Article: When Does Adaptation of a Film Constitute an Infringing Copy?

Author: Janaki Arun

Introduction

Section 2(m)(ii) of the Copyright Act, 1957 states ‘infringing copy’ means “in relation to a cinematographic film, a copy of the film made on any medium by any means”. Which film-adaptation or remake is covered within the meaning of ‘copy’ and which isn’t? What is the legal test to determine whether an adaptation or remake of a film constitutes or does not constitute an infringing ‘copy’? 

This statutory interpretational issue is increasingly in contention as the market for adaptations and other remakes expands. Cinematic works are being re-created and adapted across borders and genres. Sometimes regional films are remade from one language to another and sometimes films from one country are remade in another. Both linguistic and cultural elements may be adapted in a remake. Always the possibility exists that the adaptation or remake amounts to a copy that infringes copyright in the inspiring original. 

Substantial Copying Test

If a film, on side-by side comparison with an earlier work, appears to be a substantial copy such that without the said ‘substance’, the film would be incomplete, should then and only then such an adaptation be found to constitute infringement? This ‘substantial copying’ test was laid down in R.G. Anand v. Delux Films [1]. The Supreme Court [Raja Jaswant Singh, R.S. Pathak and S. Murtaza Fazal Ali, JJ.] held that: “…Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur… in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy…”

Is this requirement of substantiality and materiality only an overall aspect or is to be broken down into elements for a granular application of the test? 

Both aspects were emphasized as legitimate by a single judge bench of the Delhi High Court [Anil Kumar, J.] for examining whether the television serial ‘Time Bomb’ was substantially copied from the well-known television serial ‘24’ in the case of Twentieth Century Fox Film Corporation v. Zee Telefilms Ltd. and Ors. [2]. 

Multiple element-wise applications of the test in any case immediately raises the question of their numerical aggregation as being determinative. The ‘24’ vs. ‘Time Bomb’ decision avoided this conclusion by describing the test as being a qualitative one instead of a quantitative one – “In considering the question of substantiality, the similarities between the program should be considered individually and then it should be considered whether the entirety of what had been copied represented a substantial part of the plaintiff’s program. Whether a part was substantial is to be decided by its quality rather than by its quantity…” It was on the qualitative differences between the two television serials, prima facie, that to this court the two appeared substantially different. 

Average Viewer Test

To whom, however, should the qualitative similarity be apparent? A film critic or a film connoisseur or an average film viewer or an ordinary person of no more than ordinary interest in films? In which socio-cultural-regional context should this person be conjured whose perspective should determine the application of the test of similarity?

The average viewer is sometimes taken as the person with the applicable perspective. In Twentieth Century Fox Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. and Ors. [3], for example, a single judge bench of the Bombay High Court [R.S. Dalvi, J.] observed that “the test of concluding whether the second work is a pirated copy is the impression of the average viewer…” and accordingly found that the film ‘Knock Out’ infringes copyright in the screenplay of the film ‘Phone Booth’. 

Scènes À Faire Test

If, instead of an average viewer, the test were to be applied through the sensibility of even a film enthusiast if not a film connoisseur, it would be realized that certain scenes in any film are almost mandated or customary on account of belonging to a particular genre, hardly unique to any one film. Examples of such ‘scènes à faire’ are electricity failing in a horror film or high-speed chase sequences in robbery films, etc. 

This doctrine, of course, begs grouping together films into a common genre, a meta cognitive act that might still have some subjectivity. Some courts have liked to apply it, though, such as for example a single judge bench of the Bombay High Court [G.S. Patel, J.] in the case of Mansoob Haider v. Yashraj Films Pvt. Ltd.  [4]. This Court was examining whether the film ‘Dhoom 3’ infringes copyright in the script of his film ‘Once’. While answering the question whether there was substantial and material overlap with the original elements in the original work, the Court found that if all ‘scènes à faire’ were removed, the entire suit would fail since there was no similarity between the films, and therefore held that no prima facie case was made out.

Conclusion

If the various legal tests discussed above are to be attempted to be combined into a comprehensive proposition of law on the issue, an infringing copy can be hazarded by this author to be one that is a substantial copy of the original work, one that an average viewer cannot tell apart and/or one which, apart from the scene à faire, is similar to the original work. This particular manner of combination and consolidation of the various legal tests of interpretation of the statutory term ‘copy’ as occurring in Section 2(m)(ii) of the Copyright Act 1957, however, currently lacks judicial precedent. 

Endnotes

[1] R.G. Anand v. Delux Films, AIR 1978 SC 1613

[2] Twentieth Century Fox Film Corporation v. Zee Telefilms Ltd. and Ors., 2012 (51) PTC 465 (Del)

[3] Twentieth Century Fox Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. and Ors., 2010 (44) PTC 647 (Bom)

[4] Mansoob Haider v. Yashraj Films Pvt. Ltd., 2014 (59) PTC 292 (Bom)

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP