Case: Krishika Lulla  Vs. Shyam Vithalrao Devkatta

author of “A passage to India” E.M. Forster filed a suit against the defendants for alleged infringement of copyright in the title of the book for adopting as a title the name of the defendants guide written for students, as “E M Forster, A Passage to India, Everyman’s guide”. The Court reviewed the law on the subject ((i) Macmillan v. Suresh Chander Deb, ILR 17 Cat 951, (ii ) Longman v. Winchester, (1809)16 Ves 269,(iii) Dicks v. Yates, (1881) 18 Ch D 79), and observed that there was no copyright in respect of title vide page 231 of the report. Eventually the Court held :- “As we have earlier affirmed, there is no copyright in the title and purchasers, whether of the original work or of the guide, are most unlikely to be illiterate, or unacquainted with English. It will be perfectly clear to them, from the words enclosed in brakets as a sub-title, that they were acquiring, not the original work, but a “guide for University students…………” 16. The same question arose in Kanungo Media (P) Ltd. v RGV Film Factory & Ors. reported in (2007) ILR 1 Delhi 1122 where the Court declined injunction against the defendant for using the brand name and title “Nishabd” alleging similar to the film of the plaintiff therein. The learned Judge A.K. Sikri, J. (as His Lordship then was) referred to decisions of the American Courts and observed that the position is the same as under the copyright law in India:- “12……… What, therefore, follows is that if a junior user uses the senior user’s literary title as the title of a work that by itself does not infringe the copyright of a senior user’s work since there is no copyright infringement merely from the identity or similarity of the titles alone.” The Court then considered the question of protection of title as a trademark with which we are not concerned in this case. 17. Subsequently, in R. Radha Krishnan v. Mr. A.R. Murugadoss & Ors. reported in 2013-5-L.W. 429, the Madras High Court followed the decision of the Delhi High Court in the Kanungo Media Case and rejected an injunction for restraining the defendant from using the title of the plaintiff’s film ‘Raja Rani’. The Madras High Court considered various other decisions and held that the words ‘Raja Rani’ are words of common parlance which denote the king or the queen and cannot be protected under the law of copyright. The two judgments of the Madras High Court cited above and the judgment of the Delhi High Court in our view, lay down the correct law. 18. The learned counsel for the appellants relied on passages from Copinger and Skone James on Copyright Sixteenth Edition by Kevin Garnett, M.A, Gillian Davies, D.L., Ph.D. and Gwilym Harbottle, B.A. (Oxon) at page 70:- “Names and titles as literary works.In the same vein is the reluctance of English courts to confer copyright protection on titles of newspapers, magazines, books and the like. In relation to books in particular, the title normally forms part of a copyright work consisting of the book as a whole and the issue here may be whether the copying of the title amounts to the taking of a substantial part of the whole work. General statements can nevertheless be found in non-copyright cases to the effect that there is no property in a name or title standing alone unless it is the subject of goodwill or a registered trade mark.” The learned authors observed:- “The courts, have, however, been careful not to rule out the possibility of such protection in appropriate circumstances, although in practice no case has ever gone this far. The only concrete example which has been given judicially is the now archaic practice of the title-page of a book consisting of an extended passage of text.” In relation to copyright in characters and titles the learned authors observed:- “It is very difficult to protect titles of films by an action for infringement of copyright due to the requirements of originality and that a substantial part of a work be copied. If a well-known title of a film is used without authority, the owner’s remedy is likely to lie in passing off. Protection by registration as a trade mark may be available provided the title in sufficiently distinctive.” 19. We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R said “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention” or as observed by Copinger (supra).20. In the present case we find that there is no copyright in the title “Desi Boys” and thus no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is untenable.21. The learned counsel for the respondents indeed contended that the applications under Section 482 were rightly dismissed since these facts alleged by the appellants depend on evidence at the trial. It is not possible to agree since it has throughout been the case of the respondent No.1-Devkatta that he is claiming copyright only in the title of the synopsis of his story “Desi Boys” and he has not even seen the film of the appellants nor does he know the story. The learned counsel for the respondent was however right in his submissions that it is not necessary to furnish all the ingredients of the complaint and failing which the complaint is liable to be dismissed on that ground. It is not necessary to consider the decisions cited by the respondents on this point.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. We are thus, of the view, that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v Yates where Jessel M.R saidmight be copyright in a title as for instance a whole page of title or something of that kind requiringor as observed by Copinger (supra).20. In the present case we find that there is no copyright in the titlend thus no question of its infringement arises. The prosecution based on allegations of infringement of copyright in such a title is untenable.21. The learned counsel for the respondents indeed contended that the applications under Section 482 were rightly dismissed since these facts alleged by the appellants depend on evidence at the trial. It is not possible to agree since it has throughout been the case of the respondent No.1-Devkatta that he is claiming copyright only in the title of the synopsis of his storynd he has not even seen the film of the appellants nor does he know the story. The learned counsel for the respondent was however right in his submissions that it is not necessary to furnish all the ingredients of the complaint and failing which the complaint is liable to be dismissed on that ground. It is not necessary to consider the decisions cited by the respondents on this point.