# R.G.ANAND v. M/S. DELUX FILMS & ORS

- **Citation:** [1979] 1 S.C.R. 218
- **Court:** Supreme Court of India
- **Decided:** 1978-08-18
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-g-anand-v-m-s-delux-films-ors-7575
- **Pages:** 46

## Headnote

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218
R.G.ANAND
v.
M/S. DELUX FILMS & ORS.
August 18, 1978
[MURTAZA FAZAL ALI, JASWANT
SINGH AND R. S. PATHAK, JJ.t
!nfrfngnnent of a copyright in a play in a fifn1-What
are
the
tests--
JV hcc!:er copy."i}.!ht can be clahned in a theme.
Suit for da111ages for infringenient of a copyright-What are the principles.
The appellant-plaintiff is a, playwright, dramatist and producer of stage plays.
The appellant had written and produced a number of plays. The subject matter
of the appeal however, is the pl2.y entitled 'Hum Hindustani'.
This play was
written by him in the year 1953 and was enacted in the year 1954 alld thereafter
the play proved to be popular. In November 1954 the appellant received a
letter from the second defendant-Mr. 11ohan Sehgal requesting the appellant to
supply a copy of the play so that he could consider the desirability Of making
a film on it. Therea-fter, the appellant and defendant No. 2 met at Delhi.
111
May, 1955 the second defendant announced the production of a.motion picture
entitled "New Delhi".
The picture v.'aS released in Delhi in September 1956.
The appellant saw the picture.
The appellant filed a suit alleging that the film "New Delhi" was entirely
based upon the play "Hum Hindustani", tha-t the play was narrated by the appel·
lant to defendant No. 2 and he dishonestly imitated the same in his film and thus
committed an act of piracy as to result in violation of the copy right of the
plairttiff.
The appellant, therefore, filed the suit for damages, for decree for
a·:counts of the profits made by the defendant and a decree for permanent ir..·
junction against the defendants restraining them from exhibiting the film.
The
suit was contested by the defendants.
The defendants pleaded that defcndar.t
No. 2 is a film director and producer and director of Delux: Films defendant
No. 1 that at the instance of a common friend Mr. G&rgi the defendant No. 2
met the appel1ant and saw the script of the play, that the play was inadequ8te for
the purpose of making of a full length commercial motion picture. The defendants contended that there could be no copy right so far as the subject of provincialism is concerned which can be used or adopted by anybcxly in his O\Vn
way. The defendants further contended that the motion picture was quite diffe·
rent from the play both in contents, spirit and climax. The mere fact of some
similarities between the films and the play could be explained by the fact tli.at
the ideai provincialism was the common source of the play as also of the film.
The trial court r84ised several issues and came to the co1.1clusion that the appel·
lant v.1as the owner of the copy right in 'Hum Hindustani' but there 'vas no violation of copy right of the appellant.
Thereafter the appellant filed an appca-1 in the Delhi High Court. A Division
Bench of the Delhi High Court upheld the decree dismissing the appellant's
ff
suit.
The counsel for the appe11ant contended ( 1) that the principles enunicated
and the legal inference drawn by the courts Oelo\\-' are against the settled legal
principles laid down by the courts in England, America and India (2) the two
..
·.
R. G. ANAND V, DELUX FILMS
219
coufts have not fully understood the imports of the violation of copy-righ~ parti~
-cularly when the similarities between the play and the film are so close that
would lead to the irresistible inference and unmistakable impression that the film
is nothing but an imitation of the play.
The counsel for the respondents submitted ( 1) that the two courts below
haive applied the law correctly.
(2) This Hon'ble Court may not enter into
the merits in view of the concurrent findings of fact given by the two courts. (3)
Even on the facts found it is manifest that there. is a vast difference both in the
spirit and the contents between the play and the film.
Dismissing the appeal by special leave the Court
HELD: (a) In order to appreciate the argument of the parties the court dis·
cussed the law on the subject

## Text

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218
R.G.ANAND
v.
M/S. DELUX FILMS & ORS.
August 18, 1978
[MURTAZA FAZAL ALI, JASWANT
SINGH AND R. S. PATHAK, JJ.t
!nfrfngnnent of a copyright in a play in a fifn1-What
are
the
tests--
JV hcc!:er copy."i}.!ht can be clahned in a theme.
Suit for da111ages for infringenient of a copyright-What are the principles.
The appellant-plaintiff is a, playwright, dramatist and producer of stage plays.
The appellant had written and produced a number of plays. The subject matter
of the appeal however, is the pl2.y entitled 'Hum Hindustani'.
This play was
written by him in the year 1953 and was enacted in the year 1954 alld thereafter
the play proved to be popular. In November 1954 the appellant received a
letter from the second defendant-Mr. 11ohan Sehgal requesting the appellant to
supply a copy of the play so that he could consider the desirability Of making
a film on it. Therea-fter, the appellant and defendant No. 2 met at Delhi.
111
May, 1955 the second defendant announced the production of a.motion picture
entitled "New Delhi".
The picture v.'aS released in Delhi in September 1956.
The appellant saw the picture.
The appellant filed a suit alleging that the film "New Delhi" was entirely
based upon the play "Hum Hindustani", tha-t the play was narrated by the appel·
lant to defendant No. 2 and he dishonestly imitated the same in his film and thus
committed an act of piracy as to result in violation of the copy right of the
plairttiff.
The appellant, therefore, filed the suit for damages, for decree for
a·:counts of the profits made by the defendant and a decree for permanent ir..·
junction against the defendants restraining them from exhibiting the film.
The
suit was contested by the defendants.
The defendants pleaded that defcndar.t
No. 2 is a film director and producer and director of Delux: Films defendant
No. 1 that at the instance of a common friend Mr. G&rgi the defendant No. 2
met the appel1ant and saw the script of the play, that the play was inadequ8te for
the purpose of making of a full length commercial motion picture. The defendants contended that there could be no copy right so far as the subject of provincialism is concerned which can be used or adopted by anybcxly in his O\Vn
way. The defendants further contended that the motion picture was quite diffe·
rent from the play both in contents, spirit and climax. The mere fact of some
similarities between the films and the play could be explained by the fact tli.at
the ideai provincialism was the common source of the play as also of the film.
The trial court r84ised several issues and came to the co1.1clusion that the appel·
lant v.1as the owner of the copy right in 'Hum Hindustani' but there 'vas no violation of copy right of the appellant.
Thereafter the appellant filed an appca-1 in the Delhi High Court. A Division
Bench of the Delhi High Court upheld the decree dismissing the appellant's
ff
suit.
The counsel for the appe11ant contended ( 1) that the principles enunicated
and the legal inference drawn by the courts Oelo\\-' are against the settled legal
principles laid down by the courts in England, America and India (2) the two
..
·.
R. G. ANAND V, DELUX FILMS
219
coufts have not fully understood the imports of the violation of copy-righ~ parti~
-cularly when the similarities between the play and the film are so close that
would lead to the irresistible inference and unmistakable impression that the film
is nothing but an imitation of the play.
The counsel for the respondents submitted ( 1) that the two courts below
haive applied the law correctly.
(2) This Hon'ble Court may not enter into
the merits in view of the concurrent findings of fact given by the two courts. (3)
Even on the facts found it is manifest that there. is a vast difference both in the
spirit and the contents between the play and the film.
Dismissing the appeal by special leave the Court
HELD: (a) In order to appreciate the argument of the parties the court dis·
cussed the law on the subject. At tt1e time ¥-'hen the cause of action arose in
the present suit, the Indian Parliament had not made any Jaw govemiiig copY·
right violation and therefore the court relied on the old law passed by the British
P&rliament viz .. the Copyright Act of 1911. S. I sub-sec. (2)(d) defines copyright as including in the case of a literary, dramatic or musk:al work, to make
any record, performed roll, cinematograph film, or other contrivance by means
of which the \vork may be mechanically performed or delivered. S. 2(i) defines
that copj;right in a work shall be deemed to be infringed by any person who
without the consent of the owner of the copyright, does anything, the sole right
to do which is by this Act conferred on the owner of the copyright. The play
written by the appellant falls \Vithin the definition of copyright.
[229 D·R
230 A-Bl
The following is summary of the decided cases in England, An1erica and
India on the question of copyright.
1. There can be no copyright in an idea, subject matter, themes, plots or
historical or legendary facts and violatieo.1 of the copyright in such cases is con·
fined to the form, manner and arrangement and expression of the idea by the
.author of the copy-righted work. [248 H, 249 A)
2. Where the same idea is being developed in a different manner, it is mani·
f€st that the source being common, similarities are bound to occur. In such a
case the courts should determine ·whether or not the similarities are oii fuiiaamental 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 cooy·
righted work with some variations here and there it would amount to violation
of the copyright.
Jn other words, in order to be actioniible 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. [249 A-C]
3. One of the surest and the sa.fest 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 unrnis·
takable impression that the subsequent work appears to be a copy of the original.
[249 C·Dl
4. Where the theme is the same but is presented a·Ild treated differently so
tf~t the subsequent work becomes a completely new work, no question of
violation of copyright arises. [249 DJ
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220
SUPREME COURT REPORTS
[1979] 1 s.c.R.
5. Where however apart from the similarities -appearing in the two ¥.--brks
there are also material and broad dissimilarities which negative the intention to
copy the original aind the coincidences appe_aring in the t¥lO works are clearly
incidental no infringement of the copyright comes into existence. [249 EJ
6. As a violation of copyright amounts to an act of piracy it must be proved
by clear and cogent evidence after applying the v21rious tests laid
down
by
decided cases. [249 F]
7. Where however the question is of the viol<'ltion of the copyright of a stage
play by a film producer or a Director the task of the plaintiff becomes n10re
difficult to prove piracy. It is manifest that unlike a stage play a film has a
much broader prospective, wider field and a bigger Mckground where the defendants can by introducing a variety of incidents give a colour and complex1on
different from the manner in which the copyrighted work hasi expressed the idea.
Even so, if the viewer after seeing the film gets a totality of impression that
the film is by and large a copy of the origina•l play, violation of the copynght
may be said to be proved. [249 F-H]
Hanfstaengl v. W. H. Smith & Sons, [1905] I
Chancery
Division
519;
Bobbs-Aferill Co. v. lsdor Straus and Nathan Strau~, 210 US 339; West Francis,
(1822) I B & Ald. 737, 743; Ladbroke (Football) Ltd. v. William Hill (Footboll) Ltd. (1964) I All. E.R. 465; Corelli v. Gray, 29 T.L.R. 570; Hawkes &
Son (Loudon) Ltd. v. Paramount Film Service Ltd., (1934) I Ch. D. 593;
Harman Pictures N. V. v. Osborne & Ors., (1967) 1 W.L.R. 723; Donoghue v.
Allied Newspapers Ltd. (1937) 3 All. E.R. 503; Bohl & Anr. v. Palace Theatre
(Ltd.) & Aw. 28 T.L.R. 72; Tate v. Fullbrook, 77 Law Journal Reports 577;
Frederick B. C-hatterton & Benjamin Webster v. Joseph Arrwld Cave, (1878) 3
A.C. 483; Sheldon v, Metro-Goldwyn Pictures Corp., 81 F 2d 49; Shipnzan v.
R.K.O. Radio Pictures, 100 F 2d 533, Michael V. Moretti v. People .of the State
of lllionois, 248 F 2d 799=356 U.S. 947,
Warner Bros. Pictures v. Columbz'a
Broadcasting System, 216 F 2d 945; Otto Elsenchinil v. Fawcett Publications,
246 F 2d 598; Dorsey v. Old Surety Life lns.. Co., 9& F. 2d 872;
Twentieth Century Fox Film Corporation v. Stonesifer,
140
F
2d
579;
Oliver 1-Vendel Holmes
v.
George
D.
Hurst,
174
U.S.
82; .i'1acmillan
& Co. Ltd. v. K. & J. Cooper,
51 I.A.
109; Florence A Deeb
v. H. G.
Wells & Ors., 60 I.A. 26; N. T. Raghunathan & Anr. v. All India Reporter Ltd .•
Bombay, A.I.R. 1971 Born. 48,
K. R. Venugopala Sarma v. Sangu Ganesan,
1972 Cr. L.J. 1098; The Daily Calendar Supp/yin~ Buteau, Sivakasi v. The
United Concern, A.LR. 1967
Mad. 381;
Hantsiaenql v. Bains & Co.,
1895
A.C. 20 (25); C. Gunniah & Co. v. Balrafi & Co., A.l.R.
1961
Mad. It!;
Mohendra Ghundra Nath Ghosh & Ors. v. Emperor, A.I.R. 1928 Cw.
359;
S. K. Dutt v. Law Book Co. & Ors., A.LR. 1954 All. 570; Ramesh Clwwdhry
& Ors. v. Kh. Ali Mohammad Nowsheri & Ors., AIR 1965 J. & K.101 and
Mohini Mohan Singh & Ors. v. Sita Nath Bosak, AIR 1931 Cal. 238; referred
to.
The learned trial Judge who had the advantage of seeing the picture was of
the opinion that the film taken as a whole is quite different from the play written
by the appellant. This Court also got the play read to the learned Judges and
the learned Judges also saw the film. The Court came to the conclusion that
H
the essential features of the pla.y are as under: [250 A-B, 251 G]
1. That the central idea of the play is based on provincialism and pa.rochialism. [251 G]
R. G. ANAND V. DELUX FILMS
221
2. The evils of provincialism are illustrated by the cordial relations of the
two families being marred because of an apprehended inarriage tie which acco1ding to both the families was not possible where they belonged to different States.
[251 H, 252 Al
3. That the Madrasi• boy Amni is a coward and in spite of his profound love
for Chander he does not. muster sufficient courage to talk the matter out with.
his parents. [252 A-BJ
4. That in sheer desperation while the parents of the families are· trying to
arrange a match for the couple belonging to qie same State Arnni and Chander
enter into a suicidal poct and write letters tO! their parents intimating their intention. [252 B-C]
5. It was only after the letters are perused by the parents that they realise
the horror of parochialism and are repentant for having 3.cted so
foolishly.
[252 CJ
6. That after this realisation comes the mMried couple Amni and Chander
appear before the, pa.rents and thus all is well that ends well. [252 DJ
The <:ourt came to the conclusion that the essential features of the film are
as under:-
( 1) 1 'wo aspects of provincialism viz. the role of provincialism in rega.rd to
marriage and in regard to renting out accommodation (2) Evils of a caste ripden
society, and (3) the evils of dowry. [255 H]
lt is true that there are following similarities in the two. [256 A]
( i) B•efore the actual stage play, the producer gives ai narrative.
He states
that although we describe ourselves as Hindustanis we are not really Hindustanis.
He questions the audience as to what they are and various voices are heard. To
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say in their own provincial language that they are Punjabis, BengaliS, GujaratfS,
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Marathas, Madrasis, Sindhis etc.
In the said Film the same idei is conveyed
and the hero of the- picture is shown searching for a house in New Delhi and
wherever he goes he is confronted by a landlord who describes hirriself not as
a Hindustani but as a Punjabi, Bengali, Gujairati, Marathi, Madarasi or Sindhi.
[256 C-DJ
(ii) Both the said play and the said film deal with the subject of Provincialism. [256 El
P
(iii) Both the said play and the said film evolve a drama around the lives of
two facilities, one a Punjabi and the other a Madrasi family.
[256 EJ ·
(iv) In both the said play and the said film the name of tho M'adrasi father
is Subramanyam .[256 F]
(v) Both the said play and the said film have their locale in New Delhi.
[256 Fl
G
(vi) Both the said pla-y and the said film show cordiality of relations between
the two families. [256 F-G]
(vii) Both the said play and the said film show the disruption of cordial relations as soon as the heads of the families discover the existence of a love affair
between their children. [256 G)
·
(viii) In both the said play and the said film, both the p&rents warn their
H
respective children not to have anything to do with each other on pain of corporal punishment. [256 HJ.
222
SUPREME COURT REPORTS
(1979] 1 S.C.R.
A
(ix) The entire dialogue in both the said play and the said film before and
B
c
-afte:r the disruption is based upon the superiority of the inhabitants ot one Provin,:e over the inhabitants of the others. (257 A]
(x) In both the said play and the said fil!ll the girl is sho\vn to be fond ot
mus1ic and dancing. f257 Bl
(xi) In both the said play and the said filn1 the hero is shown as a co\vard
to the extent that he has not the courage to go to his parents and persuade
them to permit him to marry a girl hailing from another Province. [257 B-C]
(xii) Both in the said play and in the said film, \Vhen the parents of the girl
are discussing marrying her off to some body the girl is listening to the dialogue
from behind a curtain. Thereafter the girl runs to the boy and explairis the sttuation to him. [257 Cl
(xiii) In both the said play and the said film, the girl writes a letter ot
suicide.
[257 DJ
(xiv) In the sa·id play reconcili"ation takes place \vhen the children of the
two families, who were in love,
go out to commit suicide by drowning .;!(C.,
whereas in the said film, it is only the daughter who goes out to commit suicue
D
by drovn1i1,1g herself in the Ja.muna. [257 D-E]
E
(xv) In the said play the children are stopped from committing suicide by
an astrologer 'vhereas in the said film the girl is stopped from comn1itting suicide
by a friend of the family. [257 E-F]
(xvi) In the said play reconciliation betv.·een the two families take5 pla.ce·
only after they have experienced the shock of their children committing suicide
on account of their provincial feelings whereas in the film, the father of lhe girl
realised his 111istake after experiencing the shock of his
daughter committing
suicide. [257 F-Gl
(xvii) In both the said play and the said film, stress is la-id on the fact that
although India is one country, yet there is acute feeling of provincialism between
persons hailing from its various States even though they \rork together '.lnd Jive
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as neighbours. [257 G]
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(xviii) Both in the said plav and in the said film. even the dil\ioguc centres
around the same subject of provincialism. [257 HJ
However, the Court found following dissimilarities :-
(i) In the play provincialism comes on the surface only 'vhen the question
of marriage of Arnni with Chander crops up but in the picture it is the starting
point of the story when Anand goes around from door to door in search of
accommodation but is refused the same because he does not belong to the State
from which the landlord hails as a result thereof Anand has to masquerade
himself as a 1'.fadrasi.
This would, therefore, show that the treatment of the
subject of provincialism in the film is quite different from tha.t in the play and
is actually a new theme which is not developed or stressed in the play. [258 D-FJ
(ii) Similarly, in the play the two families are fully aware of the identity of
each other whereas in the film they are not and in fact it is only when the dance
performance of Janki and Anand is staged that the identity of the two families
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R. G. ANAND V. DELUX FILMS
223
is disclosed which forms one of the important climaxes of the film.
Thus, the
idea of provincia-lism itself is presented in a manner or form quite different from
A
that adopted in the play. [258 F-GJ
(iii) In the film there is no suicidal pact between the lovers but only a suicide
note is left by Janki whereas in the play both the lovers decide to end their lives
and enter into a suicidal pact and leave suicide note to this effect. Furthermore,
while in the play Amni and Chunder get married and then appenr before the
parents in the picture the story takes a completely different turn with the interB
1;ention of Sadhu Ram who does not 2.llow J anki to commit suicide but keeps
her with him disguised as his niece r..nd the final climax is reached in the la"it
scene when Janki's real identity is disclosed and
Subra•maniam also finds out
that his daughter is alive. [258 H, 259 A-BJ
(iv) The story in the play revolves around only two families, namely, the
Punjabi and the: Madrasi families but in the film there are three ,important fnmiC
lies, namely, the Punj~bi family, the Madrasi family and the
Bengali family
and very great stress is laid down in the film on the role played by Ashok
Banerjee of the fu:ngali family who makes a supreme sacrifice at the end which
turns the tide and brings about a complete revolution in the mind and ideology
of Daulat Ram. [259 B-DJ
( v) The film depicts the evil of ca-ste ridden society and exposes the hollow
4
D
ness of such a society when in spite of repeated
reque"its no member of the
brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok
Banerjee to retrieve the situation. This aspect of the matter is completely absent
in the play. [259 D-EJ
(vi) The film depicts another important social evil, namely, the evll ot
dowry which also appea.rs to be the climax of the story of the filn1
and the
E
horrors of dowry ar~ exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal v.·ith this aspect at all. The aspect'i
n1entione<l above \\hich are absent from the plr.•y
are not mere surplusage Or
en1bellishrnents in the story of the film but are in1portant and substantial part of
the story. [259 E-G]
The Court came to the conclusion that the number of similarities by themF
~elves are not sufficient to raise
an inference of
colourable imit<llion.
The
sin1ilarities arc trivia·} and touch insignificant points and do not appear to be of
sub"itantial nature. The appellant has failed to prove that the defendants committed rnlourable imitation of the play. [259 G-H, 260 BJ
Applying the principles mentioned above to determine whether in this parttcular case there. has been ai violation of the copy right, the Court c-ame to the
conclusion that the film produced by the defendants cannot be said to be a
substantial or material copy of the play written by the plaintiff. The treatment
of the film and the manner of its presentation on the screen is quite different
from the play written by the appellant at the stage. No prudent person can get
the impression that the film appears to be a copy of the original play nor is there
anything to show that the film is a substantial and material copy of the play.
At the most the central idea of the play viz. proVincia.lism is undoubtedly the
sUbject matter of the film along with other ideas also. It is well settled that
a mere ide~ cannot be the subject matter of copy right. [260 G-H, 261 A-Bl
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224
SUPREME COURT REPORTS
[1979] I S.C.R.
The two courts of fact having considered the entire evidence, circumstaiiceS
and materials before them have come to a. finding of fact that defeD.dants committed no violation of the copyright. This Court would be slow to disturb the
findings of fact arrived at by the courts below particularly when after having gone
through the entire evidence the court finds that the judgments of the court below
are absolutely correct. [261 C-Dl
(Jaswant Singh, I. concurring)
On a caireful comparison of the script of the plaintiff's copyright play with
the film, although one does not fail to discern a fe\v resemblances and similarities between the play and the film, the said resemblances are not rriateria1 or
substantial and the degree of similarities is not such as to lead one to think that
the film taken as a whole constitutes an unfair appropriation of the appellant's
copyright work. In fact a large majority of material incidents, episodes and
dramatic situations portrayed by defendants t and 2 in their afOresaid filn1 are
substantially different from the plaintiff's protected work and the two social evils
viz. coote system and dowry system sought to be exposed and eradicated by
defendants 1 and 2 by means of motion film, do not figure at all Iii the appellanfs play.
There has been no breach on the part of the defendants of the
appellant's copyright. [261 G-H, 262 A]
(Pathak, J. concurring)
It appears from a comparison of the script of the pla.y
'Hum Hindustani'
and the script of the film 'New Delhi' thlit the authors of the film have
been
influenced to a degree by the salient features of the Plot set forth in the play
script.
There can be little doubt from the evidence that the
authors of the
film script were aware of the scheme of the play. But, the story portrayed by
the film tnirvels beyond the plot delin~ated in the play. The theme of provincial pa.rochialism is illustrated only in the opposition to a relationship by marriage
between. two families hailing from different .parts of the country. In the film
the theme is also illustrated by the hostile
attitude of proprietors· of lodging
accommodation towards prospective lodgeis who do not belong to the same
provincial community. The plot then extends to the evils of the dowry system
whi'Ch is a theme independent of provincia.1 parochialism. There <ire still other
themes embraced ·within the plot of the film.
The question can arise whether
there is an infringement of copyright even though the essential features Of the
play can be said to correspond to a part only of the plot of the film.
In the
attempt to show that he is not guilty of infringement of copy right it is always
possible for a person intending to take advantage of the intellectbal efforts and
labour of another to so develop his own product that it covers a Wider field
than the area included within the scope of the earlier product and in the common
area covered by the two productions to introduce changes in order to disguise
the attempt at plagiarism. If a reappraisal of the facts in the present case were
open to this Court, the Court perhaps would have differed from the view taken
on the facts by the High Court but in view of the concurrent findings of the
two courts below to the effect that the appellant's copy right has iiot been infringed this Court is extremely reluctant to interfere with the concurrent fl.ridings of fact reached by the Courts below. In another, and perhaps a clearer
case it may be necessary for this Court to interfere and remove the impression
which nlay have. gained ground that the copy right belonging to an author can
be readily infringed by making immaterial changes, introducing in substantial
differences and enlarging the scope of the original theme so that a veil of appa-
..
•
R. G. ANAND V. DELUJ> _FJ!,MS
22.5
rent dissimilarity is thrown around the work now produced. The court will look
strictly at not only blatant examples of copying but also at reprehensible attempts
at colourable imitation. [262 B-H, 263 A·CJ
OvIL APPELLATE JURISDICTION : Civil Appeal No. 2030 of 1968.
Appeal by special leave from the Jud$ffient and Decree dated
23-5-1968 of the Delhi High Court at New Delhi in R.F.A. No. 147D
of 19611.
S. N. Andley, Mahinder Narain and Rameshwar Na(h,
for the
Appellant.
~
Hardyal Hardy, H. S. Parihar and I. N. Shroff, for Respondents
A
B
Nos. 1 and 2.
C
The following Judgments were delivered :
FAZAL Au, J.-This appeal by special leave is directed against the
judgment of the Delhi High Court dated 23rd May, 1967 affirming the
decree of the District Judge, Delhi and dismissing the plaintiff's suit
for damages against the defendants on the ground that they had viola!-
D ·
ed the copyrighted work of the plaintiff which was a drama called
'Hum Hindustani'.
. The facts have been succinctly stated by the District Judge in his
judgment and summarised by the High Court, and, therefore, it is not
necessary for us to repeat the same all over again. We would, however,
E
like to give a brief resume of some of the striking facts in the case
which may be germane for the purpose of deciding the important issues
involved in this appeal. We might mention here that the High Court
as also the District Judge negatived the plaintiff's claim and prima facie
the appeal appears to be concluded, by finding of fact, but it was rightly
argued by Mr. Andley appearing for the appellant that the principles
p
of violation of copy-right in the instant appeal have to be applied on
the facts found and the inferences from proved facts drawn by the
High Court which is doubtless a question of law and more particularly
as there is no clear authority of this Court on the subject, we should
be persuaded to go into this question without entering into findings
of facts. Having heard coun'sel for the parties, we felt that as the case
G
is one of first impression and needs to be decided by this Court, we
should enter into the merits on the basis of the facts found and inferences drawn by the High Court and the District Judge. It is true that
both the Distdct Judge and the High Court have relied upon some well
established principles to determine whether or not in a particular case
a violation ()f copy right has taken place, but learned counsel for the
H
appellant has challenged the validity of the principles enunciated by the
High Court.
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[1979] 1 S.C.R.
The plaintiff is an architect by profession and is also a playwright,
dramatist and producer of stage plays. Even before Hum Hindustani
the plaintiff had written and produced a number of other plays like
Des Hamara, Azadi and Election which were staged in Delhi.
The
<i1bject ,matter of the appeal,
however, is the play
entitled 'Hum
l-Jindustani'.
According to the praintiff, this play was written by him
in Hindi in the year 1953 and was enacted by him for the first time
on fith, 7th, 8th and 9th February, 1954 at Wavell Theatre, New Delhi
under the auspices of the Indian National Theatre.
The play proved
to he very popular and received great -approbation from the Press and
the public as a result of which the play was re-staged in February and
September, 1954 and also in 1955 and 1956 at Calcutta.
Jn support
of bis c>1se the plaintiff has referred to 'a number of comments appearing in the Indian Express, Hindustan Times, Times of India and other
papers.
Encouraged by the success and popularity of the aforesaid play
the plaintiff tried to consider the possibility of filming it.
In N ovember, 19.54 the plaintiff received a letter dated 19th Navember, 1954
from the
second defendant Mr.
Mohan Sehgal
wherein
the
defendant informed the plaintiff that he was supplied with a synopsis
of the play by one Mr. Balwant Gargi a common friend of the plaintiff
and the defendant The defendant had requested the plaintiff to supply a copy of the play so that the defendant may consider the desirability of making oa film on it.
The plaintiff, however, by his letter
dated 30th November, 1954 informed the defendant that as the play
had been selected out of 17 Hindi plays for National Drama Festival
and would be staged on 11th December, 1954, the defendant should
take the trouble of visiting Delhi and seeing the pl•ay himself in order
to examine the potentialities of making a film, and at that time the
matter could be discussed by the defendant with the plaintiff.
The plaintiff's case, however, is that some time about January,
1955 the second and the third defendants came to Delhi, 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.
The second defendant did not make any clear commitment but promised the plaintiff that he would inform him about his re-action after
reaching Bombay. Thereafter the plaintiff heard nothing from
the
defendant. Sometime in May, 1955 the second defendant announced
the production of a motion picture entitled "New Delhi".
One Mr.
Thapa who was one of the artists in the play produced by the plaintiff
happened to be in Bombay at the time when the picture 'New Delhi'
was being produced by the defendant and informed the plaintiff that
the picture being produced by the defendant was really based on the
R. G. ANAND v. DELUX FILMS (Fazal A,li, J.)
227
plamtilI's play 'Hum Hindustani'.
The plaintiff thereupon by his
A
letter dated 30th May, 1955 wrote to the second defendant expressing
serious concern over the adaptation of his play into a motion picture
called 'New Delhi'.
The defendant, however, by his letter dated 9th
June, 1955 informed the plaintiff that his doubts were without any
foundahon and assured the plaintiff that the story treatment, dramatic
construction, characters etc. were quite different and bore not the reB
molest connection or resemblance with the play written by the
plaintiff.
The 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' written
C
by the plaintiff.
The plaintiff himself saw the picture on the 9th September, 1956 and he found that the film was entirely based upon the
said play and was, therefore, convinced that the defendant after having
heard the play narrated to him by the plaintiff dishonestly imitated the
same in his film and thus committed an act of piracy so as to result
in violation of the copy-right of the plaintiff.
The plaintiff accordingly
D
filed the suit for damages, for decree for accounts of the profits made
by the defendants and a decree for permanent injunction against the
defendants restraining them from exhibiting the film 'New Delhi'.
The suit was contested by defendants No. 1 and 2 as also by other
defendants who adopted the picas raised by defendants No. 1 and 2.
E
The defeμdants, inter alia, pleaded that they were not aware that
the plaintiff was the author of the play 'Hum Hindustani' nor were
they aware that the play was very well received at Delhi.
Defendant
No. 2 is a film Director and is also the proprietor of defendant No. 1
Delux Films.
The defendants averred that in November, 1954 the
F
second
defendant
was
discussing
some
ideas
for
his
nG.W
picture witl' Mr. Balwant Gargi who is a play wright of some
repute.
In the course of the discussion, the second defendant informed
Mr. Gargi that the second defendant was interested in producing a
motion film based on 'provincialism' as its central theme.
In the context of these discussions Mr. Gargi enquired of defendant No. 2 if the
G
latter was interested in hearing the play called 'Hum Hindustani' produced by the plaintiff which also had the same theme of provincialism
in which the second defendant was interested. It was, therefore, at
the instance of Mr. Gargi that the second defendant wrote to the plaintiff and reqmsted him to send a copy of the script of the play.
The
defendant goes on to state that the plaintiff read out the play to the.
H
second defendant in the presence of Rajinder Bhatia and Mohan
Kumar, Assistant Directors of the second defendant when they had
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SUPREME COURT REPORTS
(1979] 1 S.C.R.
come to Delhi in connection with the release of their film "Adhikar".
The second defendant has taken a clear stand that after having heard
the play he informed the plaintiff that though the play might have been
all right for the amateur stage, it was too inadequate for the purpose
of making a full length commercial motion picture.
The defendants
denied the allegation of the plainUff that it was after hearing the play
written by the plaintiff that the defendants decided to make a film
based on the play and entitled it as 'New Delhi'.
The defendant thus submitted that there could be no copy-right so
far as the subject of provincialism is concerned which can be used or
adopted by any body in his own way.
He further averred that the
motion picture was quite different from the play 'Hum Hindustani'
both in contents, 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. The defendant thus denied that there was any
violation of the copy right.
On the basis of the pleadings of the partio;s, the learned trial Judge
framed the following issues :
1. Is the plaintiff owner of the copyright in the play
'Hum
Hindustani' ?
2. Is
the film 'New Delhi' an infringement of the plaintiff's
copyright in the play 'Hum Hindustani' ?
3. Have. defendants or any of them infringed
the plaintiff's
copyright by producing, or distributing or exhibiting
the
film 'New Delhi'?
11
4. Is the suit bad for misjoinder of defendants and cause of
action?
5. To what relief is the plaintiff entitled and against whom?
Issue No. 1 was decided against the defendants and it was held by
the trial Judge that the plaintiff was the owner of the copy-right in the
G
play 'Hum Hindustani'.
Issue No. 4 was not pressed by the defendants and was accordingly. decided against them.
The main case
however turned upon the decision on issues
No. 2 and 3 which
were however decided against the plaintiff as the learned Judge held
that there was no violation of the copyright of the plaintiff.
The
plaintiff then went up in appeal to the Delhi High Court where a
H
Division Bench of that Court affirmed the decision of the District
Judge and upheld the decree dimissing the plaintiff's suit.
The findings of fact arrived at by the learned trial Judge and the High Court
R. G. ANAND v. DELUX FILMS (Fazal Ali, .f.)
2 29
have not been assailed before us.
The only argument advanced by
the appellant was that the principles enunciated and the legal inferences drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India.
It was
also submitted by Mr. Andley that the two courts have not fully
understood the import of the vio!aticm of copy-right particularly when
the similarities betwen the play and th~ film are so clo'sc and sundry
that would lead to the irresistible inference and unmistakable impression
that the film is nothing but an imitation of the play.
On the other
hand, it was argued by Mr. Hardy counsel for the respondents that the
two courts below have applied the law correctly and it is not necesA
sary for this Court to enter into merits in view of the concurrent findings
C
of fact given by the two courts. He further submitted that even on
the facts found it is manifest that there is a vast difference both in
the spirit and the content between the play 'Hum Hindustani' and the
film 'New Delhi' and no question of violation of the copy-right arises.
In order to appreciate the argument of both the parties it may
I>
be necessary to discuss the law on the subject. To begin with there
is no decided case of this Court on this point. Secondly, at the time.
when lhe cause of action arose Parliament had not made any law
governing copy-right violations and the courts in the absence of any
law by our Parliament relied on the old law passed by the British
Parliament, namely, the Copy Right Act of 1911.
Section 1 subE
section (2) (d) defines 'copy-right' thus :
"(2) For the purposes of this Act, copy-right' means
the sole right to produce or reproduce the work or any substantial part thereof in any material form
wh~tsoever, to
perform, or in the case of a lecture to deliver, the work or
any substantial part thereof in public. If the work is unpublished, to publish the work or
any
substantial part
thereof; and shall include the sole right,
x
x
x
x
x
( d) in the case of a .literary, dramatic, or musical work,
to make any record, perforated roll, cinematograpb film,
G
or other contrivance by means of which the work may be
mechanically performed or delivered".
Section 2 provides the contingencies where a
copy-right could be
infringed and runs thus :-
·
"2 (1 ) Copyright in a work shall be deemed to be infringed b~ any person who, without the consent of the
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owner of the copyright. does anything the sole right to do
which is by this Act conferred on the owner of the copyright".
It is, therefore, clear that the Act of 1911 defines 'copyright' and also
indicates the various contingencies where copy-right cannot be infringed.
The statute also
provides exceptions
which would
not
amount to voilation of copyright.
Jn the instant case the play ·.v.-itten by the appellant falls
within
section 1 ( 2 )( d) because it is a dramatic work.
The learned District Judge has rightly held that emotions like mere ideas are not subject to pre-emption because they are common
property.
Quoting
from the law of copyright and Movie-rights by Rustom R. Dadacf!anji
the lemned Judge observed as follows :-
"Jt is obvious that the underlying emotion reflected by
the principal characters in a play or look may be similar
and ;·et that the characters and expression o~ the same emotions be different.
That the same emotions are found in
plays would not alone be sufficient to prove infringement but
if similar emotions are portrayed by a sequence of events
presented in like manner expression and form, then infringement would be apparent".
Similarly in the case of Hanfstaengl v. W. H. Smith and Sons(')
it has been held by Bayley, J. that "a copy is that which comes so near
to the original as to give to every person seeing it the idea created by
the ori.~lnar'.
In Habbury's Laws of England by Lord Hailsham Fourth Edition
the following observations are made :
"Only original works are protected under Part I of the
Copyright Act 195 6, but it is not requisite that the work
should be the expression of original or inventive thought, for
Copyright Acts are not concerned with the originality
of
ideas, but with the expression of thought, and, in the case
of a literary work, with the expression of thought in print
or writing . . . . . . . . . . . . . . . . . . . . . . There is copyright in
original dramatic works and adaptations thereof, and such .
copyright subsists not only in the actual words of the work
but in the dramatic incidents created, so that if these are
taken there may be an infringement oa!though no words are
actually · copies.
There
cannot be copyright in
mere
science effects or stage situations which are not
reduced
into some permanent form".
(I) [19051 l Ch. D.