TEAM : 39

Before

THE HON’BLE HIGH COURT

Appeal NO._______ /2020

(Under Section-96 of Code of Civil Procedure, 1908

IN MATTER OF:

Abhishek -------------------------------- (Appellant)

VERSUS

ABC Ltd. And others --------------------------- (Respondent)

UPON SUBMISSION TO HON’BLE HIGH COURT

MEMORIAL ON THE BEHALF OF RESPONDENT

Through the Council of Respondent

Yasvi Shandilya

Roll no. - 182245

Exam roll no. - 180787

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 4
STATEMENT OF JURISDICTION 5
STATEMENT OF FACTS 6
STATEMENT OF ISSUES 8
SUMMARY OF ARGUMENTS 9
ARGUMENTS ADVANCED 10
PRAYER 20

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 LIST OF ABBREVIATIONS

Hon’ble Honourable
SC Supreme Court
HC High Court
IPC,1860 Indian Penal Code,1860
SCC Supreme Court Cases
AIR All India Reporter
V Versus
Addl. Additional

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 INDEX OF AUTHORITIES

LIST OF JUDICIAL PRECEDENTS CITED

NAME OF THE CASE CITATION

R.G. Anand vs. Delux film and others AIR 1978 SC 1613
N.T. Raghunathan& Anr. v. All India Reporter Ltd., AIR 1978 Bombay 48
Bombay
Harnam Pictures N.V. vs Osborn 1967 1 WLR 723
Mansoob Haider v. Yashraj Films CS(OS) 1656/2005]
Oliver Wendell Holmes v. George D. Hurst 174 U.S. 82 (1899)
Rogers vs. Koons 960 F.2d 301 U.S.
Urmi Juvekar Chiang v. Global Broadcast News 2008 (36) PTC 377 (Bombay)
Limited
Donoghue v Allied Newspapers, Ltd. (1937) 3 Ch. D. 503

STATUTES

1. Copyright Act, 1957

2. Code of Civil Procedure , 1908

3. Indian Penal Code, 1860

WEBSITES

www.scconline.com

www.indiankanoon.com

www.manupatra.com

BOOKS REFFERED

1.Universal’s Legal Manual on Intellectual Property Laws.

2.Case Materials Faculty of Law, Delhi University

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 STATEMENT OF JURISDICTION

The hon’ble court has the Jurisdiction to hear the appeal in the instant matter under
section — 96 of Civil Procedure Code, 1908

“ 96. Appeal from original decree:-

(1) Save where otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie from every decree passed by any
Court exercising original jurisdiction the Court authorized to hear appeals from the
decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Courts of Small Cause, when the amount or value of the subject-
matter of the original suit does not exceed ten thousand rupees.”

The Respondent appeared before the Hon’ble High Court in response to the petitions
filed by the Petitioners.

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 STATEMENT OF FACTS
1- Plaintiff Abhishek, an acclaimed scriptwriter, conceived a plot for a reality TV
programme that required competitors to survive in adverse geographical
terrains for a period of three months. The first month was to be spent in a
mountain, the next month in a forest and lastly, in a desert. The reality TV
programme would centre around knowledge and skills required to survive in
adverse climatic conditions, quick decision making and action in case of any
approaching danger, food hunt, use of natural herbs for ailments etc.

2- Abhishek, titled the work as ‘Back to Nature’. He was sure that if the plot could
be adapted into a reality television series, it would be a major hit amongst
audience. Abhishek, with no previous experience in the TV industry sought
assistance from his college friend Biju, who had experience in the TV industry
to discuss the possibility of meeting producers for adaptation of the work.

3- The meeting with Biju turned out to be a disappointment as Biju suggested

that although the plot was exciting but it was unrealistic for the modern human
to fend all alone in adverse geographical terrain. Biju suggested that the plot
needs major changes and that he would help him make these changes. After
the meeting, Abhishek, emailed the outline of the plot to Biju and waited for
his response.

4- Biju, called after a few days and said that the plot was more unrealistic than it
sounded in their meeting and that Abhishek should drop the idea and work on
something else. Abhishek did not pursue the matter further with Biju after this
response. He decided to further the story himself and approach other
producers.

5- After about eight weeks, Abhishek, came across a trailer on a popular TV

channel ‘X TV’ about a new programme titled ‘Man and Nature’ produced by a
famous production company ‘ABC Ltd.’ that would be broadcast soon
thereafter. The show would be a reality TV series and the auditions would be
held for couples who would be challenged to spend three months in two
adverse geographical terrains, forty-five days in a jungle and forty-five days in
a mountain with no human habitation close-by.

6- The uncanny similarity to his work forced Abhishek to enquire about the show
and his investigation revealed that ABC Ltd. bought the script from Biju.Feeling
aggrieved, he tried to contact Biju but to no avail.

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7- The district court did not grant any relief to Abhishek stating that there can be
no copyright in a plot as much as there can be no copyright in an idea.

8- Abhishek then made an appeal to the High Court citing that it was not merely
an idea as an idea is something vague. His plot was real, and he even emailed
the outline of the plot to Biju.

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 STATEMENT OF ISSUES

1) Whether or not there could be a copyright in idea, subject matter,

themes and plots?

2) Whether there is any fundamental and substantial similarity in both

the disputed shows?

3) Whether there is any criminal breach of trust done to plaintiff?

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 SUMMARY OF ARGUMENTS
1) Whether or not there could be a copyright in idea, subject matter, themes
and plots?

It is humbly submitted before this Hon’ble Court that there cannot be any registration
of copyright in idea, subject matter, themes and plots as copyright subsists only in the
material form to which the ideas are translated. Two authors may have the same idea
for a book. However the way they express themselves or the way they put down their
idea in a tangible form is what that makes a difference. It is the form in which a
particular idea, which is translated that is, protected.

The primary reason for granting protection to expressions and not ideas is to protect
the free flow of ideas. Ideas are too valuable to be copyrighted. The copyrighting of
ideas would eventually bring creativity and innovation to a standstill. It is for this
reason that the freedom to copy ideas is central to the structure of copyright law.

2) Whether there is any fundamental and substantial similarity in both the

disputed story plots?

It is most humbly submitted before the Hon’ble Court that the fundamental story plot
of both the shows may be similar but when we look at the substantiality of both the
story plots, we find a lot of differences in the plaintiff’s and defendant’s stories for
example the competitors in the show, locations in the show, duration to spend at a
location, and name of the shows. It can be clearly seen that the idea of both the shows
may be similar, i.e., both the shows are about showing adventurous and life saving
skills in adverse locations but, substantially both of them are totally different and will
affect or attract totally different set of audience.

3) Whether there is any criminal breach of trust done to plaintiff?

It is most humbly submitted before the Hon’ble Court that there is no criminal breach
of trust done by the defendant in the concerned case as criminal breach of trust takes
place when there is any misappropriation of property trusted to any person. In our
case however the plaintiff sent his script to the defendant on mail but, it would have
been a criminal breach of trust if the respondent dishonestly keep the story of the
plaintiff and sell it to someone as it was. Here in the present case we can clearly see
that the respondent only took some idea/inspiration and created his own script out of
that inspiration. It is evident by human nature that it takes inspiration from something
and created his version out of that inspiration. In the present case also there is great
difference in the plaintiff and defendant’s story plot.

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 ARGUMENTS ADVANCED
0

Issue No.1) Whether or not there could be a copyright in idea, subject matter,
themes and plots?

The dictionary defines copyright as "a person's exclusive right to reproduce,

publish, or sells his or her original work of authorship (as a literary, musical,
dramatic, artistic, or architectural work)."

It's important to understand that copyright law covers the "form of material
expression," not the actual concepts, ideas, techniques, or facts in a particular
work. This is the reason behind why a work must be fixed in a tangible form in
order to receive copyright protection. A couple examples of works being fixed
in a tangible form include stories written on paper and original paintings on
canvas.

The primary goal of copyright law is to protect the time, effort, and creativity
of the work's creator. As such, the Copyright Act gives the copyright owner
certain exclusive rights.

Section 13(Copyright Act):- Works in which copyright subsists.—

(1) Subject to the provisions of this section and the other provisions
of this Act, copyright shall subsist throughout India in the following
classes of works, that is to say,—
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording.

❖ The same issue has been clearly decided by the court in the landmark
judgment of R.G. Anand vs. Delux film and others1.

1 R.G Anand vs Delux Film and others AIR 1978 SC 1613

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Issues:

1. Whether the film ‘New Delhi’ is an infringement of the copyright of play

name ‘Hum Hindustani’?

2. Whether Respondents-Defendants have infringed the copyright of the

Appellants-Plaintiffs by making the movie named ‘New Delhi’?

Arguments by the Appellants-

Mr. Andley for the Appellants argued that the lower courts have not applied the
law correctly and their order is against the settled legal principles laid down by
Court in England, America and India. The Appellants further argued that the
movie is so similar to the play that it leaves an irresistible inference and
impression the film is a copy of the play. In order to prove the similarity between
the movie and play, Mr. Andley pointed out various similarities such as the
common idea of Provincialism, both have two families Punjabi and Madarasi, in
both movie and play either one of the lover tried to commit suicide but was saved
by some other person, in both movie and play the name of the father of the girl is
Subramanian, both the movie and play have their locale in New Delhi, in both
movie and play, the girl is fond of music and dance, etc. The Appellants further
argued that the Respondent was aware of the play and it was only after listening
to the play they decided to make a movie on it without their permission.

Arguments by the Respondents-

Mr. Hardyal Hardy for the Respondents argued that the lower courts have applied
the law correctly. He further argued that there is no need for this court to interfere
with the findings of the Court of facts. He refuted the claim of the similarities
between the play and the movie and contended that the movie and play both have
vast dissimilarities in the context of events and spirit.

Judgment:

The Judgment of the court was delivered by Justice Fazal Ali. The court held
that similarities between play and movie were not vast even though they both
might be based on the idea of ‘Provincialism’ but they both are very different.
The play only shows one side of ‘Provincialism’ during the marriage but the
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 movie shows other sides also like ‘Provincialism’ during renting outhouses. The
movie also shows the evil of dowry which the play doesn’t depict. The Appellants
claim was rejected by Court because the Court held that there may be certain
similarities because the idea in both movie and play is the same but it is well-
settled law that an idea cannot be copyrighted and the Court relied upon N.T.
Raghunathan& Anr. v. All India Reporter Ltd., Bombay2. The Court held that
if an ordinary person would see the play and the movie he wouldn’t deem it to be
a copy of the play. There are vast differences between the play and movie and
hence the Appellants claim that their copyright is infringed cannot sustain. The
Court upheld the Judgment of the Delhi High Court. Thus, the Court decided both
the issues in favour of the Respondents and held that there is no infringement.

Observation of the Court:-

• The Court held that there is no copyright in idea or plot but it is the way,
arrangement or expression of such an idea that can be copyrighted.

• If the source of the works is common, then some similarities are bound to
be there but the Court has to see whether such similarities are substantial to
constitute infringement or not.

• If an ordinary person after seeing the work in question calls it a copy or

replica of the original work then it is infringement.

• The theme can be the same but it has to be represented differently so that it
constitutes new original work.

• If dissimilarities are more than the similarities, it shows the negative

intention to copy.

• If there is clear evidence to show piracy then the violation of copyright

amounts to an act of piracy.

❖ In another case of Harnam Pictures N.V. vs Osborn3 it was held that there was
no copyright in ideas, schemes or systems or method and the copyright was
confined only to subject. In this connection Goff J. observed as follows:

2 N.T. Raghunathan& Anr. v. All India Reporter Ltd., Bombay AIR 1978 Bombay 48
3 Harnam Pictures N.V. vs Osborn 1967 1 WLR 723
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 There is no copyright in ideas,or schemes or systems or methods; it is confined
to their expression……But there is a distinction between ideas (which are not
copyright) and situations and incidents which may be ….. One must, however, be
careful not to jump to the conclusion that there has been copying merely because
of similarity of stock incident or 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.

❖ Also in the case of N.T. Raghunathan vs. All India reporters Ltd. Bombay4, it
was held that copyright law did not protect ideas but only the particular
expression of ideas. In that case, the Bombay High court, however, held that the
defendant had copied not only the ideas but also the style of abridgement, the
expression of ideas and the form in which they expressed and thus held that a
case for violation of copyright was made out.

❖ In Oliver Wendell Holmes v. George D. Hurst5, Justice Brown observed, “it is

the intellectual production of the author which the copyright protects, and not
the particular form which such production ultimately takes.”

❖ In another More recently, in the case of Mansoob Haider v. Yashraj Films6, the
Bombay High Court reiterated on the fact that ideas are not copyrightable. The
residue left behind after filtering out dissimilarities is the idea which is not
copyrightable and similarity of ideas does not lead to copyright infringement.

Issue No.2) Whether there is any fundamental and substantial similarity in both
the disputed story plots?

4 N.T. Raghunathan vs. All India reporter Ltd. Bombay, AIR 1971 Bombay 48
5 Oliver Wendell Holmes v. George D. Hurst, 174 US 82; 43 L Ed 904 ( 1898)
6 Mansoob Haider v. Yashraj Films, CS ( OS) 1656/2005

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 "The copyright does not protect the idea but it does protect the skill and the
labour put in by the authors in producing the work. A person cannot be held
liable for infringement of copyright if he has taken only the idea involved in the
work and given expression to the idea in his own way. Two authors can produce
two different works from a common source of information each of them
arranging that information in his own way and using his own language. The
arrangement of the information and the language used should not be copied
from a work in which copyright subsists."
Copyright Infringement Laws
A copyright is legal protection provided to creators of original works. As soon as a work
is created, there is copyright protection, whether or not the work is ever published. Being
the copyright owner allows you exclusive rights to recreate the work, copy it, publish it,
perform it, and distribute it. If someone else engages in any of these acts without your
permission, you may file a case of copyright infringement - but only if you have first
registered your copyright.

When looking for copyright infringement, courts look to see if the exclusive rights of the
copyright owner have been violated and whether the new work is substantially similar to
the original work. Whether it was copied on purpose or by accident does not matter when
determining copyright infringement, only whether you copied a substantial amount of an
original work.

But sometimes copying an original work is intentional—and allowed. Creating a parody

or using the work for educational purposes are both reasons the courts have upheld as
valid under the fair use doctrine, which is an exception to copyright infringement.

Substantial Similarity
When determining whether or not someone has committed copyright infringement, the
courts use a test known as substantial similarity. However, deciding whether a work is
substantially similar is neither clear-cut nor precise. There is no exact formula, but there
are standards the court can use to reach a decision.

Looking at how much of a new work is similar to an original work can help a court decide
whether the use is trivial or warrants further examination. If only one sentence from a
300-page book is copied, the court would most likely not find that use to be substantial.

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On the other hand, if one line of a four-line poem is used, there might be an argument
that a significant amount of the original work was copied.

The second part of substantial similarity is the similarity element. The actual creative
composition has to be similar, not just the idea. Ideas cannot be copyrighted, nor can
facts, processes, ingredients, and other such information. A poem about spring flowers is
an idea—and not a unique one at that. But the exact word choice, order, punctuation, and
even sentence length are all unique creative aspects of the original work. So a court must
compare the two works to see if the new one so closely resembles the original that it was
likely copied. If the average person would confuse the new work with the original work,
then there is a strong likelihood that a court would arrive at the same conclusion.

Fair Use vs. Substantial Similarity

Fair use differs from substantial similarity because when you claim fair use, you are
admitting that you intentionally and knowingly used a copyrighted work, but for a good
reason. In this sense, fair use is a defence. The fair use doctrine allows someone to
knowingly use part of an original work, without license or permission from the copyright
owner, in particular circumstances—usually educational purposes.

Substantial similarity is not a defence at all but rather a test that courts use to determine
whether or not an alleged new work actually copies another copyrighted work that was
created first. If you are a defendant, you do not want a court to find substantial similarity
between the works, otherwise you will be found to have committed infringement. If you
are a plaintiff, on the other hand, you do want the court to find that there is substantial
similarity, which would mean you have won your infringement case.

❖ In the case of Rogers vs. Koons7 U.S. federal court gave its observation regarding
similar photographs clicked by 2 photograph artists which is as follows:-

Case facts

Photographer Art Rogers shot a photograph of a couple holding a line of puppies

in a row and sold it for use in greeting cards and similar products. Internationally,
renowned artist Jeff Koons in the process of creating an exhibit on the banality of

7 Rogers vs. Koons 960F . 2d 301 U.S

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everyday items ran across Rodgers’ photograph and used it to create a set of statues
based on the image. Koons sold several of these structures, making a significant profit.
Upon discovering the copy, Rodgers sued Koons for copyright. Koons responded by
claiming fair use by parody.

Outcome

The court found the similarities between the 2 images too close, and that a “typical
person” would be able to recognize the copy. Koon’s defense was rejected under the
argument that he could have used a more generic source to make the same statement —
without copying Rogers’ work. Koons was forced to pay a monetary settlement to
Rodgers.

Significance

This is one of those famous cases that encompassed a larger issue in the art world, the
issue of appropriation art. Can you build upon another’s work to create your own
original piece? And if you do so, does that constitute derivative work?

Issue No.3) Whether there is any criminal breach of trust done to plaintiff?

Definition of trust?
It is a fiduciary relationship in which one party, known as a trustor, gives another
party, the trustee, the right to hold title to property or assets for the benefit of a third
party, the beneficiary. Trusts are established to provide legal protection for the
trustor’s assets. The entrustment of the property creates trust, and that is only an
obligation annexed to the ownership of property, which has been rising out of
confidence.

Criminal breach of trust:-

Section 405 of IPC defines Criminal breach of trust:-
“Whoever, being in any manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to his own use that property, or
dishonestly uses or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of any legal contract,

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express or implied, which he has made touching the discharge of such trust, or wilfully
suffers any other person so to do, commits “criminal breach of trust”.”

Essentials of criminal breach of trust:-

1. The accused must be entrusted with property or dominion over it.
2. The accused must have dishonestly misappropriated the property or converted it to
his own use or disposed of it in violation of such trust.

The expression ‘entrusted with property’ or ‘with any dominion over property’
includes all cases where goods are entrusted. This means that goods are handled of free
consent and willingly for a competition of certain purpose but has been used otherwise,
i.e. for the benefit of the entrusted person wrongfully.
Misappropriation of property or converting someone else’s property into own use is
an offence covered under criminal misappropriation under section 403 of IPC. The
difference is entrustment; So to commit this offence, one must have access and control
over the entrusted property only then it can be violated, disposed or converted into own
use.

In the present case it is evident by the facts that the plaintiff Abhishek has mailed
only the outline of the plot to Biju, if the plaintiff would have mailed the whole script
of the show to the defendant and the defendant would have sold the same script as it
was, to the producers of the ABC Pvt. Ltd. Then the act of defendant could come under
the criminal breach of trust. Here in the present case when the defendant approached to
the directors with the script idea of Plaintiff the producers said it to be impractical and
the defendant might have thought about the idea and talked to the producers and came
out with his original script based on that same idea, but with a practical approach. In
that case the script wrote by the defendant is totally his original creation which he sold
to the TV producers, which is also evident by a lot of variations and dissimilarities in
both the scripts.
To constitute the offence under Section 405 of IPC there are 2 requisites as mentioned
above but in the present problem neither the property was wholly entrusted upon the
defendant and neither the defendant misappropriated, converted or disposed his script
in violation of such trust. Instead the defendant took inspiration out of the plaintiff’s

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idea of adventurous competition show and came out with his own original creation of
script.

❖ In the case of Urmi Juvekar Chiang v. Global Broadcast News Limited8 court has
clearly state as to what work would be considered as an original work subject to
copyright and mere concept or idea doesn’t amount to copyright.

● The Plaintiff transformed her idea into a concept and prepared a detailed concept
note containing the concept, the form, the treatment, the problems, etc.

● The said concept note prepared by the Plaintiff of the television programme titled
Work in Progress was registered with the Film Writers Association, Mumbai. The
Plaintiff asserts that the concept note is a literary work within the meaning of Section
2(o) of the Copyright Act, 1957. And that the Plaintiff has the exclusive right to
reproduce the said literary work and to make a television programme based on the
same in terms of Section 14(a) of the Act.

● The concept note as well as the further developed concept note and the production
plan, it cannot be disputed, can be described as literary work of the Plaintiff in
relation to which there was existing copyright in her favour. Reproduction or
adaptation of that work in any material form or any substantial part thereof by the
Defendants would clearly attract the action of infringement of copyright.

● In our moot problem plaintiff might mention this case but this case doesn’t
resemble our moot problem as in Urmi Juvekar Chiang v Global Broadcast News
Limited 2008, the plaintiff prepared a concept note which was a detailed literary
work of her Idea and also his idea of TV programme 'Work in Progress' was
registered with the Film Writers Association Mumbai but here in the given case
Abhishek only made the outline of his plot and mailed it to defendants which again
not contribute as a literary work.

8 Urmi Juvekar Chiang v. Global Broadcast News Limited 2008 (36) PTC 377 (Bombay)
18
 ● Also plaintiffs in their second legal issue mentioned that plaintiff has made concept
notes but in the given facts we can see that plaintiff i.e. Abhishek merely gave the
outline of his plot through email.

❖ In another case of Donoghue v Allied Newspapers, Ltd. 9 Also court observed that
mere idea is not subject to copyright registration and infringement.

A person may have a brilliant idea for a story, or for a picture, or for a play, and
one which, so far as he is concerned, appears to be original, but, if he
communicates that idea to an author or a playwright or an artist, the production
which is the result of the communication of the idea to the author or the artist or
the playwright is the copyright of the person who has clothed the idea in a form,
whether by means of a picture, a play, or a book, and the owner of the idea has no
rights in that product.

Therefore referring this case also tells us that mere idea of some literary work (idea
of TV Programme in our case) cannot be copyrighted.

9 Donoghue v Allied Newspapers, Ltd. (1937) 3 Ch. D. 503

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 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited,
may this court considered the prayer of my client.

It is humbly prayed before the Hon’ble Court that:

1) The appeal petition of the appellant is to be quashed in Toto.

2) The judgment of the Trial court was correct and valid and need no
amendment.

OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd/-

COUNSEL FOR THE RESPONDENT

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Yasvi Shandilya

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