In Sameer Wadekar & Anr v Netflix Entertainment Services Pvt. Ltd. (LD-VC-70 OF 2020), the Bombay High Court ("Court") in a hearing conducted through video conference refused to grant interlocutory relief in a copyright infringement claim relating to the Netflix series "Betaal".
The Plaintiff, a Marathi screenwriter contended that he had created a script titled "VETAAL" in the year 2013-14 and registered the same as a literary work in 2015. Thereafter, he had shared the script with some producers, including one Wilson Louis, for the purposes of making a motion film based on it. He alleged that recently (on 7 May 2020) he came across a 146 second trailer of Defendant No 1's ("Netflix") web series "BETAAL", in which he had noticed at least 13 similarities with VETAAL. The Plaintiff thus argued that Netflix had infringed his copyrights in the script. The Plaintiff also alleged that it was a case of plagiarism.
The Court rejected the interim application to restrain release of BETAAL on three points-
- The first and key aspect which the court examined was whether any of the defendants had access to the Plaintiff's work so as to be in a position to copy/ infringe the same. The Plaintiff had no direct connection with any of the Defendants and had not disclosed the script to any of them. The only claim was that he had disclosed the script to one Wilson Louis who had claimed he had connections with Netflix. However, it appears that the material on record did not reveal such connection. The court held that the Plaintiff's claim that Wilson Louis told him that he has some contacts with Netflix was itself not sufficient to grant an injunction in the absence of any other material. Pertinently, Wilson Louis does not seem to be a party to the proceeding and there does not seem to be a claim for breach of confidentiality.
- The second aspect was that the Defendants had made several print and online publications on 16 & 17 July 2019 publicising BETAAL, wherein they had disclosed its story line. However, the Plaintiff approached the Court only in May 2020, some days before BETAAL's release. Though the plaintiff claimed he was not aware of such publications, the court seems to have held that he ought to have been aware since the publications were in the public domain. Hence, the court held that the claim was hit by delay and latches.
- The third and most interesting and unique aspect was that the court held that the term Betaal originates from the Hindu mythological term 'Vetalam'. The court in this context made a reference to the wellknown Hindu mythological stories of King Vikramaditya and Vetaal/ Betaal. The Court held that such stories are known to people and that hence no injunction could be granted.
- A claim of copyright infringement presupposes that the defendant must have access to the work of the plaintiff. This case highlights the fact that it is important to demonstrate with material that the Defendant had access to the work of the plaintiff. Where the plaintiff's work is not published and not in the public domain, this assumes more importance. Also, where a claim for copyright infringement is made in respect of unpublished work, plaintiffs should consider making a due claim for breach of confidence as well.
- This order once again demonstrates that courts are not inclined to grant last minute injunctions when approached just ahead of the release of movies / films unless there are compelling reasons to do so. There have been several cases, where various courts have refused to grant interlocutory injunctions when approached just prior to the release of a film / series. Courts have also reiterated that when the balance of convenience is altered by reason of delay, the principle of automatic grant of injunction may not be applicable. At the same time, courts have also sought to draw a balance where a compelling case has been made out by securing the claim of a plaintiff even though an injunction may not have been granted. In Saregama India Ltd v Balaji Telefilms Ltd. & Ors (TA No. 52/2012), although the Plaintiff had proved copyright infringement of its song 'Ui Amma Ui Amma', the Court did not restrain release of the Defendant's movie 'The Dirty Picture' on the condition that the Defendant pays INR 20 million to the Plaintiff. Similarly, where courts have come to the conclusion that a proceeding is frivolous in nature, heavy costs have been imposed on the plaintiffs. One such example has been the case of Dashrath B. Rathod and Ors. v Fox Star Studios India Pvt. Ltd. and Ors.[Suit (L) NO. 196 OF 2017] in respect of the movie 'Phillauri' where a fine of INR 0.5 million was imposed on the Plaintiff. However, in the context of delay, the question that requires deeper consideration, is whether the plaintiff's knowledge of the infringing work can be presumed only on the basis of existence of some material in the public domain or whether there should be additional factors which require consideration before attributing knowledge to the plaintiff and refusing reliefs on the ground of delay.
- The reason for refusal of the injunction to the extent that it relates to the mythological significance of VETAAL is concerned, may not, in the facts of the present case be sustainable. Firstly, since the judgment does not indicate that any rights have been claimed in the title of the script per se and secondly, since the story to the extent indicated in the judgment does not seem to be similar to the mythological stories of King Vikramaditya and Vetaal/ Betaal. The principle laid down in Anil Gupta and Ors. v Kunal Dasgupta and Ors [(2002) ILR 1 Delhi 250], where the dispute was about copyrights in an idea for a television serial for match making known as 'Swayamvar' which is a mythological concept would be relevant. It was held that if an idea is developed into a concept fledged with adequate details, then the same is capable of protection under the Copyright Act.
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