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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 258   OF 2013

KRISHIKA LULLA & ORS.         …. APPELLANTS

VERSUS

SHYAM VITHALRAO DEVKATTA & ANR. …. RESPONDENTS

WITH

CRIMINAL  APPEAL No. 259   OF 2013

JUDGMENT

S. A. BOBDE, J.

These two Criminal Appeals are preferred by the accused against

the judgment and order dated 22.3.2012 in Criminal Misc. Application No.

1295 of 2011 and 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

Copyright Act”) read with Sections 406 and 420 of the Indian Penal Code,

1860 (hereinafter 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 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 filing two criminal misc. applications, under Section

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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.

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 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”.   A copy on the record 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 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.   

4. In the meanwhile, the appellants released their film with the title

“Desi Boyz” throughout the world including India on 25.11.2011.  According

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to them, the film is based on a story written by one Milap Zaveri, who wrote

the story under an 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 basis of the tenability of the complaint.

5. The  Court  of  Learned  Metropolitan  Magistrate  having  taken

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  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 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 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.   

6. Mr.  Raju  Ramchandran,  the  learned  counsel  for  the  appellants

submitted that the respondent No.1-Devkatta has claimed infringement of

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copyright in the title of the synopsis of a story “Desi Boys”.              Mr.

Ramchandran, maintains that there is no copyright in the title of 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 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 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.

7. The  main  issue  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  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:-

“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,-

(a) original literary, dramatic, musical and artis- tic works;

(b) cinematograph films; and (c) [sound recording]  

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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 literary work.

Admittedly, Devkatta has not 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.

10.  The question that arises is whether copyright exists in the title “Desi

Boys”.  A title of a work has been considered to 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.

11. It  must  be  noted  that  in  India  copyright  is  a  statutory  right

recognized and protected by The Copyright Act, 1957.  It must therefore be

first seen if the title “Desi Boys” can be the subject of copyright. On a plain

reading of Section 13,  copyright subsists  in 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  that  follows.

Secondly, 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.  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  the  respondent  No.1.  In  fact  these words  do  not  even

qualify for being described as ‘literary work’.  The Oxford English Dictionary

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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 words, such as those used here, 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,

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.    

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.  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:

“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 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,

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 to the public,  by which the public  are

benefited, and in return for which a certain protection is given to

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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.”

13. In Francis Day & Hunter Ltd. v. Twentieth Century Fox Corporation

Ltd. and Ors.  reported in  AIR 1940 Privy Council  55,   the Privy Council

considered  the  infringement  of  copyright  in  the  title  of  a  song  by  its

adoption for the title of 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 argument of the

appellant  company  would  be  the  same,  it  seems,  if  the

application of the title complained of had been to a picture or a

statue. On this reasoning it 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 title

does  not  involve  literary  composition,  and  is  not  sufficiently

substantial to justify a claim to protection. That statement does

not  mean  that  in  particular  cases  a  title  may  not  be  on  so

extensive a scale, and of so 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 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 of the song,

and even in choosing the title, though it is of the most obvious.

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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

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 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 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 in  AIR 1964

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 “E M Forster, A Passage to India, Everyman’s guide”.  The 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 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

1  (i)Macmillan v. Suresh Chander Deb, ILR 17 Cat 951,   (ii ) Longman v. Winchester, (1809)16  Ves 269,   (iii) Dicks v. Yates, (1881) 18 Ch D 79   

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enclosed in brakets as a sub-title, that they were acquiring, not

the original work, but a “guide for University students…………”

16. The same question arose 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.  The learned

Judge A.K. Sikri, J. (as His Lordship then was) referred to decisions of the

American Courts and observed that the position is the same as under the

copyright law in India:-  

“12……… What, therefore, follows is 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.”

The Court then considered the question of protection of 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 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 two judgments of the Madras High Court cited above and

the judgment of the Delhi High Court in our view, lay down the correct law.

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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:-

“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 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  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:-

“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 been given judicially is the now

archaic practice of the title-page of a book consisting of an

extended passage of text.”

In  relation  to  copyright  in  characters  and  titles  the  learned  authors

observed:-

“It is very 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 copied.  If a

well-known  title  of  a  film  is  used  without  authority,  the

owner’s remedy is likely to lie in passing off.  Protection by

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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 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 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).    

20. In the present case we find that 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.    

21. The learned counsel for the respondents indeed contended that the

applications  under  Section  482  were  rightly  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 film of the 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 that ground.   It is not necessary to consider the decisions

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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.

…………………………….…..........…..J.                                                        [MADAN B. LOKUR]

…...................................………J.                                                [S.A. BOBDE]

   NEW DELHI, October 15, 2015

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