serial
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“Badi Devrani”.
We also cannot loose sight of the fact that all this is in the backdrop
of the sharing of the concept notes, the joint proposal of making a TV serial, the
LOI and finally the offer to purchase the concept outright or pay per episode
royalty. Even as entirely independent original works it would be too much to
believe that these uncanny similarities between the two works are a matter of
pure chance, but with the back drop of events, it is well neigh impossible to
20
ig
believe so.
Though the main case of the Plaintiffs, which I have considered for
the purposes of this ad-interim application, is the case of breach of confidentiality,
there is also an arguable case of there being a copyright in the material of the
Plaintiffs. Having regard to the particular character sketches in the concept notes,
the detailed setting of the dramatic material, the overall tracks, plots, family tree,
etc., the material is sufficiently developed into a concrete literary work capable of
having its own life as a copyrighted materials. It is arguable that the elements of
expression in the Plaintiffs' concept notes which are protectable under copyright
law are copied into the Defendants' work, and it is not the basic plot idea of the
story, but actual concrete elements that make up the total sequence of events
and relationships between major characters that are plagiarized, within the
meaning of the law as expounded in Livia MILANO's case (supra). It is also
possible to contend that even as a matter of copyright violation the matter would
fall within the dicta of R.G. Anand's case (supra). It is possible to say that
notwithstanding the variety of incidents which give a certain different colour and
complexion to the Defendants' work than the Plaintiffs' copyrighted work, a totality
of impression to be gathered is that by and large the former work is a copy of the
latter. These aspects though will be considered in greater details later, when the
parties put in their full pleadings and the matter is heard at the interim stage at
greater length. At this moment, it is sufficient to note that the Plaintiffs have a
statable case even of a breach of copyright and that at the ad-interim stage, the
material in which they claim such copyright ought to be protected.
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Let us now consider the case of balance of convenience. The
Plaintiffs have not only prepared the first concept note and got the same
registered, but have proceeded to develop this concept note into various
character sketches, plots and other material, which are reflected in Exhibits A-1 to
A-12, over about a year. Whilst it is the case of the Defendants that the material
actually belongs to them, the Plaintiffs cannot be presented with a fait accompli
by letting the Defendants exploit the entire material. The value of the material as
a novel TV serial material will be completely lost and the Plaintiffs will be
effectively rendered unable to use the material for their own sake. On the other
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hand, the Defendants are not likely to suffer any irretrievable damages if the
telecast of the serial is held up for a few days till the Court hears the application
at a greater length and after allowing the parties to bring in their complete
pleadings. And for the damages suffered by the Defendants in the interregnum,
there is adequate machinery available within the Code of Civil Procedure for
compensating the Defendants.
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In that view of the matter, there is a clear case made out for grant of
ad-interim injunction. There shall be ad-interim injunction in terms of prayer
clauses (b) and (c), pending the hearing and final disposal of the Notice of
Motion.
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Replies, if any, to the Notice of Motion to be filed within a period of
three weeks from today. Rejoinder, if any, within two weeks thereafter. Place the
Notice of Motion for hearing on 5 May 2015.
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Learned Counsel for the Defendants applies for stay of this order.
Considering the fact that this order grants preventive reliefs to the Plaintiffs after a
detailed hearing, such as is permissible at the ad-interim stage, I am not inclined
to consider any stay of the order. The application for stay is refused.
(S.C. Gupte, J.)
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