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T.S.Eliot said: “Immature poets imitate, mature poets steal. Bad poets deface what they take from great poets and transform it into something better, or at least different”.

There is a very thin line between inspired or copied materialInspiration works only if, eventually, something totally new has been created out of it. If the result is not better, it should be at least different from the inspiration.

The bollywood movie 'FAN' starring Mr. Shahrukh Khan and the Hollywood movie of Mr. Bobby Rayburn 'THE FAN' in 1996 bear an uncanny resemblance in not just the concept but at times the dialogues as well. Avoiding the inclination to critically review the movie both 'FAN' and 'THE FAN' follow the stories of die-hard fans wanting to spend time with their superstars. To figure out where the line between acceptable inspiration and unacceptable copyright infringement lies is a bit difficult.

Now the difference in the plot lies in the climax wherein Bollywood’s 'FAN' anti-hero clones himself to look like his idol and defames his image in public while in Hollywood movie 'THE FAN' Robert De Niro kidnaps the protagnist’s son and demands to hit a home run as ransom.

Without turning this article into a spoiler lets analyze similar scenarios in our history.

The Supreme Court in the landmark decision of R.G. Anand vs Deluxe films clarified the following important aspects in such cases. These aspects are applicable in all cases where a distinction between copying and inspiration has to be made.

  1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
  2. It has to be seen whether similarities are fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. Copying should be substantial or material one.
  3. Test: Whether the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
  4. Where theme is same but presented differently, there can be no question of infringement.
  5. If there are material and broad dissimilarities along with similarities, it negatives the intention to copy the original work. If the coincidences appearing in the work are clearly incidental then there can’t be infringement.
  6. If the viewer after the incident gets the idea that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
  7. Burden of proof is on the plaintiff in cases where a stage play has been infringed by a movie director.

In Blackwood & Sons Ltd. and Ors. vs A.N. Parasuraman and Ors, the Court has held along similar lines by stating that the test for fair dealing is that of “substantiality of the quantity and the quality of the matter reproduced.”

The Court also added that whether the new work would compete with the original work would also be a factor in deciding whether it is fair use, as the rationale is that one party should not be allowed to make economic benefit out of another party’s work.

This ambiguity in Indian Legal system has remained because in India “Fair Use” has not been defined under any act. In US four considerations are looked into when deciding whether something is fair use:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work

So, to understand let us put it this way that any concept can be said to be not infringing a copyright if despite the basic premise/idea being similar or identical if the intention is not to draw profit from the original work’s fame or business. The intention is create a new artwork which is substantially a new idea over the original artwork.

This rudimentary and inclusive understanding of copyright works brings us to our second part of the article. If a fan makes a parody of a movie, is it copyright infringement. We shall deal with this aspect in our next article, for now we believe that despite being low on intellect the movie does not infringe anyone’s intellectual property.

By Harshit Saxena, Associate

Abhay Nevagi and Associates, Advocates, Pune

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