KRISHIKA LULLA & ORS.versusSHYAM VITHALRAO DEVKATIA & ANR.

                       [2015] 12 S.C.R. 1056


A                     KRISHIKA LULLA & ORS.
                                                                       •
                                   v.
             SHYAM VITHALRAO DEVKATIA&ANR.
                  (Criminal Appeal No ..258 of 2013)
B
                        OCTOBER 15, 2015
           [MADAN B. LOKUR AND S.A. BOBDE, JJ.]

        Code of Criminal Procedure, 1973 - s.482- Complaint
c u/s. 63 of Copyright Act rlw. ss.406 and 420 of /PC -Alleging
  infringement of copyright of the title of the synopsis of a story
  - Process issued - Application u!s. 482 by the accused
  seeking quashing of the criminal proceedings, dismissed -
  On appeal, held: Under s. 13, Copyright subsists in an original
D literary work - The title does not qualify for being described
  as 'work' - The combination of two words of the title in question
  'Desi Boys' also cannot be said to have anything original in it
  - These words do not qualify for being described as 'literary
  work' -· Hence, no copyright can subsist in it - TR.erefore,
E
  criminal complaint for infringement of copyright is not tenable
  - Criminal proceedings are quashed - Copyright Act, 1957
  - ss. 13 and 63 - Penal Code, 1860 - ss. 406 and 420.
      Words and Phrases - 'Literary' - Meaning of, in the
F contextofCopyrightAct, 1957.
        Allowing the appeals, the Court
        HELD: 1. Copyright is a statutory right recognized
    and protected by The Copyright Act, 1957. On a plain
G   reading of Section 13 of the Act, copyright subsists in
    inter-alia an origipal 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
H
                                 1056
      KRISHIKALULLA v. SHYAMVITHALRAO DEVKATTA                    1057


  "Boys" cannot be said to have anything original in it.          A
  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 respondent No.1. In fact
  these words do not even qualify for being described as          8
  'literary work'. The Oxford English Dictionary 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             c
  words, such as those used in the present case, 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,     D
  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. [Para 11] [1063-C-
 G]
        Francis Day & Hunter Ltd. v. Twentieth Century             E
        Fox Corporation Ltd. and Ors. AIR 1940 Privy
        Council 55 - relied on.

        E.M. ForsterandAnr. v.A.N. ParasuramAIR 1964
        Madras 331; Kanungo Media (P) Ltd. v RGV Film              F
        Factory & Ors. (2007) ILR 1 Delhi 1122; R. Radha
        Krishnan v. Mr. A.R. Murugadoss & Ors. 2013-5-
        L.W. 429-approved.

        Hogg v. Maxwell (1866-67) L.R.2 Ch. App. 307;              a
        Macmillan v. Suresh Chander Deb ILR 17 Cat
        951; Longman v. Winchester (1809)16 \/es 269;
        Dicks v. Yates (1881) 18 Ch D 79 - referred to.

     2. No copyright subsists in the title of a literary work H
 and a plaintiff or a complainant is not entitled to relief on
1058         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


 A 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. [Para 19]
       (1068-F-G]
 B
         3. !n the present case, 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.
 C [Para 20] (1068-H, 1069-A]

                          Case Law Reference

         (1866-67) L.R.2 Ch. App. 307 referred to. Para 12
 D
         AIR 1940 Privy Council 55         relied on.   Para 13

         AIR 1964 Madras 331               approved.    Para 15

         ILR 17 Cat 951                    referred to. Para 15
 E
         (1809)16 Ves 269                  referred to. Para 15

         (1881) 18 Ch D 79                 referred to. Para 15

         (2007) ILR 1 Delhi 1122           approved.    Para 16
 F
         2013-5-L.W. 429                   approved.    Para 17

           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
       No. 258 of 2013.
 G
           From the Judgment and Order dated 22.03.2012 of the
       Single Judge of High Court of Bombay in Criminal Application
       No.1295of2011.

           With Crl. A. No. 259 of 2013.
 H
  KRISHIKALULLA v. SHYAMVITHALRAO DEVKATTA                    1059


    Raju Ramachandran, Sr. Adv., Chirag M. Shroff, Bhaskar A
Das, Nitin Mishra, Mrs. Mitali Gupta, VikramAditya Narayan,
Advs. with him, for the Appellants.

    Ramsuresh Vishwakarma, Rajiv Kumar Sinha, Dr. (Mrs.)
Vipin Gupta, Kunal A. Cheema, Nishant Ramakantrao               B
Katneshwarkar, Ms. Asha Gopalan Nair, Advs., for the
Respondents.

    Respondent-in-person.
                                                                c
    The Judgment of the Court was delivered by

    S. A-:' BOB DE, J. 1. These two Criminal Appeals are
preferred by the accused against the judgment and order dated
22.3.2012 in Criminal Misc. Application No. 1295 of2011 and
                                                                D
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 CopyrightAct") read with Sections
406 and 420 of the Indian Penal Code, 1860 (hereinafter E
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 F
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 G
filing two criminal misc. applications, under Section 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.                                           H
1060       SUPREME COURT REPORTS                   [2015] 12 S.C.R.


 A        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
 8 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
 c 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
 D 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
 E 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.
 F
          4. In the meanwhile, the appellants released their film with
    the title "Desi Boyz" throughout the world including India on
    25.11.2011. According to them, the film is based on a story
    written by one Milap Zaveri, who wrote the story under an
 G 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
 11
    basis of the tenability of the complaint.
  KRISHIKALULLA v. SHYAMVITHALRAO DEVKATTA                         1061
                [S. A. BOBDE, J.]

      5. The Court of Learned Metropolitan Magistrate having       A
ta~en 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       B
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            c
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           o
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.                             E

     6. Mr. Raju Ramchandran, the learned counsel for the
appellants submitted that the respondent No.1-Devkatta has
claimed infringement of copy rig ht in the title of the synopsis of
a story "Desi Boys". Mr. Ramchandran, maintains that there is F
no copyright in the title ot 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 G
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 H
1062         SUPREME COURT REPORTS                     [2015] 12 S.C.R.


 A     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.
 B
            7. The main iss-ue 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
 C     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:-
 D
             "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,-
 E
                  (a) original literary, dramatic, musical and artistic
                      works;
                  (b) cinematograph films; and

 F                (c) [sound recording]
            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 literar}t work. Admittedly, Devkatta has not
 0
       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.
  H
            10. The question that arises is whether copyright exists in
  KRISHIKALULLA v.SHYAMVJTHALRAODEVKATTA                          1063
               · [S. A. BOBDE, J.] ·

the title "Desi Boys". A title of a work has been considered to A
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.                            B

      11. It must be noted that in India copyright is a statutory
right recognized and protected by Th~ Copyright Act, 1957. It
must therefore be first seen if the title" Desi Boys" can be the
~uojl:ict of copyright. On a plain reading of Section 13, copyright C
subsists ih 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 thatfollows: Secondly,
the combination of the two words "Desi" and !'Boys" cannot be
said to hat-e anything original in it. They are extremely common D
place words in India. It is obvious, therefore, that the title uDesi
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 E
as 'literary work'. The Oxford English Dictionary gives the
meaning oftheword '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 F
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 qllestion 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 G
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. H
1064           SUPREME COURT REPORTS                  [2015] 12 S.C.R.


 A     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:

 8          "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
 c          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,
 D
            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
 E          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. All arguments, therefore, for the purpose of
            maintaining this bill on the ground of copyright appear
            to me to fall to the ground."
 F
            13. In Francis Day & Hunter Ltd. v. Twentieth Century
       Fox Corporation Ltd. and Ors. reported in AIR 1940 Privy
       Council 55, th~ Privy Council considered the infringement of
       copyright in the title of a song by its adoption for the title of a
 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
 H           argument of the appellant company would be the same
             it seems, if the application of the title complained o
           -     -      .
                                      I
  KRISHIKALULLA v. SHYAMVITHALRAO DEVKATTA                     1065
                [S. A. BOBDE, J.]

    had been to a picture or a statue. On this reasoning it A
    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 B
     title does not involve literary composition, and is not
     sufficiently substantial to justify a cfaim to protection. ·
     That statement does not mean that in particular cases
     a title may not be on so extensive a scale, and of so c
     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 o
     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 E
      of the song, and even in choosing the title, though it is
      of the most obvious. 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 F
      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
                                                                  G
      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 H
1066          SUPREME COURT REPORTS                         [2015] 12 S.C.R.


 A     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
 B in AIR 1£164 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 "EM Forster, A Passage to India, Everyman's guide". The
 C Court reviewed the law on the subject1, 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
 D           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 enclosed.in brakets as a sub-title,
             that they were acquiring, not the original work, but a
 E
             "guide for University students ............ "

        16. The same question arose in Kanungo Media (P) Ltd.
   v RGV Film Factory & Ors. reported in (2007) /LR 1 Delhi
   1122 where the Court declined injunction against the defendant
 F for usin!~ the brand name and title "Nishabd" alleging similar
   to the film of the plaintiff therein. The learned Judge AK. Sikri,
   J. (as His Lordship then was) referred to decisions of the
   American Courts and observed that the position is the same
 G as undeirthe copyright law in India:-

             " 12 ......... What, therefore, follows is that if a junior user

       ' (i) Macmillan v. Suresh Chander Deb, ILR 17 Cat 951,
          (ii) Longman v. Winchester, (1809)16 Ves 269,
 H        (iii) Dicks v. Yates, (1881) 18 Ch D 79
   KRISHIKALULLA v. SHYAMVITHALRAO DEVKATTA                      1067
                 [S. A. BOBDE, J.]

      uses the senior user's literary title as the title of a work A
      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 B
     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 c
Jligh 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 D
 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,· 1ay down the
correct law.                                                      E

     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:-              F

      "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 G
      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 H
1068         SUPREME COURT REPORTS                    [2015] 12 S.C.R.


 A          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:-
 B
            "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
 c          been given judicially is the now archaic practice of the
            title-page of a book consisting ofan extended passage
            of text."                                     ·

           In relation to copyright in characters and titles the learned
 0     authors observed:-

            "It is vety 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
 E          copied. If a we/I-known title of a film is used without
            authority, the owner's remedy is likely to lie in passing
            off. Protection by 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
 F
       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
 o     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).

 H          20. In the present case we find that there is no copyright in
   KRISHIKALULLA v. SHYAMVITHALRAO DEVKATTA                         1069
                 [S. A. BOBDE, J.]

the title "Desi Boys" and thus no question of its infringement A
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 B
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 filrl) of the C
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
                                                                   D
that ground. It is not necessary to consider the decisions 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.           E

Kalpana K. Tripathy                              Appeals allowed.