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Independent work (Artwork) and Intelligent Changes: Effect under Indian Copyright Act, 1957
The basic issue is what are the changes that could bring an artwork beyond the ambit of infringement of a copyright. The usual question, which is asked is what is the amount or percentage of change, that will make a work a new artistic work without infringing an already existing artistic work. The answer is difficult, but it can be said with certainty that the intent and presentation is quite important, and a camouflage by way of some intelligent changes cannot be used to befool a court.
In C. Cunniah and Co. by partners M.Anjaneyulu and Ors. Vs. Balraj and Co. by partners S. Rajaratnam Chettiar and Anr. (AIR 1961 Mad 111), the High Court contented with reference to Corelli v. Gray, 1913-29T, L.B.570, Justice Serjeant and held that
every intelligent copying must introduce a few changes; and
- intelligent copying in the few changes introduced (in the shape of the trident, in the posture of the arms, in the position occupied by the face of the peacock and the cobra and in a pictorial representation of the building in the background.)
will not constitute, the criteria of an independent work by the artist employed by the respondents. Hence such changes will not result in a new artistic work. This will be a violation of copyright.
One picture can be said to a copy of another picture only if a substantial part of the former picture finds place in the reproduction. There might be and there will be obvious differences deliberately introduced to avoid a possible charge of infringement. If the court, on a comparison of the appellant’s picture with the infringing picture comes to the conclusion that the latter picture was consciously copied from the work of the former, that will be sufficient to hold that the copyright is infringed. As observed by Lord Atkinson in Emerson V. Davies, 1848-3 story U.S. Rep. 768, the true question is whether the same plan, arrangement, and combination of materials have been used before for the same purpose or for any other purpose. (Ref.: In K.R. Venugopala Sarma vs. Sangu Ganesan (1972 CriLJ1098))
As Pointed out in Associated Publishers (Madras) Ltd. V. K. Bashyam in order to constitute infringement there should be direct or indirect use of those features of the plaintiff in which copyright subsists. It is unusual for an infringement to consist of an exact reproduction of the whole of the plaintiff’s work. Consequently, it is difficult to be precise as to the amount of copying or degree of resemblance necessary to constitute infringement. The conclusion must depend, in the words of Lord Herschell ‘really on the effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it or at least of its design.
In Raja Pocket Books vs. Radha Pocket Books ( 1997 (40) DRJ 791), the Court highlighted that
The central idea of the two characters is the same.
Applying the surest and safest test to determine whether or not there has been a violation of copyright, there is no escape from the conclusion prima facie that in case of any reader on going through both the works will clearly be of the opinion and will get an unmistakable impression that comic Nagesh is a work, which appears to be a copy of NAGRAJ.
Not only the theme is the same, though presented slightly and somewhat differently, but the central idea remains the same.
The question whether the two marks are so similar as likely to cause confusion or deceive is for the court to decide. The question has to be approached by applying the Doctrine of Fading in Memory i.e. from the point of view of a man of average intelligence having imperfect recollection.
Whether the overall visual and phonetical similarities of the two marks is likely to deceive such a man or cause confusion that he could make mistake, for the goods of the defendant for those of the plaintiff.
In addition to this, the other question is about the persons who are likely to be deceived and what rules or comparison are to be adopted in judging whether such resemblance exist.
- The rules of comparison to be adopted in judging the resemblance would be those as are stated in the decision of the Supreme Court in R.G. Anand’s case (Supra), namely, an unmistakable impression that the subsequent work appears to be the copy of the original.
Vijay Pal Dalmia
Flat No. 2101, Olympia Tower-II,
Eldeco Utopia, Sector-93A, NOIDA, U.P., 201304, India
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