Krishika Lulla and Ors. vs. Shyam Vithalrao Devkatta and Ors.[1]

The question in this case was whether copyright subsisted in the title “Desi Boys”. The Supreme Court Bench which decided this case comprised of Justice Madan B. Lokur and Justice Sharad A. Bobde (as he then was), with Justice Bobde authoring the judgment on behalf of the Bench.

Shyam Vithalrao Devkatta (the Respondent in this case and hereinafter referred to as Mr. Devkatta) had once written a story and titled it as “Desi Boys”. He made a brief synopsis of the same and had got it registered with the Film Writers Association in November 2008. One, Ramesh Bhatnagar informed him that the son of the much-acclaimed film director David Dhawan needed a comedy film story for his upcoming film. Acting upon this information, Mr. Devkatta emailed the concept of his story to Mr. Bhatnagar, who then forwarded it to one of David Dhawan’s associates, in the month of October 2009. No reply was received by either of them thereafter. But suddenly one day, Mr. Devkatta saw the trailers of an upcoming film, titled “Desi Boyz”, being aired on the television. He immediately filed a suit against the film producers, alleging intentional misappropriation of the title of his story “Desi Boys”, with the producers making minor modification in the title’s spelling to deceive the public. Failing to get a favourable relief from the subordinate courts, the producers finally came up in appeal before the Supreme Court.

It was argued by Mr. Raju Ramchandran, learned Senior Counsel for the film producers, that the story of their film “Desi Boyz” was written by one Milap Zaveri under an agreement dated September 2009, for which he was duly compensated. The learned Senior Counsel further contended that copyright does not subsist in a ‘title’ of a story or a film. Moreover, the film’s story bore no resemblance with that of Mr. Devkatta’s as the characters, scenes and settings in the two stories were completely different.

The learned counsel representing Mr. Devkatta argued that copyright subsisted in the title, which according to Mr. Devkatta is the “soul of his story and copying it (took) away everything from his story”.

The Supreme Court perused the copyright law at this juncture. Accordingly, Section 13 of the Copyright Act, 1957 was examined by the Court. Section 13 of the Act stipulates “copyright” to subsist in “original literary, dramatic, musical and artistic works”, besides also subsisting in “cinematograph films and sound recording”. The Court then proceeded to assess whether the title “Desi Boys”, given by Mr. Devkatta to his story, can be considered as “original literary work”.

To reach its verdict, the Court reflected upon the legal precedents which discussed this law in detail. Notably, in the case of Hogg v. Maxwell[2], the question to be decided was whether the title of a monthly magazine called “Belgravia” was copyrightable? The Court in that case held that 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 the author of the work”.

In the case of Francis Day and Hunter Ltd. v. Twentieth Century Fox Corporation Ltd. and Ors.[3], the Privy Council had also laid down the law to this effect. While deciding whether adopting the title of a song for the title of a film amounted to copyright infringement, it had held that “as a rule a title does not involve literary composition, and is not sufficiently substantial to justify a claim to protection”. It was further observed in that case that copyright may exist “in a whole page of title or something of that kind requiring invention”.

In the case of R. Radha Krishnan v. Mr. A.R. Murugadoss and Ors.[4], the Madras High Court denied copyright protection to the film’s title ‘Raja Rani’, holding that those words were used in common parlance.

The authoritative literature in the domain of Copyright Law is undoubtedly the book titled ‘Copinger and Skone James on Copyright’ (hereinafter referred to as Copinger). Justice Bobde has noticeably borrowed certain fundamentals from this book as well. Per Copinger, usually a title is not copyrightable. Nevertheless, the title of a book may possess Copyrights but only if copying the title “amounts to the taking of a substantial part of the whole work”. Copinger further points out to the difficulty in protecting “titles of films by an action for infringement of copyright due to the requirements of originality and that of a substantial part of a work to be copied”. Hence, as per Copinger, “if a well-known title of a film is used without authority, the owner’s remedy is likely to lie in passing off” or by protection under the trademark law.

Having examined the aforementioned literature, the Supreme Court held that for the title “Desi Boys” to be copyrightable, it has to qualify as an “original literary work” for the purposes of Section 13, which clearly it does not. Also, by merely combining the two words “Desi” and “Boys”, Mr. Devkatta cannot claim the title to be “original” as these words are commonly used by the people in India. On a bare reading of the title “Desi Boys”, its origins cannot be traced back to Mr. Devkatta and hence the purpose of Copyright Law here fails completely. Moreover, the Court held that “the mere use of common words, such as those used here, cannot qualify for being described as ‘literary’”.

Therefore, the Supreme Court held that Mr. Devkatta possessed no copyrights in the title “Desi Boys” and hence cannot bring an action of copyright infringement against the film producers.????

[1] (2016) 2 SCC 521

[2] L.R. 2 Ch. App. 307

[3] AIR 1940 Privy Council 55

[4] MANU/TN/2085/2013