K.R. Shriram of the Bombay High Court recently passed an order refusing interim injunction to halt the worldwide release of Netflix series ‘Betaal’. Sameer Wadekar and Mahesh Goswami, filed a copyright infringement plea against Red Chilies Entertainment and Netflix. The writers claim that the producers have plagiarized their original story ‘Vetaal’.
Brief Facts of the Case
The plaintiffs are screenwriters registered with Screen Writers Association. They had penned VETAAL way back in 2013-2014 and got it registered in 2015. Sameer Wadekar had shared his script with different producers but it was a failed effort. Subsequently, in May 2020 Wadekar came across the trailer of Netflix’s Betaal on Youtube. He claimed that in the 146 seconds trailer he found 13 similarities between Netflix’s Betaal and his Vetaal. Hence, he approached the Court with infringement and plagiarism action. Meanwhile, a plea for interim injunction was made against releasing Betaal for worldwide viewership.
The Order and it’s Analysis
The judge dismissed the plea based on three primary reasons:
First, the Court asked whether the defendants had access to the plaintiff’s work in order to copy it. According to the plaintiff, Vetaal is a work of fiction and ‘absolutely original’. The plaintiff did not have direct communication with the defendants. However, he had shared his work with a number of producers including one Wilson Louis who claimed to have ‘some connections at Netflix.’ In cases of unpublished work, it is required to establish how the defendants got hold of the plaintiff’s work. However, in today’s day and age sharing information is easy. When there is compelling evidence of infringement, the link should be pursued aggressively.
Delay in filing the suit
Second, the Ld. Judge questioned the delay and latches in filing the suit. The plaintiff argued that he did not know about the web-series until the release of trailer in May 2020. The defendants claimed that they had run several print and online publications of general readership and popular to the trade and business of movies and general entertainment. These publications contained reports airing an original web-series called BETAAL with a description of a web-series in those articles.
The publications were made in mid 2019, leaving the plaintiff considerable amount of time to file suit. Delay in filing infringement suit, especially in cases of cinematography, has been an important factor for rejecting claim.
Support of Case laws
In the case of Kanungo Media (P) Ltd., vs Rgv Film Factory And Others the Delhi High Court rejected the plaintiff’s plea for injunction on grounds of acquiescence that stems from delay and latches. The Court had further held that delay in these types of cases is particularly fatal for both the parties involved. It sabotages the money and time spent by the defendants and gives a secondary meaning to the defendants work.
On the other hand, in Midas Hygiene Industries (P) Ltd. vs. Sudhir Bhatia the Court held that mere delay in filing suit is not sufficient to dismiss interim injunction. The Courts have also safeguarded the rights of the plaintiff on making a compelling case without granting interim injunction.
In the case of Saregama India Ltd v Balaji Telefilms Ltd. & Ors, the plaintiff made a compelling copyright infringement case of its song ‘ui amma ui amma’ in the movie Dirty Picture. The Court allowed the release of movie on payment of 20 million to the plaintiff. However, the assumption of plaintiff’s knowledge based on publications of a four-liner description in online and print form needs deeper pondering.
Scènes à faire
In the third and final point, J. Shriram alludes to Vetalam, a story prevalent in Hindu Mythology because of the phonetic similarity with Betaal. The Ld. Judge gives a brief description of the story of Vikramaditya and Vetaal. The plaintiff has not claimed trademark infringement in the title; his contention is with the content.
The judge could also have considered the doctrine of scènes à faire. The doctrine refers to characters, places, story elements, language, etc, which are standard to some general theme or topic, and are often an indispensable part of that theme or topic. Such concepts are not copyright protected. For e.g. in the case RG Anand v. M/s Deluxe Films the Supreme Court held there is a set method of dealing with the theme of provincialism, and there can be no copyright over that theme.
Therefore, a question of infringement does not even arise. The story in the order does not seem analogous to the mythological stories of King Vikramaditya and Vetaal/ Betaal. The brief explanation of Hindu Mythology by judge has left room for speculation. It would have been helpful if similarities were drawn between the three stories involved. However, rejection based on mere similarities would impede the idea/expression dichotomy ubiquitous to copyright law.
From the Order it is evident that importance was given to factors like how and when instead of the actual infringement. The similarities, as claimed by the plaintiff were not discussed at all. The Order overlooked idea/expression dichotomy, which is very significant in infringement cases. The Order ought to have made a detailed study into the infringement aspect before giving permission to proceed for worldwide release.
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