Chatrapathy Shanmugham vs S. Rangarajan

K. Gnanaprakasam, J.—The suit is one for declaration that the plaintiff is the absolute owner of the copy right of the play ''Naai Vaal'' and

for permanent injunction.

The plaint averments are that the plaintiff is the original author of a play titled ''Naai Vaal'', which is his original creation. The script of the play

was approved by the Commissioner of Police, Madras, in his Ref. No. Na. Ka. 2714/132376/82-83, dated 4-1-1984 and the play was staged at

''Swami Sankaradas Kalai Arangam, Madras on the asupices of Annai Sathya Nataka Manram, presented by Vetrivel Kalaikuzhu on 8-3-1984.

The plaintiff claims that he is the absolute owner of the copyright of the said story and the script. The 1st defendant has produced a Cinematograph

film titled ''Ore Oru Gramathile'', in Tamil, directed by the 3rd defendant. It is stated that the said film is a clear violation of the copyright of the

plaintiff''s play. The story of the said film is purported to have been written by the 2nd defendant and the theme of story of the said film is the same

as that of the plaintiff''s play ''Naai Vaal'', as may be seen from the approved script of the plaintiff. The plaintiff came to know of the violation of the

copyright of his drama by a person, who had seen the play and informed the plaintiff and whereupon the plaintiff had seen the film and came to the

conclusion that the defendants have violated the copyright of the plaintiff. The plaintiff also made a claim to the collections and earnings made by

the defendants from exhibiting the said film. The plaintiff''s notice dated 1-10-1990 was not complied with by the defendant and hence, the suit.

The 1st defendant, in his written statement, had stated that he is the producer of the film ''Ore Oru Gramathile'', and the certificate for the said

film was issued as early as 7-12-1987 and ever before the said film was realised, certain writ petitions were filed before this Court, alleging that the

story of the film was against certain sections of the Society and it was also against the reservation policy, adopted by the Government of India and

Government of Tamilnadu and writ petitioners sought for a ban against the release of the film and also for the revocation of the Censor Certificate

granted to the film. The defendants contested those writ petitions and the learned Single Judge of this Court dismissed the writ petitions, but, on

appeal, a Division Bench of this Court allowed the writ petitions and revoked the Censor Certificate. As against the same, the 1st defendant

preferred an appeal before the Honourable Supreme Court, which by its judgment dated 30-3-1989 set aside the order of the Division Bench and

permitted the release of the film and the film was released all over the State on 19-5-1989. It is stated that the theme of the film was sensational

and due to the controversies raised by the filing of the writ petitions, the proceedings had attracted wide publicity during 1988-89. Further, the film

was also given a national award by his Excellency. The President of India and the story of the film and the controversies raised therein were all

published in various newspapers and magazines and had received wide publicity. Clippings from the film were also exhibited at that time of

presentation of the National Award and they were also telecast by Doordarshan. In the said circumstances, the plaintiff''s claim that he came to

know about the story of the 1st defendants film only in January 1990 cannot be believed. It is also to be noted that though the plaintiff claims that

he came to know of the film 1990, he had instituted the suit only in the year 1993. Apart from denying any violation of the plaintiff''s right, the

defendants contend that the inordinate delay in filing the suit would disentitle him from seeking any remedy before this Court. It is further stated that

the film was released all over the State of Tamilnadu on 19-5-1989 and he had also assigned distribution rights and video rights to various 3rd

parties even before the competition of the film. In the said circumstances, the plaintiff cannot seek the relief of restraint after so many years and

after the exploitation of the film. It is stated that the film ''Ore Oru Gramathile'' was produced by the 1st defendant and the story was written by the

2nd defendant and the film was directed by the 3rd defendant. The defendants did not accept that the film is in clear violation of the copyright of

the plaintiff''s play. There is absolutely no similarities between the story of the play ''Naai Vaal'' and the story of the film. The story in the film deals

with the life of a lady IAS Officer, who was born in a family of forward caste. During her service, it was found that her father with the assistance of

a Tahsildar, who was a close family friend had obtained a Community Certificate as though she belonged to one of the Schedule Caste. When this

fact was found out, she was prosecuted. Though she pleaded to the court that it was the circumstances and the reservation policy of the

Government that forced/her/her father to obtain a false certificate. She nevertheless accepted her mistake and was punished by the Court. On the

other hand, the plaintiff''s play deals with a boy belonging to a particular community, joining a private firm after changing his caste and upon being

condemned by his father, he became a priest in a temple, where also he incurred the displeasure of the trustees of the temple and was forced to

quit the job. It is stated that the script of the 1st defendant and the plaintiff''s play would differ in all material particulars and there is no similarity

between the two and the claim of the plaintiff that the defendants have infringed his copy right has no basis. It is also stated that there is nothing a

common between the plaintiff play and the film and prayed for dismissal of the suit.

The 2nd defendant filed a separate written statement, adopting the written statement filed by the 1st defendant, wherein, it is stated that the

plaintiff has not given the comparative table in the plaint as to how the story in the plaintiff play and the story in the film are one and the same. As

the plaintiff has not furnished such a vital information in the plaint, he is not entitled to maintain the suit. It is also stated that there can be no

copyright in respect of the theme. The suit is liable to be dismissed on the ground of delay and latches on the part of the plaintiff.

The 3rd defendant filed a memo, stating that he adopts in toto the written statement filed by the 1st defendant and prayed for dismissal of the

suit.

On the above said pleadings, the following issues were framed: -

(1) Is the plaintiff entitled to a declaration that he is the absolute owner of the copyright of the play ''Naai Vaal''?

(2) Is the plaintiff entitled to a permanent injunction restraining the defendants from in any manner infringing the copy right by way of exhibition and

exploitation of the cinematograph film ''Ore Oru Gramathile'' as claimed by the plaintiff?

(3) Is the relief of permanent injunction sought for by the plaintiff barred by limitation since the suit has not been filed within three years from the

date of release of the film all over the State of Tamilnadu on 19-5-1989?

(4) Is the plaintiff disentitled from seeking the equitable reliefs of declaration and injunction on account of the fact that the suit had been filed after

an inordinate delay?

(5) Is there any similarity between the script of the plaintiff''s play ''Naai Vaal'' an the script of the film ''Ore Oru Gramathile'' produced by the 1st

defendant?

(6) Is the plaintiff entitled to the relief of rendition of true and correct accounts of the collections and profits made from the exploitation of the film

''Ore Oru Gramathile''?

(7) What reliefs are the parties entitled to?

The plaintiff had examined 5 witnesses and Exs. P1 to P6 were marked. The 2nd defendant was examined as DW 1 and one more witness was

examined as DW 2 and Exs. D1 to D5 were marked. Issue Nos. 1, 2, and 5

The plaintiff''s case is that he is the original author of the play ''Naai Vaal'' and the script of the said drama, Ex. P1 was certified by the

Commissioner of Police, Madras, stating that there is nothing objectionable is the script, by his proceedings dated 4-1-1984. The Commissioner of

Police also gave permission to stage the drama on 8-34984 in ''Swami Sankaradas Kalai Arangam'' under Ex. P2 Ex. P3 is the pamphlet showing

the staging of the drama on 8-3-1984. Ex. P4 is the ticket issued for the drama to be staged on 8-3-1984. The actor P.L. Veerappan and the

actress. J. Kamala mentioned in Ex.P3 were examined as Pws. 4 and 5 in this case. The plaintiff''s endeavour is that he is the author of the play

''Naai Vaal'' and the same was duly licensed by the Commissioner of Police and the same was also staged on 8-3-1984 are proved by the

documents, Exs. P1 to P4. Though the 1st defendant has questioned the plaintiff''s claim in respect of his authorship to the drama, staging of the

same, they are not seriously challenged, during the course of the evidence and also at that time of argument. It is therefore evident that the plaintiff

is the author of the play ''Naai Vaal'' and the Commissioner of Police, Madras, on 4-1-1984 gave license for staging the drama and the play was

also staged on 8-3-1984 cannot be disputed. The defendants also do not claim any right in the drama authored by the plaintiff. As such, the

plaintiff is entitled for a declaration that he is the absolute owner of the play, ''Naai Vaal''. Issue No. (1) is answered in favour of the plaintiff.

With regard to the Issue Nos. 2 and 5, Issue No. 2 has got to be divided into two parts, viz., (1) Whether the plaintiff is entitled to a permanent

injunction, restraining the defendants from in any manner infringing his copy right to ''Naai Vaal'' and (2) Whether the plaintiff is entitled to a

permanent injunction against the defendants from exploitation of the film ''Ore Oru Gramathile''. As far as the Issue No. 5 is concerned, it is for the

plaintiff to prove that the script in the play ''Naai Vaal'' and the script of the film ''Ore Oru Gramathile'' are similar.

Now, let us consider, whether the defendants have infringed the copyright of the plaintiff''s play. It is not in dispute that the plaintiff is the author

of the script ''Naai Vaal''. But, whether there is an infringement of the said script by the defendant is a question to be answered. In order to

establish the same, the plaintiff has to prove that there are similarities between the play and the film.

Basically the plaintiff has not furnished the similarities in the play and in the film in the plaint. Thought the plaintiff has filed the script of his play,

he has not chosen to file the script of the film not the plaintiff has filed any comparative table of the play and the film. But, however, the defendants

have produced Compact Discs (CDs) of the film and they were marked and Exs. D4 and D5 and two CDs were furnished to the plaintiff also to

enable him and his Advocate to witness the film. In fact, lime was given to the plaintiff to go through the film before submitting his argument and

after the plaintiff''s advocate having accepted that he and his client have seen the film, arguments, were advanced and heard and the plaintiff has

also filed a written argument, wherein he has enclosed two annexure. Annexure-1 is the gist of drama and Annexure-2 is the comparative table,

showing certain similarities in the play ''Naai Vaal'' and the film ''Ore Oru Gramathile''. PW.1, in his evidence, tried to point out certain similarities in

the script of the drama and in the film. That in the chief examination, he had stated, ""The story ''Naai Vaal'' is based on a village. In that village the

people arc treated as slaves. The same story was copied in the film ''Ore Oru Gramathile''. The story is based on the poems of Bharathiyar, stating

that there are no caste. The defendants have copied the same in their film. In that village, I have shown some natural calamities taken place which

were repeated in the film by the defendants. I have said that one person prays god to stop the natural calamities, which was also copied by the

defendants in the film. I have also stated in the drama that the people of the village represent the Government seeking relief from the natural

calamities. The same thing is repeated in the film by the defendants. I have said that if the people take medicine facilities available in the Village, it

will put them in danger. The same thing is repeated in the film. I my story, I said that if you do not have money, you cannot get a job. There same is

repeated in the film. Also I have said in my story about a womaniser in the Village. The same thing is repeated in the film by the defendants. In my

story, I have stated about a person who narrates to another person about his wife''s conduct. The same was also repeated in the film. I have said in

my story that Nature which gives life can also destroy the life through a child. The same is repeated in the film. My theme that Children''s education

is a God''s blessing and is better than the Master''s teaching and this was also copied in the film. I have stated in my story that in mankind casteism

is nothing and there is no caste. This was also repeated in the film. It have said in my story that if somebody dies, he is only a dead body. That is

repeated in the film. I have stated that Government encourages casteism. The same is repeated in the film. I have said that rate of casteism is more

than the population and this was repeated in the film by the defendants. There arc rich people in the backward community, which I have stated in

my story was repeated in the film and also that there are poor people in the forward caste. I have said that Government has to give employment

according to qualification and not based on caste which is repeated in the film. I have mentioned that the Government has to give job based on the

economic conditions and the same is repeated in the film. I have stated in my story that principles against Gandhiesm are followed in that Village

and the same was copied by the defendants in the film. I have said that reservations regarding caste should be removed. This was repeated in the

film...I have said that the Brahmin boy who has obtained the Schedule Caste certificate married a Schedule Caste girl. The person, who obtained

the Schedule Caste Certificate was appointed in the Public Services and later came to his Village, where he was received by one of the Villagers...

A person, who came to know that the Brahmin boy has obtained SC Certificate and obtained a job, warned him that he will face repercussions

later. This was repeated in the film. Knowing the secret that person threatens the Brahmin boy. The persons informs the secret to the authorities

concerned... The authorities takes action against the Brahmin boy knowing the fact. However, the entire Village including the ladies support the

person, who got employment in the quota of Schedule Caste. The authorities also after seeing the support from the Villagers exonerated him. The

said sequences are repeated in the film."" Thus, he narrated the similarities in the play and the film. But, nothing of this sort was made in the plaint.

The 2nd defendant, who was examined as D.W.1, in his evidence, had stated that he is the film lyricist and story dialogue writer and he has

been in the cine field for more than 44 years and had written more than 10,000 songs. He got State Award for the best lyricist 4 times and he also

got prestigious Bharathiar Award and Bharathidasan Award and Kalai Mamani Award 30 years back. He admits that he had written the script of

the film ''Ore Oru Gramathile'' and the same was produced by the 1st defendant. He would further state that the theme in the film is a ''common

theme'', but, basically, he being a Tamil Poet he wrote that subject for social awareness. He did not take it in the sense of commercial movie. The

theme of the film deals with the reservation policy. He adds, ''I was provoked not only by the Gujarat problem where it was the demand of certain

public that the reservation should be based on economy and not on the caste. That was the burning problem here too and incidentally, here my

friend Mr. M.G.R., who was the Chief Minister then also justified that the reservation should be based on economy. Being a Tamil Poet, I owe a

responsibility to the Society and, therefore, I have taken the said theme for the movie... I have not seen Chatrapathy Shanmugam, the plaintiff and I

do not know about him. I had no occasion to see the drama written by the plaintiff during March 1984. There are problems with the Censor Board

for the release of the picture and there were litigations with regard to the release of the picture, especially with the Censor Board and the matter

was taken upto the Supreme Court. The story of this picture was also published in the Newspapers and Magazines. Before coming to this

Honourable Court, I have gone through the script of drama ''Naai Vaal''. There were no similarities in the story of the film and the drama. It is the

decision of the Director of the film to the scenes...There is no similarity of the incident that the children''s education is a god''s blessing and not on

master''s teaching. The criticism with regard to casteism is common. There is no similarity with regard to reservation of backwardness on the basis

of the caste. This was the burning problem all over the country. This cannot be treated as similarity because it is know to everybody. There is no

similarity with regard to sequence, story, dialogue, screen play, character and songs in the picture. He denies that he had copied the plaintiff''

story."" As stated in paragraph 4 of the written statement that the certificate issued by the Censor Board was questioned by way of writ petitions

before this Court and the matter went upto the Supreme Court in C.A. Nos. 1668 and 1669 of 1988 and-the same was reported in S. Rangarajan

Vs. P. Jagjevan Ram and Others, , wherein, in paragraph 2 of the judgment, their Lordships extracted the story of the film ''Ore Oru Gramathile'' in

nutshell and I feel that the story cannot be stated in a better manner than that it was narrated by the Supreme Court and in order to appreciate the

story in the film, I feel that it is necessary to extract, what has been stated by the Honourable Supreme Court, which runs as under: -

A Brahmin widower, Shankara Sastry, has a talented daughter Gayathri. He apprehends that she would not be able to get admission to college

because she belongs to a Brahmin community. He seeks advice from his close friend Devashayam, a Tahsildar. The Tahsildar who otherwise

belongs to a very poor family and whose father was working in a local church responds with gratitude. He devises a method to help Gayathri

because it was through Sastry''s father that he got proper education and rose to become a Tahsildar. He prepares a false certificate showing

Gayathri as Karuppayee belonging to an Adi Dravida Community and as an orphan. He issues the certificate under the reservation policy of the

Government for the benefit of ''backward communities'' identified on caste consideration. On the basis of the false certificate, Karuppayee gets

admitted to college and enters IAS. Witness to this arrangement is the brother-in-law of Tahsildar called Anthony who later turn out to be a villain

of the piece. Years later, Karuppayee, who was working in Delhi is sent to a rural village called Annavayil as a Special Officer for flood relief

operations. Her father, Shankara Sastry happens to work in the same village as Block Development Officer. However, both of them pretend not

to recognise each other. Karuppayee takes her work seriously and improves the living conditions of people to such an extent that she is held by

them in high esteem. By a coincidence, after the death of Tahsildar, Anthony comes to live in the same village and recognises Karuppayee. He

starts blackmailing her and threatens to reveal the fraudulent means by which she got the casts certificate. His attempt is to extract money from her

frequently. One evening when he visits Karuppayee''s house, he is confronted by Shankara Sastry, who puts a halt to his blackmailing. Later

Anthony dies of sudden heart attack, but not before he informs the Government about the facts relating to Karuppayee. Upon preliminary enquiry,

the Government suspends both Karuppayee and her father and eventually they are put on trial in the court. The people of the village resentful of the

action taken against Karuppayee rise as one man and demonstrate before the court in a peaceful manner for her release. They also send petitions

to the Government. Karuppayee and her father admit in the court the fact of their having obtained the false caste certificate but they attribute, it to

circumstances, resulting by Government reservation policy on caste basis. They say that they are prepared to undergo any punishment. They

contend that some politicians are exploiting the caste consideration and that would be detrimental to national integration. They also argue that the

reservation policy should not be based on caste, but, could be on economic backwardness..."" (p. 579)

The plaintiff has not given the script of the drama in the plaint and only in the evidence, he had stated certain things. In the written argument filed by

the plaintiff in Annexure I, he had given some gist of the drama, stating that:

The drama is based on a village and the villagers are opposed by the same village big shots - Songs against Casteism - Bharathiyar song played -

Natural calamity in the village - Villagers reporting grievances to God - Affected Villagers anticipating drought relief from Government - One man

in the village describe above his wife to another person - A child was unattended by mother when the child was miserably left on the natural earth -

The teacher gives importance first to God then to Teacher - A person without money should suffer in this world - The Government Hospital

treatment itself cause Danger - A forward community father felt sorry to his child birth in his community - A forward Community father became

shocked on knowing his child''s community is being changed to backward Community under false Community Certificate - The lady who is close

to false Certificate holder is without her life partner due to dowry harassment - The false caste certificate holder moves freely with backward

community people belonging to the caste shown in the false certificate - A person knowing the secret of false certificate holder confirms that the

same person is false certificate holder- That person threatens the holder that he is going to expose the falsity of the certificate - The blackmailer

continued to threaten the false certificate holder - The blackmailer exposed the truth of the false certificate to higher authority of false certificate

holder and died as a drunkard - Questioning the religion of a person, caste-Villagers forgetting Mahatma Gandhi - Government and Politicians

cultivate castism - False certificate holder sys that the caste is an hindrance for progress of forward community - The same should be destroyed -

False certificate holder was being questioned about the offence committed - Villagers support the holder of the false certificate - He was found

guilty - The people in that Village Admonish the false certificate holder

On the above said back ground, now, let us consider, whether there was any infringement of the copy right of the plaintiff''s play ''Naai Vaal'' in

the film ''Ore Oru Gramathile''. For that purpose, two things are essential, viz., firstly, there must be copy right and secondly, there must be an

infringement.

In order to appreciate the case of the plaintiff, we have to see the meaning of ''Copy Right'' and the same is defined u/s 14 of the Copyright

Act, 1957, which states:

Meaning of Copyright - (1) For the purpose of this Act, ''Copyright'' means the exclusive right subject to the provisions of this Act, to do or

authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-

(a) in the case of a literary, dramatic or musical work, not being a computer programme,-

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work; (vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, and of the acts specified in relation to the work in Sub-clauses (i) to (vi);

The right claimed by the plaintiff would fall u/s 14(a)(i), i.e., ""to reproduce the work in any material form"" and for which, the plaintiff has to

establish, that there is reproduction of his work in material form. But, that is not the case of the plaintiff. What all the plaintiff would say is that there

are certain similarities in the theme and also certain portions of the dialogue. Further, it is not the case of the plaintiff that he had registered his

copyright in the Office of the Registrar of Copyrights, as set out u/s 44 of the Copy Right Act, 1957. The infringement would arise, if it satisfies the

requirements u/s 51(a) of the Act, which states, ""Copyright in a work shall be deemed to be infringed - (a) when any person, without a license

granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or

of any condition imposed by a competent authority under this Act."" The Explanation to Section 51 states, ""For the purposes of this section, the

reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an ''infringing copy''. In

order to claim infringement, the plaintiff has to necessarily prove that his work has been registered and the same was reproduced as contemplated

u/s 51 of the Act and in the absence of the same, the plaintiff cannot complain that there is an infringement of his work and the same has got to be

protected or the defendants have got to be restrained from infringing the copy right of the plaintiff. As such, it is for the plaintiff to prove whether

the script of his drama was reproduced in the film ''Ore Oru Gramathile''. The plaintiff heavily relies upon Ex. P1, the script of the play and his

evidence to substantiate his case. The plaintiff except his own statement that the play was staged on 8-3-1984, there was no publication of the

drama. It is also not the case of the plaintiff that the 2nd defendant, who is the writer of the film had occasion to see the play enacted by the plaintiff

on 8-3-1984. In fact, PW-1, in the cross-examination states; ""I am unable to say whether the 2nd defendant witnessed the play. The suit story was

not published anywhere after it was staged."" By these admissions, there is no material before this court to come to the conclusion that the 2nd

defendant had an occasion to know the script of the plaintiff''s play and even the theme of the plaintiff''s play. But, however, PW-1 would further

admit that he knows about the film from 1987 onwards and had deposed that ""I read in newspapers that a writ petition was filed in this

Honourable Court to restrain the film being released because of the policy in the film against the Government. I heard about the incidents, story and

theme of the film published in newspapers, when the writ was filed in this Honourable Court."" This would indicate that the plaintiff had knowledge

about the story of the film in 1987 itself and he had not chosen to take any action upto the filing of the suit in the year 1992. PW-2, K.A. Mani,

speaks to the fact that he saw the play at Nadigar Sangam and he had also stated that Kavignar Vali has come to see the play. But, in the cross-

examination he would say that the plaintiff had staged two plays and he does not know the name of the 2nd play and he does not know the names

of the characters in the play ''Naai Vaal'' and how the theme of the play has been developed into a story in the drama. He would further state, ""I

did not see the film ''Ore Oru Gramathile''. I did not inform the plaintiff about the Kavignar Vali''s visit to see the play. I have not seen Vaali earlier.

Somebody told me that the person was Kavignar Vaali. I have heard that Kavignar Valli is a famous play writer. I have told Mr. Swaminathan, an

actor in the play about Vaali''s visit."" From his evidence, it is clear that he does not even remember the theme of the play in the drama and he does

not know the other play written by the plaintiff. He admits that he and the plaintiff have worked together in Ennore Thermal Power Station and he

happened to be a good friend of the plaintiff. But, his evidence about witnessing of the play by Kavignar Vaali was seen by one Swaminathan, who

was not examined and therefore, the visit of Kavigna Vaali, seeing the drama is only an hearsay and much credence cannot be given to his

evidence.

PW-4, P.L. Veerappan''s evidence also does not support the plaintiff''s case that there is an infringement of the plaintiff''s script of the drama.

What all he would say is that he acted in the drama on 8-3-1984. PW-5, Kamala would also speak about her acting in the Brahmin mother

character in the drama ''Naai Vaal'' and the same was staged on 8-3-1984 and except that there is nothing to support the case of the plaintiff that

the script of his drama was reproduced in the film.

The basic and essential features, which are necessary to grant the relief of injunction against a person not to infringe the right of the play, are

very much wanting, in this case. It is the settled position that an infringement of copyright would arise only when there is substantial reproduction of

the plaintiff''s work in the defendant''s film. But, however, the law recognises that reproduction of ideas, system, information, matter in public

domain do not form the subject-matter of infringement. Thus, there cannot be a copyright in a theme. In our case, the plaintiff alleges only the

infringement of copyright in the theme and, therefore, the same cannot be granted in his favour. It is also argued that the onus is on the plaintiff to

prove that his work has been copied and there is absolutely no such averments in the plaint, nor the evidence adduced supported his case.

The learned advocate for the defendants relied upon the case of R.G. Anand Vs. Delux Films and Others, to support rather to substantiate his

submission. In that case, it was held that there can be no copy right in an idea, subject-matter, themes, plots or historical or legendary 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. 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 the said case, the plaintiff was an Architect by profession and is also a play writer, dramatist and producer of stage plays. The

subject-matter in that case was the play titled ''Hum Hindustani''. According to him, this play was written by him in Hindi in 1953 and was enacted

by him for the first time on 6-2-1954 at Wavell Theatre, New Delhi under the auspices of the Indian National Theatre. As the play gained

popularity, the defendants 2 and 3 in the said case came to Delhi and met the plaintiff in his office, where the plaintiff read out and explained the

entire play to the defendants and also discussed the possibility of filming it and the 2nd defendant did not make any clear commitment, but

promised the plaintiff that he would inform him about his reaction after reaching Bombay. Thereafter, the plaintiff did not hear anything from him.

Thereafter, in May 1955, the 2nd defendant announced the production of a motion picture titled ''New Delhi'' and the said picture was released in

Delhi in September 1956 and the plaintiff read some comments, in the papers which gave the impression that the picture was very much like the

play ''Hum Hindustani'' and therefore, the plaintiff made a claim that the defendants dishonestly imitated the same in their film and thus committed an

act of piracy so as to result in violation of the copyright of the plaintiff and the plaintiff filed the suit for damages and for accounts of the profits

earned by the defendants and a decree for permanent injunction against the defendants restraining from exhibiting the film. The defendants

contested the matter, contending that the 2nd defendant has taken a clear stand that after having heard the play, he informed the plaintiff that

thought the play might have been all right for the amateur state it was too inadequate for the purpose of making a full length commercial motion

picture and the theme was only in respect of provincialism and the same can be used or adopted by anyone in his own way. The motion picture

was quit different from the play ''Hum Hindustani'' both in content, spirit, and climax. The mere fact that there were some similarities between the

film and the play could be explained by the fact that the idea, viz. Provincialism was the common source of the play as also of the film and thereby,

denied of any violation of the copyright said to have been committed by him. In paragraph 46 of the judgment, their Lordships have formulated the

followings propositions: -

(1) There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary 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 are

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 it 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 a 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, it"" the viewer after seeing 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."" (p. 1627)

Relying upon these propositions, the learned advocate for the defendant would contend that the defendant''s case would come under Clause 4

of the proposition. It is stated, that the idea may be same, but, when it is being developed in different manner, it is manifest that some similarities are

bound to occur. The idea came to the mind to the plaintiff that the reservation policy based on the caste is not proper and the same idea had struck

to the mind of the 2nd defendant also and no one can prevent two or more persons conceiving one and the same idea. As a matter of fact, that one

had thought about 10 years back may occur to a person of present time in a different form, fashion and manner and for that matter, it cannot be

said that the person born later has copied the idea of the former person, and, there is no law or prohibition that what had occurred to a person

about 10 years back should not occur to a person born later. That is how the learned advocate for the defendants has built up his arguments. He

also contended that there is nothing to show that the script of the plaintiff was taken substantially and also used in the film produced by the

defendants and it is also pointed out that the theme may be same, but it is presented in a different manner in the film produced by the defendants

and, therefore, it is completely a new work and a new dimension and hence, the question of violation of copyright docs not at all arise. After going

through the similarities pointed out by the plaintiff in Annexure-2 given in the written argument submitted by the plaintiff and also the several

dialogues in the film produced by the defendants, the underlying current of the theme in both the play and in the film is that the reservation policy

based upon the caste is condemnable and objectionable and should be eradicated. As a matter of fact, the 2nd defendant, DW-1, in his evidence

stated that there was some agitation in Gujarat at that time and, there was a demand from the public that the reservation should be based on

economy and not on the caste. It is also stated that the then Chief Minister of Tamilnadu also justified that stand and voiced that the reservation

should be based on economy. Above all, DW-1 had stated that he being the Tamil Poet, he owe a responsibility to the society and therefore, he

had taken the said theme for the movie. The film also bagged a National Award on 35th National Film Festival, 1988, Ex.D3, for Social issues,

such as, prohibition, women welfare and child welfare, anti-dowry, abuse, etc. This would clearly indicate that as far as the theme is concerned, it

appears that the same is basically common or similar or one and the same. As it has been rightly pointed out by the learned advocate for the

defendants that there cannot be a copyright in respect of the theme and the plaintiff cannot claim that the theme is violated, copied and followed by

the defendants in the film produced by them. As such, there may be similarities of the theme between the play ''Naai Vaal'' and the film ''Ore Oru

Gramathile'' and in that theme, certain scripts may have similarities but, it cannot be stated that the script in the defendant''s film are one and the

same script in the plaintiff''s play. Applying the principles laid down by the Supreme Court in R.G. Anand''s case (supra), I am of the view that

there cannot be any copyright in respect of the theme and therefore, the plaintiff is not entitled to have a copyright in respect of the theme.

Now, looking at the prayer of the plaintiff that he seeks a declaration that he is the absolute owner of the copyright of the play titled ''Naai

Vaal'', incidentally I should mention that the defendants are not claiming any right over the play ''Naai Vaal''. As such there cannot be any difficulty

at all in granting a declaration in favour of the plaintiff that he is the absolute owner of the play ''Naai Vaal''.

As far as the Issue No. 2 is concerned that the plaintiff is also entitled to permanent injunction to the limited extent that there can be an order of

permanent injunction, restraining the defendants from in any manner infringing the exhibition and exploitation to the script of the plaintiff''s play

''Naai Vaal'', but, the other part of the Issue No. 2 that the defendants have got to be restrained from exploiting the film ''Ore Oru Gramathile''

cannot at all be granted for the reason that the plaintiffs cannot have copyright in respect of the theme. As such, Issue No. (1) is answered in favour

of the plaintiff and the 1st part of the Issue No. (2) is also answered in favour of the plaintiff to the extent indicated above and the 2nd part of the

Issue No. (2) is negatived. For the very same reason, the Issue No. (5) is also answered against the plaintiff. Issue Nos. 3 and 4

Neither the plaintiff nor the defendants have submitted arguments on these two issues. That apart, in view of my findings that the plaintiff is

entitled to a declaration in respect of his play ''Naai Vaal'', these two issues do not merit any consideration. Issue No. 6

In view of this Court''s findings in Issue Nos. 1, 2 and 5, I come to the conclusion that the defendants arc not liable to render account to the

plaintiff in respect of the collections and profits made from the exploitation of the film ''Ore Oru Gramathile'' and therefore, this issue is answered

against the plaintiff.

In the result, the suit is decreed in part, holding that the plaintiff is declared as the absolute owner of his play titled ''Naai Vaal'' and the plaintiff

is entitled for permanent injunction, restraining the defendants from in any manner interfering with the plaintiff right for the exhibition of his play

''Naai Vaal'' and in other respects, the suit against the defendants is dismissed. No costs.