On Appeal High Court Held as under-
27. I find it difficult to accept much of this. Indeed I would question the assertion that the concept of an acting-based talent hunt is unique, novel, distinct or that it was first adopted by Zee. That needs much more material, and I can find it nowhere in these papers. If this is proved, then undoubtedly some level of protection will follow. But merely making this assertion is not enough. This passage incidentally is with reference to paragraphs 8, 9 and 10 of the plaint and, at the cost of repetition, as we have seen those paragraphs do not set out with sufficient precision what is either unique, novel or distinct.
28. Sony has clearly stated in its Affidavit at paragraph 17 (Notice of Motion paper-book page 19) that none of the elements in paragraph 10 feature in Sony’s show. Again there is the question of whether Zee was better advised to wait for the telecast; but it has chosen its path and little is gained by speculating of what might have been.
29. Dr Tulzapurkar does not rest at this. He is at some trouble to show that Sony has had talent shows of one kind or the other long before they could be said to have been the proverbial twinkle in Zee’s eye. Sony’s engagement with talent shows goes back to 1996. It says so in its Affidavit in a tabulation in paragraph 16 and it mentions different shows between 1996 and 2016. These include the early Boogie Woogie dance reality show of 1996, the later Indian Idol show and so on. Details of these are to be found in Exhibit “A1” from page 42 onwards. There are details of singing talent hunts, comedy shows, and at page 48 of children’s acting shows. This is actually very interesting because Exhibit “D”at page 48 shows two children’s talent show by other channels dating back to 2005 in India and also contains a listing of similar shows overseas. I imagine that both these are far from complete and are only meant to be illustrative. In paragraph 18 of its Affidavit in Reply, Sony points out there are elements that Zee claims to be unique —for example a contestant being awarded a prize or being asked to thank his or her parents or mentor —but these claims are fanciful. Even the question of the character of one of the judges (supposed to be someone of a maternal bent) is not unique.
30. Sony has its own production bible. Dr Tulzapurkar took me through parts of it. I do not think it is necessary to reproduce all of this at this stage. It is sufficient to say that having seen this and having seen Zee’s production bible annexed to the plaint, I am satisfied that the two are entirely different works and I have yet to see from the Plaintiffs anything convincing to show that Sony’s work is a substantial copy of Zee’s work.
31. One of the crucial elements in Sony’s work is the introduction of what is called a guru-shishya principle where there is a mentor to the child artist. The performances are not only by the mentored children but also by the mentored children with their mentor as a duo. There are also specialized sets of Rules, Regulations, Forms, Terms and Conditions and a completely unique set of Frequently Asked Questions or FAQ.
32. As to Mr Kadam’s claim that Sony’s production bible arrived with surprising despatch, Dr. Tulzapurkar says that what is not pointed out is that between October 2016 and December 2016 Sony had a dancing talent hunt show with its own format and that this show, called Super Dancer, also had a mentor choreographer and was in just the 4-13 age group and featured a similar time slot. Sony began working on its present show using one of its own earlier formats.
33. I believe Dr Tulzapurkar is also correct in saying that given this complexity and the manner in which these shows are put together it would be simply unthinkable to grant a monopoly in such wide, non-specific and fuzzy terms. That would stifle all creativity and put an end to all talent shows of every description. Dr Tulzapurkar is correct, I think, in his reliance on the decision of the Supreme Court in R.G. Anand v M/s Delux Films & Others. That contains the classical statement of law on copyright in paragraph 46.
“46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
2. 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 such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the Defendant’s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, 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.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the Plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the Defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeking the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.”
34. I must test the available material, the commonalities and the broad dissimilarities, and see whether I have before me what the Supreme Court in RG Anand describes as clear and cogent evidence. I do not have such material before me at all. The role of judges is of course generic and Zee itself accepts this, but the individual roles assigned to the various judges in the two shows are very different. Having seen the two production bibles, in my view, the manner in
which the selections are made and the trajectories of the two shows are quite distinct. The fact that both feature children, the fact that both seek out children with acting talent, the fact that they seek out children with acting talent from different cities, and the fact that they seek out the best of these is hardly something in which anyone can claim any copyright.
35. Mr Dwarkadas for Defendants Nos. 2 to 4, apart from adopting the arguments advanced by Dr Tulzapurkar also drew my attention to an earlier Philippines show, references to which are at page 146 of the Notice of Motion paper-book. It is no answer, he says, and I think correctly, for Zee to say that the Defendants have pointed out only one previous example. In a copyright infringement action even one prior instance is enough. So far as Frames was concerned, its role was limited. It was contracted to be a producer and to develop the show and its role did not extend any further in this.
36. Having regard to all these circumstances, I do not think that I am in a position to grant Zee the injunctive reliefs it seeks. I must dismiss this Notice of Motion.