India: Case Study: Zee Entertainment Enterprises Limited v. Sony Pictures Networks India Private Limited" : Copyright Protection With Respect To Reality T.V. Shows

Last Updated: 4 January 2019
Article by Purnashri Das
Most Read Contributor in India, January 2019

INTRODUCTION

Copyright Law in India is governed by the Copyright Act, 1957. Section 13 of the Act defines the scope of existence of copyright by listing those works in which copyright subsists. Section 14 defines the meaning of copyright and describes the exclusive rights given to the author of the work. This Article analyses Copyright Protection for Format Ideas in Reality Television Programmes through case laws in India and other countries. Fully scripted half-hour dramas have become increasingly costly, with diminishing TRPs. It therefore is not surprising that the reality television genre has become so popular in recent times.

While hit shows can generate high revenues, they also are easily copied, forcing producers to try to protect their creative investments through resort to the courts. The most significant of these lawsuits assert intellectual property rights, concentrating on allegations of idea and format theft.1 "Zee Entertainment Enterprises limited v. Sony Pictures Networks India Private limited and Ors"2 also deals with a  similar issue that whether Plaintiff's popular show "India's Best Dramebaaz", a televised talent hunt for child actors in 5-12 year age group has been illicitly copied by Defendant, and hence, infringed Plaintiff's Copyright in its concept note?

COURT DECISION

1)  On Originality- A talent hunt requires eliminations from a larger pool and selection of a winner from a larger crowd. There has to be some process of auditioning. It is difficult to conceive of any talent hunt that goes about its stated business in any other fashion. There cannot, therefore, be exclusivity in this. Fact that both shows feature children, they seek out children with acting talent from different cities, and fact that they seek out best of these is hardly something in which anyone can claim any Copyright.

2) Defendant programme not infringed Plaintiff programme– In this industry, it is common to use this document called a 'concept note'. It sets out the thematic structure, unique elements and so on. There is no doubt that copyright can vest in an original concept note as original literary work.3 These are not just ideas. These are particularized expressions of ideas. But this is not to suggest that every page of a concept note enjoys the same level of protection. In a field as crowded as this there bound to be common elements and a plaintiff claiming copyright in some aspect of a show such as this will not get copyright in those matters that are undeniably in the public domain. It is not possible to accept that there can be any such monopoly in the concept of a talent hunt for children.

In the present case granting copyright protection to plaintiff would mean granting protection to an idea which is not the objective of grant of Copyright. We can understand this by applying different doctrines to understand the judgement in this case.

IDEA- EXPRESSION DICHOTOMY 

The idea-expression dichotomy was formulated to ensure that the manifestation of an idea (i.e. an expression) is protected rather than the idea itself.4 An idea is the formulation of thought on a particular subject whereas an expression constitutes the implementation of the said idea.

In the present case we can say copyright does not extend to the idea and the idea is selecting child actors through reality shows.  Anyone can express this idea. There cannot be monopoly to seek out children with acting talent, therefore the plaintiff failed in its case.

MERGER DOCTRINE 

The idea and expression are intrinsically connected. The expression is no longer copyrightable because granting copyright over the expression will effectively confer the owner with a monopoly over the idea itself. Applying this doctrine courts have refused to protect the expression of an idea that can be expressed only in one manner, or in a very restricted manner.5

In the present case under discussion there is one idea that is of selecting child actors through reality shows and the way to express this idea has very limited scope. If both shows of plaintiff and defendant are on the same theme of seeking child actors then both shows will contain child actors, will have judges and selection of child actors will be done from different cities. There is no other way to do these.

SCENES A FAIRE

One may also contemplate instances where the expression of an idea cannot be made without the use of certain elements. The Courts consider these essential elements as non-copyrightable since protecting these will lead to the protection of the idea. Such essential elements are referred to as Scenes A Faire. Similarly, scènes à faire, sequences of events that necessarily result from the choice of a setting or situation, do not enjoy copyright protection."6

In the present case as already said there are some elements which are non copyrightable  as selecting child actors and then declaring from among them a winner, these are sequences of events that necessarily result from the setting of the reality show seeking child actors.

RECENT TRENDS

In the case "Milano v. NBC Universal, Inc."  7, the court granted judgment in favour of defendant. Court held the similarities were in elements that were not protectable. The similarities between the two works were the generic idea of a weight loss show and the Scenes A Faire (expressions that are standard or common to a particular topic) that flowed from that idea, none of which were protectable.

In a reality format case Fox Family Properties Inc. v. CBS Inc.8, the court found that most of the elements, such as camera crews following contestants, running for 13 episodes, air dates and titles, were not entitled for protection.

INDIA

The most famous case for reality show and infringement is "Anil Gupta v. Kunal Gupta and Ors."  9, where the plaintiff, conceived an idea of producing a reality television show containing the process of match making calling it "Swayamvar". It was held that defendant could not reap the fruits of labour put in by the plaintiff. Defendant show based on concept of spouse selection in any form as a reality TV show cannot be permitted as that has been conceived by the plaintiff at the first instance."It was also held that the idea per se had no copyright, but in case the same was developed into a concept fledged with adequate details, the same could be registered under the provisions of the Copyright Act, 1957. Further in case the confidential information was used with certain variations, the same would amount to violation of copyright under section 51 and 55 of the Act.

To conclude, it cannot be denied that concept notes that are submitted by individuals need to be given protection in order to encourage ordinary people to communicate their ideas and see their fruition into TV programs. But mere generic idea which is in public domain cannot be grant copyright protection.  The difference between "Zee case" and "Anil Gupta case" is that zee was claiming copyright over something where sufficient skill and judgment was not applied but in the "Swayamvar" case some unique idea was conceived for the first time which was also reduced into writing with adequate details for which sufficient labour and skill was applied in the concept note which was not the case with Zee. It is held that if sufficient skill and judgment applied then copyright protection is granted.10

Footnotes

1 https://www.sheppardmullin.com/media/article/806_Reality%20Format%20Paper.pdf

2 https://iiprd.wordpress.com/2018/02/16/copyright-and-reality-tv-shows/

3 Section 2(o) of Copyright Act, 1957 defines Literary work.

4 R.G. Anand v M/s Delux Films & OthersAIR 1978 SC 1613

5 The Chancellors Masters and scholars of the University of Oxford v. Narendra Publishing House and Ors,2008 (38) PTC 385 (Del)

6 Ibid

7 584 F. Supp.2d 1288(2008)

8 663 F.3d 122(3d Cir. 2011)

9 97(2002)DLT257

10 Eastern book company v. D.B.Modak(2008) 1 SCC 1

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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