Whether copyright can subsist in a cinematography film independent of the underlying works that it is comprised of? 2. Whether the expression under section 14 to ‘make a copy of the film’ mean making physical copy of the film only? And between the two films is there a substantial and material similarity?

Facts: A copyright infringement suit was filed against Sri Sai Ganesh Productions &Ors by Yash Raj Films Pvt Ltd on the grounds that it blatantly copied the movie Band Baja Baarat produced under the YRF banner and producing Jabardasht which showcased substantial and material similarities in terms of theme, concept, plot, character, sketches, story, script, form and expression amongst other things.
Judgement: The court while determining the first issue relied on the judgement handed down by the Delhi High Court in the case of MRF Limited v. Metro Tyres Ltd, in which the court held that copyright exists in the ‘cinematographic film’ independent from other underlying works that come together to constitute it and that there is a requirement of originality to exist in ‘cinematographic films’ which can be read into from Section 13(1)(b) of the Copyright Act, 1957 through Sections 13(3)(a) and 2(d) of the said Act even though it has not been explicitly mentioned. The court while determining the second issue held that the expression ‘to make a copy of the film’ provided in Section 14(d)(i) of the said Act does not simply mean creating a physical copy of the film by process of duplication. Furthermore, as the films are protected just like original works, the court extended the test of originality set out in the case of R.G Anand v. Deluxe Films to distinguish between the two films on the basis of ‘substance, foundation and kernal’ and understand the viewpoint of an average moviegoer as to whether they would have an unmistakable impression that one work was a copy of the other. In the instant case the court found that the defendants had blatantly copied the fundamental, essential and distinctive features of the plaintiff’s film.

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