India: The Line Of Difference Between Copyright Infringement And Copyright Inspiration

INTRODUCTION

Copyrights have gained momentum across the globe. With the advancement in technology and the widespread awareness about the importance of the Copyright, it's no shock that many creative content creators look forward to protect their work in all aspects whether it's the economic rights or the moral rights, its protection has become imperative.

As every new advent brings out different issues, Copyrights are no exception. Copyright infringement is one such issue that disrupts the process of creation and the creators not only suffer financially but their efforts are disregarded by such activities. However, the issue becomes even more complex when we try to draw a line between copyright inspiration and copyright infringement. The former always confused with the latter leads to zero room for people to get inspired by various forms of art and create something of their own.

This article attempts to draw clear distinction between the two concepts and enable the creators to save their time, money and from the hassle of court procedures.

THE DISTINCTION: COPYRIGHT INFRINGEMENT AND COPYRIGHT INSPIRATION?

The Meaning of the Copyright Infringement and Copyright Inspiration

What is copyright inspiration?

An artist need not look in the same area for inspiration; it can be found naturally in nature. Other artistic mediums, distant civilizations, and architectural styles can all serve as sources of inspiration. For example, the streets are where designers most frequently get inspiration. Finding distinctiveness in someone's mismatched outfits can be fascinating. Because a designer was inspired by seeing someone wearing torn jeans in public and referring to it as streetwear, the idea of worn-out jeans and rags quickly became popular. ²

Inspiration drawn from somebody's work cannot always be called copyright infringement because over the course of time certain parameters have been stipulated to deal with the same. Every piece of art inspires someone or something else. Therefore, clubbing everything under one category can not only be discouraging to the creators but will also lead to an artistic block. For example, there are only 7 swaras in music which can be used to create a melody.

Only the way ideas are expressed, not the ideas themselves, are protected by copyright. For instance, two painters may depict the same scene in a painting but in slightly different ways without violating one another's copyright. However, you are not restricted from writing a story about a group of people who are left to live on a secluded island after an aircraft disaster because the television show Lost is copyright protected.³

It is therefore okay to draw inspiration from other people's works, but in order to protect your copyright and prevent infringement, you must develop something original using your own talent, labour, judgement, and effort. When "the work as a whole or any substantial element of it" has been copied, using someone else's creative work violates their copyright. Each and every situation will determine how these notions should be used. While deciding what needs to be considered is the potential influence on the author's ability to market their work as well as the issue that others should be allowed to utilise it as inspiration for future work when making decisions in circumstances like this.⁴

It's critical to assess if the source/origin of inspiration, which is the original copyrighted work, has undergone enough transformation to qualify as "original" as opposed to "copied" in terms of copyright inspiration.

Taking up the significant incident in this regards, J.K. Rowling was sued by the copyright holder of Willy the Wizard with an allegation that her Harry Potter and the Goblet of Fire infringed their copyright by taking five main plot elements from Willy the Wizard. In this case, Justice Kitchin, citing the Da Vinci Code decision, held that "the similarities upon which Mr Allen relies seem to me to constitute ideas which are relatively simple and abstract and I strongly incline to the view that they are at such a high level of generality that they fall on the ideas rather than the expression side of the line."

There are ample of examples of such inspiration like"The Hero with a Thousand Faces" of Joseph Campbell's inspired the writer of "Star Wars", George Lucas that further inspired the television series "Battlestar Galactica".

Thus, for Copyright Inspiration it is crucial to determine whether the source/origin of inspiration that is the original copyrighted work has been transformed sufficiently in a manner that new creation can be deemed as "original" instead of being "copied".

There are legal methods recognized in order to reproduce already registered work in form of adaptation, translations, remixes, covers etc. Such works have been recognized under Section 14 of the Indian Copyright Act, 1957. Some of them have been listed below:

• Adaptation

The Copyrights Act of 1957's section 14(a)(vi) governs adaptations in India. The work and how it is created or duplicated are entirely under the author's control. The owners of copyrights may also transfer their ownership of a work's copyright to other people. As a result, the author has the option to assign the rights to his work in any way that the parties think appropriate. This eventually results in the signing of a license agreement.⁵ According to Section 30 of the Act, the owner of the copyright may transfer the rights to his creation to another party through a legally binding License Agreement.

In Hindustan Pencil Ltd. v. Alpana Cottage Industries ⁶, the Copyright Board of Goa ruled that if there are fundamental and significant similarities between the parties' artistic creations in terms of material aspects, then there has been a copyright violation and the defendant's copyright may be expunged from the register of copyright. "Where the same idea is being developed in a different manner, it is obvious that the source being common, parallels are bound to appear," the court said in R.G. Anand v. M/s Delux Films ⁷.

• Translation

According to Section 13 of the Copyright Act, 1957 (Act), an original literary work has copyright in all of India. In order to answer this, we turn to Section 14 of the Act, which explains that, with regard to a literary work, copyright refers to the exclusive right to perform or authorize the performance of specific acts, such as the issuance of copies of the work, the making of adaptations to the work, the making of translations of the work, and so forth. ⁸

As a result, before being translated and published, a literary work in translation must first gain the author's consent. Without the proper authorizations and permits, translations may be considered illegal and may have legal repercussions.

In Blackwood v. Parasuraman ⁹, the Madras High Court held that there is a copyright in translation and that a translation is an original literary work. Additionally, in Hafiz P.H. Abdul v. Abdurahiman ¹⁰, the Kerala High Court held that: "Even in translations, where brain, labour and skill have been used, or where some literary works are carried out, the person who did the said work in the translation is the author having copyright over the same."¹¹

• Cover Version

A sound recording of any abstract, sensational, or melodic work that was created by, with the consent of, or in relation to the owner of the right to the work has been defined as the cover version under Section 31 C of the Indian Copyright Act. With the advancement of modern technology, creating and sharing cover versions online has become much easier.¹² The majority of cover versions that novice producers record is placed online without the permission of the original author of the work, which could subject these budding artists to copyright infringement lawsuits.

The legislation might have easily said that its goal is to stop cover versions if such were the case. The goal of cover versions is to give emerging musicians a platform to succeed. The government may forbid it if it deems it to be bad. ¹³ The only way to legally halt cover versions is not to make them expensive with no chance of making a profit. This is a politically motivated use of authority, which the Constitution forbids.

As long as the requirements outlined in section 52(1)(j) are followed, the version records or cover records do not violate copyright. The non-voluntary license contemplated by section 52(1)(j) has been a long-running and difficult issue, and the phonographic industry is vehemently opposed to the maintenance of this clause. However, the following arguments have been made in favor of this clause:

It is legitimate to allow other performers to record their own versions of a song once it gets well-known, is on everyone's lips, and quickly becomes a piece of our shared cultural heritage. It is customary everywhere to do this. ¹⁴

• Derivative Works

A copyrighted work that has been derived from another copyrighted work is referred to as a derivative work. Copyrights give their owners the authority to control how their creations are utilized, including the production of new derivative works based on the original work. With the owner's consent or with works in the public domain, derivative works may be produced. ¹⁵

A derivative work must sufficiently alter the original work in order to qualify for copyright protection. Depending on the nature of the work, this difference changes. Some works only need to be translated into another language, while others might need to be presented in a different format. Overall, in order to make a derivative work, one must significantly alter the original work rather than simply changing a few words.

A derivative work is one that is "based on one or more earlier works, including a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, changed, or adapted," according to the Copyright Act. A "derived work" is a piece of writing that incorporates editorial changes, annotations, elaborations, or other alterations to create an entirely new work of authorship.

This indicates that a derivative work is similarly protected by the Copyright Act if it meets the following two requirements:

• It is "fixed in a concrete medium" as opposed to just being a concept in the creator's head; and
• It is "independent work". ¹⁶

What is copyright infringement?

When a copyright is violated is specified in Section 51 of the Copyright Act. According to Section 51 of the Act, copyright is considered to be violated if:

• A person performs an act that only the copyright holder is permitted to do without the copyright holder's consent.
• Unless he was unaware or had no cause to suspect that such consent will result in the breach of copyright, a person permits the use of the location for communication, selling, distribution, or exhibition of an infringing work.
• Importing pirated copies of works is prohibited, as is reproducing a work in any way without permission from the copyright owners. ¹⁷

It is important to note that Section 51(a)(ii) makes it necessary for the person "permitting for profit any place to be used" for the kind of infringement specified therein to also commit the copyright infringement, unless he was unaware and had no reasonable grounds for believing" that he was doing so. This is owing to the fact that "permitting the place for profit" does not begin with the knowledge of anything (in this case, the knowledge of copyright infringement or its likelihood).

For instance, a person can donate their home to someone else without realizing that the recipient will misuse it. Therefore, unless he gave the house away, he cannot be held equally responsible for that wrong. ¹⁸

In the case of Twentieth Century Fox Film Corporation v. Stonesifer ¹⁹ the court held that copyright infringement cases involving original dramatic compositions and motion picture productions, inasmuch as literal or complete appropriation of the protected property rarely occurs, the problem before the court is concrete and specific in each case to determine from all the facts and circumstances in evidence whether there has been a substantial taking from an original and copyrighted property, and therefore an unfair use of the protected work.

The two works involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator. ²⁰

The court held in R.G. Anand Vs. Delux Films And Ors., ²¹ that after reading or viewing both works, the reader, spectator, or viewer is plainly of the opinion and clearly gets the sense that the second work looks to be a copy of the original. If the response is affirmative, it might be said that there has been a copyright violation.

Over here it is important to mention that sometimes there have been instances where the term "inspiration" is used as a veil to deliver totally plagiarized content. To quote one such instance is from 2010 where the courts lifted the veil of inspiration and accepted the copyright infringement and awarded the damages to Twentieth Century Fox. The said company filed a suit against Sohail Maklai Entertainment for the unlawful remake of Twentieth Century Fox's "Phone Booth", into Knockout. The plot in both the movies revolved around a hostage in Phone Booth who is having major conversation with the sniper and in both of the movies, the sniper was intervened by the intruders during the conversation. Though in the former is having a premise of extramarital affair and the later has a premise related to black money with a zest of extramarital affair. But clearly there are too many coincidences which is merely more than just inspiration.

LINE OF DISTINCTION

The conclusion one can draw is that the word inspiration and infringement are far from each other. Movies like Laal Singh Chaddha that are an adaptation of Forest in Grump cannot be called copyright infringement since the filmmakers make it clear that they have received permission for such adaptation. The makers of the film Jugg Jugg Jeeyo were sued when the trailer was released. The High Court of Ranchi found no similarities in the script produced by the plaintiff and the film itself. This in itself proves that a single characteristic being present does not make it copyright infringement.

The inspiration drawn only includes a certain characteristic being present and infringement is completely ripping off something. Infringement crosses an acceptable boundary and pries in the space of the other creator.

Copyright infringement has certain parameters that include the spectator test, where the work has more similarities than dissimilarities and they cannot be written off as mere coincidences, there is substantial copying of work etc. The line of differentiation is drawn when the different parameters set forth by the Apex Court have been fulfilled or not. However, this line cannot be said to be definite in nature.

As it has been seen in various films that the presentation of the original copyrighted work is different. It has to be ensured that such presentation effectively does not follow the same pattern. Presentation of similar ideas and themes can be done but in a manner that it differs and sends across a different message.

Therefore, these areas have to be understood through a flexible and rigid lens at the same time. There has to be an understanding of what is acceptable and where one can fall into the grey area and cross the line of differentiation. Leniency for inspiration in art is essential but allowing it violate someone's rights is where the rigidity comes into play.

(Assisted by legal interns at TBA Ms. Kanika Goswamy and Ms. Shruti Mandora)

Footnotes

1. https://blog.ipleaders.in/copyright-infringement/

2. https://blog.ipleaders.in/fashion-and-copyright-a-thin-line-between-inspired-and-copied/

3. https://www.copyrightuser.org/faqs/question-10/

4. Ibid.

5. https://www.mondaq.com/india/copyright/783560/adaptation-vs-copyright-infringement

6. MIPR 2007 (1) 41

7. 1978 AIR 1613

8. https://www.mondaq.com/india/copyright/801026/unpacking-copyright-and-moral-rights-in-translations

9. AIR 1959 Madras 410

10. 1999(2) KLJ 686

11. https://www.mondaq.com/india/copyright/801026/unpacking-copyright-and-moral-rights-in-translations

12. https://blog.ipleaders.in/procedure-to-obtain-a-statutory-licence-for-the-cover-versions-of-songs/#What_is_a_Cover_Version

13. (2015) 9 SCC J-11 Copyright (Amendment) Act, 2012 and Copyright Rules, 2013 — Vagaries, Validity and Vires, Brij Kishore Sharma

14. Jagdish Sugar, "Entertainment Media & IP Rights: An Indian Perspective" in S.K. Verma & Raman Mittal, Intellectual Property Rights. A Glohal Vision 210 ???o 211 (11.1.2004).

15. https://www.law.cornell.edu/wex/derivative_work#:~:text=Derivative%20work%20refers%20to%20a,off%20of%20the%20original%20product .

16. https://abounaja.com/blogs/importance-of-derivative-works

17. https://blog.ipleaders.in/copyright-infringement/

18. 24 ALJ (2016-17) 79 Secondary Copyright Infringement Under the Indian Copyright Act, 1957 - A Critique

19. MANU/FENT/0141/1944

20. Bright Lifecare Pvt. Ltd. vs. Vini Cosmetics Pvt. Ltd. and Ors. (07.07.2022 - DELHC) : MANU/DE/2352/2022

21. 1979 SCR (1) 218

Originally published 16 April 2023 and updated 19 April 2023.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.