Case Law Details
A far more fundamental issue with this approach and this so-called litigation strategy or courtroom gambit. I am now making it clear once and for all that these attempts at snatching last-minute injunctions, unfairly prejudicing the other side, and putting other litigants to real hardship (not mere inconvenience), let alone putting Courts and their infrastructure under pressure, will not be tolerated. Our Courts are not meant for these frivolities. They are not meant as playgrounds where any person with a fanciful notion can come at the last minute and demand as of right that all other work be set aside and all other concerns be relegated to second place.
Mr Saboo for the Plaintiffs seeks urgent circulation of a Notice of Motion in this Suit. He says that there is urgency because the Defendants’ film Phillauri, alleged to be in violation of the Plaintiffs’ copyright in their 2013 Gujarati, Bhojpuri and Nepali film Mangal Phera, is slated for public theatrical release just a few day hence — this very Friday, 24th March 2017.
The Plaintiffs say that they learnt on 24th February 2017 from a trailer dated 6th February 2017 that the Defendants were releasing their film Phillauri a month later, i.e., this Friday, 24th March 2017. From the trailer the Plaintiffs believed that there were substantial similarities and Phillauri was a copy of Mangal Phera. In paragraph 16 of the plaint, there is a tabulation set out of the so-called similarities. There are 20 points listed. Of these several are evidently frivolous: Item 16 (“The background showing a palace”); Item 17 (“Different angles of shot of the introduction of the love interest whose body the Spirit possesses”); Item 18 (“Love scenes (various) of the person whose body is possessed with his love interest”); Item 19 (“Item song depicting celebration”); and Item 20 (“The emotions crying scene Spirit possessed person”). I will put this aside. I will look instead at what the Plaintiffs say is original and unique. Mr D’Costa has taken me through this table. He says the ‘originality’ lies in the narrative of an accursed woman being forced to marry a tree only to discover there resides in it a spirit to which (or whom) she is then wedded. The spirit emerges from the tree, claims to be her husband and this prohibits her from marrying the male protagonist of the film. The film is some sort of horror film. Mr D’Costa readily concedes that from this point on, the treatment by the Defendants in Phillauri is entirely different and he claims no copyright in the rest of it. It is his case that the copyright resides in this narrative trajectory to the point where the spirit emerges from the tree and proclaims himself to be the female protagonist’s wedded spouse. This is the original work of the Plaintiffs, one never conceived before. He does not claim originality in the concept of a woman being ‘manglik’ or of the ritual or tradition of her being forced to marry a tree, something that he describes as ‘traditional’ in our society. He says that all that the Defendants have done is to switch the gender of the characters: the protagonist in Phillauri is male, not female, and the spirit in Phillauri is female, not male. In his submission, this is a distinction without a difference because the original concept or ‘kernel’ has been lifted and copied in its entirety. This is the sum totality of his case. In fairness, he has not said that the whole of Phillauri is a shot-by-shot or scene-by-scene copy. According to him, the originality lies in the sequencing and narrative up to the point of the ghost or spirit emerging from the tree, in turn based on a known tradition, ritualism or religious practices in this country and their societal consequences. He does say the Defendants have copied the ‘basic idea and concept’ from the Plaintiffs’ film of 2013, and if anyone should view the two works side-by-side (I imagine that might be difficult, and he means one after the another), he or she would inevitably conclude that the Defendants’ later work Phillauri is a substantially slavish imitation of the Plaintiffs’ prior original work Mangal Phera.
The next argument from Mr D’Costa that the concept of a ‘manglik’ man marrying a tree is unknown and that such a man must instead performing a ‘yagna’ to rid himself of his accursed condition. If that is so, it is surely a self-defeating argument, for it makes the Defendants’ treatment and film if not unique at least sufficiently distanced from the Plaintiffs’ work. In any case, this is entirely irrelevant to the Plaintiffs’ cause; the fact that the Defendants have not adopted what Mr D’Costa claims is the ‘traditional’ ritual applicable to a male ‘manglik’ does not on its own make the Plaintiff’s work original. To succeed in such an action, a plaintiff must first demonstrate originality in his or her own work, not merely show the lack of it in the defendant’s. He must then show sufficient similarity between the defendant’s work and his.
Both must be shown. In this case, neither is, at least at this prima facie ad-interim stage. A ‘manglik’ woman being married to a tree that has a spirit in it is not unique or original; nor is the emergence of said spirit from aforesaid vegetation. Mr D’Costa’s concession that his claim stops at this, and the rest of the Defendants’ work is nothing like his clients’ is fatal to their cause. The presentation of stills from the two works is even more unfortunate, for if this demonstrates anything it is that the Defendants’ work is a wholly different one from that of the Plaintiffs’, and in almost every single respect that matters in a copyright infringement action.
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