Copyright is infringed by copying, and copying is rarely admitted. A plaintiff who finds that a film, a serial, a song or a book resembles his own work must prove, without the benefit of a confession, that the resemblance is the product of borrowing and that what was borrowed is something the law protects. The Copyright Act, 1957 gives the court very little help in this exercise. It speaks of reproduction of a work “or any substantial part thereof” and of acts done without licence, but it nowhere defines substantial similarity. The test has been built, case by case, by the Supreme Court and the High Courts, drawing on English authority from the Privy Council and the House of Lords and, more recently, on American practice.
The test matters commercially because most disputes of this kind are decided at the interlocutory stage. A scriptwriter who learns of a similar film from its trailer seeks an injunction a few days before release, the court views the film and reads the script within a very short time, and the outcome of the application usually settles the litigation. The principles applied at that stage are therefore the law that practitioners actually live with. They determine whether a writer who pitched a story to a production house can restrain a film, whether a film-maker can safely release a picture in a crowded genre, and how a plaint ought to be drafted so that it survives a prima facie scrutiny.
This article sets out the law of substantial similarity in India. It begins with Sections 13, 14 and 51 of the Copyright Act, 1957, and the propositions in R.G. Anand v. Delux Films, and then follows the test through the English authorities on qualitative substantiality, the three-question structure in Mansoob Haider, the whole-work comparison in the Delhi High Court’s decision in Bhullar v. Yash Raj Films, and the treatment of access, scènes à faire and de minimis copying. It closes with a comparison with American, English and European approaches and with observations on pleading and proof.
The Statutory Anchors – Sections 13, 14 and 51 of the Copyright Act, 1957
Section 13(1) confers copyright on original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. Section 14 defines copyright as the exclusive right to do or authorise the doing of specified acts “in respect of a work or any substantial part thereof”, such as reproducing the work in any material form or making a cinematograph film or sound recording in respect of it. Section 51 supplies the deeming rule: copyright in a work is infringed when a person, without a licence from the owner, does anything the exclusive right to do which is conferred on the owner by the Act. The three provisions fit together as follows. The plaintiff must first show that copyright subsists in his work, which depends on originality under Section 13 as explained by the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1. He must then show that the defendant has done one of the acts reserved by Section 14 in respect of the work or a substantial part of it, which is the question of copying and of substantiality, and the deeming rule in Section 51 then operates.
The Delhi High Court has pointed out the consequence of the phrase “substantial part”. Because the right conferred in relation to a literary work is a right in the work as a whole or a substantial part of it, a defendant who has taken only an insubstantial part, or only unprotected elements, has not done an act reserved to the owner at all. This is why substantial similarity is an element of the plaintiff’s case and not a mere evidentiary aid, and why access to the plaintiff’s work, however clearly shown, cannot by itself establish infringement.
The Supreme Court’s Foundation – R.G. Anand v. Delux Films
The foundational Indian authority is R.G. Anand v. Delux Films, (1978) 4 SCC 118, decided by a bench of Fazal Ali, Jaswant Singh and R.S. Pathak JJ. on 18 August 1978. The appellant’s play “Hum Hindustani” and the respondents’ film “New Delhi” shared the theme of provincialism in India. After viewing the film and hearing the play read out, the Court found no infringement, and in the course of its judgment it distilled the principles that every subsequent decision applies. As reproduced by the Delhi High Court in Bhullar, the seven propositions in paragraph 46 are these. There can be no copyright in an idea, subject-matter, theme, plot, or historical or legendary fact, and violation in such cases is confined to the form, manner, arrangement and expression of the idea. Where the same idea is developed in a different manner, similarities are bound to occur, and the court must determine whether the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work; the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of piracy. One of the surest and safest tests is whether the reader, spectator or viewer, after reading or seeing both works, is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. Where the theme is the same but is presented and treated differently so that the later work becomes a completely new work, no violation arises. Where, apart from similarities, there are material and broad dissimilarities which negative the intention to copy, and the coincidences are clearly incidental, there is no infringement. Violation, being an act of piracy, must be proved by clear and cogent evidence. And where the complaint is that a film producer has infringed a stage play, the plaintiff’s task is more difficult, because a film has a broader field in which a variety of incidents can give it a different colour and complexion, though the violation may still be proved if the viewer gets a totality of impression that the film is by and large a copy of the original.
Paragraph 45 adds the analytical question that the propositions serve. The fundamental fact to be determined is whether the defendant has adopted only the idea of the copyrighted work or has also adopted the manner, arrangement, situation to situation and scene to scene, with minor changes or super-additions or embellishments here and there. If the defendant’s work appears to be a transparent rephrasing or a copy of a substantial and material part of the original, plagiarism is proved, but care must be taken to see whether the defendant has merely disguised piracy or has reproduced the original in a different form, tone and tenor so as to infuse new life into the idea. The Court also quoted English authority on substantiality, including a decision on the march “Colonel Bogey”, where the borrowed portion, though short, was held to be a vital and essential part of the work.
The English Roots – Macmillan v. Cooper and Ladbroke v. William Hill
The Indian test rests on two English foundations. In Macmillan & Co. Ltd. v. K. and J. Cooper, 51 IA 109, AIR 1924 PC 75, the Judicial Committee held that, to constitute piracy, it must be shown that the original has been either substantially copied or so imitated as to be a mere evasion of the copyright. The second limb is important, because it prevents a defendant from escaping by cosmetic changes. The Delhi High Court has restated the point in terms: a person intending to take advantage of another’s labour may disguise the attempt by introducing changes in the common area, and the court looks past them.
The second foundation is the House of Lords’ decision in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., [1964] 1 WLR 273, which the Supreme Court cited with approval in Eastern Book Company. The House held that the question whether a substantial part has been copied depends much more on the quality than on the quantity of what has been taken. It also rejected the practice of dissecting the plaintiff’s work into fragments and asking whether each fragment could stand alone as a copyright work; the better approach is first to determine whether the plaintiff’s work as a whole is original and then to inquire whether the part taken is substantial, because the whole may be protected although its separate fragments would not be. These two ideas, that substantiality is qualitative and that originality is assessed on the whole, run through every later Indian decision.
The Three-Question Structure – Mansoob Haider v. Yashraj Films
The most influential modern restatement is the decision of G.S. Patel J. of the Bombay High Court in Mansoob Haider v. Yashraj Films Pvt. Ltd., 2014 (59) PTC 292 (Bom), decided on 20 June 2014. The plaintiff alleged that “Dhoom 3” copied his script “ONCE”, and the Court refused an interim injunction. Following R.G. Anand, the Court stated that there is a singular test for infringement: if all scenes to which no originality attaches, such as scènes à faire, are removed, are the two works still substantially similar, and has the later work copied a substantial part of the earlier? It then framed three questions. First, has the plaintiff proved that the defendant had access to his work? Second, on considering the two works, would an ordinary person inevitably conclude that the defendant had copied the plaintiff’s work, which the Court called the subjective or intrinsic test? Third, is there a substantial and material overlapping or commonality of the original elements in the plaintiff’s work?
The Court added that a plaintiff who fails on access may still succeed on the second and third questions, but that one who fails on the second cannot succeed on the third alone. It also set the burden: the plaintiff had to show commonality not in dissected and disparate elements but in what lies at the heart and core of the competing works, and to show that an average person reading the two scripts, or reading his script and seeing the film, would inevitably conclude that the film was a copy lifted from the plaintiff’s work. Dismissing the plaintiff’s comparison as a vivisection of individual elements and a misleading juxtaposition, the Court held that if elements, however and wherever placed, support an entirely different premise and story line, there can be no copying, no piracy and no infringement.
Whole-Work Comparison and the Filtering of Unprotected Matter – Bhullar v. Yash Raj Films
The Delhi High Court’s decision in Bikramjeet Singh Bhullar v. Yash Raj Films Pvt. Ltd., CS(COMM) 483/2022, delivered by Jyoti Singh J. on 20 December 2023, is the fullest recent treatment. The plaintiff had conceived a script titled “Kabu na chhadein Khet” in 2006, registered it with the Film Writers’ Association in 2009, and pitched it to the creative head of a production house in 2016 under a non-disclosure agreement; the script went through several versions and was read by the defendants. The defendants’ film “Shamshera” was announced in 2018, and its trailer was released in June 2022, a month before the scheduled theatrical release. The plaintiff alleged that the film copied his story of oppression by foreign invaders, enslavement, revenge by a son for his father and freedom, together with a catalogue of incidents including boiling oil, birds used as storytelling devices, a secret underwater tunnel, the use of stars to navigate, a ghaghra sequence and two songs. Access was not disputed.
The Court held, at paragraph 34, that the law is no longer res integra that the copy must be substantial and that the surest test is whether a reader or viewer, having read or seen both works, gets an unmistakable impression that the later work is a copy of the original. It added, drawing on the Bombay and Calcutta High Courts, that the test of substantial similarity entails a comparison of the rival works in their entirety and that it is not permissible to split or dissect the works into parts. At paragraph 36, it held that access alone cannot establish infringement and that the plaintiff must establish substantial similarity, so that a plaintiff who fails on access may still succeed if similarity is shown but the converse cannot be accepted. The Court viewed the film and read the scripts, and found that the script was a tale of Sikh valour against Afghan invaders in the eighteenth century, centred on a village and the love interest of the protagonist, whereas the film was a story of caste oppression with the father’s legacy as its backdrop. Period drama as a genre, themes of oppression and revenge, a father-and-son story spanning generations, and devices such as boiling oil, birds, stars for navigation, secret tunnels, horses and sensuous song sequences were, in the Court’s prima facie view, hackneyed matters of common grasp and scènes à faire that carry no copyright. The Court concluded that the dissimilarities outweighed the alleged similarities, that the similarities by themselves did not raise a presumption of infringement, and it refused the interim injunction.
Two further points in the judgment deserve attention. The Court rejected the plaintiff’s method of taking the film as the starting point and picking out individual elements from the script to fit it. The defendants’ submission, which the Court accepted in substance, was that the plaintiff must first identify his own work, especially its qualitative substantive portions, and then demonstrate how those have been copied as expression in the film. And the Court dealt with the plaintiff’s reliance on Anil Gupta v. Kunal Dasgupta, 2002 (25) PTC 1 (Del), in which a developed television format was protected, by noting that the injunction there was granted to protect the manner in which the concept was expressed and not the age-old idea of the swayamvar itself.
The Tension Between Dissection and Filtration
The two Bombay and Delhi High Court statements may appear to pull in different directions. Bhullar says that the works may not be split or dissected, while Mansoob Haider directs the court to remove the scènes à faire and ask whether the works are still substantially similar. The resolution lies in the purpose of each step. Dissection of the plaintiff’s work to ask whether each fragment could be protected alone is condemned, as Ladbroke condemned it, because a work may be original as a whole although its parts are common. Filtration is a different operation: it removes from the comparison those elements that are not protected at all, namely ideas, themes, historical facts, stock situations and incidents that flow naturally from the genre, so that the court compares what is protectable. The comparison that follows is then made on the whole of what remains, and at the level of its heart and core. American courts call the same sequence abstraction, filtration and comparison, and Indian courts have reached it without a formal label.
The same reasoning appears in the Delhi High Court’s decision in Twentieth Century Fox Film Corporation v. Zee Telefilms Ltd., 2012 SCC OnLine Del 3524, quoted at length in Bhullar. The plaintiff’s serial “24” was compared with the defendants’ serials; the Court held that presentation techniques enabled by modern technology, such as split screens, an on-screen clock and a real-time format, could not found a claim, that a mere outline or theme is not copyrightable, and that terrorism and attacks on heads of state had been the subject of many films and serials. At the same time, the Court acknowledged that where idea ends and expression begins is among the most difficult questions, that there is no mathematical formula for it, and that a distinctive treatment of a plot or theme is copyrightable. The Calcutta High Court’s Division Bench in Barbara Taylor Bradford v. Sahara Media Entertainment Ltd., 2004 (28) PTC 474 (Cal), had said much the same: if plots and ordinary prototype characters were protected, no author could write anything at all, but a defendant who copies a plot must weave into it enough of his own creation to make the work his own.
Access and Similarity Are Conjunctive – Vinay Vats and the Problem of Late Suits
Access and substantial similarity are separate requirements, and both must be shown. In Vinay Vats v. Fox Star Studios India Pvt. Ltd., I.A. 6351/2020 in CS(COMM) 291/2020, decided by C. Hari Shankar J. of the Delhi High Court on 30 July 2020, the plaintiff, who had written a script titled “Tukkaa Fitt”, sought to restrain the release of the film “Lootcase” on the day before its release, relying on the trailer. The Court reaffirmed the principle that the question is whether the similarities are on fundamental or substantial aspects of the mode of expression, and held that the mere fact that certain plot points were common could not found a claim to copyright. It refused the injunction. The decision is also noted for its attention to timing, since a plaintiff who litigates on the eve of release asks the court to decide on a trailer what it would ordinarily decide on the work itself, and the courts have treated last-minute litigation with disfavour.
The principle that substantial similarity must be shown independently of access also protects film-makers who work in genres where ideas circulate freely. Access establishes the opportunity to copy, and in a case such as Bhullar, where the defendants admitted that they had read the script, the entire contest was over similarity. Where there is access and the works share a pattern of incidents, English authority, cited in Bhullar, holds that similarities of incidents and situations afford prima facie evidence of copying and call for an explanation of the defendant’s sources, but the explanation is required only after the plaintiff has shown similarity in protectable expression.
Quality, Quantity and De Minimis Copying
Because substantiality is qualitative, a small taking can infringe if it is the vital or essential part, and a large taking of unprotected matter cannot. The Supreme Court’s reference in R.G. Anand to the march “Colonel Bogey”, where a short passage was held to be a vital and essential part, is the classic illustration. The Delhi High Court’s Division Bench in India TV Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd., 2012 SCC OnLine Del 4298, applied the same idea in the context of the maxim de minimis non curat lex, listing the factors usually considered: the size and type of harm, the cost of adjudication, the purpose of the violated legal obligation, the effect on the legal rights of third parties and the intent of the wrongdoer. The Bombay High Court has held to the same effect that it is the quality of what has been copied and not its quantity that matters. A defendant who admits copying a small but essential portion cannot rely on its size, and a plaintiff who relies on a catalogue of small similarities must show that they are qualitatively significant in the structure of his work.
Different Kinds of Works
The test operates differently according to the nature of the work. For literary and dramatic works, courts compare plot, characters, incidents, sequence and expression, and R.G. Anand’s seventh proposition recognises that a film adapted from a play has a wider canvas on which to differ. For musical works, the question is whether an ordinary listener would recognise the later piece as derived from the earlier, and the qualitative test makes a short recognisable phrase potentially substantial. For artistic works, courts apply the eye test, asking whether the person looking at the later picture gets a suggestion that it is the earlier one, and the Supreme Court in R.G. Anand cited authority that one picture is a copy of another only if a substantial part of the former finds a place in the latter. For compilations, the Supreme Court in Eastern Book Company noted that originality may lie in the selection and arrangement, so that the taking of a substantial part of the arrangement can infringe although the individual items are unprotected. In each field, the court asks the same underlying question, which is whether what has been taken is a substantial part of the author’s own expression.
The Comparative Position – United States, United Kingdom and European Union
American courts have refined the inquiry into a doctrine of substantial similarity with two main variants. The Second Circuit applies an ordinary-observer test, with a “more discerning” observer where the plaintiff’s work contains both protectable and unprotectable elements, and the Ninth Circuit applies an extrinsic-intrinsic test, in which the extrinsic part objectively compares specific expressive elements and the intrinsic part asks whether the ordinary reasonable audience would find the total concept and feel of the works substantially similar. In software cases, the Second Circuit’s abstraction-filtration-comparison method in Computer Associates International v. Altai separates the unprotectable elements before comparison. The Indian lay-observer test in R.G. Anand corresponds to the intrinsic limb, and the filtering of scènes à faire in Mansoob Haider and Bhullar corresponds to the extrinsic and filtration steps, although Indian courts perform both together and do not take expert evidence at the interim stage as American courts often do.
In England, the House of Lords in Ladbroke supplies the qualitative test of substantiality, and Designers Guild Ltd. v. Russell Williams (Textiles) Ltd. [2000] 1 WLR 2416 discusses the relation between idea and expression in assessing whether a substantial part has been reproduced. In the European Union, the Court of Justice in Infopaq International v. Danske Dagblades Forening (Case C-5/08) held that the reproduction of even a very short extract may infringe if it contains elements that are the expression of the author’s own intellectual creation, which shares with the Indian approach the focus on what is original in the part taken and not on its size. Article 9(2) of TRIPS, which extends copyright protection to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such, supplies the common premise.
Pleading and Proof – Practical Observations
Several practical points follow. A plaintiff should identify his own work first, pleading the qualitative core of the script, book or song, and should show in a comparison how that core appears in the defendant’s work. A comparison that starts from the defendant’s film and picks out fragments of the plaintiff’s work to match it will be treated as the vivisection that Mansoob Haider condemned. The plaintiff should separate the protectable from the unprotectable, conceding that themes, genre conventions and stock situations are free, and concentrating on the particular selection, sequence and treatment that are his own. He should preserve proof of access and of the development of the work, including dated drafts, registrations and correspondence, though the Delhi High Court in Bhullar treated even admitted access as insufficient without similarity.
The defendant should prepare a scene-by-scene or section-by-section comparison that exposes the differences in premise, structure and tone, and should be ready to demonstrate, with examples from earlier works, that the shared elements are common property. Both sides should address the question of timing, since a late suit invites the inference that the plaintiff is relying on the pressure of an impending release. And counsel should remember that, at the interim stage, the plaintiff need only establish a prima facie case, but the court will apply the R.G. Anand propositions closely, because an injunction against the release of a finished film causes considerable hardship that damages cannot repair.
Conclusion
The Indian test for substantial similarity is a composite of the Supreme Court’s propositions in R.G. Anand, the English insistence on qualitative substantiality, and the structured inquiry that the Bombay and Delhi High Courts have built around access, filtration of unprotected matter and the impression of the ordinary observer. Its essential features are stable. The plaintiff must prove that what was taken is a substantial and material part of his expression and not merely his idea. The comparison is of the works as wholes and at their heart and core, after unprotected matter has been set aside. Access is necessary to prove copying but cannot, by itself, establish infringement. And dissimilarities that negative an intention to copy, together with the incidental character of the coincidences, defeat the claim.
The open questions lie at the margins. The treatment of developed concepts and formats after Anil Gupta remains less certain than the treatment of scripts, because the line between a concept with adequate detail and an idea is not fixed. The courts have yet to develop a fully articulated approach to evidence at the interim stage, such as the use of independent experts or court-appointed comparisons in complex works, in the way American courts use expert analysis for the extrinsic test. And as works are increasingly created or assisted by software, the question of what it means for an ordinary observer to perceive a copy will have to be reconsidered. For the present, the safest course for a practitioner is to treat the R.G. Anand propositions, as applied in Mansoob Haider and Bhullar, as the working checklist for any infringement claim, and to build the pleading and the evidence around them.
References
- The Copyright Act, 1957, Copyright Office, Government of India – https://copyright.gov.in/Documents/Copyright_Act_1957.pdf
- The Copyright Act, 1957, WIPO Lex – https://www.wipo.int/wipolex/en/text/128097
- R.G. Anand v. Delux Films (Supreme Court, 18 August 1978), judgment text – https://api.sci.gov.in/jonew/judis/5032.pdf
- R.G. Anand v. Delux Films, Indian Kanoon – https://indiankanoon.org/doc/1734007/
- Bikramjeet Singh Bhullar v. Yash Raj Films Pvt. Ltd., CS(COMM) 483/2022 (Delhi High Court, 20 December 2023) https://www.livelaw.in/pdf_upload/jis20122023sc4832022183010-512178.pdf
- Vinay Vats v. Fox Star Studios India Pvt. Ltd. (Delhi High Court, 30 July 2020), Indian Kanoon – https://indiankanoon.org/doc/163379312/
- Mansoob Haider v. Yashraj Films Pvt. Ltd. (Bombay High Court, 20 June 2014), Indian Kanoon – https://indiankanoon.org/doc/123495377/
- Anil Gupta v. Kunal Dasgupta (Delhi High Court, 2002), Indian Kanoon – https://indiankanoon.org/doc/1709727/
- Eastern Book Company v. D.B. Modak (2008) 1 SCC 1, case report – https://www.casemine.com/judgement/in/5609ae60e4b0149711413a68
- Supreme Court of India, Judgments Portal – https://main.sci.gov.in
- Delhi High Court, Judgments Portal – https://delhihighcourt.nic.in
- Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 9(2) – https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
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