Civil Appeal No 2030 of 1968
Appeal by special leave from the Judgment and Decree dated 23 5 1968 of the Delhi High Court at New Delhi in RFA No 147D of 1968
section N Andley Mahinder Narain and Rameshwar Nath for the Appellant
Hardyal Hardy H section Parihar and 1
N Shroff for Respondents Nos 1 and 2
The following Judgments were delivered FAZAL ALI 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 violated 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 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 appealing for the appellant that the principles 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 counsel for the parties we felt that as the case 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 District Judge and the High Court have relied upon some well established principles to determine whether or not in a particular case a violation of copy right has taken place but learned counsel for the appellant has challenged the validity of the principles enunciated by the High Court
226 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 subject matter of the appeal however is the play entitled Hum Hindustani 
According to the plaintiff this play was written by him in Hindi in the year 1953 and was enacted by him for the first time on 6th 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
In support of his case 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 November 1954 the plaintiff received a letter dated 19th November 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 a 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 play 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 plain tiff 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 227 plaintiff s play Hum Hindustani 
The plaintiff thereupon by his 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 foundation and assured the plaintiff that the story treatment dramatic construction characters etc
were quite different and bore not the remotest 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 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 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 pleas raised by defendants No 1 and 2
The defendants 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 second defendant was discussing some ideas for his new picture with 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 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 requested 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 second defendant in the presence of Rajinder Bhatia and Mohan Kumar Assistant Directors of the second defendant when they had 228 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 plaintiff 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 S 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 parties 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   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 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 Division Bench of that Court affirmed the decision of the District Judge and upheld the decree dismissing the plaintiff s suit
The findings of fact arrived at by the learned trial Judge and the High Court 229 have not been assailed before us
The only argument advanced by h 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 violation of copy right particularly when the similarities between the play and the film are so close 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 necessary for this Court to enter into merits in view of the concurrent findings
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 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 the 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 sub 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 whatsoever 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 d in the case of a literary dramatic or musical work to make any record perforated roll cinematograph film or other contrivance by means or which the work may be mechanically performed or delivered
Section 2 provides the contingencies where a copy right could be infringed and runs thus  21 Copyright in a work shall be deemed to be in fringed by any person who without the consent of the 230 owner or the copyright does anything the sole right to do which is by this Act conferred on the owner of the copy right
It is therefore clear that the Act of 1911 defines copyright  and also indicates the various contingencies where copy right cannot be in fringed
The statute also provides exceptions which would not amount to violation of copyright
In the instant case the play written by the appellant falls within section 12d 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 Dadachanji the learned Judge observed as follows It is obvious that the underlying emotion reflected by the principal characters in a play or look may be similar and yet that the characters and expression of 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 vs W H Smith and Sons1 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 original
In Halsbury 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 1956 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 although no words arc actually copies
There cannot be copyright in mere science effects or stage situations which are not reduced into some permanent form
1 231 Similarly it was pointed out by Copinger in his book on Copyright 11th Edition that what is protected is not the original thought but expression of thought in a concrete form
In this connection the author makes the following observations based on the case law What is protected is not original thought or information but the original expression of thought or information in some concrete form
Consequently it is only an in fringement if the defendant has made an unlawful use of the form in which the thought or information is expressed
The defendant must to be liable have made a substantial use of this form he is not liable if he has taken from the work the essential ideas however original and expressed the idea in his own form or used the idea for his own purposes
 The author also points out that there is no infringement unless the plaintiff s play wrighted work has been actually used so that it may be said that the latter work reproduces the earlier one
In this connection the author observes as follows A further essential matter and one which rather strangely is not anywhere precisely stated in the Act of 1956 is that there can be no infringement unless use has been made directly or indirectly of the plaintiff s work
Moreover it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment Thou shalt not steal which forms the moral basis of the protective provisions of the Copyright Act of 1911
It is obvious 11  that when a writer or a dramatist produces a drama it is a result of his great labour energy time and ability and if any other person is allowed to appropriate the labours of the copy righted work his act amounts to theft by depriving the original owner of the copy right of the product of his labour
It is also clear that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy
In Article 418 Copinger states thus In many cases the alleged infringement does not consist of an exact or verbatim copy of the whole or any part of the earlier work but merely resembles it in a greater or lesser degree
232 In Article 420 the author lays down the various tests to determine whether an infringement has taken place and observes as follows Various definitions of copy  have been suggested but it is submitted that the true view of the matter is that where the court is satisfied that a defendant has in producing the alleged infringement made a substantial use of those features of the plaintiff s work in which copyright subsists an infringement will be held to have been committed if he has made such use he has exercised unlawfully the sole right which is conferred upon the plaintiff
 Ball in Law of Copyright and Literary Property  page 364 points out that where the defendant materially changes the story he cannot be said to have infringed the copyright
In this connection the author observes as follows In such a composition the story is told by grouping and representing the important incidents in the particular sequence devised by the author whose claim to copyright must depend upon the particular story thus composed and not upon the various incidents which if presented individually without such unique sequential arrangement would be common literary property
Consequently another dramatist who materially changes the story by materially varying the incidents should not be held to be infringer 
It is also pointed out by Mr Ball that sometimes even though there may be similarities between the copy righted work and the work of the defendant they may be too trivial to amount to appropriation OF copyrighted material
The author observes thus When two authors portray in literary or dramatic form the same occurrence involving people reacting to the same emotions under the influence of an environment constructed of the same materials
similarities in incidential details necessary to the environment or setting are inevitable but unless they are accompanied by similarities in the dramatic development of the plot or in the lines or action 
Of the principal characters they do not constitute evidence of copying
They are comparable to similarities in two works of art made by different artists from the same original subject and in the usual case are too trivial and unimportant to amount to a substantial appropriation of copyrighted material
233 The author further says that unless there is any substantial identity A between the respective works in the scenes incidents and treatment a case of infringement of copyright is not made and observes thus But there was no substantial identity between the respective works in the scenes incidents or treatment of the common Them the court held that the plaintiff s copyright were not infringed by the defendant s photoplays
Dealing with the infringement of copyright of a play by a motion picture which appears to be an identical case in the present appeal
the author observes as follows In an action for the alleged infringement of the copy right of a play by a motion picture wherein it appeared that both authors had used life in a boys  reform school as a background but the only similarity between the two productions consisted to a few incidents and points in dialogue such as one would expect to find in stories set against the same background there was no infringement of copyright To the same effect are the following observations to the author Where the only evidence of similarities between two plays was based upon the author s analysis and interpretation of an extensive list of parallel from which he infer red that many incidents scenes and characters in the alleged infringing play were adapted from the plaintiff s copy righted play but no such resemblance would be apparent i to an ordinary observer it was held that the meaning or interpretation which the author gives to his literary work cannot be accepted as a deciding test of plagiarism and that in the absence of any material resemblance which could be recognised by an ordinary observation
each play must be regarded as the independent work of the named author Similar observations have been made in Corpus Juris Secundum VOL 18 at page 139 where it is observation as follows  An author has at common law a property in his intellectual production before it has been published and may obtain redress against anyone who deprives him of it or by improperly obtaining a copy endeavours to publish or to use it without his consent
16 520 SCI78 234 This right exists in the written seenario of a motion picture photoplay and in the photoplay itself as recorded on the photographic film
There is however no common law literary property right in the manner and postures of the actors used by them in performing the play Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright and therefore protected by law and infringement of copy right or piracy which is a synonymous term in this connection consists in the doing by any person without the con sent of the owner of the copyright of anything the sole right to do which is conferred by the statute on the owner of the copyright
 This view was taken by the US Supreme Court in the case of Bobbs Merrill Company vs Isidor Straus and Nathan Straus1 In the American Jurisprudence also it is pointed out that the law does not recognize property rights in abstract idea nor is an idea protected by a copyright and it becomes a copyright work only when the idea is given embodiment in a tangible form
In this connection the following observations are made Generally speaking the law does not recognize property rights in abstract ideas and does not accord the author or proprietor the protection of his ideas
which the law does accord to the proprietor of personal property 
In cases involving motion pictures or radio or television broadcasts it is frequently stated that an idea is not protected by a copyright or under the common law or that there is no property right in an idea apart from the manner in which it is expressed
When an idea is given embodiment in a tangible form it becomes the subject of common law property rights which are protected by the courts at least when it can be said to be novel and new
It was also pointed out in this book as to what constitutes colorable imitation
In this connection the following observations have been made Infringement involves a copying in whole or in part either in haec verba sic or by colorable variation 
A copy 1 21 O US 
339 235 as used in copyright cases signifies a tangible object which is a reproduction of the original work
The question is not whether the alleged infringer could have obtained the same information by going to the same source used by the plaintiff in his work but whether he did in fact go to the same source and do his own independent research
In other words the test is whether one charged with the infringement made an independent production or made a substantial and unfair use of the plaintiff s work
Intention to plagiarise is not essential to establish liability for infringement of a copyright or for plagiarism of literary property in unpublished books manuscripts or plays
One may be held liable for infringement which is unintentional or which was done unconsciously
Similarity of the alleged infringing work to the author s or proprietor s copyrighted work does not of itself stablish copyright infringement if the similarity results from the fact that both works deal with the same subject or have the same common source 
Nevertheless it is the unfair appropriation of the labour of the author whose work has been infringed that constitutes legal infringement and while identity of language will often prove that the offence was committed it is not necessarily the sole proof on the other hand relief will be afforded irrespective of the existence or non existence of any similarity of language if infringement in fact can be proved
 The appropriation must he of a substantial  or material  part of the protected work 
The test is whether the one charged with the infringement has made substantial and unfair use of the complainant s work
Infringement exists when a study of two writings indicates plainly that the defendant s work is a transparent rephrasing to produce essentially the story of the other writing but where there is no textual copying and there are differences in literary style the fact that there is a sameness in the tricks of spinning out the yarn so as to sustain the reader s suspense and similarities of the same general nature in a narrative of a long complicated search for a lost article of fabulous value does not indicate infringement  236 We shall now discuss some of the authorities that have been cited at the Bar as also some others with whom we have come across and which throw a flood of light on the point in issue
Dealing with the question of similarities Lord Kekewich J in Hanfstaengl case Supra described various qualities of a copy and observed as follows In west vs Francis1 Bayley J uses language coming as Lord Watson says nearer to a definition than anything which is o be found in the books
It runs thus A copy is that which comes so near to the original as to give to Every person seeing it the idea created by the original 
 If it were altered thus a copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it the substance of the definition would be preserved and Lord Watson s criticism would be avoided
The learned Judge aptly pointed out that an imitation will be a copy which comes so near to the original as to suggest the original to the mind of every person seeing it
In other words if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant that will be sufficient to constitute a violation of the copy right
In the case of Ladbroke Football Ltd vs William Bill Foot ball Ltd Reid made the following pertinent observations 
But in my view that is only a short out and more correct approach is first to determine whether the plaintiff s work a whole is original  and
protected by copyright rand then to inquire whether the part taken by the defendant is substantial
A wrong result can easily be reached if one begins by dissecting the plaintiff s work and asking could section A be the subject of copyright if it stood by itself could section be protected it stood by itself and so on
To my mind it does not follow that because the fragments taken separately would not be copyright therefore the whole cannot be
1 1822 r B  Ald 737 743
2 237 Lord Hodson expressed similar views at p 475 in the following A words The appellants have sought to argue that the coupons can be dissected and that on analysis no copyright attaches to any of their component parts and accordingly no protection is available
In my opinion this approach is wrong and the coupons must be looked at as a whole
Copy right is a statutory right which by the terms of section 2 of the Act of 1956 would appear to subsist if at all in the literary or other work as one entity
This case clearly lays down that a similarity here or a similarity there is not sufficient to constitute a violation of the copyright unless the imitation made by the defendant is substantial
In the case of Corelli vs Gray1 Sargent J Observed as follows The plaintiff s case is entirely founded on coincidences or similarities between the novel and the sketch
Such coincidences or similarities may he due to any one of the four hypotheses namely 1 to mere chance or 2 to both sketch and novel being taken from a common source 3 to the novel being taken from the sketch or 4 to the sketch being taken from the novel
Any of the first three hypothesis would result in the success of that defendant it is the fourth hypothesis alone that will entitle the plaintiff to succeed
Looking now at the aggregate of the similarities between the sketch and the novel and the case is essentially one in which the proof is cumulative
I am irresistibly forced to the conclusion that it is quite impossible they should be due to mere chance coincidence and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiff s novel
Thus it was pointed out in this case where the aggregate of the similarities between the copyrighted work and the copy lead to the cumulative effect that the defendant had imitated the original and that the similarities between the two works are not coincidental a reasonable inference of colorable imitation or of appropriation of the labour of the owner of the copyright by the defendant is proved
This case was followed by the Master of Rolls in the case of Corelli vs
Gray 2 
1 2 238 The case of Hawkes and Son London Limited vs Paramount Film Service Limited1 was whether a musical composition made by the owner was sought to he imitated by producing a film containing the said composition
An action for violation of the copyright was fired by the owner
Lord Hansworth M R found that the quantum taken was substantial and a substantial part of the musical copyright could be reproduced apart from the actual film
In this connection Lord Hansworth observed as follows Having considered and heard this film I am quite satisfied that the quantum that is taken is substantial and although it might be difficult and although it might be difficult and although it may be uncertain whether it will be ever used again we must not neglect the evidence that a substantial part of the musical copy right could be reproduced apart from the actual picture film Similar observations were made by Lord Slesser which may be extracted thus Any one hearing it would know that it was the march called Colonel Bogey and thought it may be that it was not very prolonged in its reproduction it is clearly in my view a substantial a vital and an essential part which is there reproduced
That being so it is clear to my mind that a fair use has not been made of its that is to say there has been appropriated and published in a form which will or may materially injure the copyright that in which the plaintiffs have a proprietary right
In the case of Harman Pictules NV vs Osborne  orsa it was held that similarities of incidents and situation undoubtedly afforded prima facie evidence of copy and in the absence of any explanation by the defendant regarding the sources the plaintiffs must succeed
It was however held that there was no copyright in ideas schemes or systems or method and the copyright is confined only to the subject
In this connection Coff J Observed as follows There is no copyright in ideas or schemes or systems or methods it is confined to their expression 
But there is a distinction between ideas which are not copy right and situations and incidents which may be   one must however be careful not to jump to the 1 19341 Ch D 593
2 196711 WLR 723
239 conclusion that there has been copying merely because of A similarity of stock incidents or of incidents which are to be found in historical semi historical and fictional literature about characters in history
In such cases the plaintiffs and that includes the plaintiffs in the present case are in an obvious difficulty because of the existence of common sources
But I have read the whole of the script very carefully and compared it with the book and I find many similarities of detail there also 
Again it is prima facie not without significance that apart from the burial of Captain Nolan the play ends with The very quotation which Mrs Wodham Smith used to end her description of the battle   
As Sir Andrew Clark points out some of these might well be accounted for as being similar to other events already in the scripts and in any event abridgment was necessary but that may not be a complete answer Similarly in the case of Donoghue vs Allied Newspapers1 it was pointed out that there was no copyright in an idea and in this connection Farwell J Observed as follows This
at any rate is clear and one can start with This beyond all question that there is no copyright in an idea or in ideas   of the idea however brilliant and however clever it may be is nothing more than an idea and is not put into any form of words or any form of expression such as a picture or a play then there is no such thing as copyright at all
It is not until it is If I may but it in that way reduced into writing or into some tangible form that you get any right to copyright at all and the copyright exists in the particular form of language in which or in the case of a picture in the particular form of the picture by which the information or the idea is conveyed to those who are intended to read it or look at it
Similarly in the case of Bobl and Anr
vs Palace Theatre Limited and Anr2 Justice Hamilton observed as follows  If similarity between two works was sufficiently strong the evidence of copying would be so cogent that no one would believe any denial but here the intrinsic evidence was 1 2 240 really the other way 
The matter had been considered by Justice Scrutton in his book on Copyright and the conclusion there come sic to Note h p 83 of fourth edition was that to which his own reflection during the progress of this case would have led him
He considered therefore that where the similarity was a mere coincidence there was no breach of copyright In the case of Tate vs Fullbrook1 Lord Vaughan Williams observed as follows 
I do not think that I need go at length through the similarities and dissimilarities of the two sketches
It is practically admitted that so far as the words are concerned the similarity is trifling
All that we find here is a certain likeness of stage situation and scenic effect which in my opinion ought not to he taken into consideration at all where there is appreciable likeness in the words
In the case of Frederick B Chatterton and Benjamin Webster vs Joseph Arnold Cave2 Hatherley observed as follows And if the quantity taken be neither substantial nor material if as it has been expressed by some Judges a fair use only be made of the publication no wrong is done and no action can be brought
It is not perhaps exactly the same with dramatic performances
They are not in tended to be repeated by others or lc be used in such a way as a book may be used but slill the principle de minimis non curat lex applies to a supposed wrong in Laking a part of dramtic works as well as in reproducing a part of a book
I think
my Lords regard being had to the whole of this case to the finding of the Lord Chief Justice that the parts which were so taken were neither substantial nor material parts and the impossibility of damage being held to have accrued to the plaintiff from such taking and the concurrence of the other Judges before whom the case was brought that this appeal should be dismissed and dismissed with costs  
In the case of Sheldon vs Metro Gclden Pictures Corporation3 Judge Learned Hand stated that while considering a case which is very similar to the case in this appeal observed as follows 1 2 3 241 But it is convenient to define such a use by saying that others may copy the theme or ideas or the like of a work though not its expression
At any rate so long as it is clear what is meant no harm is done Finally in concluding as we do that the defendants used the play pro tanto we need not charge their witnesses with perjury
With so many sources before them they might quite honestly forget what they took nobody knows the origin of his inventions memory and fancy merge even in adults
Yet unconscious plagiarism is actionable quite as much as deliberate The play is the sequence of the confluents of all these means bound together in an inseparable unity it may often be most effectively pirated by leaving out the speech for which a substitute can be found which keeps the whole dramatic meaning
That as it appears to us is exactly what the defendants have done here the dramatic significance of thevwcenes we have recited is the same almost to the letter   
It is enough that substantial parts were lifted no plagiarist can excuse the wrong by showing how much of his work he did not pirate
 In the aforesaid case the Court held that there was no plagiarism or violation of the copyright
In the case of Shipman vs R K O Radio Picturesl which holding that an idea cannot be the subject of copyright great stress was laid on the impression which the audience forms after seeing the copy
In this connection Menton J Observed as follows The Court concluded that it was the idea or impression conveyed to the audience which was the determining factor and since the impressions were the same held there was an infringement 
From this case stand the modern law of copyright cases with the result that it is now held that ideas are not copyrightable but that sequence of events is the identity of impression must be capable of sensory perception by the audience
In the case of Michael V Moretti vs People of the State of Illinois2 It was held that law does not recognise property rights in ideas but only in the expression of the same in a particular manner adopted by the author
A writ of certiorari was taken against this judgment to the US Supreme Court which was denied
To the 1 2  US 947 242 same effect is an earlier decision in the case of Funkhouser vs Loew s1 where the following relevant observations were made on the various aspects of the matter We are also mindful that the test used to determine infringement in cases of this case is whether ordinary observation of the motion picture photoplay would cause it to be recognised as a picturisation of the compositions allow ed to have been copied and not whether by some hypercritical dissection of sentences and incidents seeming similarities are shown to exist  
It recognised that there were similar incidents in the productions but such similarities were due to the nature of the subject matter and not to copying
Both the motion picture and plain tiff s story old John Santa Fe  were set in the same geo graphical area and both had the typical western back ground    
Appellant s attempt to show similarities by comparing a word or phrase taken from his manuscript with the word or words appearing in the lyrics of a song in appellee s motion picture is not in conformity with the test used in infringement cases and to which we have referred to above
We find no merit in the contention that any of the songs in defendant s movie were taken from plaintiff s manuscripts 
Considering that both the movie and the manuscript presented activities of Harvey Girls and information concerning them was received from the same source we think it reasonable that some similarities in character portrayal could be discovered
In view of the aforesaid observation too much stress cannot always be laid on similarities or similar situations
A writ of certiorari against the judgment of the US Courts Appeal to the US Supreme Court was taken but the certiorari was denied and the petition was rejected in limine as it appears from This was also a case where a film was made on the basis of a play claimed to have been written by the plaintiff
The case of Warner Bros Pictures vs Columbia Broadcasting System2 is another illustration of the manner in which a copyright can be violated
Dealing with this aspect of the matter Stephens J observed as follows It is our conception of the area covered by the copy right statute that when a study of the two writings is made and it is plain the study that one of them is not in fact the 1 208 F 2d 185
2  243 creation of the putative authority but instead has been copied in substantial part exactly or in transparent phrasing to produce essentially the story of the other writing it in fringes
A writ of certiorari was taken against the decision to the US Supreme B Court but was denied as reported in 348 US 971
In the case of Otto Eisenchiml vs Fowcett Publications1 Duffy Chief Judge observed as follows An infringement is not confined to literal and exact repetition or reproduction it includes also the various modes in which the matter of any work may be adopted imitated transferred or reproduced with more or less colorable alterations to disguise the piracy
Paraphrasing is copying and an infringement if carried to a sufficient extent The question of infringement of copyright is not one of quantity but of quality and value
A writ of certiorari against this decision was taken to the US Supreme Court but was denied which was reported on US 907
In the case of Dorsey vs Old Surety Life Ins
Co2 Phillips J 1 observed as follows The right secured by a copyright is not the right to the use of certain words nor the right to employ ideas expressed thereby
Rather it is the right to that arrangement or words which the author has selected to express his ideas To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copy righted material should be required
Similar observations were made in the case of Twentieth Century Fox Film Corporation vs Stonesifer3 which are as follows In copyright infringement cases involving original dramatic compositions and motion picture productions in as much as literal or complete appropriation of the protected property rarely occurs the problem before the court is concrete and specific in each case to determine from all the facts 1 246 2d 598
2 98 2d 872
3 140 2d 579 244 and circumstances in evidence whether there has been a substantial taking from an original and copyrighted property and therefore an unfair use of the protected work The two works involved in this appeal should be considered and tested not hypercritically or with meticulous scrutiny but by the observations and impressions of the average reasonable reader and spectator
We find and conclude as did the court below that the numerous striking similarities in the two works cannot in the light of all the evidence be said to constitute mere chance
The deduction of material and substantial unlawful copying of appellee s original play in appellant s motion picture is more in consonance with the record and with the probabilities of the situation therein disclosed
This authority lays down in unmistakable terms the cases where an infringement of the copyright would take place and as pointed out that before the charge of plagiarism is levelled against the defendant it must be shown that the defendant has taken a substantial portion of the matter from the original and have made unfair use of the protective work The two works involved must be considered and tested not hypercritically but with meticulous scrutiny
Similarly in the case of Oliver Wendell Holmes vs George D Hirst1 Justice Brown speaking for the Court and describing the incidents of a violation of the copyright observed as follows It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes
The Judicial Committee in the case of Macmillan  Company Limited vs K and J Cooper2 while pointing out the essential ingredients of the infringement of copyright Lord Atkinson observed as follows Third that to constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright
1  2 51 IA 109
245 In the case of Florence A Deeks vs H G Wells  ors1 Lord Atkin speaking for the Judicial Committee summarised the nature of the evidence required to prove as a violation of copyright and observed as follows Now their Lordships are not prepared to say that in the case of two literary works intrinsic evidence of that kind may Br not be sufficient to establish a case of copying even if the direct evidence is all the other way and appears to be evidence that can be accepted but such evidence must be of the most cogent force before it can be accepted as against the oath of respectable and responsible people whose evidence otherwise would be believed by the Court
In the case of NT Raghunathan  Anr
vs All India Reporter Ltd Bombay2 it was held that copyright law did not protect ideas but only the particular expression of ideas
In that case the Bombay High Court however held that the defendant had copied not only the ideas but also the style of abridgment the expression of ideas and the form in which they were expressed and thus held that a case for violation of copyright was made out
K R Venugopalan Sarma vs Sangu Ganesan3 was a case of infringement of copyright in picture and it was held that an infringement of the copyright was complete even though the reproduction was not exact but the effect on the mind by study of the two pictures was that the respondent s picture was nothing but a copy of the plaintiff s picture
The Court while applying the various tests Observed as follows Applying this test the degree of resemblance between the two pictures which is to be judged by the eye must be such that the person looking at the respondents  pictures must get the suggestion that It is the appellant s picture  one picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction
To the same effect is an earlier decision of the Division Bench of the Madras High Court in the case of The Daily Calendar Supplying Bureau Sivakasi vs The United Concern4 where the Court observed as follows 1 60 IA 26
2 AIR 1971 Bom
3 4 ATR 246 What is essential is to see whether there is a reproduction of substantial part of the picture
There can be no test to decide what a substantial part of a picture is
One useful test which has been followed in several decisions of Courts is the one laid down by Lord Herschel LC in Hanjastaengl vs Bains  Co 1   it depends really on the effect produced upon the mind by a study of the picture and of that which is alleged to be a copy of it or at least of its design
In the case of C Cunniah and Co vs Balraj  Co2 the Court applying the test of resemblance observed as follows Applying this test the degree of resemblance between the two pictures which is to be judged by the eye must be such that the person looking at the respondents  picture must get the suggestion that it is the appellant s picture
In this sense the points of similarity or dissimilarity in the picture assume some importance 
We agree that this could not be the sole test though incidentally the points of resemblance and dissimilarity assume some importance in the case of finding out whether taken as a whole the respondents  picture produces the impression in the mind of any observer which amounts to a suggestion of the appellants  picture
one picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction
In the case of Mohendra Chandra Nath Ghosh and ors
vs Emperor3 the Court while defining what a copy is held that a copy is one which is so near the original as to suggest the original to the mind of the spectator and observed as follows But the question is whether the offending pictures are copies of substantial portions of the copyright picture The figures may have been reduced in the offending pictures and slight modifications may have been introduced or the clothes and colours may have been different but there can be no doubt whatsoever that the main figures have an identi 1  25
2 AIR 1961 Mad 111
3 AIR 1928 Cal 359
247 cal pose
These are not in my opinion coincidences due to A the pictures being produced to represent common stock idea
 Similarly in the case of SK Dutt vs Law Book Co  orsl it was held that in order to be an infringement of a man s copyright there must be a substantial infringement of the work
A mere fair dealing with any work falls outside the mischief of the Copyright Act
Similarly in the case of Romesh Chowdhry  Ors
vs Kh
Ali Mohamad Nowsheri  Ors2 the Division Bench of the Court to which one of us Fazal Ali J was a party and had written the leading judgment it was thus observed  It is well settled that in order to be actionable the infringement must be a colorable imitation of the originals with the purpose of deriving profit
In the case of Mohini Mohan Singh  Ors
vs Sita Nath Basak3 a Division Bench of the Calcutta High Court while laying down the necessary concomitants of a colorable imitation Mukherji J Observed as follows The question there is where a colorable imitation has been made
Whether a work is a colorable imitation of another must necessarily be a question of fact
Similarly is a great point to be considered in this connection but mere similarity is not enough as it may be due to any one of four hypotheses as Copinger points out at p 134 Edn 6 viz 1 to mere chance 2 to both works being taken from a common force 3 to plaintiff s work being taken from the defendant s and 4 defendant s work being taken from the plaintiff s and each case must depend upon its own circumstances
Guha J Observed as follows It has to be determined whether in a particular case the work is a legitimate use of another man s publication in the fair exercise of a mental operation deserving the character of original work
1 AIR 1954 All 570 2 AIR 1965 J  K 101
3 AIR 1931 Cal
248 Thus the position appears to be that an idea principle theme or subject matter or historical or legendary facts being common property cannot be the subject matter of copyright of a particular person
It is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others
Where two writers write on the same subject similarities are bound to occur because the central idea of both are the single but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy
Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek Roman and British mythology or legendary stories like Mer chant of Venice Hamlet Romeo Juliet Jullius Caesar etc
But the treatment of the subject by Shakespeare in each of his dramas is so fresh so different so full of poetic exuberance
elegance and erudition and so novel in character as a result of which the end product be comes an original in itself
In fact the power and passion of his expression the uniqueness eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him
It will thus be preposterous to level a charge of plagiarism against the great play wright
In fact thoughout his original thinking ability and incessant labour Shakespeare has converted an old idea into a new one so that each of the dramas constitutes a master piece of English literature
It has been rightly said that every drama of Shakespeare is an extended metaphor
Thus the fundamental fact which has to be determined where a charge of violation of the copyright is made by the
plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner arrangement situation to situation scene to scene with minor changes or super additions or embellishment here and y there
Indeed if on a perusal of the copyrighted work the defendant s work appears to be a transparent rephrasing or a copy of a substantial and material part of the original the charge of plagiarism must stand proved
Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form different tone different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him
In the latter case there is no violation of the copyright
Thus on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above the following propositions emerge 1
There can be no copyright in an idea subject matter themes plots or historical or legendary facts and violation of the copyright in 249 such cases is confined to the form manner and arrangement and expression of the idea by the author of the copyright 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 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 defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright
In other words in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy
One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing 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
Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work no question of violation of copyright arises
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
As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above
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 prospective a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea
Even so if the viewer after 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
17 520 SCI78 250 We would now endeavour to apply the principles enunciated above and the tests laid down by us to the facts of the present case in order to determine whether or not the plaintiff has been able to prove the charge of plagiarism and violation of copyright levelled against the dependant by the plaintiff
The learned trial Judge who had also 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 plaintiff
In order to test the correctness of the finding of the trial Court we also got the play read to us by the plaintiff in the presence of counsel for the parties and have also seen the film which was screened at CPWD Auditorium Mahadev Road New Delhi
This was done merely to appreciate the judgment of the trial Court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the parties
To begin with we would like to give a summary of the play Hum Hindustani which is supposed to have been plagiarized by the defendants
The script of the play exhibit P1 has been placed before us and we have gone through the same
The main theme of the play is provincialism and the prejudice of persons belonging to one State against persons belonging to other States
In the play however the author chooses two families viz a Punjabi family and a Madrasi family to show what havoc can be caused by provincial parochialism possessed by the two families
The Punjabi family and the Madrasi family were living as close neighbours having good and cordial relations and are on visiting terms with each other
The Punjabi consists of Dewan Chand contractor his wife Krishna their grown up daughter Chander and son Tinnu aged about 8 or 10 years
The Madrasi family however consists of Subramaniam Government officials his wife Minakshi and grown up son Amni and daughter Pitto who is aged about 8 or 10 years
As a result or the close association between the two families it appears that Amni the son of Subramaniam falls in love with Chander the daughter of Dewan Chand of the Punjabi family
When the parents are out Amni and Chander meet and talk
Unfortunately however the parents of both Amni and Chander arc extremely adverse to the matrimonial union of Amni and Chander because the two families belong to two different provinces
When they get some scent of the love affair between Amni and Chander the parents of Chander make a serious attempt to find a suitable match for her amongst their own caste namely Punjabis
Similarly the parents of Amni also try to arrange a match for him amongst Madrasis
For this purpose the services of a marriage broker named Dhanwantri are enlisted by both the parties without knowing 251 that Dhanwantri was trying to negotiate marriages for both the couples
Later on when this fact is discovered the relations of the two families become strained
Amni and Chander also persuade Dhanwantri to assist there in bringing about their marriage by persuading their parents to agree
This gives a chance to Dhanwantri to make a lot of money out of the two couples
Dewan Chand and his wife Krishna in sheer desperation hurriedly arranged the marriage of their daughter Chander to Bansi a simpleton son of Murari Lal who is a friend of Dewan Chand
In fact Dewan Chand is not very impressed with Bansi but in view of the critical situation arising out of the love affair between his daughter and Amni he prefers Bansi to the Madrasi boy
When Chander and Amni come to know of this Chander asked Amni to speak to his parents in a free and frank manner and express his strong desire to marry Chander
Amni who appears to be a cowardly fellow prefers to commit suicide rather than dare to talk out this matter with his parents
Realising that no hope is left for Chander and Amni to go through the marriage ceremony both of them entered into a suicidal pact and wrote letters to their parents indicating their intention to commit suicide because they were not prepared to marry anybody else
Dhanwantri however intervenes and persuades Chander and Amni not to commit suicide as according to him they were not destined to die unless they had been actually married
Meanwhile the parents of Amni and Chander on getting the suicide note mourn the loss of their children and it now dawns upon them that they had committed the saddest mistake of their life in refusing to marry the couple and repent for their act
Just at that time Amni and Chander appear on the scene after having been married to each other
The marriage was performed by Dhanwantri himself
Thus ends the story with the realisation by both the families that provincialism helps nobody
This in short is the story of the play written by the appellant
We might mention that before the play starts the author show some voices reciting various persons proclaiming that they come from different States like the slogan that they belong to a particular state rather than that they belong to India
Analysing therefore the essential features of the play the position is as follows 1
That the central idea of the play is based on provincialism and parochialism
The evils of provincialism are illustrated by the cordial relations of the two families being married because of an 252 apprehended marriage tie which according to both the families was not possible where they belonged to different States
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
That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into a suicidal pact and write letters to their parents intimating their intention
It was only after the letters are perused by the parents that they realise the horror of parochialism and arc repentant for having acted so foolishly
That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well
As the play was read to us by the appellant we find that it was very exquisitely presented and the plot was developed with great skill
It must be noted however that the author in writing out the play has concentration only on one aspect of provincialism namely whether there can be a marriage between the persons belonging to one State with those belonging to other States
This is the only aspect of provincialism which has been stressed in the play
The play does not touch any other aspect nor does it contain anything to throw light on the evils of society or that of dowry etc
We have mentioned these acts particularly because the film revolves around not only the aspect of marriage but other aspects also which are given the same importance as the problem of marriage
We shall now give the summary of the film
The script of which is exhibit D 2
The film starts showing Anand a young graduate from Punjab who comes to New Delhi for a course in Radio Engineering
At the Railway Station Anand meets a Madrasi girl Janaki and due to some misunderstanding an altercation between the two takes place as a result of which Janaki feels that Anand was trying to tease her
Thereafter Anand comes and stays in a Sarai opposite the Railway Station but he is allowed to stay there only for three days after which he was expected to find accommodation elsewhere
Thereafter Anand runs from house to house trying to get some accommodation but is sadly disappointed because wherever he goes he finds that in every case the landlord is not prepared to give the house to any person who 253 does not belong to his province
We might mention here that this is one of the very important aspect of provincialism which pervades through the entire film viz that so parochial are the landlords that they were not even prepared to let out their houses or rooms to any person coming from outside their State
This particular aspect is completely absent from the story revealed in the play written by the appellant
One Kumaraswamy a South Indian attendant at the Sarai comes to the rescue of Anand and suggests to him that he should attire as a South Indian and then go to any South Indian landlord to get the house
Thereafter Anand disguised as a South Indian approaches one Iyer for giving him accommodation and Iyer is only too glad to accommodate Anand on the ground that Anand is also a South Indian
Anand then meets Subramaniam father of Janaki the girl with whom he had all altercation at the station
The film then proceeds involving several sequences of the meeting between Anand and Janaki Murli Dhar the Principal of a Dancing School takes Anand is his student and there he is introduced to Janaki who is a Professor of Dance and Music in that Institute
Janaki then discovers that Anand is a good singer and is slowly and gradually attracted towards him
Janaki invited him to her house for the celebration of Pongal festival and Anand goes there as usual attired as South Indian to witness the dance performance of Janaki
He also comes to know that Janaki s father Subramaniam does not hold any good opinion about the Punjabis
Thereafter Anand leaves the place after making an appointment with Janaki to meet near Rashtrapati Bhawan the following day
When Anand returns to his house he comes to know that his father Daulat Ram had been transferred to New Delhi and was expected at any moment
Daulat Ram was posted as Manager in the same commercial company in which Subramaniam was employed ill a subordinate position
Anand receives his parents and his grown up sister Nikki at the railway station and takes them to his house
He also brings Kumaraswamy the attendant at the Sarai to his own house as a cook
Thereafter Anand goes out on the pretext of taking his sister Nikki around the city
When they reach the Red Fort he meets Ashok Banerjee a young Bengali painter whom he had met earlier in connection with the search for accommodation of the house but was refused accommodation because Anand did not happen to be a Bengali
Ashok Banerjee is impressed by Nikki and requests her to allow him to make Nikki s portrait
Leaving his sister there Anand meets Janaki and both of them come to the Red Fort
When Anand and Janaki meet Nikki and Ashok Anannd in order to conceal his real identity tells Janaki that Nikki is the daughter of his father s friend which naturally angers Nikki hut later Anand apologies to her and 18 520 SCI78 254 explains that he did not want Janaki or her father lo know that he was not a Madrasi and thus upset the love affair between Anand and Janaki
Subramaniam father of Janaki takes a fancy for Anand and asks Janaki to invite Anand s father to the house so that he could negotiate Janaki s marriage with Anand
This puts Anand in a most awkward position In order to save the situation Anand hits upon an idea by introducing his cook Kumaraswamy to Subramaniam as his father
Just at that time Daulat Ram happens to pass through Subramaniam s house and is called in by Subramaniam but the situation is saved by Kumaraswamy feigning illness as a result of which he is taken to a room where he hides his face in a blanket
Anand leaves the house and returns with a false beard posing as a doctor
Similarly Ashok and Nikki get attached to each other and Ashok receives a telegram from his father summoning him to Calcutta
Before he leaves Ashok frankly declares his love to Nikki and gets her consent to marry him
The love affair of Nikki however is not in the knowledge of her parents
Murli Dhar Principal of the Institution of Dance and Music arranges a performance in which the principal role is played by Anand and Janaki
Up to this time neither Janaki nor her father Subramaniam had ever known the real identity of Anand but both of them had taken him to be a South Indian
We might like to add that here the picture makes a complete departure from the story contained in the play where both the parents of the couple knew the identity of each other
Before the performance starts Anand tries to disclose his identity to Janaki but is unable to do so because Janaki is in a hurry
The performance is applauded by The audience which includes Subramaniam Daulat Ram and Kumaraswamy
In the theater hall where the performance is staged Kumaraswamy is given a prominent place as he is taken to be the father of Anand
Daulat Ram resents this fact because Kumaraswamy was his servant
After the performance Murli Dhar introduces Subramaniam Janaki s father to the audience
Murli Dhar then calls Kumaraswamy and introduces him to the audience as the father of Anand
This infuriates Daulat Ram who comes to the stage and gives a thrashing to Kumarswamy
It is at this stage that the entire truth is revealed and both Subramaniam and Janaki come to know that Anand was not a South Indian hut a Punjabi and his father was Daulat Ram
Daulat Ram also does not like the relations of his son with Janaki because he thinks that if the son marries outside the caste that will create difficulties for the marriage of his daughter Nikki Subramaniam then starts negotiation for Janaki s marriage with a South Indian boy
Anand goes to Janaki and asks her to delay the negotiations for about a month or two till Nikki s marriage is over after which he would marry Janaki
255 Janaki feels completely let down and when she goes home she is given a serious rebuke by her father
In utter frustration Janaki decides to commit suicide and leaves suicide note
She proceeds to Jamuna river
Before she is able to jump into the river she is saved by Sadhu Ram a Punjabi Ghee Merchant and a friend of Subramaniam Sadhu Ram scoffs at the people s preference for provincialism and their lack of appreciation of intrinsic human values
He takes Janaki to his own house and tells Daulat Ram that she is her niece and on that basis negotiates for the marriage of Janaki with Anand
Daulat Ram accepts the proposal because Janaki appears as a Punjabi girl on receiving the suicide note Subramaniam feels extremely sorry and realises his mistake
In the meanwhile when Daulat Ram returns to his house he finds Ashok Banerjee on very intimate terms with Nikki Daulat Ram gets furious and turns out Ashok from his house
Thereafter Daulat Ram arranges the marriage of his daughter Nikki with the son of one Girdhari Lal
After the marriage party comes to the house of Daulat Ram Girdhari Lal insists upon Rs 15000 as dowry from Daulat Ram
Daulat Ram does not have such a large sum of money and implores Girdhari Lal not to insist and to save his honour but Girdhari Lal is adamant
Daulat Ram tries to enlist the support of his caste men but no one is prepared to oblige him
At this juncture Ashok Banerjee appears on the scene and offers his mother s jewellery to Daulat Ram to be given in dowry to Girdhari Lal and thus seeks to save the honour of Daulat Ram
This act of Ashok Banerjee brings about a great mental change in the attitude of Daulat Ram who stops Nikki s marriage with Girdhari Lal s son and turns them out along with the men of his brotherhood
Daulat Ram declares his happiness that he has found a bigger brotherhood namely the Indian brotherhood and asks Ashok to marry Nikki at the same marriage Pandal
At that time Sadhu Ram requests Daulat Ram that Mohini who is none other than Janaki should also be married to Anand
Sadhu Ram discloses the true identity of Janaki and then Daulat Ram realises his short sightendness and welcomes the idea of the marriage of Anand with Janaki
Subramaniam who is present there feels extremely happy and blesses the proposed marriage
Ashok and Nikki as also Anand and Janaki are then married and thus the film ends
Analysing the story of the film it would appear that it protrays three main themes 1 Two aspects of provincialism viz the role of provincialism in regard to marriage and in regard to renting out accommodation 2 Evils of a caste ridden society and 3 the evils of dowry
So far as the last two aspects are concerned they do not figure at all in the play written by the plaintiffappellant
A close 256 perusal of the script of the film clearly shows that all the three aspects mentioned above are integral parts of the story and it is very difficult to divorce one from the other without affecting the beauty and the continuity of the script of the film
Further it would appear that the treatment of the story of the fills in many respects different from the story contained in the play
Learned counsel for the appellant however drew our attention to para 9 of the plaint at pages 18 19 of the paper book wherein as many as 18 similarities have been detailed
The similarities may be quoted thus i Before the actual stage play the producer gives a narrative
He states that although we describe ourselves as Hindustanis we are not really Hindustanis
He questions their audience as to what they are and various voices are heard to say in their own provincial language that they are Punjabis Bengalis Gujratis Marathas Madarasis Sindhis etc
In the said film the same idea 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 himself not as Hindustanis but as a Punjabi Bengali Gujrati Maratha Madarasi or Sindhi
ii Both the said play and the said film deal with the subject of provincialism
iiiBoth the said play and the said film evolve a drama around the lives of two families one a Punjabi and the other a Madrasi family
iv In both the said play and the said film the name of the Madrasi father is Subramanyam
v Both the said play and the said film have their locale in New Delhi
vi Both the said play and the said film show cordiality of relations between the two families
viiBoth the said play and the said play and the said film show the disruption of cordial relations as soon as the head of the families discover the existence of love affairs between their children
viiiIn both the said play and the said film both the parents warn their respective children not to have anything to do with each other on pain of corporal punishment
257 ix The entire dialogue in both the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of one Province over the inhabitants of the others
x In both the said play and the said film the girl is shown to be fond of music and dancing
xi In both the said play and the said film the hero is shown as a coward 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
xii Both in the said play and in the said film when 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 explains the situation to him
xiiiIn both the said play and the said film the girl writes a letter of suicide
xivIn the said play reconciliation takes place when the children of the two families who were in love go out to commit suicide by drowning etc whereas in the said film it is only the daughter who goes out to commit suicide by drowning herself in the Jamuna
xv In the said play the children are stopped from commit ting suicide by an astrologer whereas in the said film the girl is stopped from committing suicide by a friend of the family
xviIn the said play reconciliation between the two families takes place 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 the girl realised his mistake after experiencing the shock of his daughter committing suicide
xviiIn both the said play and the said film stress is laid 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 work together and live as neighbors
xviiiBoth in the said play and in the said film even tho dialogue centres around the same subject of provincialism
258 In the course of the argument also our attention was Drawn to a comparative compilation of the similarities in the film and the play
The learned trial Judge after considering the similarities was of the opinion that the similarities are on trivial points and do not have the effect of making the film a substantial and material imitation of the play
Moreover apart from the fact that the similarities and coincidences mentioned above are rather insignificant as pointed out by the trial Judge and the High Court in our opinion they are clearly explainable by and referable to the central idea namely evils of provincialism and parochialism which is common to both the play and the film
Nothing therefore turns upon the similarities categorised by the plaintiff in para 9 of the plaint in the peculiar Facts and circumstances of this case
After having gone through the script of the play and the film we are inclined to agree with the opinion of the Courts below
We have already pointed out that mere similarities by themselves are not sufficient to raise in inference of colourable imitation on the other hand there are quite a number of dissimilarities also for instance i In the play provincialism comes on the surface only when the question of marriage of Amni 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 him self as a Madrasi
This would therefore show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which is not developed or stressed in the play
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 Janaki and Anand is staged that the identity of the two  families is disclosed which forms one of the important climaxes of the film
Thus the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play
iiiIn the film there is no suicidal pact between the lovers but only a suicide note is left by Janaki 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
259 Furthermore while in the play Amni and Chander get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janaki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janaki s real identity is disclosed and Subramaniam also finds out that his daughter is alive
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 families namely the Punjabi 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 Bengali 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
D v The film depicts the evil of caste ridden society and exposes the hollowness of such a society when in spite of repeated requests 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
vi The film depicts another
important social evil namely the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion
The play however does not deal with this aspect at all
The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial parts of the story
The effect of the dissimilarities pointed out above clearly go to show that they tar outweigh the effect of the similarities mentioned in para 9 of the plaint set out above
Moreover even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature
The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play is hardly of any signifi 260 cance because the name of a particular person cannot be the subject matter of copyright because these are common names
After careful consideration of the essential features of the film and the play we are clearly of the opinion that the plaintiff has not proved by clear and cogent evidence that the defendants committed colourable imitation of the play and have thus violated the copyright of the plaintiff
It was lastly contended by counsel For the appellant that the correspondence between the plaintiff and the defendant would show that defendant No 2 himself was aware of the story contained in the play even before he proceeded to make the film in New Delhi
This is undoubtedly so because defendant No 2 admits in his evidence that he had come to Delhi and the entire play was narrated to him by the plaintiff
There is however a serious controversy on the question as to whether the defendant after hearing play said that the play was not suitable for being filmed as alleged
The plaintiff however seems to suggest that defendant No 2 was undoubtedly Attracted by the play and it was on the basis of this play that he decided to make the film
However there is no reliable evidence to show that defendant No 2 at any time expressed his intention to film the play written by the plaintiff
There can be no doubt that defendant No 2 was aware of the story contained in the play and a part of the film was undoubtedly 6 to some extent inspired by the play written by the plaintiff
But the definite case of defendant No 2 also is that he was in search of story based on provincialism and the play written by the plaintiff may have provided the opportunity for defendant No 2 to produce his film though with a different story different theme different characterisation and different climaxes
Thus applying the principles enunciated above and the various tests laid down to determine whether in a particular case there has been a violation of the copyright we are of the opinion that the film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff
We also find that the treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage
We are also satisfied that after seeing the play and the film no prudent person can get an 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 namely provincialism is undoubtedly the subject matter of the film along with other ideas also but it is well settled 261 that a mere idea cannot be the subject matter of copyright
Thus the present case does not fulfil the conditions laid down for holding that the defendants have made a colourable imitation of the play
On a close and careful comparison of the play and the picture but for the central idea provincialism which is not protected by copyright from scene to scene situation to situation in climax to anti climax
pathos bathos in texture and treatment and purport and presentation the picture is materially different from the play
As already indicated above applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the play
Apart from this the two courts of fact having considered the entire evidence circumstances and materials before them have come to a finding of fact that the defendants 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 we feel that the judgment of the courts below are absolutely correct
The result is that the appeal fails and is accordingly dismissed
But in the circumstances there will be no order as to costs in this Court only
JASWANT SINGH J Bearing in mind the well recognised principles and tests to determine whether there has been an infringement of the law relating to copyright in a particular case which were brought to our notice by the counsel on both sides and which have been elaborately considered and discussed by my learned brother Murtaza Fazal Ali in the course of the judgment prepared by him we proceeded at the re quest of the counsel to hear the script of the play Hum Hindustani  which WAS read out to us by the plaintiff himself in a dramatic style and to see the film New Delhi produced by defendants 1 and 2 the exhibition of which was arranged by the defendants themselves
On a careful comparison of the script of the plaintiff s copyrighted play with the aforesaid film although one does not fail to discern a few resemblances and similarities between the play and the film the said resemblances are not material 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 plaintiff s copyrighted work
In fact a large majority of material incidents episodes and situations portrayed by defendants I and 2 in their aforesaid film are substantially different from the plaintiff s protected work and the two social evils viz caste system and dowry system sought to be exposed 262 and eradicated by defendants 1 and 2 by means of their aforesaid film do not figure at all in the plaintiff s play
As such I am in complete agreement with the conclusions arrived at by my learned brother Murtaza Fazal Ali that there has been no breach on the part of the defendants of the plaintiff s copyright and concur with the judgment proposed to be delivered by him
PATHAK J
It appears from a comparison of the script of the stage play Hum Hindustani and the script of the film New Delhi that the authors of the film script 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 on the other hand the story portrayed by the film travels beyond the plot delineated in the play In the play the theme of provincial parochialism 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 lodgers who do not belong to the same provincial community
The plot then extends to the evils of the dowry system which is a theme independent of provincial parochialism
There are still other themes embraced within the plot of the film
Nonetheless 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
This can arise even where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play
The relative position in which the principal actors stand may be exchanged or extended and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play
All such matters fell for consideration in relation to the question whether the relevant part of the plot in the film is merely a colourable imitation of the essential structure of the stage play
If the treatment of the theme in the stage play has been made the basic of one of the themes in the film story and the essential structure of that treatment is clearly and distinctly identifiable in the film story it is not necessary it seems to me for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established
In the attempt to show that he is not guilty of infringement of copyright it is always possible for a person intending to take advantage of the intellectual effort and labours 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 263 to introduce changes in order to disguise the attempt at plagiarism
If a reappraisal of the facts in the present case had been open in this court I am not sure that I would not have differed from the view taken on the facts by the High Court but as the matter stands the trial Court as well as the High Court have concurred in the finding that such similarities as exist between the stage play Hum Hindustani and the film New Delhi do not make out a case of infringement
The dissimilarities in their opinion are so material that it is not possible to say that the appellant s copyright has been infringed
This Court is extremely reluctant to interfere with concurrent findings of fact reached by the Courts below and for that reason I would allow the judgment under appeal to stand
In another and perhaps a clearer case it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent 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
The appeal is dismissed but without any order as to costs
PHP Appeal dismissed


Summary:
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 play entitled Hum Hindustani 
This play was written by him in the year 1953 and was enacted in the year 1954 and thereafter the play proved to be popular
In November 1954 the appellant received a letter from the second defendant Mr
Mohan Sehgal requesting the appellant to supply a copy of the play so that he could consider the desirability of making a film on it
Thereafter the appellant and defendant No 2 met at Delhi
In May 1955 the second defendant announced the production of a motion picture entitled New Delhi
The picture was 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 that the play was narrated by the appellant 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 plaintiff
The appellant therefore filed the suit for damages for decree for accounts of the profits made by the defendant and a decree for permanent inujunction against the defendants restraining them from exhibiting the film
The suit was contested by the defendants
The defendants pleaded that defendant No 2 is a film director and producer and director of Delux Films defendant No I that at the instance of a common friend Mr Gargi the defendant No 2 met the appellant and saw the script of the play that the play was inadequate 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 anybody in his own way
The defendants further contended that the motion picture was quite different from the play both in contents spirit and climax
The mere fact of some similarities between the firms and the play could be explained by the Fact that the idea provincialism was the common source of the play as also of the film
The trial court raised several issues and came to the conclusion that the appellant was the owner of the copy right in Hum Hindustani  but there was no violation of copy right of the appellant
Thereafter the appellant filed an appeal in the Delhi High Court
A Division Bench of the Delhi High Court upheld the decree dismissing the appellant s suit
The counsel for the appellant contended 1 that the principles enunicated and the legal inference drawn by the courts below are against the settled legal principles laid down by the courts in England America and India 2 the two 219 courts have not fully understood the imports of the violation of copy right particularly 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 have 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 discussed the law on the subject
At the time when the cause of action arose in the present suit the Indian Parliament had not made any law governing copyright violation and therefore the court relied on the old law passed by the British Parliament viz the Copyright Act of 1911
section 1 sub sec
2d defines copyright as including in the case of a literary dramatic or musical work to make any record performed roll
cinematograph film or other contrivance by means of which the work may be mechanically performed or delivered
section 2i defines that copyright 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 within the definition of copyright
229 D H 230 A B The following is summary of the decided cases in England America and India on the question of copyright
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 tile author of the copy righted work
248 H 249 A 2
Where the same idea is being developed in a different manner it is manifest that the source being common similarities are bound to occur
In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work
If the defendant s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright
In other words in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy
1249 A C 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
249 C D 4
Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work no question of violation of copyright arises
249 D 220 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 words are clearly incidental no infringement of the copyright comes into existence
249 E 6
As a violation of copyright amounts to an act of piracy it must be proved By clear and cogent evidence after applying the various tests laid down by decided cases 249 F 7
Where however the question is of the violation of the copyright of a 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 prospective wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the Idea
Even so if the viewer after 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
249 F H Hanfstaengl vs W H Singh  Sons 1905 1 Chancery Division 519 Bobbs Merill Co vs Isdor Straus and Nathan Strau   West Francis  743 Ladbroke Football Ltd vs William Hill Football Ltd  Corelli vs Gray  Hawkes  Son London Ltd vs Paramount Film Service Ltd  Harman Pictures N V vs Osborne  Ors  Donoghue vs Allied Newspapers Ltd  Bobl  Anr
vs Palace Theatre Ltd  Alir
 Tate vs Fullbrook 77 Law Journal Reports 577 Frederick
B Chatterton  Benjamin Webster vs Joseph Arnold Cave  Sheldon vs Metro Goldwyn Pictures Corp 81 2d 19 Shipman vs RKo
Radio Pictures 100 2d 533 Michael vs Moretti vs People of the State of Illionois 248 2d 799356 US 947 Warner Bros Pictures vs Columbia Broadcasting System  Otto Eisenchiml vs Fawcett Publications 246 2d 598 Dorsey vs Old Surety
Life Ins Co  Twentieth Century Fox Film Corporation vs Stonesifer 140 2d 579 Oliver Wendel Homes vs George D Hurst   Macmillan  Co Ltd vs K  J Cooper 51 IA 109 Florerlce A Deeks vs H G p Wells  Ors 60 IA 26 N T Ragllunathan  Anr
vs All India Reporter Ltd Bombay AIR 1971 Bom
48 K R Venugopala Sarma vs Sangu Ganesan  The Daily Calendar Supplying Bureau Sivakasi vs The United Concern AIR 1967 Mad 381 Hantsiaenql vs Bains  Co 25 C Gunniah  Co vs Balraj  Co AIR 1961 Mad
111 Mohendra Ghundra Nath Ghosh  ors
vs Emperor AIR 1928 Cal
section K Dutt vs Law Book Co  Ors
AIR 1954 All 570 Romesh Chowdhry  Ors vs Kh
Ali Mohammad Nowsheri  Ors AIR 1965 J  K101 and Mohini Mohan Singh  Ors vs Sita Nath Basak 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 the essential features of the play are as under 250 A B 251 G 1
That the central idea of the play is based on provincialism and parochialism
251 G 221 2
The evils of provincialism are illustrated by the cordial relations of the two families being marred because of an apprehended marriage tie which according to both the families WAS not possible where they belonged to different States
251 H 252 A 3
That the Madrasi boy Amni is a coward and in spite of his profound love or Chander he does not muster sufficient courage to talk the matter out with his parents
252 A B 4
That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into a suicidal pact 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 he horror of parochialism and are repentant for having acted so foolishly
252 C 6
That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well
252 D The Court came to the conclusion that the essential features of the film are as under 1 Two aspects of provincialism viz the role of provincialism in regard to marriage and in regard to renting out accommodation 2 Evils of a caste ridden society and 3 the evils of dowry
255 H It is true that there are following similarities in the two
256 A i Before the actual stage play the producer gives a 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 say in their own provincial language that they are Punjabis Bengalis Gujarati Marathas Madrasis Sindhis etc
In the said Film the same idea 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 himself not as a Hindustani but as a Punjabi Bengali Gujarati Marathi Madarasi or Sindhi
256 C D ii Both the said play and the said film deal with the subject of Provincialism
256 E iiiBoth 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
1256 E iv In both the said play and the said film the name of the Madrasi father is Subramanyam 256 F v Both the said play and the said film have their locale in New Delhi
256 F vi Both the said play and the said film show cordiality of relations between the two families
256 F G viiBoth 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 parents warn their respective children not to have anything to do with each other on pain of Corporal punishment
1256 Hl
222 ix The entire dialogue in both the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of one Province over the inhabitants of the others
257 A x In both the said play and the said film the girl is shown to be fond of music and dancing
257 B xi In both the said play and the said film the hero is shown as a coward 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 when 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 explains the situation to him
257 C xiii In both the said play and the said film the girl writes a letter of suicide
257 D xiv In the said play reconciliation takes place when the children of the two families who were in love go out to commit suicide by drowning etc whereas in the said film it is only the daughter who goes out to commit suicide by drowning herself in the Jamuna
257 D E xv In the said play the children are stopped from committing suicide by an astrologer whereas in the said film the girl is stopped from committing suicide by a friend of the family
257 E F xvi In the said play reconciliation between the two families takes place 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 the girl realised his mistake after experiencing the shock of his daughter committing suicide
257 F G xvii In both the said play and the said film stress is laid 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 work together and live as neighbours
257 G xviii Both in the said play and in the said film even the dialogue centres around the same subject of provincialism
257 H However the Court found following dissimilarities i In the play provincialism comes on the surface only when the question of marriage of Amni 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 Madrasi
This would therefore show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which not developed or stressed in the play258 D F 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 223 is disclosed which forms one of the important climaxes of the film
Thus the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play
258 F G 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 appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janki s real identity is disclosed and Subramaniam also finds out that his daughter is alive 258 H 259 A B 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 families namely the Punjabi 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 Bengali 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 D v The film depicts the evil of caste ridden society and exposes the hollowness of such a society when in spite of repeated requests 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 E vi The film depicts another important social evil namely the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion
The play however does not deal with this aspect at all
The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial part of the story
259 E G The Court came to the conclusion that the number of similarities by themselves are not sufficient to raise an inference of colourable imitation
The similarities are trivial and touch insignificant points and do not appear to be of substantial nature
The appellant has failed to prove that the defendants committed colourable imitation of the play
259 G H 260 B Applying the principles mentioned above to determine whether in this particular case there has been a violation of the copy right the Court came 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 provincialism is undoubtedly the subject matter of the film along with other ideas also
It is well settled that a mere idea cannot be the subject matter of copy right
260 G H 261 A B 224 The two courts of fact having considered the entire evidence circumstances and materials before them have come to a finding of fact that defendants 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 D Jaswant Singh 1
concurring On a careful comparison of the script of the plaintiff s copyright play with the film although one does not fail to discern a few resemblances and similarities between the play and the film the said resemblances are not material 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 word
In fact a large majority of material incidents episodes and dramatic situations portrayed by defendants 1 and 2 in their aforesaid film are substantially different from the plaintiff s protected work and the two social evils viz caste 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 in the appellant s 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 lt appears from a comparison of the script of the play Hum Hindustani  and the script of the film New Delhi  that 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 auth ors of
the film script were aware of the scheme of the play
But the story portrayed by the film travels beyond the plot delineated in the play
The theme of provincial parochialism 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 lodgers who do not belong to the same provincial community
The plot then extends to the evils of the dowry system which is a theme independent of provincial parochialism
There are 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 intellectual 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 not been infringed this Court is extremely reluctant to interfere with the concurrent findings 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 may 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 225 rent dissimilarity is thrown around the work now produced
The court will look A strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation
262 B H 263 A C