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TMI Blog2015 (12) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... despite the Agreement with Zee. A more helpful comparison is the one that is provided by Star India in paragraph 20 of its Reply, and it shows the very marked difference between the two works 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. This is where the Plaintiff’s case fails the Beyond Dreams test, and fails it utterly. Gupte J held that a first pre-requisite was to identify the confidential information itself. That is not done. Second, it must be material not in the public domain. The 'crux and essence’ claimed by the Plaintiff sits squarely in the public domain. Then, the material disclosed must be sufficiently developed to lend itself to realization; and this takes us to the springboard or kernel doctrine, which has it that breach of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff s partner, Nanditaa Kothari, was the author of the work in question. There is also a controversy about the circumstances of confidentiality alleged by the Plaintiff. All this is independent of their case that there was, in fact, nothing unique or special disclosed to Star India, and that the so-called infringing work is an entirely separate work independently conceived and created. 3. I heard Mr. Daver for the Plaintiff, Dr. Tulzapurkar for the 1st Defendant and Mr. Ravi Kadam for the 2nd Defendant at some length on Friday, 11th September 2015. I placed the matter for orders on 15th September 2015. In the time between those dates, even while the judgment was under preparation, Mr. Daver mentioned the matter on 14th September 2015 at 3:00 pm and sought leave to file written submissions. I permitted him to do so, provided they were filed by 3:00 pm on 15th September 2015 and placed the matter for directions at that time, since I did not then know if the Defendants wished to respond to those written submissions. I permitted Mr. Daver and the Plaintiff this indulgence only to leave no room for controversy or complaint that the Plaintiff had not been given the fullest opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentatives of Star India. At this time, Star India expressed its lack of interest in further developing this work. In early 2014, Ms. Kothari sought to pitch further concepts to Star India. On 19th February 2014, Ms. Kothari approached Zee with the concept note in question. This was carried further by Zee. In September 2014, Ms. Kothari severed ties with Baba Arts. The Plaintiff was constituted on 30th April 2015. On 9th June 2015, Ms. Kothari assigned her copyright to the Plaintiff, of which she and her husband are partners. (Motion paperbook, pp. 254-256.) The Plaintiff continued discussions with Zee and these culminated in a Development Agreement dated 9th July 2015 between the Plaintiff and Zee, (Plaint, Ex.T, pp. 112-139A.) pursuant to which Zee proceeded with the development of the TV serial. On 10th August 2015, Zee s programming head telephoned the Plaintiff saying that a promotional video had appeared on YouTube for a new serial by Star India that seemed to be very similar to the project being worked on by Zee with the Plaintiff. Zee apparently told the Plaintiff it could not act further on the Development Agreement. On 15th August 2015, the Plaintiff sent a notice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Plaintiff. I think it is fair to say that the question of assessing any similarity will arise only if the Plaintiff can successfully meet these three contentions, all of which are in the nature of threshold or in limine defences. I will, therefore, address these three questions first before turning to the fourth defence, which is, naturally, that the works are dissimilar and there is no infringement. THE CLAIM TO SOLE AUTHORSHIP 9. The Plaintiff says that Ms. Kothari is the sole author and absolute owner of the literary work in question. This is specifically said to include and encompass: the concept, story, character sketches, thoughts, expressions, pitch lines, plot, tracks, screenplay, etc., along with a brief outline of three episodes. This is the description used by the Plaintiff throughout. (Plaint, paragraph 5; Affidavit in Support of the Notice of Motion, paragraph 3, Motion paperbook p. 9; Rejoinder Affidavit, paragraph III, Motion paperbook p. 214; written submissions, paragraph 1.) Ms. Kothari is said as the original author of this literary work to have registered it with the Film Writers Association on 29th November 2012 in her own name. The Plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section plainly 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. The process involved in copyright registration is, as Dr. Tulzapurkar correctly points out, very different from that required for sealing of patents. Indeed, this is as it must be, for although the Registrar may make such enquiry as he thinks fit under Section 45(2), this enquiry is discretionary. The purpose of Section 48 is not to conclude proof of authorship but, as a matter of evidence and procedure, to allow into evidence certified and sealed copies or extracts without requiring proof or production of the original register. Where, in a given case, there is material to indicate, even prima facie, that the claimant to copyright is not the sole or first author, that presumption is rebutted. The first owner of copyright is the author under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said emails. (Emphasis added) 13. This raises more questions than it answers. The emails in question are produced by the Plaintiff itself. They are of a time before Ms. Kothari began working with Baba Arts. They show Mr. Tyagi to have worked on the 'Literary Work in question. Mr. Tyagi was therefore not an employee of Baba Arts. Nor was Ms. Kothari. The suggestion in the pleading that Ms. Kothari 'after working on the said Literary Work discussed its further development with Mr. Vipul Kothari of the Plaintiff is at the very least misleading to the extent that it suggests that she alone worked on the material. In paragraph 3(a) of the written submissions, the Plaintiff carefully changes tack ever so slightly. It says: 3 (a) ... The Plaintiff has attached two emails dated 10th September, 2012 and 18th September, 2012 and referred to the same vide paragraph VII of the Rejoinder Filed By Plaintiff (Exhibit B, Pg. 244 and Exhibit C Pg. 245) which indicates that the partners of the Plaintiff were in discussion with each other and person s contracted by the said author with regar d to the said Literary Work titled 'Yeh Tera Ghar Yeh Mera Ghar on such dates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creenplay, as we have seen, is specifically included in the Plaintiff s definition of the 'literary work in question. Again, it is unclear whether Ms. Kothari was moonlighting and on her own commissioning further work on the material from third parties or whether these third parties were under contract to Baba Arts. Either of these two scenarios jeopardises the Plaintiff s entitlement even further. THE ASSIGNMENT TO ZEE 15. What is the effect of the Development Agreement dated 9th July 2015 between the Plaintiff and Zee at least as regards the continued vesting of copyright (if any) in the Plaintiff?(Plaint, Ex.T, pp. 112-139A.) Some of the clauses of this Agreement are important and should be noted. In this document, the Plaintiff is described as Production House and Zee Entertainment Enterprises Limited as Zee . 1.2 Initial Concept means the initial concept pitched by the broadcaster for a new television series. The Initial Concept along with release form is attached as Schedule 1 to this Agreement. 1.4 Developed Concept means the new developed concept which was created as a result of mutual efforts of Zee and Production House and the same is attached a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Works shall vest with Zee, free of all encumbrances with effects from the moment of conceptualization, development or creations of such Works. Production House shall have no rights in or to, or to use, copy or otherwise dealt with,the Works in any manner. 5.8 The Production House hereby further acknowledges and agrees that notwithstanding the provisions of the Indian Copyright Act 1957, and the amendments thereof, all assignments granted or to be procured under this agreement shall not lapse or revert to Production House, even if Zee and/or its Assignees do not exercise any of the rights assigned under this Production House acknowledges and agrees that Zee is not obligated to use the Works or any part thereof or otherwise exploit the Works in any manner whatsoever or continue to do any of the foregoing. The obligations set out in the clause shall survive the termination of the Agreement. 6. Process of Development Work 6.1 ... 6.6 Upon expiry of the Term or failure of the Parties to agree on the terms for production of the Series, the Production House shall have the right to exploit the initial Concept at its discretion after expiry of a period of six (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the suit, any copyright that though once assigned to Zee has 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. 17. A suit such as this one can only be brought by the owner of copyright . This is defined in Section 54 of the Copyright Act, and the civil remedies of such an owner are set out in Section 55. The former says that the owner of a copyright includes an exclusive licensee. That would appear to be Zee, absent any re-assignment to the Plaintiff: even if Ms. Kothari was the first owner of copyright, there is today an exclusive license to Zee. That assignment to Zee, being complete, exclusive and in perpetuity, occludes Ms. Kothari s rights as the first owner; and, consequently, the Plaintiff s rights as an assignee from Ms. Kothari, both of which preceded the assignment to Zee. 18. Then there is the question of the marked difference between the literary work in which copyright is claimed, annexed as Exhibit A to the Plaint,(Plaint, pp. 35-51.) and the document at Schedule 1 to the Agreement wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint a material misdirection. In paragraph 23, the Plaintiff says that Ms. Kothari ceased to work with Baba Arts. In paragraph 24, the Plaintiff then says that she and her husband, Mr. Vipul Kothari, formed the Plaintiff. There then follows this statement: and Ms. Nandita Kothari assigned several literary works including the said Literary Work and all its related works and materials to the Plaintiff company thereby making the Plaintiff Company the owner of the same. This clearly suggests that the assignment to the Plaintiff was some time in 2013 or 2014. Any doubt about what is being averred is disspelled by the opening words of the succeeding paragraph 25: 25. Pursuant to the above, in February 2014, Ms. Nandita Kothari approached Ms. Atmaja Unny representative for Zee to discuss the concept and storyline titled Yeh Tera Ghar Yeh Mera Ghar and thereafter after receiving an approval for the same verbally, presented the concept and the storyline to Zee. Annexed hereto and marked as Exhibit M is a copy of the email dated 19th February 2014. This clearly suggests that the copyright assignment by Ms. Kothari to the Plaintiff was before February 2014. That document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kothari as the owner of the copyright. What the Plaint does not disclose is that one Nikhil Tanwani signed a Release Form of that date (Motion paperbook, pp. 190-193.)on behalf of Baba Arts. This is not the only such form he signed. There is a previous one of 30th August 2013 in respect of another proposal as well. (Motion paperbook, pp. 186-189.) Across the Bar and in its written submissions, the Plaintiff took a very strange tack: it disclaimed all knowledge of Nikhil Tanwani s signature on this form, and claimed that he had no authority to do so. The Defendants claim that both Ms. Kothari and Mr. Tanwani in terms said at the meeting that the latter had the authority to sign that release document. There is also nothing to indicate in subsequent emails that Ms. Kothari made the pitch or presentation on her own and independently of her engagement with Baba Arts. In fact, the preceding correspondence indicates to the contrary. The email dated 18th June 2013 from Ms. Kothari to Star India appears to be for some other show, but it attaches a profile of Baba Arts and is copied to Mr. Tanwani. (Motion paperbook, p. 55.) Similarly, the email dated 3rd July 2013 from Ms. Kothari to Star I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... throughout. 24. In any case, whether or not Mr. Tanwani was a 'director on the Board of Baba Arts Ltd is hardly relevant. Dr. Tulzapurkar is completely correct when he says that Star India was entitled to assume that he had the authority to execute the release form; the company s profile showed his name in some sort of official capacity as part of the 'team with the assigned role of 'Business Development ; (Profile document, separately tendered.) he is the son of the promoter of Baba Arts; Ms. Kothari s emails were copied to him; and Ms. Kothari did not object to his signing the release form either then or later. 25. This is of consequence because the case is that the disclosure was made by Ms. Kothari and not by her on behalf of Baba Arts Ltd. Other than the copyright notice on the slides, there was nothing till that time to show that Ms. Kothari was contacting Star India on her own. If that were so, we do not know why Baba Arts was brought into the frame in the first place. Now in an action of this sort, an essential ingredient is not just the disclosure in circumstances of confidentiality, but also the knowledge of the person to whom disclosure is made that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Plaintiff. Indeed, it seems to me most unlikely that Ms. Kothari did not know of the signing of this Release Deed, or that it was signed separately by Mr. Tanwani elsewhere out of sight of Ms. Kothari (who does not even say so), especially since Star India says this is standard procedure, and without a release deed it does not even enter into any discussions. Indeed, even on the Plaintiff s own showing, this seems to be an industry-wide standard: the Plaintiff itself signed a similar release deed with Zee.(Plaint, pp. 125-127.) There is in addition the other material regarding Mr. Tanwani s involvement to which I have already referred. 27. If this is so, it is material. 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.(Motion paperbook, pp. 191-193.) Clause 1 says that the proposal is being made voluntarily and is unsolicited. Clause 9 then says that the proposal and its constituent elements (script, outline, drawing, etc) have been duly summarized in Schedule A, and that it is only those features that have been disclosed. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st family is unique and is 'the crux and essence of the Plaintiff s work, (Plaint, paragraph 41, p. 16.) this is almost certainly incorrect. 33. There are two documents produced by the Plaintiff to show this similarity. The first is the 'literary work in question annexed to the Plaint as part of Exhibit A ; (Plaint, pp. 35-51.)and the second is the powerpoint presentation said to have been sent to Star India. (Motion paperbook, pp. 71-99.) The copy of the latter annexed to the affidavit is difficult to read, being a particularly poor monochrome photocopy on green ledger paper; a colour printout was provided in Court. The trouble with both is that they are set out in Hindi written not in Devnagari, which would have been comprehensible, but in our regular English alphabet. I have considered both these, and they do not seem to me to be anything at all like the 2nd Defendant s concept. The latter seems to have at least an underlying pathos and a definite edginess or menace. The Plaintiff s work is lighter in tone, and directed more to comedy. In neither version of the Plaintiff s work do I find this revenge motif. The slide at page 70 speaks of one Tilak Ambani investing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Zee. A more helpful comparison is the one that is provided by Star India in paragraph 20 of its Reply, and it shows the very marked difference between the two works. (Motion paperbook, pp. 174-176.) 36. 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. 37. This is where the Plaintiff s case fails the Beyond Dreams test, and fails it utterly. Gupte J held that a first pre-requisite was to identify the confidential information itself. That is not done. Second, it must be material not in the public domain. The 'crux and essence claimed by the Plaintiff sits squarely in the public domain. Then, the material disclosed must be sufficiently developed to lend itself to realization; and this takes us to the springboard or kernel doctrine, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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