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PETITIONER: R.G ANAND

       Vs.

RESPONDENT: M/S. DELUX FILMS & ORS.

DATE OF JUDGMENT18/08/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SINGH, JASWANT PATHAK, R.S.

CITATION:  1978 AIR 1613            1979 SCR  (1) 218  1978 SCC  (4) 118

ACT:      Infringement of  a copyright  in a  play in a film-What are the tests-Whether copyright can be claimed in a theme.      Suit for  damages for  infringement of a copyright-What are the principles.

HEADNOTE:      The appellant-plaintiff  is a playwright, dramatist and producer of  stage plays.  The appellant  had  written  and, produced a number of plays. The subject matter of the appeal however, is  the play  entitled (Hum  Hindustani’. This play was written  by him  in the year 1953 and was enacted in the year 1954  and thereafter  the play proved to be popular. In November 1954  the appellant  received  a  letter  from  the second defendant-Mr.  Mohan Sehgal  requesting the appellant to supply  a copy  of the play so that he could consider the desirability of  making,  a  film  on  it.  Thereafter,  the appellant and defendant No. 2 met at Delhi. In May, 1955 the second  defendant  announced  the  production  of  a  motion picture entitled  "New Delhi".  The picture  was released in Delhi in September 1956. The appellant saw the picture.      The appellant  filed a suit alleging that the film "New Delhi" was  entirely based  upon the  play "Hum Hindustani", that the play was narrated by the appellant to defendant No. 2 and  he dishonestly imitated the same in his film and thus committed an  act of piracy as to result in violation of the copy right of the plaintiff. The appellant, therefore, filed the suit for damages, for decree for accounts of the profits made by the defendant and a decree for permanent inujunction against the  defendants restraining them from exhibiting the film.  The   suit  was  contested  by  the  defendants.  The defendants pleaded  that defendant  No. 2 is a film director and producer  and director  of Delux  Films defendant  No. I that at  the instance  of a  common  friend  Mr.  Gargi  the defendant No.  2 met the appellant and saw the script of the play, that the play was inadequate for The purpose of making of a  full length  commercial motion picture. The defendants contended that  there could  be no  copy right so far as the subject of  provincialism is  concerned which can be used or adopted by  anybody in  his own  way. The defendants further contended that  the motion  picture was quite different from

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the play  both in contents, spirit and climax. The mere fact of some similarities between the firms and the play could be explained by  the Fact  that the idea, provincialism was the common source of the play as also of the film.      The trial  court raised  several issues and came to the conclusion that  the appellant  was the  owner of  the  copy right in ’Hum Hindustani’ but there was no violation of copy right of the appellant.      Thereafter the  appellant filed  an appeal in the Delhi High Court.  A Division Bench of the Delhi High Court upheld the decree dismissing the appellant’s suit.      The counsel  for the  appellant contended  (1) that the principles enunicated  and the  legal inference drawn by the courts below  are against  the settled legal principles laid down by the courts in England, America and India (2) the two 219 courts  have   not  fully  understood  the  imports  of  the violation of  copy-right particularly  when the similarities between the  play and  The film are so close that would lead to the  irresistible inference  and unmistakable  impression that the film is nothing but an imitation of the play.      The counsel  for the respondents submitted (1) that the two courts  below have  applied the  law correctly. (2) This Hon’ble Court  may not  enter into the merits in view of the concurrent findings  of fact  given by  the two  courts. (3) Even on  the facts found it is manifest that there is a vast difference both  in the  spirit and the contents between the play and the film.      Dismissing the appeal by special leave the Court ^      HELD: (a)  In order  to appreciate  the argument of the parties the  court discussed  the law on the subject. At the time when the cause of action arose in the present suit, the Indian Parliament  had not  made any law governing copyright violation and  therefore the  court relied  on the  old  law passed by  the British Parliament viz., the Copyright Act of 1911. S. 1 sub-sec. (2)(d) defines copyright as including in the case  of a  literary, dramatic  or musical work, to make any record,  performed roll.  cinematograph film,  or  other contrivance by  means of  which the work may be mechanically performed or  delivered. S. 2(i) defines that 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. The play written by the appellant falls within the definition of copyright. [229 D-H 230 A-B]      The following  is  summary  of  the  decided  cases  in England, America and India on the question of copyright.      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 tile author of the copy-righted work. [248 H, 249 A]      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 imitation 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

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defendant is guilty of an act of piracy. 1249 A-C]      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. [249 C-D]      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. [249 D] 220      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 words are clearly incidental  no infringement  of the  copyright comes into existence. [249 E]      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 decided cases [249 F]      7. Where  however the  question is  of the violation of the copyright  of a  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, 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. [249 F-H]      Hanfstaengl v.  W. H.  Singh &  Sons, [1905] 1 Chancery Division 519;  Bobbs-Merill Co.  v. Isdor  Straus and Nathan Strau, 210 US 339; West Francis, (1822) 1 B & Ald. 737, 743; Ladbroke (Football)  Ltd. v.  William Hill  (Football)  Ltd. (1964) 1  All. E.R.  465; Corelli  v. Gray,  29 T.L.R.  570; Hawkes &  Son (London)  Ltd. v. Paramount Film Service Ltd., (1934) 1  Ch. D.  593; Harman  Pictures N.  V. v.  Osborne & Ors., (1967)  1 W.L.R.  723; Donoghue  v. Allied  Newspapers Ltd. (1937)  3 All.  E.R. 503; Bobl & Anr. v. Palace Theatre (Ltd.) &  Alir. 28  T.L.R. 72;  Tate v.  Fullbrook,  77  Law Journal Reports  577; Frederick.  B. Chatterton  &  Benjamin Webster v. Joseph Arnold Cave, (1878) 3 A.C. 483; Sheldon v. Metro-Goldwyn Pictures  Corp., 81  2d 19;  Shipman v. R.K.o. Radio Pictures,  100 2d 533, Michael v. Moretti v. People of the State  of Illionois,  248 2d  799=356 U.S.  947,  Warner Bros. Pictures  v. Columbia  Broadcasting System,  216 F  2d 945: Otto  Eisenchiml v.  Fawcett Publications,  246 2d 598; Dorsey v.  Old  Surety.  Life  Ins.,  Co.,  98  F.  2d  872; Twentieth Century Fox Film Corporation v. Stonesifer, 140 2d 579; Oliver  Wendel Homes  v. George  D. Hurst, 174 U.S. 82; Macmillan &  Co. Ltd.  v. K.  &  J.  Cooper,  51  I.A.  109; Florerlce A Deeks v. H. G. p Wells & Ors., 60 I.A. 26; N. T. Ragllunathan &  Anr. v.  All India  Reporter  Ltd.,  Bombay, A.I.R. 1971  Bom.  48,  K.  R.  Venugopala  Sarma  v.  Sangu Ganesan, 1972  Cr. L.J..  1098; The Daily Calendar Supplying Bureau, Sivakasi  v. The  United Concern,  A.I.R.. 1967 Mad. 381; Hantsiaenql  v. Bains  & Co.,  1895 A.C.  20  (25);  C. Gunniah &  Co. v.  Balraj  &  Co.,  A.I.R.  1961  Mad.  111; Mohendra Ghundra  Nath Ghosh  & ors. v. Emperor, A.I.R. 1928 Cal. 359. S. K. Dutt v. Law Book Co. & Ors. A.I.R. 1954 All. 570; Romesh  Chowdhry   & Ors v. Kh. Ali Mohammad Nowsheri &

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Ors., AIR  1965 J.  & K.101  and Mohini Mohan Singh & Ors v. Sita Nath Basak, AIR 1931 Cal. 238; referred to.      The learned trial Judge who 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 appellant. This  Court also got the play read to the learned Judges and  the learned  Judges also saw the film. The Court came to  the conclusion  that the  essential features of the play are as under: [250 A-B, 251 G]      1. That  the central  idea of  the  play  is  based  on provincialism and parochialism. [251 G] 221      2. The  evils of  provincialism are  illustrated by the cordial relations  of the  two families being marred because of an  apprehended marriage  tie which according to both the families WAS  not possible  where they belonged to different States. [251 H, 252 A]      3. That  the Madrasi  boy Amni is a coward and in spite of  his  profound  love  ’or  Chander  he  does  not  muster sufficient courage  to talk the matter out with his parents. [252 A-B]      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. [252 B-C]      5. It  was only  after the  letters are  perused by the parents that  they realise he horror of parochialism and are repentant for having acted so foolishly. [252 C]      6. That after this realisation comes the married couple Amni and  Chander appear  before the parents and thus all is well that ends well. [252 D]      The Court  came to  the conclusion  that the  essential features of the film are as under:-      (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. [255 H]      It is true that there are following similarities in the two. [256 A]      (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,  Gujarati, 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 a  Hindustani but  as  a  Punjabi,           Bengali, Gujarati,  Marathi, Madarasi  or  Sindhi.           [256 C-D]      (ii) Both the said play and the said film deal with the           subject of Provincialism. [256 E]      (iii)Both the  said play  and the  said film  evolve  a           drama around  the lives  of two  facilities, one a           Punjabi and the other a Madrasi family. 1256 E]      (iv) In  both the  said play and the said film the name           of the Madrasi father is Subramanyam .[256 F]      (v)   Both the  said play  and the said film have their           locale in New Delhi. [256 F]      (vi) Both  the   said  play  and  the  said  film  show           cordiality of  relations between the two families.

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         [256 F-G]      (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. [256 G]      (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. 1256 Hl. 222      (ix) The  entire 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. [257           A]      (x) In both the said play and the said film the girl is           shown to be fond of music and dancing. [257 B]      (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. [257 B-C]      (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. [257 C]      (xiii) In  both the  said play  and the  said film, the           girl writes a letter of suicide. [257 D]      (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. [257 D-E]      (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. [257 E-F]      (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. [257 F-G]      (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. [257 G]      (xviii) Both in the said play and in the said film even           the dialogue  centres around  the same  subject of           provincialism. [257 H]      However, the Court found following dissimilarities:-      (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

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         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  not developed  or           stressed in the play[258 D-F]      (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 Janki  and Anand  is  staged           that the identity of the two families 223           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. [258 F-G]      (iii) In the film there is no suicidal pact between the           lovers but  only a  suicide note  is left by Janki           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 Chunder 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 Janki           to commit suicide but keeps her with him disguised           as his  niece and  the final  climax is reached in           the last  scene  when  Janki’s  real  identity  is           disclosed and  Subramaniam also finds out that his           daughter is alive [258 H, 259 A-B]      (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. [259 B-D]      (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. [259 D-E]      (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 part of the story. [259 E-G]      The Court  came to  the conclusion  that the  number of similarities by  themselves are  not sufficient  to raise an inference of  colourable  imitation.  The  similarities  are trivial and  touch insignificant points and do not appear to be of  substantial nature. The appellant has failed to prove that the  defendants committed  colourable imitation  of the play. [259 G-H, 260 B]      Applying the  principles mentioned  above to  determine

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whether in  this particular  case there has been a violation of the copy right, the Court came to the conclusion that the film produced  by the  defendants cannot  be said  to  be  a substantial or  material copy  of the  play written  by  the plaintiff. The  treatment of  the film and the manner of its presentation on  the screen is quite different from the play written by the appellant at the stage. No prudent person can get the 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 viz. provincialism is undoubtedly the subject  matter of the film along with other ideas also. It is  well settled  that a  mere idea cannot be the subject matter of copy right. [260 G-H, 261 A-B] 224      The two  courts of  fact having  considered the  entire evidence, circumstances  and materials before them have come to a, finding of fact that 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 the court finds that  the judgments  of the court below are absolutely correct. [261 C-D]      (Jaswant Singh, 1. concurring)      On  a   careful  comparison   of  the   script  of  the plaintiff’s copyright  play with the 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 appellant’s copyright word;.  In  fact  a  large  majority  of  material ‘incidents, episodes  and dramatic  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 motion film,  do not  figure at all in the appellant’s play. There has  been no  breach on  the part of the defendants of the appellant’s copyright. [261 G-H, 262 A]      (Pathak, J. concurring)      lt appears  from a comparison of the script of the play ’Hum Hindustani’ and the script of the film ’New Delhi’ that the authors  of the film 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 auth-ors of. the film script were aware of the scheme of the play. But,  the story  portrayed by  the film travels beyond the plot  delineated 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.  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. In  the attempt  to show  that he  is  not  guilty  of infringement of  copy right  it is  always  possible  for  a person intending  to  take  advantage  of  the  intellectual efforts and  labour of another to so develop his own product

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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 were open to this Court, the Court perhaps would have differed from the view taken on the facts by  the High  Court but  in  view  of  the  concurrent findings of  the two  courts below  to the  effect that  the appellant’s copy  right has not been infringed this Court is extremely  reluctant   to  interfere   with  the  concurrent findings of  fact reached  by the  Courts below. 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 copy right belonging to an author can be  readily   infringed  by   making   immaterial   changes, introducing in  substantial differences  and  enlarging  the scope of the original theme. so that a veil of appa- 225 rent dissimilarity  is thrown  around the work now produced. The court  will look A strictly at not only blatant examples of copying  but also at reprehensible attempts at colourable imitation. [262 B-H, 263 A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2030 of 1968.      Appeal by  special leave  from the  Judgment and Decree dated 23-5-1968  of the  Delhi High  Court at  New Delhi  in R.F.A. No. 147D of 1968.      S. N.  Andley, Mahinder  Narain and Rameshwar Nath, for the Appellant.      Hardyal Hardy,  H. S.  Parihar and  1. N.  Shroff,  for Respondents Nos. 1 and 2.      The following Judgments were delivered:      FAZAL ALI,  J.-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  plaintiff’s 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’.      The facts  have been  succinctly stated by the District Judge in his judgment and 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 appealing for the appellant that the principles of violation of copy-right  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

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the High  Court  have  relied  upon  some  well  established principles to  determine whether or not in a particular case a violation  of copy  right has  taken  place,  but  learned counsel for the appellant has challenged the validity of the principles enunciated by the High Court. 226      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 he  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.      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.      The plaintiff’s  case, however, is that some time about January, 1955  the second  and the  third defendants came to Delhi, met  the plain tiff 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 227 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

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different  and   bore  not   the  remotest   connection   or resemblance with the play written by the plaintiff.      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 copy- right 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’.      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.      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 228 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’.      The defendant  thus submitted  that there  could be  no copy-right  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 S 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 copy right.

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    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 ?      Issue No.  1 was  decided against the defendants and it was held by the trial Judge that the plaintiff was the owner of the copy-right 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 229 have not been assailed before us. The only argument advanced by h  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 copy-right 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 imitation 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 copy- right arises.      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  copy-right 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 Copy  Right Act  of 1911. Section 1 sub- section (2) (d) defines ’copy-right’ thus:           "(2) For  the purposes  of this  Act,  copy-right’      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,

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         (d) in  the  case  of  a  literary,  dramatic,  or      musical work,  to make  any  record,  perforated  roll,      cinematograph film,  or other  contrivance by  means or      which  the   work  may  be  mechanically  performed  or      delivered". Section 2  provides the  contingencies  where  a  copy-right could be infringed and runs thus :-           "2(1) Copyright in a work shall be deemed to be in      fringed by any person who, without the consent of the 230      owner or the copyright, does anything the sole right to      do which  is by  this Act conferred on the owner of the      copy right". It is,  therefore,  clear  that  the  Act  of  1911  defines ’copyright’ and  also indicates  the  various  contingencies where copy-right  cannot be  in fringed.  The  statute  also provides exceptions  which would  not amount to violation of copyright.      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(1) 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".      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  arc      actually copies.  There cannot  be  copyright  in  mere      science effects  or  stage  situations  which  are  not      reduced into some permanent form". (1) [1905] 1 Ch. D. 519. 231 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

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    only an  in fringement  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".      Moreover, it  seems to  us that the fundamental idea of violation of  copyright or imitation is the violation of the Eighth Commandment:  "Thou shalt  not steal" which forms the moral basis  of the  protective provisions  of the Copyright Act of  1911. It  is obvious  11’ 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 copy-righted work, his act  amounts to theft by depriving the original owner of the copy-right  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". 232 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."      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 copy-righted

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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      incidential 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". 233 The author further says that unless there is any substantial identity A  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 Them, the court held that the plaintiff’s      copyright  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      copy right  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  to  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 to‘ 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  infer red  that many  incidents,  scenes  and      characters in  the alleged infringing play were adapted      from the  plaintiff’s copy  righted play  but  no  such      resemblance  would   be  apparent  i.  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"      Similar observations  have been  made in  Corpus  Juris Secundum VOL  18 at  page 139  where it  is  observation  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". 16-520 SCI/78 234           "This right  exists in  the written  seenario of a

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    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  copy right,  or  piracy,  which  is  a      synonymous term  in this  connection  consists  in  the      doing by  any person, without the con sent 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."      This view  was taken  by the  U.S. Supreme Court in the case of  Bobbs-Merrill Company  v. Isidor  Straus and Nathan Straus.(1)      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 copyright 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".      It was  also pointed  out  in  this  book  as  to  what constitutes colorable  imitation. 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 (1) 21 O U.S . 339. 235      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

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    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 he  of a ’substantial’ or      ’material’ part  of the  protected work  .. The test is      whether the  one charged with the infringement has made      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. ’ 236      We shall  now discuss some 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 Hanfstaengl  case (Supra) described various qualities of a copy and observed as follows:-           "In west  v. Francis(1)  Bayley J.  uses  language      coming, as  Lord Watson  says, nearer  to a  definition      than anything which is o 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.      The learned  Judge aptly  pointed out that an imitation 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 copy-right.      In the case of Ladbroke (Football) Ltd. v. William Bill (Foot  ball)   Ltd  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    a  whole  is  ’original’  and.      protected by  copyright, rand  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 be protected 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".

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(1) [1822] r. B. & Ald. 737, 743. (2) [1964] 1 All E.R. 465. 237      Lord Hodson  expressed similar  views at  p. 475 in the following A 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. Copy right is a statutory right which by      the terms  of s.  2 of  the Act of 1956 would appear to      subsist, if  at all,  in the  literary or other work as      one entity".      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 imitation made by the defendant is substantial.      In the  case of Corelli v. Gray(1) 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 he 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 hypothesis would result      in the  success of  that 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".      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   colorable   imitation   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 (2) . (1) 29 T.L.R. 570. (2) 30 T.L.R. 116. 238      The  case   of  Hawkes  and  Son  (London)  Limited  v. Paramount Film  Service Limited(1)  was  whether  a  musical composition made  by the  owner was sought to he imitated by producing a  film containing the said composition. An action for violation  of the copyright was fired 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  might be  difficult and although it may be      uncertain whether  it will  be ever used again, we must

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    not neglect the evidence that a substantial part of the      musical copy  right could  be reproduced apart from the      actual picture film."      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 thought 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 its 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".      In the  case of  Harman  Pictules  N.V.  v.  Osborne  & ors.(a) it  was held  that  similarities  of  incidents  and situation undoubtedly  afforded prima facie 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 copy right) and situations      and incidents  which may  be........ ........ one must,      however, be careful not to jump to the (1) [1934]1 Ch. D. 593. (2) [196711 W.L.R. 723. 239      conclusion that  there has  been copying merely because      of A  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      scripts, and in any event abridgment was necessary, but      that may not be a complete answer."      Similarly  in   the  case   of   Donoghue   v.   Allied Newspapers(1) 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............. of 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 but      it in  that way)  reduced into  writing, or  into  some      tangible form,  that you  get any right to copyright at

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    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".      Similarly in  the case  of  Bobl  and  Anr.  v.  Palace Theatre (Limited)  and Anr.(2)  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 (1) [1937] 3 All E.R. 503. (2) 28 T.L.R. 22. 240      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."      In the  case  of  Tate  v.  Fullbrook(1)  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 he  taken into consideration at all where      there is appreciable likeness in the words".      In the  case of  Frederick B.  Chatterton and  Benjamin Webster v.  Joseph  Arnold  Cave(2)  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 in  tended to be repeated by others or lc      be used  in such a way as a book may be used, but slill      the principle  de minimis  non   curat lex applies to a      supposed wrong  in Laking  a part  of dramtic 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’’.      In  the   case  of  Sheldon  v.  Metro-Gclden  Pictures Corporation(3)  Judge   Learned  Hand   stated  that   while considering a case which is very similar to the case in this appeal observed as follows:- (1) 77 L.J.R. 577. (2) (1878) 3 A.C. 483. (3) 81 F 2d 40. 241           "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

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    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 thevwcenes 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.      In the  case of  Shipman v.  R. K. O. Radio Pictures(l) which  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".      In the  case of  Michael V.  Moretti v.  People of  the State of Illinois(2) 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 (1) 100 F 2d 533. (2) 248 F 2d 799=356 U.S. 947 242 same effect is an earlier decision in the case of Funkhouser v. Loew’s(1)  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  allow ed 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      plain tiff’s  story ’old John Santa Fe’ were set in the      same geo  graphical  area  and  both  had  the  typical      western    back    ground..............................      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

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    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".      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.      The  case   of  Warner   Bros.  Pictures   v.  Columbia Broadcasting System(2) 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      copy right  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 (1) 208 F 2d 185. (2) 216 F 2d 945. 243      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 in fringes". A writ  of certiorari  was taken against the decision to the U.S. Supreme B, Court but was denied as reported in 348 U.S. 971.      In   the   case   of   Otto   Eisenchiml   v.   Fowcett Publications(1) 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 2 L.Ed. 2d 260-355 U.S. 907.      In the  case of  Dorsey v.  Old Surety Life Ins. Co.(2) Phillips, J. 1 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 or  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 copy righted material should be      required". Similar observations  were made  in the  case  of  Twentieth Century Fox  Film Corporation  v. Stonesifer(3) which are as follows:-           "In   copyright   infringement   cases   involving      original  dramatic   compositions  and  motion  picture      productions,  in   as  much   as  literal  or  complete

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    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 (1) 246 2d 598. (2) 98 2d 872. (3) 140 2d 579 244      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 levelled 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.      Similarly, in  the case  of Oliver  Wendell  Holmes  v. George D.  Hirst(1) 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(2)  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". (1) 174 U.S. 82. (2) 51 I.A. 109. 245      In the  case of  Florence A.  Deeks v.  H. G.  Wells  & ors(1)  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 Br 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".      In the  case of  N.T. Raghunathan  & Anr.  v. All India Reporter Ltd.,  Bombay(2) 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

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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.      K. R.  Venugopalan Sarma v. Sangu Ganesan(3) 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".      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(4) where the Court observed as follows (1) 60 I.A. 26. (2) A.I.R. 1971 Bom. 48. (3) 1972 Cr. L.J. 1098. (4) A.T.R. 1967 Mad’. 38!. 246           "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 Hanjastaengl v. Bains & Co. (1)           "..... 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".      In the  case of  C. Cunniah  and Co. v. Balraj & Co.(2) 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".      In the  case of Mohendra Chandra Nath Ghosh and ors. v. Emperor(3) 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

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    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 identi- (1) [1895] A.C. 20, 25. (2) A.I.R. 1961 Mad. 111. (3) A.I.R. 1928 Cal 359. 247      cal pose.  These are  not, in  my opinion, coincidences      due to  A the  pictures  being  produced  to  represent      common stock idea."      Similarly in  the case  of  S.K. Dutt v. Law Book Co. & ors.(l) 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.      Similarly, in the case of Romesh Chowdhry & Ors. v. Kh. Ali Mohamad  Nowsheri &  Ors.(2) 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 colorable imitation of the      originals with the purpose of deriving profit".      In the  case of  Mohini Mohan Singh & Ors. v. Sita Nath Basak(3) a  Division Bench  of the Calcutta High Court while laying  down  the  necessary  concomitants  of  a  colorable imitation Mukherji, J. Observed as follows:-      "The question  there is where a colorable imitation has      been made.  Whether a  work is a colorable imitation 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". (1) A.I.R. 1954 All. 570, (2) A.I.R. 1965 J & K. 101. (3) A.I.R. 1931 Cal. 230. 248      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  single 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 Mer chant 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

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erudition and so novel in character as a result of which the end product  be comes  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 y 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.      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 249 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 defendants work  is nothing  but a  literal imitation 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 seeing 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

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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. 17-520 SCI/78 250      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 levelled against the dependant 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.      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.      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  Madrasi   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, Government officials, his  wife Minakshi  and grown  up  son  Amni  and daughter Pitto  who is aged about 8 or 10 years. As a result or 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 arc 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

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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 251 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 there 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.      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.      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 252           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.

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         5.   It was  only after the letters are perused by      the  parents   that  they   realise   the   horror   of      parochialism and  arc 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.      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 concentration 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  acts 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.      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 253 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 all 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 is  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

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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 ill 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, Anannd in order  to conceal  his real  identity tells  Janaki  that Nikki  is   the  daughter  of  his  father’s  friend,  which naturally angers Nikki hut later Anand apologies to her and 18-520 SCI/78 254 explains that  he did  not want Janaki or her father lo 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 theater 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  Kumarswamy. 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 hut a Punjabi and his father was Daulat Ram. Daulat Ram also does not  like the  relations of his son with Janaki because

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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. 255 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 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- sightendness 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.      Analysing the story of the film it would appear that it protrays 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 256 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  fills  in  many  respects different from the story contained in the play.

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    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   their                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,   Madarasis,                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 play and the                said film  show  the  disruption  of  cordial                relations  as  soon  as  the  head    of  the                families  discover   the  existence  of  love                affairs 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. 257           (ix) The entire 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

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              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 commit  ting 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 neighbors.           (xviii)Both in the said play and in the said film,                even tho  dialogue centres  around  the  same                subject of provincialism. 258      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 imitation 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.      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 imitation  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  him  self  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

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              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. 259                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. D           (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.      The effect  of the  dissimilarities pointed  out  above clearly go  to show that they tar 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 signifi

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260 cance because  the name of a particular person cannot be the subject matter of copyright because these are common names.      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 imitation  of the play and have thus violated the copyright of the plaintiff.      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 not 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 6 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  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.      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 261 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 imitation of the play.      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  anti- climax.  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.      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

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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.      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.-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 re- quest 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 I 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 262 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.      PATHAK, J.-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

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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  imitation 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 263 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, are 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 imitation.      The appeal  is dismissed,  but without  any order as to costs. P.H.P.                                     Appeal dismissed. 264