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No copyright in movie title: Supreme Court in “Desi Boyz” controversy

Murali Krishnan

The Supreme Court has held that no copyright will subsist in a mere title and the only remedy in such cases would be an action for passing off or in respect of a registered trademark comprising such titles.

It held this in a case filed for quashing a complaint for copyright infringement in the title ‘Desi Boyz’ which was used by a 2011 Bollywood movie.

The judgment was rendered by a Bench of Justices Madan B Lokur and SA Bobde last week. Senior Advocate Raju Ramachandran appeared for the accused/appellant.

The facts of the case are as follows. The complainant Shyam Vithalrao Devkatta had written a story with the synopsis titled ‘Desi Boy’. He had then mailed the synopsis to a friend on request when the friend informed him that a story was required for a film proposed to be made by the son of Bollywood Director David Dhawan.

Subsequently, Devkatta came across the promos of the film ‘Desi Boyz’. He filed a complaint against five persons under Section 63 of the Copyright Act and later amended the complaint to add additional charges under Sections 406 and 420 read with Section 34 of the IPC. Devkatta alleged copyright violation in using the title ‘Desi Boys’ created by him. He also admitted in his complaint that he had not seen the film and could not say whether a part of the story of the film written by him had also been infringed.

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 482 of the Code of Criminal Procedure, 1973 for quashing the complaint. The High Court having refused to quash the complaint, the appellants approached the Supreme Court.

The Supreme Court held that a ‘title’ is not an original work protected under Section 13 of the Copyright Act and that the title ‘Desi Boys’ is not even a literary work as they are extremely place words in India.

“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 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.”

The Court also relied on various decisions of Madras High Court and Delhi High Court and held 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.”

The Court, however held that this is not a blanket exclusion of copyright in titles. Placing reliance on Dicks v. Yates it held that copyright might subsist in a title like a “whole page of title or something of that kind requiring invention”.

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