Browse By

Whose Idea is it Anyway?

The Dewarists is an extremely novel concept for an Indian television show. It features musicians from around the world, collaborating to produce original compositions as they travel across India. Not surprisingly, it has received critical acclaim since its very first broadcast. But like many shows before it, it now finds itself embroiled in a copyright dispute just as its popularity was beginning to surge.

It has been reported that the producers of the show, Babble Fish, as well as its chief sponsor Bacardi have been served a notice from the  Delhi High Court for an alleged copyright violation. The complainant, Manish Kumar, who is a writer and musician, alleges that he had conceptualised a show with identical elements as in The Dewarists – musicians (both national and international), country-wide travel, original compositions and a recorded music video. He also happened to have posted the idea on a website called Spirit of Music dated November 2009. He also claims to have registered the concept with the Association of Motion Picture and TV Producers (“AMTPP”) under the name ‘Music Virasat’, which roughly translates to ‘Music Heritage’.

This case is of possible interest to anyone who has ever pitched an idea to a room full of executives, without actually receiving any credit. It appears that Manish Kumar had first entered into an agreement with ETV to produce the show, but  had to abandon the programme due to the Telangana agitation, after which he submitted the concept to Doordarshan and Channel V, which is owned by Star India. He allegedly had a meeting with executives from Star India in June 2011, but the discussions were inconclusive.

Then, in October 2011, Star India broadcast the first episode of The Dewarists, which Manish Kumar found to be extremely similar in format and style to the dewaristsone he had discussed with Star executives the previous year. He immediately filed a suit demanding a stay on the telecast and sought damages for copyright infringement. Justice Manmohan Singh of the Delhi High Court refused to grant a stay order, but ordered Star India to reply within 10 days and postponed the issue of damages for after he had heard both parties.

This is not unprecedented in the Indian film and television industry. In fact, the blockbuster Shah Rukh Khan film RA.One was involved in a similar dispute. In this case, Yash Patnaik, who is a television writer and producer had been in talks with the script-writer for RA.One, Mushtaq Sheikh. There is also a record of his idea for a futuristic superhero called ‘One’ since he had it registered with the Film Writer’s Association several years ago. Yash Patnaik alleges that Sheikh sold his idea to Shah Rukh Khan’s production house, without giving any credit to Patnaik. One wonders why Patnaik waited for the film’s release to file the suit, but he argues that he wanted to first coRa.Oneposterllect audio-visual evidence to back his claim.

The Division Bench of the Bombay High Court, consisting of Justices Mohit Shah and Roshan Dalvi, heard the matter and concluded that prima facie, Yash Patnaik appears to have a copyright in the concept, including the material, graphic illustrations, drawings, monograms, scenes and pictures of the flying robots. The judges agreed that the character in RA.One resembled  Pattanaik’s concept of a superhero in the future, in ‘attributes and appearance’. However, they did not give a final ruling on the issue of copyright infringement. Instead, they asked the producers, Red Chillies Entertainment, to deposit INR 1,00,00,000 in the court’s registry, failing which the release of the film would be stayed.

Disputes of this kind come down to essentially two aspects:

DiscussionIdea/Expression: Copyright law makes a fundamental distinction between an idea and its expression. Therefore, what is key in such cases is whether the producers merely borrowed from the idea pitched to implement unique and creative ways of expressing that idea, or were they simply free-riding on the ideas that came out of the discussions. Unfortunately, the law is not black and white. Although courts have developed numerous way of distilling the elements of a concept and evaluating whether they are subject to copyright (for example the characters, voices, format, plot) there is still no way of predicting which way courts will rule, without examining the specific facts and circumstances in a given case.

Discussions/Contracts: What is undoubtedly true is that any discussions and informal agreements that precede the actual production of a show or movie will become crucial evidence in the court proceedings. Such arrangement could very often determine the rights of parties, and issues of authorship and ownership. In such circumstances, the importance of publishing a nascent idea in some form or the other, cannot be overstated. For example, script writers have sometimes relied on their submissions to online message boards and forums to establish proprietary rights over an idea. In some cases, registering the idea with the Film Writer’s Association or similar body is also relied on.

All in all, it is useful to remember that such incidents are not uncommon, and as a wise woman once said – better safe than sorry.

(Image from Muhammad Rafizeldi (MRafizeldi) under a Creative Commons Attribution-Share Alike 3.0 Unported license).

About Amlan Mohanty

Amlan is a lawyer based in India. He engages in research, writing, speaking and teaching at the intersection of technology, law and policy.