The issue whether a re-shot film constitutes infringement of copyright in a cinematograph film came up for consideration for the first time before the High Court of Mumbai in a very interesting matrix of facts.
Star India Private Limited, the plaintiff, is a major player in the business of producing and commissioning cinematograph films and television serials for broadcast over its various channels. One such popular serial produced and telecast by it is entitled Kyun Ki Saas Bhi Kabhi Bahu Thi (meaning "because mother-in-law was also a daughter-in-law once upon a time"). Its story revolves around the life of a business family, the central protagonists being the mother-in-law and daughter-in-law. Commenced in July 2000, the serial continues to top the popularity charts. Consequently, the serial, its characters and their names were claimed to have acquired tremendous public goodwill and identified exclusively with the plaintiff.
In February 2002, the plaintiff came across a 30-second television commercial by the defendant for its Tide detergent, using the title Kyun Ki Bahu Bhi Kabhi Saas Banegi (meaning "because the daughter-in-law will also become a mother-in-law some day"), featuring identical characters played by the same artists.
The plaintiff sought an order of injunction against the commercial, principally contending that:
-
the overall impression of any viewer seeing both the works would be that the defendants' commercial is a copy of the plaintiff's serial and thus an act of copyright infringement therein;
-
an ordinary person, viewing the commercial, would get an unmistakable impression that it is authored or endorsed by the plaintiff, resulting in deception and confusion amounting to passing-off, and defeating the plaintiff's character merchandising rights.
After due consideration of the law and facts, the court rejected both the aforesaid claims, finding that:
-
the expression "to make a copy of the film" under section 14(d)(i) of the Act refers to a physical copy of the film itself and not a separately shot film merely resembling the film; as such, the subsequent film is not an infringing copy;
-
no case of passing-off was made out, considering the fact that the plaintiff's film is a long soap opera and the defendants' film is a 30-second commercial; further, the claim of passing-off based on merchandising rights failed since it had not even begun any character merchandising activities.
Based upon the above findings, the plaintiff's motion for an interim injunction was dismissed.
Rajendra Kumar
