RG Anand Vs Delux Films and Ors 18081978 SCs780256COM185030

MANU/SC/0256/1978
Equivalent Citation: AIR1978SC 1613, (1978)4SC C 118, [1979]1SC R218
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2030 of 1968
Decided On: 18.08.1978
Appellants:R.G. Anand
Vs.
Respondent:Delux Films and Ors.
Hon'ble Judges/Coram:
Jaswant Singh, R.S. Pathak and S. Murtaza Fazal Ali, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S. N. Andley, Mahinder Narian and Rameshwar Nath,
Advs
For Respondents/Defendant: Hardyal Hardy, H. S. Parihar and I. N. Shroff, Advs.
Case Note:
(i) Intellectual Property Rights - copyright - Sections 1 (2) and 2 of
Copyright Act, 1911 and Section 2 of Copyright (Amendment) Act, 1956 -
no copyright subsists in ideas, subject matter, themes, plots, legendary
facts - only original expression of such thought or information in some
concrete form is protected - similarities are bound to occur where ideas are
same - copyright would be infringed where defendant's work is nothing but
literal limitation of copyrighted work with some variations - no violation of
copyright where theme is same although presented differently as to make
subsequent work completely new - sure test to determine whether
copyright is violated is to see whether reader or viewer after having gone
through it is of opinion and impression that subsequent work is copy of
original one - where apart from similarities there are broad dissimilarities
which negative intention to copy no infringement of copyright occurs.
(ii) Burden of proof - violation of copyright must be proved by clear and

cogent evidence after applying various tests - in case of violation of
copyright of stage play by film producer ask of plaintiff to prove
infringement becomes more difficult.
JUDGMENT
S. Murtaza Fazal Ali, J.
1 . This appeal by special leave is directed against the judgment of the Delhi High
Court dated 23rd May, 1967 affirming the decree of the District Judge, Delhi and
dismissing the plaintiffs suit for damages against the defendants on the ground that
they had violated the copyrighted work of the plaintiff which was a drama called
'Hum Hindustani'.
2 . The facts have been succinctly stated by the District Judge in his judgment and
22-11-2019 (Page 1 of 27) www.manupatra.com Symbiosis Law School

summarised by the High Court, and, therefore, it is not necessary for us to repeat the
same all over again. We would, however, like to give a brief resume of some of the
striking facts in the case which may be germane for the purpose of deciding the
important issues involved in this appeal. We might mention here that the High Court
as also the District Judge negatived the plaintiff's claim and prima facie the appeal
appears to be concluded by finding of fact, but it was rightly argued by Mr. Andley
appearing for the appellant that the principles of violation of copyright in the instant
appeal have to be applied on the facts found and the inferences from proved facts
drawn by the High Court which is doubtless a question of law and more particularly
as there is no clear authority of this Court on the subject, we should be persuaded to
go into this question without entering into findings of facts. Having heard counsel for
the parties, we felt that as the case is one of first impression and needs to be decided
by this Court, we should enter into the merits on the basis of the facts found and
inferences drawn by the High Court and the District Judge. It is true that both the
District Judge and the High Court have relied upon some well established principle's
to determine whether or not in a particular case a violation of copyright has taken
place, but learned Counsel for the appellant has challenged the validity of the
principles enunciated by the High Court.
3. The plaintiff is an architect by profession and is also a playwright, dramatist and
producer of stage plays. Even before Hum-Hindustani the plaintiff had written and
produced a number of other plays like Des Hamara, Azadi and Election which were
staged in Delhi. The subject matter of the appeal, however, is the play entitled 'Hum
Hindustani'. According to the plaintiff, this play was written by him in Hindi in the
year 1953 and was enacted by him for the first time on 6th, 7th, 8th and 9th
February, 1954 at Wavell Theatre, New Delhi under the auspices of the Indian
National Theatre. The play proved to be very popular and received great approbation
from the Press and the public as a result of which the play was re-staged in February
and September, 1954 and also in 1955 and 1956 at Calcutta. In support of his case
the plaintiff has referred to a number of comments appearing in the Indian Express,
Hindustan Times, Times of India and other papers.
4. Encouraged by the success and popularity of the aforesaid play the plaintiff tried
to consider the possibility of filming it. In November, 1954 the plaintiff received a
letter dated 19th November, 1954 from the second defendant Mr. Mohan Sehgal
wherein the defendant informed the plaintiff that he was supplied with a synopsis of
the play by one Mr. Balwant Gargi a common friend of the plaintiff and the defendant
The defendant had requested the plaintiff to supply a copy of the play so that the
defendant may consider the desirability of making a film on it. The plaintiff, however,
by his letter dated 30th November, 1954 informed the defendant that as the play had
been selected out of 17 Hindi plays for National Drama Festival and would be staged
on 11th December, 1954, the defendant should take the trouble of visiting Delhi and
seeing the play himself in order to examine the potentialities of making a film, and at
that time the matter could be discussed by the defendant with the plaintiff.
5 . The plaintiff's case, however, is that some time about January, 1955 the second
and the third defendants came to Delhi, met the plaintiff in his office where the
plaintiff read out and explained the entire play to the defendants and also discussed
the possibility of filming it. The second defendant did not make any clear
commitment but promised the plaintiff that he would inform him about his re-action
after reaching Bombay. Thereafter the plaintiff heard nothing from the defendant.
Sometime in May, 1955 the second defendant announced the production of a motion
picture entitled "New Delhi". One Mr. Thapa who was one of the artists in the play
produced by the plaintiff happened to be in Bombay at the time when the picture
'New Delhi' was being produced by the defendant and informed the plaintiff that the

picture being produced by the defendant was really based on the plaintiff's play 'Hum
Hindustani'. The plaintiff thereupon by his letter dated 30th May, 1955 wrote to the
second defendant expressing serious concern over the adaptation of his play into a
motion picture called 'New Delhi'. The defendant, however, by his letter dated 9th
June, 1955 informed the plaintiff that his doubts were without any foundation and
assured the plaintiff that the story treatment, dramatic construction, characters etc.
were quite different and bore not the remotest connection or resemblance with the
play written by the plaintiff.
6. The picture was released in Delhi in September, 1956 and the plaintiff read some
comments in the papers which gave the impression that the picture was very much
like the play 'Hum Hindustani' written by the plaintiff. The plaintiff himself saw the
picture on the 9th September, 1956 and he found that the film was entirely based
upon the said play and was, therefore, convinced that the defendant after having
heard the play narrated to him by the plaintiff dishonestly imitated the same in his
film and thus committed an act of piracy so as to result in violation of the copyright
of the plaintiff. The plaintiff accordingly filed the suit for damages, for decree for
accounts of the profits made by the defendants and a decree for permanent injunction
against the defendants restraining them from exhibiting the film 'New Delhi'.
7. The suit was contested by defendants No. 1 and 2 as also by other defendants who
adopted the pleas raised by defendants No. 1 and 2.
8. The defendants, inter alia, pleaded that they were not aware that the plaintiff was
the author of the play 'Hum Hindustani' nor were they aware that the play was very
well received at Delhi. Defendant No. 2 is a film Director and is also the proprietor of
defendant No. 1 Delux Films. The defendants averred that in November, 1954 the
second defendant was discussing some ideas for his new picture with Mr. Balwant
Gargi who is a play wright of some repute. In the course of the discussion, the
second defendant informed Mr. Gargi that the second defendant was interested in
producing a motion film based on 'provincialism' as its central theme. In the context
of these discussions Mr. Gargi enquired of defendant No. 2 if the latter was interested
in hearing the play called 'Hum Hindustani' produced by the plaintiff which also had
the same theme of provincialism in which the second defendant was interested. It
was, therefore, at the instance of Mr. Gargi that the second defendant wrote to the
plaintiff and requested him to send a copy of the script of the play. The defendant
goes on to state that the plaintiff read out the play to the second defendant in the
presence of Rajinder Bhatia and Mohan Kumar, Assistant Directors of the second
defendant when they had come to Delhi in connection with the release of their film
"Adhikar". The second defendant has taken a clear stand that after having heard the
play he informed the plaintiff that though the play might have been all right for the
amateur stage, it was too inadequate for the purpose of making a full length
commercial motion picture. The defendants denied the allegation of the plaintiff that
it was after hearing the play written by the plaintiff that the defendants decided to
make a film based on the play and entitled it as 'New Delhi'.
9 . The defendant thus submitted that there could be no copyright so far as the
subject of provincialism is concerned which can be used or adopted by any body in
his own way. He further averred that the motion picture was quite different from the
play 'Hum Hindustani' both in contents, spirit and climax. The mere fact that there
were some similarities between the film and the play could be explained by the fact
that the idea, viz., provincialism was the common source of the play as also of the
film. The defendant thus denied that there was any violation of the copyright.
10. On the basis of the pleadings of the parties, the learned trial Judge framed the

following issues :
1. Is the plaintiff owner of the copyright in the play 'Hum Hindustani' ?
2 . Is the film 'New Delhi' an infringement of the plaintiff's copyright in the
play 'Hum Hindustani' ?
3 . Have defendants or any of them infringed the plaintiff's copyright by
producing, or distributing or exhibiting the film 'New Delhi' ?
4. Is the suit bad for misjoinder of defendants and cause of action ?
5. To what relief is the plaintiff entitled and against whom ?
1 1 . Issue No. 1 was decided against the defendants and it was held by the trial
Judge that the plaintiff was the owner of the copyright in the play 'Hum Hindustani'.
Issue No. 4 was not pressed by the defendants and was accordingly decided against
them. The main case however turned upon the decision on issues No. 2 and 3 which
were however decided against the plaintiff as the learned Judge held that there was
no violation of the copyright of the plaintiff. The plaintiff then went up in appeal to
the Delhi High Court where a Division Bench of that Court affirmed the decision of
the District Judge and upheld the decree dismissing the plaintiff's suit. The findings
of fact arrived at by the learned trial Judge and the High Court have not been assailed
before us. The only argument advanced by the appellant was that the principles
enunciated and the legal inferences drawn by the courts below are against the settled
legal principles laid down by the courts in England, America and India. It was also
submitted by Mr. Andley that the two courts have not fully understood the import of
the violation of copyright particularly when the similarities between the play and the
film are so close and sundry that would lead to the irresistible inference and
unmistakable impression that the film is nothing but an limitation of the play. On the
other hand, it was argued by Mr. Hardy counsel for the respondents that the two
courts below have applied the law correctly and it is not necessary for this Court to
enter into merits in view of the concurrent findings of fact given by the two courts.
He further submitted that even on the facts found it is manifest that there is a vast
difference both in the spirit and the content between the play 'Hum Hindustani' and
the film 'New Delhi' and no question of violation of the copyright arises.
12. In order to appreciate the argument of both the parties it may be necessary to
discuss the law on the subject. To begin with there is no decided case of this Court
on this point. Secondly, at the time when the cause of action arose Parliament had
not made any law governing copyright violations and the courts in the absence of any
law by our Parliament relied on the old law passed by the British Parliament, namely,
the Copyright Act of 1911. Section 1 Sub-section (2)(d) defines 'copyright' thus :
(2) For the purposes of this Act, copyright' means the sole right to produce
or reproduce the work or any substantial part thereof in any material form
whatsoever, to perform, or in the case of a lecture to deliver, the work or any
substantial part thereof in public. If the work is unpublished, to publish the
work or any substantial part thereof; and shall include the sole right,
xxx
(d) in the case of a literary, dramatic, or musical work, to make any record,
perforated roll, cinematograph film, or other contrivance by means of which
the work may be mechanically performed or delivered.

Section 2 provides the contingencies where a copyright could be infringed and runs
thus :-
2(1) Copyright in a work shall be deemed to be infringed by any person who,
without the consent of the owner of the copyright, does anything the sole
right to do which is by this Act conferred on the owner of the copyright.
It is, therefore, clear that the Act of 1911 defines 'copyright' and also indicates the
various contingencies where copyright cannot be infringed. The statute also provides
exceptions which would not amount to violation of copyright.
13. In the instant case the play written by the appellant falls within Section 1(2)(d)
because it is a dramatic work. The learned District Judge has rightly held that
emotions like mere ideas are not subject to pre-emption because they are common
property. Quoting from the law of copyright and Movie-rights by Rustom R.
Dadachanji the learned Judge observed as follows :-
It is obvious that the underlying emotion reflected by the principal characters
in a play or look may be similar and yet that the characters and expression of
the same emotions be different. That the same emotions are found in plays
would not alone be sufficient to prove infringement but if similar emotions
are portrayed by a sequence of events presented in like manner expression
and form, then infringement would be apparent.
Similarly in the case of Hanfstaengl v. W.H. Smith and Sons [1905] 1 Ch. D. 519 it
has been held by Bayley, J. that "a copy is that which comes so near to the original
as to give to every person seeing it the idea created by the original".
14. In Halsbury's Laws of England by Lord Hailsham Fourth Edition the following
observations are made :
Only original works are protected under Part I of the Copyright Act 1956, but
it is not requisite that the work should be the expression of original or
inventive thought, for Copyright Acts are not concerned with the originality
of ideas, but with the expression of thought, and, in the case of a literary
work, with the expression of thought in print or writing.... There is copyright
in original dramatic works and adaptations thereof, and such copyright
subsists not only in the actual words of the work but in the dramatic
incidents created, so that if these are taken there may be an infringement
although no words are actually copies. There cannot be copyright in mere
science effects or stage situations which are not reduced into some
permanent form.
Similarly, it was pointed out by Copinger in his book on Copyright 11th Edition that
what is protected is not the original thought but expression of thought in a concrete
form. In this connection, the author makes the following observations based on the
case law :
What is protected is not original thought or information, but the original
expression of thought or information in some concrete form. Consequently, it
is only an infringement if the defendant has made an unlawful use of the
form in which the thought or information is expressed. The defendant must
to be liable, have made a substantial use of this form; he is not liable if he
has taken from the work the essential, ideas however original, and expressed
the idea in his own form, or used the idea for his own purposes.

The author also points out that there is no infringement unless the plaintiff's play-
wrighted work has been actually used so, that it may be said that the latter work
reproduces the earlier one. In this connection, the author observes as follows :-
A further essential matter, and one which-rather strangely-is not anywhere
precisely stated in the Act of 1956 is that there can be no infringement
unless use has been made, directly or indirectly, of the plaintiff's work.
15. Moreover, it seems to us that the fundamental idea of violation of copyright or
limitation is the violation of the Eighth Commandment : "Thou shall not steal" which
forms the moral basis of the protective provisions of the Copyright Act of 1911. It is
obvious that when a writer or a dramatist produces a drama it is a result of his great
labour, energy, time and ability and if any other person is allowed to appropriate the
labours of the copyrighted work, his act amounts to theft by depriving the original
owner of the copyright of the product of his labour. It is also clear that it is not
necessary that the alleged infringement should be an exact or verbatim copy of the
original but its resemblance with the original in a large measure, is sufficient to
indicate that it is a copy. In Article 418 Copinger states thus :-
In many cases the alleged infringement does not consist of an exact, or
verbatim copy, of the whole, or any part, of the earlier work, but merely
resembles it in a greater or lesser degree.
In Article 420 the author lays down the various tests to determine whether an
infringement has taken place and observes as follows :-
Various definitions of 'copy' have been suggested, but it is submitted that the
true view of the matter is that, where the court is satisfied that a defendant
has, in producing the alleged infringement, made a substantial use of those
features of the plaintiff's work in which copyright subsists, an infringement
will be held to have been committed, if he has made such use, he has
exercised unlawfully the sole right which is conferred upon the plaintiff.
16. Ball in "Law of Copyright and Literary Property" page 364 points out that where
the defendant materially changes the story he cannot be said to have infringed the
copyright. In this connection, the author observes as follows :-
In such a composition the story is told by grouping and representing the
important incidents in the particular sequence devised by the author whose
claim to copyright must depend upon the particular story thus composed;
and not upon the various incidents, which, if presented individually, without
such unique sequential arrangement, would be common literary property.
Consequently another dramatist who materially changes the story by
materially varying the incidents should not be held to be infringer.
It is also pointed out by Mr. Ball that sometimes even though there may be
similarities between the copyrighted work and the work of the defendant they may be
too trivial to amount to appropriation of copyrighted material. The author observes
thus :-
When two authors portray in literary or dramatic form the same occurrence,
involving people reacting to the same emotions under the influence of an
environment constructed of the same materials, similarities in incidental
details necessary to the environment or setting are inevitable; but unless
they are accompanied by similarities in the dramatic development of the plot
or in the lines or action of the principal characters, they do not constitute

evidence of copying. They are comparable to similarities in two works of art
made by different artists from the same original subject, and in the usual
case are too trivial and unimportant to amount to a substantial appropriation
of copyrighted material.
The author further says that unless there is any substantial identity between the
respective works in the scenes, incidents and treatment a case of infringement of
copyright is not made and observes thus :-
But there was no substantial identity between the respective works in the
scenes, incidents, or treatment of the common theme, the court held that the
plaintiff's copyrights were not infringed by the defendant's photoplays.
Dealing with the infringement of copyright of a play by a motion picture which
appears to be an identical case in the present appeal, the author observes as follows
:-
In an action for the alleged infringement of the copyright of a play by a
motion picture, wherein it appeared that both authors had used life in a boys'
reform school as a background, but the only similarity between the two
productions consisted of a few incidents and points in dialogue, such as one
would expect to find in stories set against the same background, there was
no infringement of copyright.
To the same effect are the following observations of the author :
Where the only evidence of similarities between two plays was based upon
the author's analysis and interpretation of an extensive list of "parallel", from
which he inferred that many incidents, scenes and characters in the alleged
infringing play were adapted from the plaintiff's copyrighted play, but no
such resemblance would be apparent to an ordinary observer, it was held
that the meaning or interpretation which the author gives to his literary work
cannot be accepted as a deciding test of plagiarism; and that, in the absence
of any material resemblance which could be recognised by an ordinary
observation, each play must be regarded as the independent work of the
named author.
17. Similar observations have been made in Corpus Juris Secundum Vol. 18 at page
139 where it is observed as follows :
An author has, at common law, a property in his intellectual production
before it has been published, and may obtain redress against anyone who
deprives him of it, or, by improperly obtaining a copy, endeavours to publish
or to use it without his consent.
This right exists in the written scenario of a motion picture photoplay and in
the photoplay itself as recorded on the photographic film. There is, however,
no common-law literary property right in the manner and postures of the
actors used by them in performing the play.
Infringement of a copyright is a trespass on a private domain owned and
occupied by the owner of the copyright, and, therefore, protected by law,
and infringement of copyright, or piracy, which is a synonymous term in this
connection, consists in the doing by any person, without the consent of the
owner of the copyright, of anything the sole right to do which is conferred by
the statute on the owner of the copyright.

18. This view was taken by the U.S. Supreme Court in the case of Bobbs-Merrill
Company v. Isidor Straus and Nathan Straus 210 U.S. 339.
1 9 . In the American Jurisprudence also it is pointed out that the law does not
recognize property rights in abstract idea, nor is an idea protected by a copyright and
it becomes a copyrighted work only when the idea is given embodiment in a tangible
form. In this connection the following observations are made :-
Generally speaking, the law does not recognize property rights in abstract
ideas and does not accord the author or proprietor the protection of his
ideas, which the law does accord to the proprietor of personal property.
In cases involving motion pictures or radio or television broadcasts, it is
frequently stated that an idea is not protected by a copyright or under the
common law, or that there is no property right in an idea, apart from the
manner in which it is expressed.
When an idea is given embodiment in a tangible form, it becomes the subject
of common-law property rights which are protected by the courts, at least
when it can be said to be novel and new.
20. It was also pointed out in this book as to what constitutes colourable limitation.
In this connection, the following observations have been made :-
Infringement involves a copying, in whole or in part, either in haec verba
(sic) or by colorable variation.... A copy as used in copyright cases, signifies
a tangible object which is a reproduction of the original work. The question
is not whether the alleged infringer could have obtained the same
information by going to the same source used by the plaintiff in his work,
but whether he did in fact go to the same source and do his own independent
research. In other words, the test is whether one charged with the
infringement made an independent production, or made a substantial and
unfair use of the plaintiff's work.
Intention to plagiarise is not essential to establish liability for infringement of
a copyright or for plagiarism of literary property in unpublished books,
manuscripts, or plays. One may be held liable for infringement which is
unintentional or which was done unconsciously.
Similarity of the alleged infringing work to the author's or proprietor's
copyrighted work does not of itself stablish copyright infringement, if the
similarity results from the fact that both works deal with the same subject or
have the same common source.... Nevertheless, it is the unfair appropriation
of the labour of the author whose work has been infringed that constitutes
legal infringement, and while identity of language will often prove that the
offence was committed, it is not necessarily the sole proof; on the other
hand, relief will be afforded, irrespective of the existence or non-existence of
any similarity of language, if infringement in fact can be proved.
The appropriation must be of a 'substantial' or 'material' part of the protected
work.... The test is whether the one charged with the infringement has made
a substantial and unfair use of the complainant's work. Infringement exists
when a study of two writings indicates plainly that the defendant's work is a
transparent rephrasing to produce essentially the story of the other writing,
but where there is no textual copying and there are differences in literary
style, the fact that there is a sameness in the tricks of spinning out the yarn

so as to sustain the reader's suspense, and similarities of the same general
nature in a narrative of a long, complicated search for a lost article of
fabulous value, does not indicate infringement.
21. We shall now discuss spine of the authorities that have been cited at the Bar as
also some others with whom we have come across and which throw a flood of light
on the point in issue. Dealing with the question of similarities Lord Kekewich, J. in
Hanjstaengl case (Supra) described various qualities of a copy and observed as
follows :-
In West v. Francis [1822] I.B.737 Bayley J. uses language coining, as Lord
Watson says, nearer to a definition than anything which is to be found in the
books. It runs thus : "A copy is that which comes so near to the original as
to give to every person seeing it the idea created by the original.... If it were
altered thus-"a copy is that which comes so near to the original as to suggest
that original to the mind of every person seeing it"-the substance of the
definition would be preserved and Lord Watson's criticism would be avoided.
2 2 . The learned Judge aptly pointed out that an limitation will be a copy which
comes so near to the original as to suggest the original to the mind of every person
seeing it. In other words, if after having seen the picture a person forms a definite
opinion and gets a dominant impression that it has been based on or taken from the
original play by the appellant that will be sufficient to constitute a violation of the
copyright.
23. In the case of Ladbroke (Football) Ltd. v. William Bill (Football) Ltd. [1964] 1 All
E.R. 465 Lord Reid made the following pertinent observations :
But, in my view, that is only a short out, and more correct approach is first
to determine whether the plaintiff's work as a whole is 'original' and
protected by copyright, and then to inquire whether the part taken by the
defendant is substantial. A wrong result can easily be reached if one begins
by dissecting the plaintiff's work and asking, could section A be the subject
of copyright if it stood by itself, could section B be protected it it stood by
itself, and so on. To my mind, it does not follow that, because the fragments
taken separately would not be copyright, therefore the whole cannot be.
24. Lord Hodson expressed similar views at p. 475 in the following words :-
The appellants have sought to argue that the coupons can be dissected and
that on analysis no copyright attaches to any of their component parts and
accordingly no protection is available. In my opinion this approach is wrong
and the coupons must be looked at as a whole. Copyright is a statutory right
which by the terms of Section 2 of the Act of 1956 would appear to subsist,
if at all, in the literary or other work as one entity.
2 5 . This case clearly lays down that a similarity here or a similarity there is not
sufficient to constitute a violation of the copyright unless the limitation made by the
defendant is substantial.
26. In the case of Corelli v. Gray 29 T.L.R. 570 Sargent, J. observed as follows :-
The plaintiff's case is entirely founded on coincidences or similarities
between the novel and the sketch. Such coincidences or similarities may be
due to any one of the four hypotheses-namely (1) to mere chance, or (2) to
both sketch and novel being taken from a common source: (3) to the novel

being taken from the sketch, or (4) to the sketch being taken from the novel.
Any of the first three hypotheses would result in the success of the
defendant; it is the fourth hypothesis alone that will entitle the plaintiff to
succeed.
Looking now at the aggregate of the similarities between the sketch and the
novel, and the case is essentially one in which the proof is cumulative. I am
irresistibly forced to the conclusion that it is quite impossible they should be
due to mere chance coincidence and accordingly that they must be due to a
process of copying or appropriation by the defendant from the plaintiff's
novel.
2 7 . Thus it was pointed out in this case where the aggregate of the similarities
between the copyrighted work and the copy lead to the cumulative effect that the
defendant had imitated the original and that the similarities between the two works
are not coincidental, a reasonable inference of colourable limitation or of
appropriation of the labour of the owner of the copyright by the defendant is proved.
This case was followed by the Master of Rolls in the case of Corelli v. Gray 30 T.L.R.
116.
28. The case of Hawkes and Son (London) Limited v. Paramount Film Service Limited
[1934] 1 Ch. D. 593 was whether a musical composition made by the owner was
sought to be imitated by producing a film containing the said composition. An action
for violation of the copyright was filed by the owner. Lord Hansworth, M.R. found
that the quantum taken was substantial and a substantial part of the musical
copyright could be reproduced apart from the actual film. In this connection, Lord
Hansworth observed as follows :-
Having considered and heard this film I am quite satisfied that the quantum
that is taken is substantial, and although it might be difficult, and although it
may be uncertain whether it will be ever used again, we must not neglect the
evidence that a substantial part of the musical copyright could be reproduced
apart from the actual picture film.
29. Similar observations were made by Lord Slesser which may be extracted thus :-
Any one hearing it would know that it was the march called "Colonel Bogey"
and though it may be that it was not very prolonged in its reproduction, it is
clearly, in my view, a substantial, a vital and an essential part which is there
reproduced. That being so, it is clear to my mind that a fair use has not been
made of it; that is to say, there has been appropriated and published in a
form which will or may materially injure the copyright that in which the
plaintiffs have a proprietary right.
30. In the case of Harman Pictures N.V. v. Osborne and Ors. [1967] 1 W.L.R. 723 it
was held that similarities of incidents and situation undoubtedly afforded prima jade
evidence of copy and in the absence of any explanation by the defendant regarding
the sources, the plaintiffs must succeed. It was however held that there was no
copyright in ideas, schemes or systems or method and the copyright is confined only
to the subject. In this connection Coff, J. observed as follows :-
There is no copyright in ideas or schemes or systems or methods; it is
confined to their expression.... But there is a distinction between ideas
(which are not copyright) and situations and incidents which may be.... One
must, however, be careful not to jump to the conclusion that there has been
copying merely because of similarity of stock incidents, or of incidents which

are to be found in historical, semi-historical and fictional literature about
characters in history. In such cases the plaintiffs, and that includes the
plaintiffs in the present case, are in an obvious difficulty because of the
existence of common sources.
But I have read the whole of the script very carefully and compared it with
the book and I find many similarities of detail there also.... Again it is prima
facie not without significance that apart from the burial of Captain Nolan the
play ends with the very quotation which Mrs. Wodham-Smith used to end her
description of the battle.... As Sir Andrew Clark points out, some of these
might well be accounted for as being similar to other events already in the
script, and in any event abridgment was necessary, but that may not be a
complete answer.
31. Similarly in the case of Donoghue v. Allied Newspapers [1937] 3 All E.R. 503 it
was pointed out that there was no copyright in an idea and in this connection
Farwell, J. observed as follows :-
This at any rate, is clear, and one can start with this beyond all question that
there is no copyright in an idea, or in ideas.... If the idea, however brilliant
and however clever it may be, is nothing more than an idea, and is not put
into any form of words, or any form of expression such as a picture or a
play, then there is no such thing as copyright at all. It is not until it is (If I
may put it in that way) reduced into writing, or into some tangible form, that
you get any right to copyright at all, and the copyright exists in the particular
form of language in which, or, in the case of a picture, in the particular form
of the picture by which, the information or the idea is conveyed to those who
are intended to read it or look at it.
32. Similarly in the case of Bobl and Anr. v. Palace Theatre (Limited) and Anr. 28
T.L.R. 22 Justice Hamilton observed as follows :-
If similarity between two works was sufficiently strong the evidence of
copying would be so cogent that no one would believe any denial, but here
the intrinsic evidence was really the other way.... The matter had been
considered by Justice Scrutton in his book on Copyright, and the conclusion
there come (sic) to (Note h p. 83 of fourth edition) was that to which his
own reflection during the progress of this case would have led him. He
considered, therefore, that where the similarity was a mere coincidence there
was no breach of copyright.
33. In the case of Tate v. Fullbrook 77 L.J.R. 577 Lord Vaughan Williams observed as
follows :-
I do not think that I need go at length through the similarities and
dissimilarities of the two sketches. It is practically admitted that, so far as
the words are concerned, the similarity is trifling.... All that we find here is a
certain likeness of stage situation and scenic effect, which, in my opinion,
ought not to be taken into consideration at all where there is appreciable
likeness in the words.
34. In the case of Frederick B. Chatterton and Benjamin Webster v. Joseph Arnold
Cave (1878) 3 A.C. 483 Hatherley observed as follows :-
And if the quantity taken be neither substantial nor material, if, as it has
been expressed by some Judges, "a fair use" only be made of the

publication, no wrong is done and no action can be brought. It is not,
perhaps, exactly the same with dramatic performances. They are not
intended to be repeated by others or to be used in such a way as a book may
be used, but still the principle de minimis non curat lex applies to a
supposed wrong in taking a part of dramatic works, as well as in reproducing
a part of a book.
I think, my Lords, regard being had to the whole of this case to the finding
of the Lord Chief Justice that the parts which were so taken were neither
substantial nor material parts, and the impossibility of damage being held to
have accrued to the plaintiff from such taking, and the concurrence of the
other Judges before whom the case was, brought that this appeal should be
dismissed, and dismissed with costs.
35. In the case of Sheldon v. Metro-Golden Pictures Corporation 81 F 2d 40 Judge
Learned Hand stated that while considering a case which is very similar to the case in
this appeal observed as follows :-
But it is convenient to define such a use by saying that others may "copy"
the "theme" or "ideas", or the like, of a work, though not its "expression". At
any rate so long as it is clear what is meant, no harm is done.... Finally, in
concluding as we do that the defendants used the play pro tanto, we need
not charge their witnesses with perjury. With so many sources before them
they might quite honestly forget what they took; nobody knows the origin of
his inventions; memory and fancy merge even in adults. Yet unconscious
plagiarism is actionable quite as much as deliberate.
The play is the sequence of the confluents of all these means, bound
together in an inseparable unity; it may often be most effectively pirated by
leaving out the speech, for which a substitute can be found, which keeps the
whole dramatic meaning. That as it appears to us is exactly what the
defendants have done here; the dramatic significance of the scenes we have
recited is the same, almost to the letter.... It is enough that substantial parts
were lifted; no plagiarist can excuse the wrong by showing how much of his
work he did not pirate.
In the aforesaid case the Court held that there was no plagiarism or violation of the
copyright.
36. In the case of Shipman v. R.K.O. Radio Pictures 100 F 2d 533 while holding that
an idea cannot be the subject of copyright great stress was laid on the impression
which the audience forms after seeing the copy. In this connection, Menton, J.
observed as follows :-
The Court concluded that it was the idea or impression conveyed to the
audience which was the determining factor, and since the impressions were
the same, held there was an infringement.... From this case stand the
modern law of copyright cases, with the result that it is now held that ideas
are not copyrightable but that sequence of events is; the identity of
impression must be capable of sensory perception by the audience.
3 7 . In the case of Michael V. Moretti v. People of the State of Illinois 248 799
U.S.947 it was held that law does not recognise property rights in ideas but only in
the expression of the same in a particular manner adopted by the author. A writ of
certiorari was taken against this judgment to the U.S. Supreme Court which was
denied. To the same effect is an earlier decision in the case of Funkhouser v. Loew's

208 F 2d 185 where the following relevant observations were made on the various
aspects of the matter :
We are also mindful that the test used to determine infringement in cases of
this case is whether ordinary observation of the motion picture photoplay
would cause it to be recognised as a picturisation of the compositions
allowed to have been copied, and not whether by some hypercritical
dissection of sentences and incidents seeming similarities are shown to
exist.... It recognised that there were similar incidents in the productions,
but such similarities were due to the nature of the subject matter and not to
copying. Both the motion picture and plaintiff's story 'Old John Santa Fe'
were set in the same geographical area and both had the typical western
background.... Appellant's attempt to show similarities by comparing a word
or phrase taken from his manuscript with the word or words appearing in the
lyrics of a song in appellee's motion picture is not in conformity with the test
used in infringement cases and to which we have referred to above. We find
no merit in the contention that any of the songs in defendant's movie were
taken from plaintiff's manuscripts.... Considering that both the movie and the
manuscript presented activities of Harvey Girls, and information concerning
them was received from the same source, we think it reasonable that some
similarities in character portrayal could be discovered.
38. In view of the aforesaid observation too much stress cannot always be laid on
similarities or similar situations. A writ of certiorari against the judgment of the U.S.
Courts Appeal to the U.S. Supreme Court was taken but the certiorari was denied and
the petition was rejected in limine as it appears from 348 U.S. 843. This was also a
case where a film was made on the basis of a play claimed to have been written by
the plaintiff.
39. The case of Warner Bros. Pictures v. Columbia Broadcasting System 216 F 2d
945 is another illustration of the manner in which a copyright can be violated.
Dealing with this aspect of the matter Stephens, J. observed as follows :-
It is our conception of the area covered by the copyright statute that when a
study of the two writings is made and it is plain the study that one of them is
not in fact the creation of the putative authority, but instead has been copied
in substantial part exactly or in transparent phrasing to produce essentially
the story of the other writing, it infringes.
A writ of certiorari was taken against the decision to the U.S. Supreme Court but was
denied as reported in 348 U.S. 971.
40. In the case of Otto Eisenchiml v. Fowcett Publications 246 F 2d 598 Duffy, Chief
Judge observed as follows :-
An infringement is not confined to literal and exact repetition or
reproduction; it includes also the various modes in which the matter of any
work may be adopted, imitated, transferred, or reproduced, with more or less
colorable alterations to disguise the piracy. Paraphrasing is copying and an
infringement, if carried to a sufficient extent.... The question of infringement
of copyright is not one of quantity but of quality and value.
A writ of certiorari against this decision was taken to the U.S. Supreme Court but was
denied which was reported on L.Ed.260 U.S.907.
41. In the case of Dorsey v. Old Surety Life Ins. Co. 98 F 2d 872 Phillips, J. observed

as follows :-
The right secured by a copyright is not the right to the use of certain words,
nor the right to employ ideas expressed thereby. Rather it is the right to that
arrangement of words which the author has selected to express his ideas....
To constitute infringement in such cases a showing of appropriation in the
exact form or substantially so of the copyrighted material should be required.
Similar observations were made in the case of Twentieth Century Fox Film
Corporation v. Stonesifer 140 F 2d 579 which are as follows :-
In copyright infringement cases involving original dramatic compositions and
motion picture productions, inasmuch as literal or complete appropriation of
the protected property rarely occurs, the problem before the court is concrete
and specific in each case to determine from all the facts and circumstances in
evidence whether there has been a substantial taking from an original and
copyrighted property, and therefore an unfair use of the protected work....
The two works involved in this appeal should be considered and tested, not
hypercritically or with meticulous scrutiny, but by the observations and
impressions of the average reasonable reader and spectator.... We find and
conclude, as did the court below, that the numerous striking similarities in
the two works cannot in the light of all the evidence be said to constitute
mere chance. The deduction of material and substantial unlawful copying of
appellee's original play in appellant's motion picture is more in consonance
with the record and with the probabilities of the situation therein disclosed.
This authority lays down in unmistakable terms the cases where an infringement of
the copyright would take place and as pointed out that before the charge of
plagiarism is leveled against the defendant it must be shown that the defendant has
taken a substantial portion of the matter from the original and have made unfair use
of the protective work. The two works involved must be considered and tested not
hypercritically but with meticulous scrutiny.
42. Similarly, in the case of Oliver Wendell Holmes v. George D. Hirst 174 U.S. 82
Justice Brown speaking for the Court and describing the incidents of a violation of the
copyright observed as follows :
It is the intellectual production of the author which the copyright protects,
and not the particular form which such production ultimately takes.
The Judicial Committee in the case of Macmillan & Company Limited v. K. and J.
Cooper 51 I.A. 109 while pointing out the essential ingredients of the infringement of
copyright Lord Atkinson observed as follows :-
Third, that to constitute piracy of a copyright it must be shown that the
original has been either substantially copied or to be so imitated as to be a
mere evasion of the copyright.
43. In the case of Florence A. Decks v. H.G. Wells and Ors. 60 I.A. 26 Lord Atkin
speaking for the Judicial Committee summarised the nature of the evidence required
to prove as a violation of copyright and observed as follows :-
Now their Lordships are not prepared to say that in the case of two literary
works intrinsic evidence of that kind may not be sufficient to establish a case
of copying, even if the direct evidence is all the other way and appears to be
evidence that can be accepted; but such evidence must be of the most cogent

force before it can be accepted as against the oath of respectable and
responsible people whose evidence otherwise would be believed by the
Court.
44. In the case of N.T. Raghunathan and Anr. v. All India Reporter Ltd., Bombay
A.I.R. 1971 Bom. 48 it was held that copyright law did not protect ideas but only the
particular expression of ideas. In that case, the Bombay High Court however held that
the defendant had copied not only the ideas but also the style of abridgment, the
expression of ideas and the form in which they were expressed and thus held that a
case for violation of copyright was made out.
45. K.R. Venugopalan Sarma v. Sangu Ganesan 1972 Cr. L.J. 1098 was a case of
infringement of copyright in picture and it was held that an infringement of the
copyright was complete even though the reproduction was not exact, but the effect
on the mind by study of the two pictures was that the respondent's picture was
nothing but a copy of the plaintiff's picture. The Court while applying the various
tests observed as follows :-
Applying this test, the degree of resemblance between the two pictures,
which is to be judged by the eye, must be such that the person looking at the
respondents' pictures must get the suggestion that it is the appellant's
picture.... One picture can be said to be a copy of another picture only if a
substantial part of the former picture finds place in the reproduction.
46. To the same effect is an earlier decision of the Division Bench of the Madras High
Court in the case of The Daily Calendar Supplying Bureau, Sivakasi v. The United
Concern MANU/TN/0256/1967 : AIR1967Mad381 where the Court observed as follows
:-
"What is essential is to see whether there is a reproduction of substantial
part of the picture. There can be no test to decide what a substantial part of
a picture is. One useful test, which has been followed in several decisions of
Courts, is the one laid down by Lord Herschel, L.C. in Hanjstaengl v. Bains &
Co. [1895] A.C. 20.
...it depends really, on the effect produced upon the mind by a study of the
picture and of that which is alleged to be a copy of it, or at least of its
design.
4 7 . In the case of C. Cunniah and Co. v. Balraj & Co. MANU/TN/0167/1961 :
AIR1961Mad111 the Court applying the test of resemblance observed as follows :-
Applying this test, the degree of resemblance between the two pictures,
which is to be judged by the eye, must be such that the person looking at the
respondents' picture must get the suggestion that it is the appellant's picture.
In this sense, the points of similarity or dissimilarity in the picture assume
some importance.... We agree that this could not be the sole test, though,
incidentally, the points of resemblance and dissimilarity assume some
importance in the case of finding out whether, taken as a whole, the
respondents' picture produces the impression in the mind of any observer,
which amounts to a suggestion of the appellants' picture.
One picture can be said to be a copy of another picture only if a substantial part of
the former picture finds place in the reproduction.
4 7 . In the case of Mohendra Chandra Nath Ghosh and Ors. v. Emperor

MANU/WB/0026/1928 : AIR1928Cal359 the Court while defining what a copy is held
that a copy is one which is so near the original as to suggest the original to the mind
of the spectator and observed as follows :-
But the question is whether the offending pictures are copies of substantial
portions of the copyright picture.... The figures may have been reduced in
the offending pictures and slight modifications may have been introduced, or
the clothes and colours may have been different, but there can be no doubt
whatsoever that the main figures have an identical pose. These are not, in
my opinion, coincidences due to the pictures being produced to represent
common stock ideas.
48. Similarly in the case of S.K. Dutt v. Law Book Co. and Ors. MANU/UP/0223/1954
: AIR1954All570 it was held that in order to be an infringement of a man's copyright
there must be a substantial infringement of the work. A mere fair dealing with any
work falls outside the mischief of the Copyright Act.
4 9 . Similarly, in the case of Romesh Chowdhry and Ors. v. Kh. Ali Mohamad
Nowsheri and Ors. A.I.R. 1965 J & K. 101 the Division Bench of the Court to which
one of us (Fazal Ali, J.) was a party and had written the leading judgment it was thus
observed :
It is well settled that in order to be actionable the infringement must be a
colourable limitation of the originals with the purpose of deriving profit.
50. In the case of Mohini Mohan Singh and Ors. v. Sita Nath Basak A.I.R. 1931 Cal.
230 a Division Bench of the Calcutta High Court while laying down the necessary
concomitants of a colourable limitation Mukherji, J. observed as follows :-
The question there is whether a colourable limitation has been made.
Whether a work is a colourable limitation of another must necessarily be a
question of fact. Similarly is a great point to be considered in this connection
but mere similarity is not enough as it may be due to any one of four
hypotheses as Copinger points out at p. 134, Edn. 6, viz., (1) to mere
chance, (2) to both works being taken from a common force, (3) to plaintiff's
work being taken from the defendant's and (4) defendant's work being taken
from the plaintiff's and each case must depend upon its own circumstances.
Guha, J. observed as follows :-
It has to be determined whether in a particular case the work is a legitimate
use of another man's publication in the fair exercise of a mental operation
deserving the character of original work.
51. Thus, the position appears to be that an idea, principle, theme, or subject matter
or historical or legendary facts being common property cannot be the subject matter
of copyright of a particular person. It is always open to any person to choose an idea
as a subject matter and develop it in his own manner and give expression to the idea
by treating it differently from others. Where two writers write on the same subject
similarities are bound to occur because the central idea of both are the same but the
similarities or coincidences by themselves cannot lead to an irresistible inference of
plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare
most of whose plays are based on Greek-Roman and British mythology or legendary
stories like Merchant of Venice, Hamlet, Romeo Juliet, Jullius Caesar etc. But the
treatment of the subject by Shakespeare in each of his dramas is so fresh, so
different, so full of poetic exuberance, elegance and erudition and so novel in

character as a result of which the end product becomes an original in itself. In fact,
the power and passion of his expression, the uniqueness, eloquence and excellence
of his style and pathos and bathos of the dramas become peculiar to Shakespeare
and leaves precious little of the original theme adopted by him. It will thus be
preposterous to level a charge of plagiarism against the great play-wright. In fact,
thoughout his original thinking, ability and incessant labour Shakespeare has
converted an old idea into a new one, so that each of the dramas constitutes a
master-piece of English literature. It has been rightly said that "every drama of
Shakespeare is an extended metaphor". Thus, the fundamental fact which has to be
determined where a charge of violation of the copyright is made by the plaintiff
against the defendant is to determine whether or not the defendant not only adopted
the idea of the copyrighted work but has also adopted the manner, arrangement,
situation to situation, scene to scene with minor changes or super additions or
embellishment here and there. Indeed, if on a perusal of the copyrighted work the
defendant's work appears to be a transparent rephrasing or a copy of a substantial
and material part of the original, the charge of plagiarism must stand proved. Care
however must be taken to see whether the defendant has merely disguised piracy or
has actually reproduced the original in a different form, different tone, different tenor
so as to infuse a new life into the idea of the copyrighted work adapted by him. In
the latter case there is no violation of the copyright.
52. Thus, on a careful consideration and elucidation of the various authorities and
the case law on the subject discussed above, the following propositions emerge :
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 copyright work.
2 . Where the same idea is being developed in a different manner, it is
manifest that the source being common, similarities are bound to occur. In
such a case the courts should determine whether or not the similarities are
on fundamental or substantial aspects of the mode of expression adopted in
the copyrighted work. If the defendant's work is nothing but a literal
limitation of the copyrighted work with some variations here and there it
would amount to violation of the copyright. In other words, in order to be
actionable the copy must be a substantial and material one which at once
leads to the conclusion that the defendant is guilty of an act of piracy.
3 . One of the surest and the safest test to determine whether or not there
has been a violation of copyright is to see if the reader, spectator or 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 the theme is the same but is presented and treated differently so
that the subsequent work becomes a completely new work, no question of
violation of copyright arises.
5 . Where however apart from the similarities appearing in the two works
there are also material and broad dissimilarities which negative the intention
to copy the original and the coincidences appearing in the two works are
clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved
by clear and cogent evidence after applying the various tests laid down by

the case law discussed above.
7 . Where however the question is of the violation of the copyright of stage
play by a film producer or a Director the task of the plaintiff becomes more
difficult to prove piracy. It is manifest that unlike a stage play a film has a
much broader prospective, a wider field and a bigger background where the
defendants can by introducing a variety of incidents give a colour and
complexion different from the manner in which the copyrighted work has
expressed the idea. Even so, if the viewer after seeing the film gets a totality
of impression that the film is by and large a copy of the original play,
violation of the copyright may be said to be proved.
53. We would now endeavour to apply the principles enunciated above and the tests
laid down by us to the facts of the present case in order to determine whether or not
the plaintiff has been able to prove the charge of plagiarism and violation of
copyright leveled against the defendant by the plaintiff. The learned trial Judge who
had also had the advantage of seeing the picture was of the opinion that the film
taken as a whole is quite different from the play written by the plaintiff. In order to
test the correctness of the finding of the trial Court we also got the play read to us by
the plaintiff in the presence of counsel for the parties and have also seen the film
which was screened at C.P.W.D. Auditorium, Mahadev Road, New Delhi. This was
done merely to appreciate the judgment of the trial Court and the evidence led by the
parties and was not at all meant to be just a substitute for the evidence led by the
parties.
54. To begin with, we would like to give a summary of the play Hum Hindustani
which is supposed to have been plagiarized by the defendants. The script of the play
Ex. P. 1 has been placed before us and we have gone through the same.
5 5 . The main theme of the play is provincialism and the prejudice of persons
belonging to one State against persons belonging to other States. In the play
however the author chooses two families, viz., a Punjabi family and a Madrasi family
to show what havoc can be caused by provincial parochialism possessed by the two
families. The Punjabi family and the Madras family were living as close neighbours
having good and cordial relations and are on visiting terms with each other. The
Punjabi consists of Dewan Chand, contractor, his wife Krishna, their grown up
daughter Chander and son Tinnu aged about 8 or 10 years. The Madrasi family
however consists of Subramaniam, a Government official, his wife Minakshi and
grown up son Amni and daughter Pitto who is aged about 8 or 10 years. As a result
of the close association between the two families it appears that Amni the son of
Subramaniam falls in love with Chander the daughter of Dewan Chand of the Punjabi
family. When the parents are out Amni and Chander meet and talk. Unfortunately,
however, the parents of both Amni and Chander are extremely adverse to the
matrimonial union of Amni and Chander because the two families belong to two
different provinces. When they get some scent of the love affair between Amni and
Chander the parents of Chander make a serious attempt to find a suitable match for
her amongst their own caste namely Punjabis. Similarly, the parents of Amni also try
to arrange a match for him amongst Madrasis. For this purpose, the services of a
marriage broker named Dhanwantri are enlisted by both the parties without knowing
that Dhanwantri was trying to negotiate marriages for both the couples. Later on,
when this fact is discovered the relations of the two families become strained. Amni
and Chander also persuade Dhanwantri to assist them in bringing about their
marriage by persuading their parents to agree. This gives a chance to Dhanwantri to
make a lot of money out of the two couples. Dewan Chand and his wife Krishna in
sheer desperation hurriedly arranged the marriage of their daughter Chander to

Bansi, a simpleton, son of Murari Lal who is a friend of Dewan Chand. In fact, Dewan
Chand is not very impressed with Bansi but in view of the critical situation arising out
of the love affair between his daughter and Amni he prefers Bansi to the Madrasi boy.
When Chander and Amni come to know of this Chander asked Amni to speak to his
parents in a free and frank manner and express his strong desire to marry Chander.
Amni who appears to be a cowardly fellow prefers to commit suicide rather than dare
to talk out this matter with his parents. Realising that no hope is left for Chander and
Amni to go through the marriage ceremony both of them entered into a suicidal pact
and wrote letters to their parents indicating their intention to commit suicide because
they were not prepared to marry anybody else. Dhanwantri, however, intervenes and
persuades Chander and Amni not to commit suicide as according to him they were
not destined to die unless they had been actually married. Meanwhile, the parents of
Amni and Chander on getting the suicide note mourn the loss of their children and it
now dawns upon them that they had committed the saddest mistake of their life in
refusing to marry the couple and repent for their act. Just at that time Amni and
Chander appear on the scene after having been married to each other. The marriage
was performed by Dhanwantri himself. Thus ends the story with the realisation by
both the families that provincialism helps nobody. This in short is the story of the
play written by the appellant.
5 6 . We might mention that before the play starts the author show some voices
reciting various persons proclaiming that they come from different States like the
slogan that they belong to a particular state rather than that they belong to India.
57. Analysing therefore the essential features of the play the position is as follows :-
1 . That the central idea of the play is based on provincialism and
parochialism.
2. The evils of provincialism are illustrated by the cordial relations of the two
families being married because of an apprehended marriage tie which
according to both the families was not possible where they belonged to
different States.
3. That the Madrasi boy Amni is a coward and in spite of his profound love
for Chander he does not muster sufficient courage to talk the matter out with
his parents.
4 . That in sheer desperation while the parents of the families are trying to
arrange a match for the couple belonging to the same State Amni and
Chander enter into a suicidal pact and write letters to their parents intimating
their intention.
5 . It was only after the letters are perused by the parents that they realise
the horror of parochialism and are repentant for having acted so foolishly.
6 . That after this realisation comes the married couple Amni and Chander
appear before the parents and thus all is well that ends well.
58. As the play was read to us by the appellant we find that it was very exquisitely
presented and the plot was developed with great skill. It must be noted however that
the author in writing out the play has concentrated only on one aspect of
provincialism namely whether there can be a marriage between the persons
belonging to one State with those belonging to other States. This is the only aspect
of provincialism which has been stressed in the play. The play does not touch any
other aspect nor does it contain anything to throw light on the evils of society or that

of dowry etc. We have mentioned these facts particularly because the film revolves
around not only the aspect of marriage but other aspects also which are given the
same importance as the problem of marriage.
59. We shall now give the summary of the film. The script of which is Ex. D-2. The
film starts showing Anand a young graduate from Punjab who comes to New Delhi for
a course in Radio Engineering. At the Railway Station Anand meets a Madrasi girl
Janaki and due to some misunderstanding an altercation between the two takes
place, as a result of which Janaki feels that Anand was trying to tease her. Thereafter
Anand comes and stays in a Sarai opposite the Railway Station, but he is allowed to
stay there only for three days after which he was expected to find accommodation
elsewhere. Thereafter Anand runs from house to house trying to get some
accommodation but is sadly disappointed because wherever he goes he finds that in
every case the landlord is not prepared to give the house to any person who does not
belong to his province. We might mention here that this is one of the very important
aspect of provincialism which pervades through the entire film, viz., that so parochial
are the landlords that they were not even prepared to let out their houses or rooms to
any person coming from outside their State. This particular aspect is completely
absent from the story revealed in the play written by the appellant. One
Kumaraswamy a South Indian attendant at the Sarai comes to the rescue of Anand
and suggests to him that he should attire as a South Indian and then go to any South
Indian landlord to get the house. Thereafter Anand disguised as a South Indian
approaches one Iyer for giving him accommodation and Iyer is only too glad to
accommodate Anand on the ground that Anand is also a South Indian. Anand then
meets Subramaniam father of Janaki the girl with whom he had an altercation at the
station. The film then proceeds involving several sequences of the meeting between
Anand and Janaki, Murli Dhar the Principal of a Dancing School takes Anand as his
student and there he is introduced to Janaki who is a Professor of Dance and Music in
that Institute. Janaki then discovers that Anand is a good singer and is slowly and
gradually attracted towards him. Janaki invited him to her house for the celebration
of Pongal festival and Anand goes there as usual attired as South Indian to witness
the dance performance of Janaki. He also comes to know that Janaki's father
Subramaniam does not hold any good opinion about the Punjabis. Thereafter Anand
leaves the place after making an appointment with Janaki to meet near Rashtrapati
Bhawan the following day. When Anand returns to his house he comes to know that
his father Daulat Ram had been transferred to New Delhi and was expected at any
moment. Daulat Ram was posted as Manager in the same commercial company in
which Subramaniam was employed in a subordinate position. Anand receives his
parents and his grown up sister Nikki at the railway station and takes them to his
house. He also brings Kumaraswamy, the attendant, at the Sarai to his own house as
a cook. Thereafter Anand goes out on the pretext of taking his sister Nikki around the
city. When they reach the Red Fort he meets Ashok Banerjee, a young Bengali painter
whom he had met earlier in connection with the search for accommodation of the
house but was refused accommodation because Anand did not happen to be a
Bengali. Ashok Banerjee is impressed by Nikki and requests her to allow him to make
Nikki's portrait. Leaving his sister there Anand meets Janaki and both of them come
to the Red Fort. When Anand and Janaki meet Nikki and Ashok, Anand in order to
conceal his real identity tells Janaki that Nikki is the daughter of his father's friend,
which naturally angers Nikki but later Anand apologies to her and explains that he did
not want Janaki or her father to know that he was not a Madrasi and thus upset the
love affair between Anand and Janaki. Subramaniam, father of Janaki takes a fancy
for Anand and asks Janaki to invite Anand's father to the house so that he could
negotiate Janaki's marriage with Anand. This puts Anand in a most awkward position.
In order to save the situation Anand hits upon an idea by introducing his cook
Kumaraswamy to Subramaniam as his father. Just at that time Daulat Ram happens

to pass through Subramaniam's house and is called in by Subramaniam, but the
situation is saved by Kumaraswamy feigning illness as a result of which he is taken
to a room where he hides his face in a blanket, Anand leaves the house and returns
with a false beard posing as a doctor. Similarly, Ashok and Nikki get attached to each
other and Ashok receives a telegram from his father summoning him to Calcutta.
Before he leaves Ashok frankly declares his love to Nikki and gets her consent to
marry him. The love affair of Nikki however is not in the knowledge of her parents.
Murli Dhar, Principal of the Institution of Dance and Music arranges a performance in
which the principal role is played by Anand and Janaki. Up to this time neither Janaki
nor her father Subramaniam had ever known the real identity of Anand but both of
them had taken him to be a South Indian. We might like to add that here the picture
makes a complete departure from the story contained in the play where both the
parents of the couple knew the identity of each other. Before the performance starts
Anand tries to disclose his identity to Janaki but is unable to do so because Janaki is
in a hurry. The performance is applauded by the audience which includes
Subramaniam, Daulat Ram and Kumaraswamy. In the theatre hall where the
performance is staged Kumaraswamy is given a prominent place as he is taken to be
the father of Anand. Daulat Ram resents this fact because Kumaraswamy was his
servant. After the performance Murli Dhar introduces Subramaniam Janaki's father to
the audience. Murli Dhar then calls Kumaraswamy and introduces him to the audience
as the father of Anand. This infuriates Daulat Ram who comes to the stage and gives
a thrashing to Kumaraswamy. It is at this stage that the entire truth is revealed and
both Subramaniam and Janaki come to know that Anand was not a South Indian but
a Punjabi and his father was Daulat Ram. Daulat Ram also does not like the relations
of his son with Janaki because he thinks that if the son marries outside the caste that
will create difficulties for the marriage of his daughter Nikki. Subramaniam then
starts negotiation for Janaki's marriage with a South Indian boy. Anand goes to
Janaki and asks her to delay the negotiations for about a month or two till Nikki's
marriage is over after which he would marry Janaki. Janaki feels completely let down
and when she goes home she is given a serious rebuke by her father. In utter
frustration Janaki decides to commit suicide and leaves a suicide note. She proceeds
to Jamuna river. Before she is able to jump into the river she is saved by Sadhu Ram,
a Punjabi Ghee Merchant, and a friend of Subramaniam. Sadhu Ram scoffs at the
people's preference for provincialism and their lack of appreciation of intrinsic human
values. He takes Janaki to his own house and tells Daulat Ram that she is her niece
and on that basis negotiates for the marriage of Janaki with Anand. Daulat Ram
accepts the proposal because Janaki appears as a Punjabi girl. On receiving the
suicide note Subramaniam feels extremely sorry and realises his mistake. In the
meanwhile when Daulat Ram returns to his house he finds Ashok Banerjee on very
intimate terms with Nikki. Daulat Ram gets furious and turns out Ashok from his
house. Thereafter Daulat Ram arranges the marriage of his daughter Nikki with the
son of one Girdhari Lal. After the marriage party comes to the house of Daulat Ram,
Girdhari Lal insists upon Rs. 15,000 as dowry from Daulat Ram. Daulat Ram does not
have such a large sum of money and implores Girdhari Lal not to insist and to save
his honour but Girdhari Lal is adamant. Daulat Ram tries to enlist the support of his
caste men but no one is prepared to oblige him. At this juncture Ashok Banerjee
appears on the scene and offers his mother's jewellery to Daulat Ram to be given in
dowry to Girdhari Lal and thus seeks to save the honour of Daulat Ram. This act of
Ashok Banerjee brings about a great mental change in the attitude of Daulat Ram,
who stops Nikki's marriage with Girdhari Lal's son and turns them out along with the
men of his brotherhood. Daulat Ram declares his happiness that he has found a
bigger brotherhood, namely, the Indian brotherhood and asks Ashok to marry Nikki
at the same marriage Pandal. At that time Sadhu Ram requests Daulat Ram that
Mohini who is none other than Janaki should also be married to Anand. Sadhu Ram

discloses the true identity of Janaki and then Daulat Ram realises his short-
sigjtendness and welcomes the idea of the marriage of Anand with Janaki.
Subramaniam who is present there feels extremely happy and blesses the proposed
marriage. Ashok and Nikki as also Anand and Janaki are then married and thus the
film ends.
60. Analysing the story of the film it would appear that it portrays three main themes
: (1) Two aspects of provincialism viz. the role of provincialism in regard to marriage
and in regard to renting out accommodation (2) Evils of a caste ridden society, and
(3) the evils of dowry. So far as the last two aspects are concerned they do not figure
at all in the play written by the plaintiff appellant. A close perusal of the script of the
film clearly shows that all the three aspects mentioned above are integral parts of the
story and it is very difficult to divorce one from the other without affecting the beauty
and the continuity of the script of the film. Further, it would appear that the
treatment of the story of the film is in many respects different from the story
contained in the play.
61. learned Counsel for the appellant however drew our attention to para 9 of the
plaint at pages 18-19 of the paper book wherein as many as 18 similarities have been
detailed. The similarities may be quoted thus :-
(i) Before the actual stage play, the producer gives a narrative. He states that
although we describe ourselves as Hindustanis we are not really Hindustanis.
He questions the audience as to what they are and various voices are heard.
To say in their own provincial language that they are Punjabis, Bengalis,
Gujratis, Marathas, Madrasis, Sindhis, etc. In the said film the same idea is
conveyed and the hero of the picture is shown searching for a house in New
Delhi and wherever he goes he is confronted by a landlord who describes
himself not as Hindustanis but as a Punjabi, Bengali, Gujrati, Maratha,
Madarasi or Sindhi.
(ii) Both the said play and the said film deal with the subject of
Provincialism.
(iii) Both the said play and the said film evolve a drama around the lives of
two families, one a Punjabi and the other a Madrasi family.
(iv) In both the said play and the said film the name of the Madrasi father is
Subramanyam.
(v) Both the said play and the said film have their locale in New Delhi.
(vi) Both the said play and the said film show cordiality of relations between
the two families.
(vii) Both the said play and the said film show the disruption of cordial
relations as soon as the heads of the families discover the existence of a love
affair between their children.
(viii) In both the said play and the said film, both the parents warn their
respective children not to have anything to do with each other on pain of
corporal punishment.
(ix) The entice dialogue in both the said play and the said film before and
after the disruption is based upon the superiority of the inhabitants of one
Province over the inhabitants of the others.

(x) In both the said play and the said film the girl is shown to be fond of
music and dancing.
(xi) In both the said play and the said film the hero is shown as a coward to
the extent that he has not the courage to go to his parents and persuade
them to permit him to marry a girl hailing from another Province.
(xii) Both in the said play and in the said film, when the parents of the girl
are discussing marrying her off to some body the girl is listening to the
dialogue from behind a curtain. Thereafter the girl runs to the boy and
explains the situation to him.
(xiii) In both the said play and the said film, the girl writes a letter of
suicide.
(xiv) In the said play reconciliation takes place when the children of the two
families, who were in love, go out to commit suicide by drowning etc.,
whereas in the said film, it is only the daughter who goes out to commit
suicide by drowning herself in the Jamuna.
(xv) In the said play the children are stopped from committing suicide by an
astrologer whereas in the said film the girl is stopped from committing
suicide by a friend of the family.
(xvi) In the said play reconciliation between the two families takes place only
after they have experienced the shock of their children committing suicide on
account of their provincial feelings whereas in the film, the father of the girl
realised his mistake after experiencing the shock of his daughter committing
suicide.
(xvii) In both the said play and the said film, stress is laid on the fact that
although India is one country, yet there is acute feeling of provincialism
between persons hailing from its various States even though they work
together and live as neighbours.
(xviii) Both in the said play and in the said film, even the dialogue centers
around the same subject of provincialism.
62. In the course of the argument also our attention was drawn to a comparative
compilation of the similarities in the film and the play. The learned trial Judge after
considering the similarities was of the opinion that the similarities are on trivial
points and do not have the effect of making the film a substantial and material
limitation of the play. Moreover apart from the fact that the similarities and
coincidences mentioned above are rather insignificant as pointed out by the trial
Judge and the High Court, in our opinion, they are clearly explainable by and
referable to the central idea, namely, evils of provincialism and parochialism which is
common to both the play and the film. Nothing therefore turns upon the similarities
categorised by the plaintiff (in para 9 of the plaint), in the peculiar facts and
circumstances of this case.
63. After having gone through the script of the play and the film we are inclined to
agree with the opinion of the Courts below. We have already pointed out that mere
similarities by themselves are not sufficient to raise in inference of colourable
limitation. On the other hand, there are quite a number of dissimilarities also, for
instance :

(i) In the play provincialism comes on the surface only when the question of
marriage of Amni with Chander crops up but in the picture it is the starting
point of the story when Anand goes around from door to door in search of
accommodation but is refused the same because he does not belong to the
State from which the landlord hails as a result thereof Anand has to
masquerade himself as a Madrasi. This would, therefore, show that the
treatment of the subject of provincialism in the film is quite different from
that in the play and is actually a new theme which is not developed or
stressed in the play.
(ii) Similarly, in the play the two families are fully aware of the identity of
each other whereas in the film they are not and in fact it is only when the
dance performance of Janaki and Anand is staged that the identity of the two
families is disclosed which forms one of the important climaxes of the film.
Thus, the idea of provincialism itself is presented in a manner or form quite
different from that adopted in the play.
(iii) In the film there is no suicidal pact between the lovers but only a suicide
note is left by Janaki whereas in the play both the lovers decide to end their
lives and enter into a suicidal pact and leave suicide note to this effect.
Furthermore, while in the play Amni and Chander get married and then
appear before the parents in the picture the story takes a completely different
turn with the intervention of Sadhu Ram who does not allow Janaki to
commit suicide but keeps her with him disguised as his niece and the final
climax is reached in the last scene when Janaki's real identity is disclosed
and Subramaniam also finds out that his daughter is alive.
(iv) The story in the play revolves around only two families, namely, the
Punjabi and the Madrasi families, but in the film there are three important
families, namely, the Punjabi family, the Madrasi family and the Bengali
family and very great stress is laid down in the film on the role played by
Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the
end which turns the tide and brings about a complete revolution in the mind
and ideology of Daulat Ram.
(v) The film depicts the evil of caste ridden society and exposes the
hollowness of such a society when, in spite of repeated requests no member
of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left
to Ashok Banerjee to retrieve the situation. This aspect of the matter is
completely absent in the play.
(vi) The film depicts another important social evil, namely, the evil of dowry
which also appears to be the climax of the story of the film and the horrors
of dowry are exhibited and demonstrated in a very practical and forceful
fashion. The play however does not deal with this aspect at all. The aspects
mentioned above which are absent from the play are not mere surplusage or
embellishments in the story of the film but are important and substantial
parts of the story.
64. The effect of the dissimilarities pointed out above clearly go to show that they far
outweigh the effect of the similarities mentioned in para 9 of the plaint set out above.
Moreover, even if we examine the similarities mentioned by the plaintiff they are
trifling and trivial and touch insignificant points and do not appear to be of a
substantial nature. The mere fact that the name of the Madrasi father was
Subramaniam in both the film and the play, is hardly of any significance because the

name of a particular person cannot be the subject matter of copyright because these
are common names.
65. After careful consideration of the essential features of the film and the play we
are clearly of the opinion that the plaintiff has not proved by clear and cogent
evidence that the defendants committed colourable limitation of the play and have
thus violated the copyright of the plaintiff.
6 6 . It was lastly contended by counsel for the appellant that the correspondence
between the plaintiff and the defendant would show that defendant No. 2 himself was
aware of the story contained in the play even before he proceeded to make the film in
New Delhi. This is undoubtedly so because defendant No. 2 admits in his evidence
that he had come to Delhi and the entire play was narrated to him by the plaintiff.
There is however a serious controversy on the question as to whether the defendant
after hearing play said that the play was net suitable for being filmed as alleged. The
plaintiff, however, seems to suggest that defendant No. 2 was undoubtedly attracted
by the play and it was on the basis of this play that he decided to make the film.
However, there is no reliable evidence to show that defendant No. 2 at any time
expressed his intention to film the play written by the plaintiff. There can be no doubt
that defendant No. 2 was aware of the story contained in the play and a part of the
film was undoubtedly to some extent inspired by the play written by the plaintiff. But
the definite case of defendant No. 2 also is that he was in search of a story based on
provincialism and the play written by the plaintiff may have provided the opportunity
for defendant No. 2 to produce his film though with a different story, different theme,
different characterisation and different climaxes.
67. Thus, applying the principles enunciated above and the various tests laid down
to determine whether in a particular case there has been a violation of the copyright
we are of the opinion that the film produced by the defendants cannot be said to be a
substantial or material copy of the play written by the plaintiff. We also find that the
treatment of the film and the manner of its presentation on the screen is quite
different from the one written by the plaintiff at the stage. We are also satisfied that
after seeing the play and the film no prudent person can get an impression that the
film appears to be a copy of the original play nor is there anything to show that the
film is a substantial and material copy of the play. At the most the central idea of the
play, namely, provincialism is undoubtedly the subject matter of the film along with
other ideas also but it is well settled that a mere idea cannot be the subject matter of
copyright. Thus, the present case does not fulfil the conditions laid down for holding
that the defendants have made a colourable limitation of the play.
68. On a close and careful comparison of the play and the picture but for the central
idea (provincialism which is not protected by copyright), from scene to scene,
situation to situation, in climax to anticlimax, pathos, bathos, in texture and
treatment and purport and presentation, the picture is materially different from the
play. As already indicated above, applying the various tests outlined above we are
unable to hold that the defendants have committed an act of piracy in violating the
copyright of the play.
69. Apart from this the two courts of fact, having considered the entire evidence,
circumstances and materials before them have come to a finding of fact that the
defendants committed no violation of the copyright. this Court would be slow to
disturb the findings of fact arrived at by the courts below particularly when after
having gone through the entire evidence, we feel that the judgment of the courts
below are absolutely correct.

7 0 . The result is that the appeal fails and is accordingly dismissed. But in the
circumstances there will be no order as to costs in this Court only.
Jaswant Singh, J.
71. Bearing in mind the well recognised principles and tests to determine whether
there has been an infringement of the law relating to copyright in a particular case
which were brought to our notice by the counsel on both sides and which have been
elaborately considered and discussed by my learned brother Murtaza Fazal Ali in the
course of the judgment prepared by him, we proceeded at the request of the counsel
to hear the script of the play "Hum Hindustani" which was read out to us by the
plaintiff himself in a dramatic style and to see the film "New Delhi" produced by
defendants 1 and 2, the exhibition of which was arranged by the defendants
themselves. On a careful comparison of the script of the plaintiff's copyrighted play
with the aforesaid film, although one does not fail to discern a few resemblances and
similarities between the play and the film, the said resemblances are not material or
substantial and the degree of similarities is not such as to lead one to think that the
film taken as a whole constitutes an unfair appropriation of the plaintiff's copyrighted
work. In fact, a large majority of material incidents, episodes and situations
portrayed by defendants 1 and 2 in their aforesaid film are substantially different
from the plaintiff's protected work and the two social evils viz. caste system and
dowry system sought to be exposed and eradicated by defendants 1 and 2 by means
of their aforesaid film do not figure at all in the plaintiff's play. As such I am in
complete agreement with the conclusions arrived at by my learned brother Murtaza
Fazal Ali that there has been no breach on the part of the defendants of the plaintiff's
copyright and concur with the judgment proposed to be delivered by him.
R.S. Pathak, J.
72. It appears from a comparison of the script of the stage play "Hum Hindustani"
and the script of the film "New Delhi" that the authors of the film script have been
influenced to a degree by the salient features of the plot set forth in the play script.
There can be little doubt from the evidence that the authors of the film script were
aware of the scheme of the play. But on the other hand, the story portrayed by the
film travels beyond the plot delineated in the play. In the play, the theme of
provincial parochialism is illustrated only in the opposition to a relationship by
marriage between two families hailing from different parts of the country. In the film
the theme is also illustrated by the hostile attitude of proprietors of lodging
accommodation towards prospective lodgers who do not belong to the same
provincial community. The plot then extends to the evils of the dowry system, which
is a theme independent of provincial parochialism. There are still other themes
embraced within the plot of the film. Nonetheless, the question can arise whether
there is an infringement of copyright even though the essential features of the play
can be said to correspond to a part only of the plot of the film. This can arise even
where changes are effected while planning the film so that certain immaterial features
in the film differ from what is seen in the stage play. The relative position in which
the principal actors stand may be exchanged or extended and embellishments may be
introduced in the attempt to show that the plot in the film is entirely original and
bears no resemblance whatever to the stage play. All such matters fell for
consideration in relation to the question whether the relevant part of the plot in the
film is merely a colourable limitation of the essential structure of the stage play. If
the treatment of the theme in the stage play has been made the basic of one of the
themes in the film story and the essential structure of that treatment is clearly and
distinctly identifiable in the film story, it is not necessary, it seems to me, for the
Court to examine all the several themes embraced within the plot of the film in order

to decide whether infringement has been established. In the attempt to show that he
is not guilty of infringement of copyright, it is always possible for a person intending
to take advantage of the intellectual effort and labours of another to so develop his
own product that it covers a wider field than the area included within the scope of the
earlier product, and in the common area covered by the two productions to introduce
changes in order to disguise the attempt at plagiarism. If a reappraisal of the facts in
the present case had been open in this Court, I am not sure that I would not have
differed from the view taken on the facts by the High Court, but as the matter stands,
the trial Court as well as the High Court have concurred in the finding that such
similarities as exist between the stage play "Hum Hindustani" and the film "New
Delhi" do not make out a case of infringement. The dissimilarities, in their opinion,
axe so material that it is not possible to say that the appellant's copyright has been
infringed. this Court is extremely reluctant to interfere with concurrent findings of
fact reached by the Courts below and for that reason I would allow the judgment
under appeal to stand. In another, and perhaps a clearer case, it may be necessary
for this Court to interfere and remove the impression which may have gained ground
that the copyright belonging to an author can be readily infringed by making
immaterial changes, introducing insubstantial differences and enlarging the scope of
the original theme so that a veil of apparent dissimilarity is thrown around the work
now produced. The court will look strictly at not only blatant examples of copying but
also at reprehensible attempts at colourable limitation.
73. The appeal is dismissed, but without any order as to costs.
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MANU/SC/0256/1978

Equivalent Citation: AIR1978SC 1613, (1978)4SC C 118, [1979]1SC R218

IN THE SUPREME COURT OF INDIA

(ii) Burden of proof - violation of copyright must be proved by clear and

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