Published 13 June, 2015
“If you hide the source, you’re a genius. . . . There’s no such thing as originality in the creative sphere.”
Director Mahesh Bhatt , Cloning Hollywood, Kanchana Banerjee, Sunday, Aug 03, 2003, The Hindu.
It took a long time for Hollywood to wake up to the blatant, unmonitored and unlicensed copying of their movies by the Indian film makers and the convenient passing off them as “inspirations” to avoid giving credit to the original filmmakers. The Indian film industry is a dominant cultural force in its own right that possesses considerable influence in the Indian subcontinent despite the prevalence of the economically and commercially stronger Hollywood and its monopolization over movie audiences around the world. However, rampant plagiarism and unauthorized replication of foreign scripts, has been a long-standing practice hampering the reputation of the Indian motion picture industry as a major creative source of originality. The interesting point in law today is that copying or adaptation, known in US as derivation, from a Hollywood movie to a Bollywood movie is protected by both Indian and US copyright laws and permission will be required from Hollywood movie rights owners to do that. However, use of an idea (as opposed to its expression or manifestation) is permitted under the law in both countries.
Copying or a “remake” was a time-efficient solution to the problem of low box office revenue generation in the Bollywood film industry. Short life span and constant pressure to release more movies with demanding deadlines ensured that the writers were left with neither the time nor the incentive to experiment with creativity. To maximize box-office success with minimal time and effort and no legal liabilities, Bollywood film makers made and continue to make unregulated reproductions of American movies.
The act of copying films (“remakes”) of both domestic and foreign origin is a practice raging in the Indian Film Industry. What constitutes “copy” is, as put by Justice Kekewich in one of his cases, a work that “comes so near to the original as to suggest the original to the mind of the spectator”. For this discussion it can be interpreted as a movie that uses the original as its foundation with a slight deviation in the nature of the elements of the original. Anurag Bose and Anil Kumar’s 2003 romantic horror direction Kuch to Hai was strikingly similar to Jim Gillespie’s 1997 psycho-thriller I Know What You Did Last Summer. The story in both was the same – a group of friends being murderously stalked by a man they had accidently killed one night by running him over with their car on an isolated roadway and whose murder they had conspired to cover up by disposing of the body.
The fatal incident in the Indian version was shown to have occurred during an innocent attempt by five friends to replace their friend’s answer sheets at their college professor’s home where they were kept pending correction to save her from being expelled for cheating. The college professor is portrayed as a man of mysterious and shady character, rumored to have killed his wife. While executing their plan, they discover the body of the professor’s wife (heavily decomposed) kept fully clothed on a rocking chair. Shocked, scared and traumatized, they try to run and are caught by the professor. In the chase that follows the professor is accidently hit by the group’s car and falls of the cliff. After leaving the body there the entire group vows to never speak of the incident again. Years later they are murdered one by one while snowbound at a hotel after a friend’s wedding.
In the Hollywood version, four graduating high school seniors, driving recklessly after a night of drinking and celebration on a beach, accidently knock over a man. Believing him to be dead and scared out of their wits, they dump his body in the sea and pledge to never speak of it again. A year later when one of the friends receives a note saying “"I KNOW WHAT YOU DID LAST SUMMER", the group reunites only to start dying one after another under gruesome circumstances. Besides the difference in circumstances leading up to the fateful night, some other noticeable alterations were the murder weapon (a lethal ice hook in the original and a small curved machete in the imitation) and the fact that not only were the friends in the original stalked but they also received threatening letters bearing the warning "I KNOW WHAT YOU DID LAST SUMMER", which was done away with in the remake.
There are four major reasons why Hollywood took time to react to blatant plagiarism by Bollywood: First, a Bollywood imitation filled with music, dance and colour made it difficult for Hollywood to identify the resemblance to its source and made it easy for Bollywood to take shelter under the idea-expression dichotomy.
Second, it also probably seemed unworthy for the multi-billion dollar Hollywood motion picture industry to invest their time, money and energy in pursuing litigation in an alien legal system over films that grossed a small fraction of their box office generation. For example the box office earnings of director Vikram Bhatt’s 2002 second highest grossing psycho thriller Raaz, amounting to approximately $9.5 million worldwide was trifling compared to its Hollywood counterpart, Robert Zemeckis’s 2000 supernatural thriller, What Lies Beneath that grossed nearly $300 million worldwide. Raaz, alleged to be a copy of What Lies Beneath, is a story about a young couple who relocate to Ooty to give their failing marriage one last chance where the wife is haunted by the paranormal apparitions of a woman her husband was having an extra-marital affair with, whom she must fight to save them both. In What Lies Beneath a happily married couple move into their new home only to uncover a terrible secret when the wife begins seeing ghostly images and hearing mysterious voices of a young woman who is her husband’s lover outside of his marriage.
Third, a lack of stringent laws and slow judicial process in India could also have forced Hollywood to take a backseat.
Finally, inconsistent investments, disorganized sources of funding, low movie ticket prices, and run down cinema halls in the Bollywood prior to the award of industry status to it by the Indian government further justified Hollywood’s lackadaisical attitude in closely examining the Indian film industry as a threat to its intellectual property interests.
The wakeup call for Hollywood came in 2001 when Bollywood was awarded the status of an industry. There was a surge of funds and investors from all over the world. Banks, other financial institutions, multi-national firms and corporate houses with stable monetary structures began to invest unprecedented amounts of money in Indian movies. Air-conditioned, multi-screen cinema complexes with capacity to entertain large audiences and show a variety of movies in the same building mushroomed throughout the country. This coincided with the expansion in Indian middle class with more disposable income. The last straw was a dramatic rise in Indian diaspora that created a large new market for both Hollywood adaptations and “remakes”.
In 2009, 20th Century Fox moved the Bombay High Court against B R Chopra Films seeking Rs. 70 million in damages and an injunction against the release of the Indian production “Banda Yeh Bindaas Hai” claiming that it was a remake of their Oscar-winning film “My Cousin Vinny”. This matter was, however settled out of court to ensure the release of the film on time.
It was only with the victory of one of its biggest motion picture companies, Twentieth Century Fox in a 2010 case against Sohail Maklai Entertainment, that US began noticing and identifying plagiarism of their scripts in the Bollywood film industry. The Bombay High Court had decreed in favour of 20th Century Fox which had brought this action against the producers for unlawfully recreating their 2002 thriller Phone Booth, into their Indian version Knock Out and had awarded Twentieth Century Fox $ 3, 40,000 in damages along with a portion of Knock Out’s box office revenues. It was a landmark judgment in the history of intellectual property litigation in India as it constituted the highest payment for copyright infringement in the country. With the release of the movie conditioned on the payment of 1.5 crores to the High Court and maintenance of accounts of the box office collections by the producer, this judgment set a positive precedent towards deterrence of copyright infringement in the Indian film industry.
Barfi, one of the major Bollywood films of 2012 to achieve both commercial success and critical acclaim for the performances, direction, screenplay, cinematography, music and the positive portrayal of differently-abled people was alleged to have copied numerous scenes frame-by-frame from various international hits and classics including Cops, The Adventurer, City Lights, Singin' in the Rain, Project A, The Notebook and Benny & Joon. A case of trademark violation was filed against the producers of the film. The film’s music director was also accused of copying the background score from the soundtrack of the French film Amélie.
Indian Copyright Act of 1957, the principal legislation with regard to Copyright Law in India and the recent amendment to it, i.e. the Copyright (Amendment) Act of 2012 make no mention of copyright infringement in remaking films. A presumption to this effect however can be made from Section 14 of the Act that confers on the owner of copyright, an exclusive right in the adaptation of a copyrighted work and concedes to the reproduction of a motion picture by him based substantially upon the original, with some amount of variation in the elements. This provision, when read with Section 51 of the Act implies that recreating a movie without obtaining rights to it from the owner infringes the copyright in the film made. In a similar tone, 17 U.S.C. § 106 of the US Federal Copyright Act of 1976 permits the owner of copyright to either on his own or under his authorization through another person create a derivative work by incorporating the original in parts or as a whole.
Copyright protection under this statute as per § 103 extends only to those derivative productions that are the result of willful contribution of the material by the copyright owner of the original work. In other words if a film maker has incorporated some elements of the original movie in his reproduction without obtaining consent from the person who possesses copyright in the original movie, he would be in violation of the provisions of the Federal Act and legal action can be pursued against him.
A catalyst to this war of cinematic thievery between Hollywood and Bollywood as mentioned in the beginning of this article is the idea–expression dichotomy present in Indian and US copyright laws that restrict the purview of copyright protection by distinguishing an idea from its expression or manifestation. The Supreme Court in its judgment in [R G. Anand v. M/s. Delux Films, AIR 1978 SC 1613] had opined that “an idea . . . cannot be the subject matter of copyright. . . . 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” while also maintaining that the expression of an idea would be construed as a copyright violation where “the reader, spectator, or 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.”
What is afforded protection under the Indian and American legislations is not the idea present in a movie but its actual representation or depiction in the movie. For instance the idea of a poor man, caught running away from a brutal and grisly murder who uses split personality disorder to escape from the eyes of the law is not copyrightable but the two popular movies made on it - Gregory Hoblit’s 1996 spine-chiller Primal Fear and Aneez Bazmi’s 2002 psychological thriller Deewangee are protected against copyright infringement.
Similarity, to some extent, is presumed in the development of an idea from a common source by two independent authors. However, when this similarity transcends to literal imitation of the original work in the duplicate, the ultimate result is copyright infringement. Both U.S and Indian legislation on the subject recognize infringement only in an actual copy of the original work where considerable and perceptible protected material from the original is appropriated into the copy.
Prosecution for copyright violation in filmmaking is imperative to Hollywood and the United States to legally protect creativity while internationally recognizing originality and subjecting unauthorized imitations to penalties. Effective intellectual property enforcement acts as an incentive for Bollywood to discover its secreted potential for creativity rather than concede to Holly wood for inspiration without perspiration.