Who Will Bell the Copycat

When a smart, love story-infused revenge saga like Ghajini sweeps the box office, becoming the only Indian film to earn Rs. 100 crore across the country in under a week, it hardly surprises anyone. The film, starring Aamir Khan, was refreshingly unusual for Indian audiences.

 

But what if the extraordinary story wasn’t screenwriter A.R. Murugadoss’ own? By now, most movie-goers know it wasn’t. They may have even seen the original, American academy award-winning film, Memento (2002).

 

For many years Bollywood producers have been greenlighting derivatives of foreign films — many of them American. As Sanjay Chel, screenwriter of Partner (2007), which many agree is a replication of the American movie Hitch (2005), says, “We get inspired.” All this while, Hollywood — thousands of miles away and largely unaware of Indian cinema — did not notice that its films were being copied.

 

But the jig is up. Since the turn of the century, when the government granted official status to Bollywood as an industry, the US slowly started to become aware of Indian cinema. And now, the collision of Los Angeles and Mumbai has put the spotlight on intellectual property rights (IPR). In Bollywood, growing awareness and enforcement of IPR is pushing producers toward more original, local fare. As for Hollywood, it has started going after the copycats.

 

On June 15, the Bombay High Court stayed the release of BR Films’ Banda Yeh Bindaas Hai, which 20th Century Fox alleges is a remake of their 1992 Oscar Award-winning film My Cousin Vinny. In April, Warner Bros. issued a public notice against any adaptation or remake of The Curious Case of Benjamin Button, following rumours that Vipul Shah was making a copycat film.

Mirchi Films was sued by Warner Bros. in March 2008 for the similarity in title between its new release Hari Puttar and Harry Potter, its biggest franchise.

 

And in 2007, Sony Pictures Entertainment and Will Smith’s Overbrook Entertainment threatened a $30 million lawsuit against David Dhawan’s Partner for its flagrant imitation of the movie Hitch.
Ghajini has escaped Hollywood’s wrath only because it is technically a copy of Murgadoss’ earlier Tamil film by the same name — that film is the guilty party.

“After blatantly going all out copying movies for years and calling it their own, it’s finally catching up to [the Bollywood industry],” says Taran Adarsh, editor of the Mumbai-based Trade Guide Magazine.
But Hollywood faces many challenges in making a case for copyright infringement in India.

The Quagmires of Copyright
Hollywood’s most common mistake is that it often waits until close to the movie’s release date to take legal action because it is not aware of the film until then.

“When the court sees that so many crores have already been put into a movie, they rule in favour of Bollywood,” says Purnima Singh, senior associate for legal firm AZB & Partners.

IPR becomes more complicated when proving the case across cultures. “How do you prove a film is a copy when the audience, judge, or jury has not seen the original?” asks Mohit Kapoor, advocate for Universal Legal Advocates, who deals with entertainment law.

Besides, the Bollywood industry is fragmented, making it harder to take legal action against it. “The Bollywood industry has so many lines of distribution. You cannot attack them all,” says Kapoor.

Entertainment lawyers agree that the key is to get an injunction, but Hollywood has yet to emerge decisively victorious in any copyright case. The Bombay High Court stayed the release of Banda Yeh Bindaas Hai, but Fox has yet to win the $1.4 million it seeks. Hari Puttar was released after a month’s delay. Partner’s case never went to trial, and it was released to box office success.

But Singh says there are several factors that may favour Hollywood in future. International copyright is protected by both the Copyright Act of 1957 and India’s membership in the Berne Convention for the Protection of Literary and Artistic Works — they just need to be better enforced.

And while there haven’t been any financial disasters for Bollywood yet, the industry has begun to feel the effects. Valuable time has been wasted (weeks for Hari Puttar and Partner) and many lakhs lost. Gautam Jain, who did the marketing for Hari Puttar, says of the lawsuit, “We began to worry about the reach of the film. It took up a lot of our time, and was a distraction from our focus.”

 

Although Partner was released, Hitch’s producers, Sony, acquired the global exclusive satellite broadcasting rights of Partner. (It airs on Sony Entertainment’s Television Asia.) This is a pittance compared to the $30 million they threatened.

The Motion Picture Association of America (MPAA), a sort of Hollywood watchdog, has also moved. In February, it set up offices in Mumbai to “protect and promote the American film industry”, according to director Rajiv Dalal. It will go after DVD pirates, but also work with Bollywood producers to prevent copycat films. “Before Hollywood was only doing this through consultants. Now we will be more successful because we are here working with the local industry,” Dalal says.

 

While Hollywood struggles to make its case, Bollywood faces just as many challenges in proving its innocence. Kapoor says the biggest quandary is deciphering what is copyright infringement and what is not. “Copyright is a dynamic issue. If there is exact copy of dialogue, you can easily prove it to be infringement,” he says. “For other aspects — script, screenplay, performance, actors, location — this is difficult to prove one way or the other.”

It is just as thorny for Bollywood to defend itself when working across cultures. Mirchi Films realised this when Warner Bros. approached it about Hari Puttar. The challenge was to explain that ‘Hari’ is a common name in India, and that ‘Puttar’ is the word for ‘son’ in Punjabi.

Inspiration or Copying?
Ronnie Screwvala, CEO of UTV Motion Pictures, insists that there is not as much plagiarism as is made out to be. Directors, too, are dogged in their defense of ‘inspired’ films. Rakesh Roshan, who has been accused of taking inspiration from Hollywood since his first film Khudgarz in 1987, which many say is a replica of the American Kane and Abel (1985), explains it this way: “There are only five or so subjects in the world. We make films on these subjects. We take inspiration from all around, what we read, what we see. These are not copies.”

 

Even when the case is more transparent, as it was with Partner and Hitch, which most concur was an example of a near-carbon copy, Bollywood is ready to defend its originality. Chel, who wrote the dialogue for Partner, says that any inspired film is ‘Indianised’ and thus cannot be a clone. It all boils down to this: Bollywood and Hollywood are struggling to draw the line between inspiration and copy. But if Hollywood continues to take legal action, and is successful, will Bollywood stop parroting altogether?

Perhaps it already has.

 

Robbers, No More
Bollywood has become increasingly cognizant of IPR. Singh says the film industry has come to recognise the work product as an asset. “They are starting to wonder, ‘Does this belong to anyone?’” she says.
Singh cites the corporatisation of Bollywood as a major cause of this newfound awareness. A shift from word-of-mouth, trust-based agreements to more clear-cut, professional ones means it is becoming harder to get away with plagiarising.

Rakesh Roshan learned this lesson in April 2008 when he was forced to pay Rs. 2 crore to musician Ram Sampat for a song in his film Krazzy 4 (2008) that Sampat alleged was a near facsimile of his work.

 

“Everyone knows you can’t cheat any longer,” says Sanjay Bhutiani, CEO of BR Films, who maintains Banda Yeh Bindaas Hai is not a copy. “Indian movies and TV are… now beaming all over the world. Audiences will know when things are lifted from somewhere.”

The new generation of filmmakers don’t want to mimic because they may face legal action, but also because they know audiences will respect them more if they don’t. The last five years has seen a sea change. Screwvala says the industry has undergone a major evolution. Before the turn of the century 90 percent of movies were copies; today, he estimates, 90 percent are original. One factor behind the change is the rise of multiplexes and the exploding middle class, which means a higher-paying and smarter audience with a taste for more creative, original fare.

 

With more money being made from increased franchising, higher-priced tickets in multiplexes, and the growing diaspora, filmmakers are starting to take more risks. With less government regulation of content, subjects and themes are permissible now that weren’t in the past. But enforcement of copyright may be the real impetus for Bollywood’s transformation.

Production companies are increasingly releasing a host of original, definitively local scripts. UTV Motion Pictures, for example, has moved toward films that reflect a distinctly Indian experience, such as Rang de Basanti (2006), Mumbai Meri Jaan (2008) and A Wednesday (2008).

In the past few years, cinemas have increasingly shown films that have been less formulaic, such as Taare Zameen Par (2007), Chak De! India (2007) and Jodhaa Akbar (2008). Box office numbers show that audiences are responding to this original fare — all three grossed more than Rs. 4.5 crore in the first month of release, as reported by Boxofficeindia.com.

 

Filmmakers have also begun to tackle delicate subjects in a realistic way, as in Water (2005) and Black Friday (2004), though both were not initially accepted by regulatory bodies and audiences.

Roshan may even be changing his stripes. He says Indian cinema has become more creative and global, and his new project Kites (2009) is a film in English and Spanish. The corporatisation of Bollywood coupled with Hollywood’s tough stance on infringement has put IPR in the minds of filmmakers more than ever before. And this has caused Bollywood to move toward better quality films.

Better films will garner greater respect for the industry globally, and attract foreign investment. Hollywood won’t, then, be just a bully or a cop. And Bollywood won’t have to run. As for Ghajini’s hero, Aamir Khan, he will next appear in Vidhu Vinod Chopra’s much-anticipated Three Idiots. The film is still ‘inspired’. But this time it’s homegrown — a loose adaptation of Chetan Bhagat’s famous novel Five Point Someone. It looks like Bollywood might be growing up after all.

 

OURS AND THEIRS
BANDA YEH BINDAAS HAI (BR FILMS) vs. MY COUSIN VINNY (20TH CENTURY FOX)
In June, the Bombay High Court stayed the release of Ravi Chopra’s Banda Yeh Bindaas Hai. Earlier this year, Fox gave permission to BR Films to make a film loosely based on their 1992 hit My Cousin Vinny, but it maintains it did not give rights for a complete Hindi remake. Fox wants $1.4 million in damages, and an injunction against the release of the film. BR Films claims it has made an original movie.

HARI PUTTAR (MIRCHI MOVIES) vs. HARRY POTTER (WARNER BROS)
In March of 2008, Mirchi Movies was sued by Warner Bros. just before it released the Lucky Kohli-directed film Hari Puttar. Warner Bros. said the similarity in title was too close to its biggest franchise, Harry Potter. It said the title “unfairly sought to confuse consumers and benefit from the well-known and well-loved Harry Potter brand.” Mirchi Movies CEO insisted the plots of the films were in no way similar, and that ‘Hari’ is a popular Indian name, while “puttar” means “son”.

The Delhi High Court rejected the lawsuit filed by Warner Bros. The court said Warner Bros could have brought the case in 2005, when it first learned of the title, but delayed taking action until now. It also said that the audience could easily distinguish between Hari Puttar and Harry Potter.

Hari Puttar was to be released on September 12, 2008. It was delayed because of the court case, and released September 26 in India. It also released in the US and the UK.

PARTNER (K SERA SERA) vs. HITCH (SONY/OVERBROOK ENTERTAINMENT)
In 2007, Sony and Will Smith’s Overbook Entertainment threatened to sue Eros Entertainment and K Sera Sera, claiming that David Dhawan’s Partner was a direct lift of its film Hitch. It reportedly filed for $30 million. It was to be filed in a UK court, where Eros and K Sera Sera are both registered. This was the first time an international film company decided to take legal action against an Indian entertainment company for plagiarism.

Eros, K Sera Sera, Sony, and Overbrook Entertainment have all refused to comment on the outcome of the case. It is believed that the case was settled out of court. Partner was ultimately released, but Sony Entertainment Television Asia acquired the world exclusive satellite broadcasting rights.