Mathews T. Palammoottil @ Mathews Thomas v JINU VARGHESE ABRAHAM and SHIBIN FRANCIS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942** **FAO.No.80 OF 2020** **AGAINST THE ORDER DATED 19.08.2020 IN I.A.NO.1/2020 IN O.S.NO.25/2020 OF ADDITIONAL DISTRICT COURT-V, ERNAKULAM** ## **APPELLANT/1ST RESPONDENT-1ST DEFENDANT:** **MATHEWS T.PALAMMOOTTIL @ MATHEWS THOMAS, AGED 34 YEARS,** **S/O. P.M. THOMAS, PLAMMOOTTIL HOUSE, I.E. NAGAR P.O., CHANGANASSERY 686 106. (NAME INCORRECTLY GIVEN AS MATHEW THOMAS PLAMMOOTTIL IN THE IMPUGNED ORDER).** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.VISHNU B.KURUP SMT.V.T.LITHA SMT.K.R.MONISHA SMT.SHRUTHI SARA JACOB** **RESPONDENTS/ PETITIONER AND 2ND AND 3RD RESPONDENTS-PLAINTIFF AND** **2ND AND 3RD DEFENDANTS** - **1 JINU VARGHESE ABRAHAM, S/O.V.V. ABRAHAM, FLAT NO. 12C, SFS KINGDOM, APARTMENTS, NEAR CHOICE SCHOOL, TRIPUNITHURA 682 301.** - ***2 SHIBIN FRANCIS, POTTANIYIL HOUSE, POOVATHODE P.O., BHARANANGANAM 686 578.** - **3 THOMAS ANTONY, MULAKUPPADOM FILMS, NEAR ST. ANTONYS GHS, BANERJI ROAD, KACHERIPADY, ERNAKULAM, KOCHI 682 018, RESIDING AT MULAKUPPADOM HOUSE, CHANGANASSERY, KOTTAYAM 686 106** - **R2 AND R3 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 22.09.2020 IN IA. NO 3/2020** **R1 BY ADVS. SRI.BENOY K.KADAVAN KUM.K.S.SREEKALA** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09-10-2020, THE COURT ON 20-10-2020 DELIVERED THE FOLLOWING:** ## **F.A.O.No.80 of 2020** ## **:-2-:** ## **Dated this the 20[th] day of October, 2020** ## **J U D G M E N T** Temporary order of injunction passed against defendants 1 to 3 in I.A.No.1/2020 in O.S.No.25/2020 on the file of Additional District Judge-V, Ernakulam, is challenged in this appeal by the first defendant. 2. The appellant is an Assistant Director of a Malayalam Movie titled 'Kaduvakunnel Kuruvachan' which is under production. Defendants 2 and 3 respectively are the script writer and producer of the Film. The plaintiff who is the respondent herein is also a film script writer. A malayalam movie by name 'Kaduva', based on a script written by him is also under production. The main character in both the films is 'Kaduvakunnel Kuruvachan'. The respondent claimed copy right to the name as well as the character traits of Kaduvakunnel Kuruvachan ## **F.A.O.No.80 of 2020** ## **:-3-:** contending that the character is his creation and sought to restrain the defendants in the suit from copying the name of the said character and the character traits in their movie and advertising the character in any electric or print media until disposal of the suit. The interim order issued by the court below on 19.8.2020 restrained the appellant and other defendants not only from copying the name and features of the main character in the movie of respondent but also copying the sequence of events in the respondent's script. Being aggrieved by the order, the first defendant alone has filed this appeal. 3. The respondent's case is that during 2017, he had occasion to hear about the story of a bold planter who lived in Pala which is part of Central Travancore in Kerala and fought against a tyrannical IPS Officer. It was actually an incident ## **F.A.O.No.80 of 2020** **:-4-:** which happened in Pala. The bold planter who is 'Kaduvakunnel Kuruvachan' is an extraordinary person with several characteristic attributes. He has a defying appearance and is rebellious also. The story centers around an issue which he had with the IPS Officer after the family of the officer having presented a bugle to a local church. The priest of the church took the musical instrument to be a personal gift to him. Kaduvakunnel Kuruvachan questioned the action of the priest and claimed it to belong to the church. The instrument being a gift given by the family of IPS Officer, he intervened in the matter and following this, Sri.Kuruvachan and the IPS officer came face to face which led to several incidents. Criminal cases were initiated against Sri.Kuruvachan and the petty issue rose to exciting heights. According to the respondent, Sri.Kuruvachan has got peculiar ## **F.A.O.No.80 of 2020** ## **:-5-:** physical attributes also. He used to hold a cigar and wear cross and used to travel in jeep. 4. The appellant is a close friend of the respondent. It is stated that respondent shared the story of Sri.Kuruvachan with the appellant who then conceived an idea of making a film based on the story. The respondent agreed and the play script was finalised in the month of April, 2018 and given to the appellant. But movie could not be produced till February, 2019 as agreed. When appellant suggested some changes in the script, the respondent was offended and he got back the script. He engaged another Director and Producer and decided to make a movie based on his script. He applied for registration before the Registrar of Copy Rights on 28.9.2019 and the script was registered on 19.11.2019. The movie was titled as 'Kaduva' and the production of the movie was ## **F.A.O.No.80 of 2020** ## **:-6-:** undertaken in September, 2019. The first poster of the film was released on 15.10.2019. It was when the shooting of the film was scheduled to the month of August, 2020, this suit became necessitated. 5. The appellant was not prepared to give up his attempt to make a movie on the character Kaduvakunnel Kuruvachan. He claimed that the character, Kuruvachan was his own creation and the respondent's script came into being only after he shared the story with the latter. He engaged the second defendant for writing a script and registered the title of the film with Kerala Film Chambers on 1.10.2019. The production of the movie started in the month of November, 2019. Shootings were conducted on 7.12.2019 and 8.12.2019. The appellant's case is that the characteristic traits of Kuruvachan have no similarities with the character in the respondent's script. According to ## **F.A.O.No.80 of 2020** ## **:-7-:** him even the play scripts in both the films are different and have no similarities. It is contended that the age of the characters in both films as well as the time period in which the characters lived are quite different. It is also contended that in appellant's movie, there is no fight with the Police Officer as in the script of the respondent and further, the place where Sri.Kuruvachan lived is also quite different. It is also pointed out that the vehicle which Sri.Kuruvachan used is a Mercedes-Benz car. Thus in every respect, there is complete dissimilarity and the respondent has no reason to complain of any colourable imitation of his play script or story. 6. The respondent produced Exts.A1 to A13 and the appellant produced Exts.B1 to B14 on their side. In addition to the documents, the respondent produced the play script of his film 'Kaduva' which ## **F.A.O.No.80 of 2020** **:-8-:** was viewed by the court below in the presence of all the parties. 7. On consideration of the entire materials, the court below held that the respondent made out a _prima facie_ case and also balance of convenience and that unless preventive relief was granted, the respondent would be put to hardship and loss. 8. In arriving at the _prima facie_ case in favour of the respondent, the court below relied on Exts.A4, A5, A10 to A12. In concluding balance of convenience in favour of the respondent, the court below observed that the defendants have not gone ahead with the production of their film though it was formally started. 9. Ext.A10 dated nil is a complaint lodged by the appellant before FEFKA, an association of Film Directors, against the respondent complaining that the advance amounts received by him for writing ## **F.A.O.No.80 of 2020** ## **:-9-:** play scripts for various films was not returned. What is pointed out by the court below is that Ext.A10 contained an admission of the appellant that the story of both films is identical. So also it compared Exts.A4 and A5 advertisements containing the visual images of the character 'Kaduvakunnel Kuruvachan' in respondent's film with those in appellant's movie advertised in Exts.A11 and A12 newspapers. On a close comparison made between the posters in the advertisements and also being enlightened by the play script produced by the respondent, the court below was of the opinion that the respondent has made out a _prima facie_ case and until completion of the suit, it was only fair to restrain the appellant/defendant from copying the name and characteristic features of Kaduvakunnel Kuruvachan who is the central character in the respondent's film 'Kaduva'. ## **F.A.O.No.80 of 2020** **:-10-:** 10. The learned counsel for the appellant strenuously assails the finding of the court below contending that the court below erred in holding that Ext.A10 complaint lodged before FEFKA contained any admission that the theme in both films is identical. It is also contended that a mutual comparison of the character traits of Kaduvakunnel Kuruvachan appearing in the advertisements do not make out any similarities. It is submitted that the script of the movie Kaduvakunnel Kuruvachan is substantailly different from the script of the respondent. 11. It is forcefully contended that under law of Copy Rights, an author cannot claim protection of copy right to name, the traits and attributes of a fictional character in his work. The learned counsel relying on **R.G.Anand v. M/s.Delux Films and** **others [(1978)4 SCC 118]** submitted that copy right ## **F.A.O.No.80 of 2020** ## **:-11-:** does not exist in an idea, theme, plot or subject matter of a story. Under the scheme of Copy Right Act, 1957, what could be sought to be copy righted is the form, the presentation as well as expression of the idea, theme or the story of the maker. The logic underlying this principle appears to be that when an idea, plot or a theme is developed possibly from a common source, similarities are naturally inevitable. Similarities in ideas and thoughts of different authors will not amount to infringement of copy rights as between them. Copy right emerges only after thoughts, ideas, themes of stories etc. becoming expressed or presented in a particular form or mode. Prohibition is against the same expression, form or mode made by an author being colourably imitated by another. In the decision, it was held that unlike a stage play, a movie has a broader prospective, wider field and a bigger ## **F.A.O.No.80 of 2020** **:-12-:** background where the defendants by introducing a variety of incidents can give colour and complexion different from the manner in which the copy righted work has expressed the idea. Therefore the contention of the appellant is that until the entire shoot of script is over and the production of movie is completed, it is too premature for the respondent to complain of alleged infringement of copy right. The learned counsel's submission is that in any view of the matter, a copy right either to the name of a particular character or its traits and attributes is not recognized by law. In this respect, a decision of the High Court of JusticeChancery Division **[1997] R.P.C.** was placed before me. It is pointed out there are many a malayalam movie wherein characters with identical names have been adopted by different script writers. So also the movies are not rare wherein the characteristic features of ## **F.A.O.No.80 of 2020** ## **:-13-:** fictional characters are copied as a matter of course. 12. The learned counsel for the respondent reacting to the submissions made on behalf of the appellant submitted that appellant willfully abstained from producing the script of his film before court despite specific order having been passed by the court below in I.A.No.6/2020 calling for the production. It was submitted that unless comparison of both scripts is enabled, the dispute on the alleged similarities and dissimilarities cannot be decided by the court and in the absence of production of the appellant's script, an adverse presumption ought to be drawn in this case against the defendants. It was further contended that in many of the decided cases of various High Courts in India, before deciding on the infringement of copy rights claimed by parties, the mutual comparisons ## **F.A.O.No.80 of 2020** ## **:-14-:** of their works had been either enabled or undertaken by courts and therefore in the event of one party withholding copy of his work, fairness demands that preventive relief sought by the aggrieved party against infringement of copy right ought to be granted. In this respect, the learned counsel relied on **Twentieth Century for Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. & Anr.[2010 (44) PTC 647(Bom)], Beyond Dreams Entertainment Pvt. Ltd. & Ors. v. Zee Entertainment Enterprises Ltd. & Anr. [2015 (62) PTC 241(Bom)], Kapil Chopra v. Kunal Deshmukh & Ors.[2013(53) PTC** **58(Bom.)],** and unreported decision in **Sudheesh Kumar v. T.S. Jayakumar & Ors.[F.A.O. No.155 of 2014].** 13. It was next submitted that there is no absolute proposition of law that name of a character in a work as well as traits of a ## **F.A.O.No.80 of 2020** ## **:-15-:** fictional character in a movie cannot be copy righted and according to the learned counsel, all depends on facts and circumstances of each case. According to the submission made by the learned counsel, the court below has rightly appreciated the materials on facts and law before it came to the right conclusion that respondent was entitled to an order restraining the defendants from copying and advertising the character, Kaduvakunnel Kuruvachan in their movie and violating the copy right of the respondent. 14. Ext.A10, in my estimation, does not contain any admission allegedly made by the appellant that the scripts in both movies are based on the same story. The appellant while submitting the complaint before FEFKA, only expressed his moral indignation that a story shared by him with the respondent was pirated. That does not mean that he made an ## **F.A.O.No.80 of 2020** ## **:-16-:** admission that he also proceeded with a script based on the same theme. 15. I do not think that lower court was justified in demanding production of script in the possession of the defendants since it was upto them to have decided whether such a production was necessary to discharge their burden in support of proof of deciding the matters in issue. In appropriate cases, it is open to court to draw adverse inference against the party for the non production in case it was found to be without any just cause. The stand taken by the defendants is that their movie being based on a thriller story, maintenance of curiosity and suspense about the film was essential in the interest of commercial success of the film and further in order to decide the legal issue involved in the suit, the production of the script is not essential at all. ## **F.A.O.No.80 of 2020** **:-17-:** 16. It may be generally said that copy righted work of an author may not extend to the name of a particular character or to its characteristic features. But this cannot always be taken as an absolute principle of law in every situation irrespective of facts of the case. But exceptions must essentially apply to cases wherein the name and characteristic features of the main character in two movies are similar or substantially similar. Unless copy right to the name and traits of the character in one of the movies is protected in such cases, it would lead to literary piracy. So far as Kaduvakunnel Kuruvachan is concerned, he is indisputably the central character in both movies under production. There is no dispute that the story in both movies is such that it is inseparably intertwined with the name and characteristic traits of the character, Kaduvakunnel Kuruvachan. In that ## **F.A.O.No.80 of 2020** ## **:-18-:** manner, depending on the facts of each case, the lawful author can claim protection of copy right in respect of the name of the character as well as its characteristic traits. 17. So long as the script of the appellant is not forthcoming, nobody knows whether it actually bears similarities to the script of the respondent. The appellant contends that his script has nothing to do with a character who fights against a police officer and therefore both are different. It is also said that the character in his film is one who travels in new generation Mercedes-Benz car and therefore has no similarities with the respondent's script. It is also contended that the age of the character is different from that of the person in respondent's script and further that appellant's character lived in different part of the world and ## **F.A.O.No.80 of 2020** ## **:-19-:** has no connection with Pala. 18. I doubt as to how the defendants can dispute that the characteristic features of Kaduvakkunnel Kuruvachan are different without the script in their possession being made available for the court's comparison. If the dissimilarities as contended by the appellant are true, there could have been no legitimate reason for withholding it. The contention of the learned counsel for the appellant in this respect is that the scenes in movies are fully imaginations developed in tune with the plot and incapable of being meticulously translated into the words of a play script for a comparison. It is submitted that there is enough space for changes in the manner of expression and presentation of scenes and characters. Though I accept this to be factually correct, it is no reasonable excuse for the defendants, in the ## **F.A.O.No.80 of 2020** ## **:-20-:** peculiar facts and circumstances of this case, for not producing the script and substantiating that the sequence of events and the character traits of Kaduvakunnel Kuruvachan are dissimilar. 19. Merely by introducing immaterial changes for changes sake and taking advantage of the pretended dissimilarities, one cannot be permitted to pirate the copy righted work of another as held by the **Honourable Supreme Court** in **R.G.Anand's** **case.** The test laid down in the decision is to the effect that 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 copy right may be said to be proved. That means the best method to determine the similarities and the dissimilarities is the comparison of the works. 20. In the facts and circumstances of the case, so long as the script of the appellant is not ## **F.A.O.No.80 of 2020** ## **:-21-:** forthcoming, it may be reasonably presumed that the script as to the name and characteristic features of the character Kaduvakunnel Kuruvachan and the story are colourable imitation of the plaintiff's script. The court below also felt after comparing the available advertising posters in which the images of the character appeared that they closely resembled in such a manner that an ordinary viewer would be easily misled to believe that both characters were the same. The court below also discussed first ownership right to the character and held on the basis of materials on record that the right accrues to the respondent and that the said finding on the facts of the case appears to be probable. Therefore the finding of the court below that there is prima facie case in favour of the respondent is not worth interfering. The order of temporary injunction was issued at a time when the ## **F.A.O.No.80 of 2020** **:-22-:** production of defendants' movie was about to be commenced. The balance of convenience was therefore rightly held by the court below in favour of the respondent. In any view of the matter, the appellant is not going to be prejudiced by the impugned order so long as the script, according to them, is dissimilar from the respondent's script. For the above reasons stated, I do not find any reason to interfere with the impugned order. **==> picture [402 x 13] intentionally omitted <==** dismissed. I, however, make it clear that the court below will proceed to decide the suit on merits untrammelled by any of the observations made in this judgment. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/