No Copyright subsists in the "title" of a Literary Work: Supreme Court [Read Judgment]

The Supreme Court in a landmark judgment held that no copyright subsists in the title of a literary work. The Hon'ble Apex Court bench comprising of Justices Madan B Lokur and S.A. Bobde was considering a criminal appeal preferred by Krishika Lulla and others against the order of Bombay High Court refusing to quash a complaint and process issued under Section 63 of the Copyright Act, read with Sections 406 and 420 of  the  Indian  Penal  Code, 1860.

The complainant Shyam Vithalrao Devkatta, 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".   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".

In India copyright is a statutory right recognized and protected by The Copyright Act, 1957. By virtue of Section 13 of the Act, copyright subsists in original literary, dramatic, musical and artistic works; cinematograph films; and sound recording.

The Court observed that a title by itself is in the nature of a name of a work and is not complete by itself, without the work.  "A title does not qualify for being described as 'work'. 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," the Court said.

The same question arose earlier 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. It was observed in the said case 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.

Recently, 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 Apex Court also added that, though infringement of copyright in such a title is untenable the protection by registration as a trade mark may be available, provided, the title is sufficiently distinctive. "The appropriate remedy in such cases will be an action for passing off," said the Court.

Read the Judgment here.