Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 258 OF 2013

KRISHIKA LULLA & ORS. …. APPELLANTS

VERSUS

SHYAM VITHALRAO DEVKATTA & ANR. …. RESPONDENTS

WITH

CRIMINAL APPEAL No. 259 OF 2013

JUDGMENT

S. A. BOBDE, J.

These two Criminal Appeals are preferred by the accused against

the judgment and order dated 22.3.2012 in Criminal Misc. Application No.

1295 of 2011 and 1296 of 2011 passed by the learned Single Judge of the

Bombay High Court refusing to quash the complaint and the process issued

under Section 63 of the Copyright Act, 1957 (hereinafter referred as “the

Copyright Act”) read with Sections 406 and 420 of the Indian Penal Code,

1860 (hereinafter referred as “IPC”).

2. The respondent No. 1-Shyam Vithalrao Devkatta, filed a complaint

being Criminal Case No. SW/332 of 2011 under Section 63 of the Copyright

Act, later amended to add additional charges under Sections 406 and 420

read with Section 34 of the IPC, against five persons. Upon due verification

process was issued by the learned Metropolitan Magistrate against all

except the fifth accused. Of these accused, four approached the Bombay

High Court by way of filing two criminal misc. applications, under Section

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Page 2 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as

“Cr.P.C”) for quashing the complaint. The High Court having refused to

quash the complaint, the appellants have approached this Court.

3. The complainant/Respondent No.1 claims copyright in a synopsis of

a story written by him with the title “Desi Boys”. According to him, he had

written a story with the title “Desi Boys” and had got the synopsis of the

story registered with the Film Writers Association on 25.11.2008, when a

friend, one Ramesh Bhatnagar, told him that a comedy film story is required

by the son of a film Director, David Dhawan, he mailed the concept of the

story in the form of a synopsis as an attachment to an email addressed to

Ramesh Bhatnagar on 14.10.2009 with the words “Dear Friend, just see the

attachment.” Ramesh Bhatnagar forwarded the story, calling it “just an

idea” by email to one Ahsan Sagar on 15.10.2009. What was forwarded was

apparently the same short synopsis of the concept with the title “Desi

Boys”. A copy on the record makes it clear that it was by no means the

entire story with all the dialogues and the screen play. Having done so, his

friend Ramesh Bhatnagar did not receive any reply but, suddenly the

complainant saw the promos of a film bearing the title “Desi Boys”, actually

spelt as “Desi Boyz”. According to him, the adoption of the title “Desi Boyz”

is a clear infringement of the copyright in the film title “Desi Boys”.

Admittedly, he has not seen the film and he states in his complaint, he

cannot say whether a part of the story of the film written by him has also

been infringed.

4. In the meanwhile, the appellants released their film with the title

“Desi Boyz” throughout the world including India on 25.11.2011. According

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Page 3 to them, the film is based on a story written by one Milap Zaveri, who wrote

the story under an agreement dated 02.09.2009, for which they have paid

the author by cheque. The shooting of the film commenced on 07.11.2010

and the respondent No. 1 came to know about the film sometime on

12.10.2011. The details of the defence are not dealt with here since the

matter must be decided on the basis of the tenability of the complaint.

5. The Court of Learned Metropolitan Magistrate having taken

cognizance, as stated above the appellants approached the Bombay High

Court under Section 482 of the Cr.P.C for quashing the complaint and

process issued under Section 63 of the Copyright Act read with Sections 406

and 420 of IPC. The learned Single Judge who heard the matter as a part

of a batch of matters in which parties had challenged the order issuing

process against them in several different cases, dismissed the applications.

In paragraph 97 of the judgment, the High Court considered the appellants

case and merely pointed out that according to the appellants, the story

which they had converted into a film was written by an author to whom

they had paid a certain amount under an agreement even before the

complaint of the respondent No. 1- Devkatta. Thereupon, the High Court

merely observed that the facts alleged by the respondent No. 1 can only be

determined at the trial and on the face of the record there was neither any

abuse of court nor failure of justice and the applications were simply

dismissed. There is no decision on the various issues raised by the

appellants, hence these appeals.

6. Mr. Raju Ramchandran, the learned counsel for the appellants

submitted that the respondent No.1-Devkatta has claimed infringement of

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Page 4 copyright in the title of the synopsis of a story “Desi Boys”. Mr.

Ramchandran, maintains that there is no copyright in the title of a story or

for that matter a film and therefore, no complaint is tenable under Section

63 of the Copyright Act which makes a deliberate infringement or the

abatement of the copyright in a work punishable as an offence. According

to the learned counsel, the appellants got the story written by an author

who was paid for it and by now the story had been converted into a film

bearing the title “Desi Boyz” starring Akshay Kumar, John Abraham, Deepika

Padukone, Anupam Kher, etc. The film had been released all over the

world including India on 25.11.2011, after theatrical trailers were released

on two occasions. It was submitted that the story of the film released by

the appellants bears no similarity whatsoever with the story of which

Devkatta has written a synopsis, the characters and the scenes and the

settings being entirely different.

7. The main issue that arises for determination is whether the

respondent No.1-Devkatta has copyright in the title “Desi Boys” which he

has given to the synopsis of a story. Further, if at all a complaint under

section 63 of the Copyright Act is tenable against all the appellants for

giving the title “Desi Boyz” to the film released by them.

8. Section 13 of the Copyright Act, lays down works in which copyright

subsists. Section 13(1) reads as follows:-

“13(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, this is to say,-

(a) original literary, dramatic, musical and artis-

tic works;

(b) cinematograph films; and

(c) [sound recording]

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Page 5 9. It is obvious that what is claimed by Respondent No.1-Devkatta is

only copyright in the title “Desi Boys”. It is, therefore, not necessary to

examine if a mere synopsis or a note of a story amounts to a literary work.

Admittedly, Devkatta has not made any film by the name “Desi Boys” and

his only grievance is about the infringement of copyright in the title which

according to him is the soul of his story and copying it takes away

everything from his story.

10. The question that arises is whether copyright exists in the title “Desi

Boys”. A title of a work has been considered to be not fit to be the subject

of copyright law as will be apparent from the cases considered later. A title

by itself is in the nature of a name of a work and is not complete by itself,

without the work. No instance of a title having been held to be the subject

of copyright has been pointed out to us.

11. It must be noted that in India copyright is a statutory right

recognized and protected by The Copyright Act, 1957. It must therefore be

first seen if the title “Desi Boys” can be the subject of copyright. On a plain

reading of Section 13, copyright subsists in inter-alia an original literary

work. In the first place a title does not qualify for being described as

“work”. It is incomplete in itself and refers to the work that follows.

Secondly, the combination of the two words “Desi” and “Boys” cannot be

said to have anything original in it. They are extremely common place

words in India. It is obvious, therefore, that the title “Desi Boys”, assuming

it to be a work, has nothing original in it in the sense that its origin cannot

be attributed to the respondent No.1. In fact these words do not even

qualify for being described as ‘literary work’. The Oxford English Dictionary

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Page 6 gives the meaning of the word ‘literary’ as “concerning the writing, study, or

content of literature, especially of the kind valued for quality of form”. The

mere use of common words, such as those used here, cannot qualify for

being described as ‘literary’. In the present case, the title of a mere

synopsis of a story is said to have been used for the title of a film. The title

in question cannot therefore be considered to be a ‘literary work’ and,

hence, no copyright can be said to subsist in it, vide Section 13; nor can a

criminal complaint for infringement be said to be tenable on such basis.

12. The decisions cited on behalf of the appellants show that it is well

settled that copyright does not subsist in a title of work. In Hogg v.

Maxwell reported in (1866-67) L.R.2 Ch. App. 307, the question was

whether the defendant had infringed the copyright of the plaintiff in the title

of a monthly magazine called “Belgravia”. Referring to the title “Belgravia”

the Court observed:

“It is quite absurd to suppose that the Legislature, in

providing for the registration of that which was to be

the indicium of something outside the registry, in the shape of a

volume or part of a volume, meant that, by the registration of

one word, copyright in that one word could be obtained, even

although that one word should be registered as what was to be

the title of a book or of a magazine……….. I apprehend, indeed,

that if it were necessary to decide the point, it must be held that

there cannot be what is termed copyright in a single word,

although the word should be used as a fitting title for a book. The

copyright contemplated by the Act must be not in a single word,

but in some words in the shape of a volume, or part of a volume,

which is communicated to the public, by which the public are

benefited, and in return for which a certain protection is given to

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Page 7 the author of the work. All arguments, therefore, for the purpose

of maintaining this bill on the ground of copyright appear to me

to fall to the ground.”

13. In Francis Day & Hunter Ltd. v. Twentieth Century Fox Corporation

Ltd. and Ors. reported in AIR 1940 Privy Council 55, the Privy Council

considered the infringement of copyright in the title of a song by its

adoption for the title of a film. The Privy Council observed:-

“In the present case the title was originally applied to a

musical composition, whereas it has been applied by the

respondents to a motion picture or a film. The argument of the

appellant company would be the same, it seems, if the

application of the title complained of had been to a picture or a

statue. On this reasoning it would be said that the title "Adam"

applied to a work of statuary would be infringed if that title were

used as that of a novel. These and other anomalous

consequences justify the broad principle that in general a title is

not by itself a proper subject-matter of copyright. As a rule a title

does not involve literary composition, and is not sufficiently

substantial to justify a claim to protection. That statement does

not mean that in particular cases a title may not be on so

extensive a scale, and of so important a character, as to be a

proper subject of protection against being copied. As Jessel M.R.

said in Dicks v. Yates (which, as Lindley L.J. said in Licensed

Victuallers' Newspaper Co. v. Bingham, virtually overruled on this

point Weldon v. Dicks ) there might be copyright in a title "as, for

instance, in a whole page of title or something of that kind

requiring invention." But this could not be said of the facts in the

present case. There may have been a certain amount, though not

a high degree, of originality in thinking of the theme of the song,

and even in choosing the title, though it is of the most obvious.

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Page 8 To "break the bank" is a hackneyed expression, and Monte Carlo

is, or was, the most obvious place at which that achievement or

accident might take place. The theme of the film is different from

that of the song, and their Lordships see no ground in copyright

law to justify the appellants' claim to prevent the use by the

respondents of these few obvious words, which are too

unsubstantial to constitute an infringement, especially when used

in so different a connection.”

14. That case is apposite in the sense that the title of a song was

adopted as the title of a film like in the present case the title of the synopsis

of a story has been adopted as a title of a film and not another story.

Moreover the title comprised of common words as in the present case and

they were held that they were too unsubstantial to constitute an

infringement.

15. In E.M. Forster and Anr. v. A.N. Parasuram reported in AIR 1964

Madras 331 the author of “A passage to India” E.M. Forster filed a suit

against the defendants for alleged infringement of copyright in the title of

the book for adopting as a title the name of the defendants guide written for

students, as “E M Forster, A Passage to India, Everyman’s guide”. The Court

reviewed the law on the subject

1

, and observed that there was no copyright

in respect of title vide page 231 of the report. Eventually the Court held :-

“As we have earlier affirmed, there is no copyright in the

title and purchasers, whether of the original work or of the

guide, are most unlikely to be illiterate, or unacquainted with

English. It will be perfectly clear to them, from the words

1 (i)Macmillan v. Suresh Chander Deb, ILR 17 Cat 951, (ii ) Longman v. Winchester, (1809)16

Ves 269,

(iii) Dicks v. Yates, (1881) 18 Ch D 79

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Page 9 enclosed in brakets as a sub-title, that they were acquiring, not

the original work, but a “guide for University students…………”

16. The same question arose in Kanungo Media (P) Ltd. v RGV Film

Factory & Ors. reported in (2007) ILR 1 Delhi 1122 where the Court

declined injunction against the defendant for using the brand name and title

“Nishabd” alleging similar to the film of the plaintiff therein. The learned

Judge A.K. Sikri, J. (as His Lordship then was) referred to decisions of the

American Courts and observed that the position is the same as under the

copyright law in India:-

“12……… What, therefore, follows is that if a junior user uses

the senior user’s literary title as the title of a work that by itself

does not infringe the copyright of a senior user’s work since there

is no copyright infringement merely from the identity or similarity

of the titles alone.”

The Court then considered the question of protection of title as a trademark

with which we are not concerned in this case.

17. Subsequently, in R. Radha Krishnan v. Mr. A.R. Murugadoss & Ors .

reported in 2013-5-L.W. 429, the Madras High Court followed the decision

of the Delhi High Court in the Kanungo Media Case and rejected an

injunction for restraining the defendant from using the title of the plaintiff’s

film ‘Raja Rani’. The Madras High Court considered various other decisions

and held that the words ‘Raja Rani’ are words of common parlance which

denote the king or the queen and cannot be protected under the law of

copyright. The two judgments of the Madras High Court cited above and

the judgment of the Delhi High Court in our view, lay down the correct law.

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Page 10 18. The learned counsel for the appellants relied on passages from

Copinger and Skone James on Copyright Sixteenth Edition by Kevin Garnett,

M.A, Gillian Davies, D.L., Ph.D. and Gwilym Harbottle, B.A. (Oxon) at page

70:-

“Names and titles as literary works. In the same

vein is the reluctance of English courts to confer copyright

protection on titles of newspapers, magazines, books and the

like. In relation to books in particular, the title normally forms

part of a copyright work consisting of the book as a whole and

the issue here may be whether the copying of the title amounts

to the taking of a substantial part of the whole work. General

statements can nevertheless be found in non-copyright cases

to the effect that there is no property in a name or title

standing alone unless it is the subject of goodwill or a

registered trade mark.”

The learned authors observed:-

“The courts, have, however, been careful not to rule out

the possibility of such protection in appropriate circumstances,

although in practice no case has ever gone this far. The only

concrete example which has been given judicially is the now

archaic practice of the title-page of a book consisting of an

extended passage of text.”

In relation to copyright in characters and titles the learned authors

observed:-

“It is very difficult to protect titles of films by an action

for infringement of copyright due to the requirements of

originality and that a substantial part of a work be copied. If a

well-known title of a film is used without authority, the

owner’s remedy is likely to lie in passing off. Protection by

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Page 11 registration as a trade mark may be available provided the

title in sufficiently distinctive.”

19. We are thus, of the view, that no copyright subsists in the title of a

literary work and a plaintiff or a complainant is not entitled to relief on such

basis except in an action for passing off or in respect of a registered

trademark comprising such titles. This does not mean that in no case can a

title be a proper subject of protection against being copied as held in Dicks

v Yates where Jessel M.R said “there might be copyright in a title as for

instance a whole page of title or something of that kind requiring invention”

or as observed by Copinger (supra).

20. In the present case we find that there is no copyright in the title

“Desi Boys” and thus no question of its infringement arises. The

prosecution based on allegations of infringement of copyright in such a title

is untenable.

21. The learned counsel for the respondents indeed contended that the

applications under Section 482 were rightly dismissed since these facts

alleged by the appellants depend on evidence at the trial. It is not possible

to agree since it has throughout been the case of the respondent No.

1-Devkatta that he is claiming copyright only in the title of the synopsis of

his story “Desi Boys” and he has not even seen the film of the appellants

nor does he know the story. The learned counsel for the respondent was

however right in his submissions that it is not necessary to furnish all the

ingredients of the complaint and failing which the complaint is liable to be

dismissed on that ground. It is not necessary to consider the decisions

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Page 12 cited by the respondents on this point.

22. In the result, both the Criminal Appeals are allowed. The Criminal

Case No. SW/332 of 2011 pending before the Learned Metropolitan

Magistrate, Mumbai is hereby quashed.

…………………………… .…..........…..J.

[MADAN B. LOKUR]

…...................................………J.

[S.A. BOBDE]

NEW DELHI,

October 15, 2015

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