10th Intra - Moot Court Competition, CAIL 2022

IN THE HON’BLE SUPREME COURT OF BINDUSTAN

Civil Appeal No. 1/2022

(Arising out of Order as passed by the Hon’ble Trial Court of Limat Nadu)

IN MATTER OF

COPYRIGHT INFRINGEMENT

Special Leave Petition SLP no.- ……/ 2022

Ghajni Kant & WaterSpark Games Private Limited ........................................... Petitioner

AND

Seela Lansali ...................................................................................................... Respondent

BEFORE SUBMISSION TO THE HON’BLE JUSTICE

AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF BINDUSTAN

MEMORANDUM ON BEHALF OF THE RESPONDENT

 10th Intra Moot Court Competition, CAIL, 2020

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................1

INDEX OF AUTHORITIES .............................................................................................. 2

A. STATUTES REFERRED .......................................................................................... 2

B. TABLE OF CASES ..................................................................................................... 2
C. LEGAL DATABASES ................................................................................................3
D. DICTIONARIES AND LAW LEXICONS .............................................................. 3
E. BOOKS AND TREATIES ......................................................................................... 3
F. ONLINE SOURCES: ARTICLES BLOGS AND RESEARCH PAPERS ………4

LIST OF ABBREVIATIONS .......................................................................................... 5

STATEMENT OF JURISDICTION .......................................................................... 6
SYNOPSIS OF FACTS ................................................................................................. 6
ISSUES RAISED ............................................................................................................. 8
SUMMARY OF ARGUMENTS ................................................................................... 9
ARGUMENTS ADVANCED. ....................................................................................................
ISSUE 1
...................................................................................................................................................... 10
ISSUE 2
...................................................................................................................................................... 14

PRAYER ........................................................................................................................ 20

MEMORIAL ON BEHALF OF RESPONDENTS 1

 10th Intra Moot Court Competition, CAIL, 2020

INDEX OF AUTHORITIES

I. STATUTES REFERRED
1. The Constitution Of India,1950
2. The Copyrights Act, 1957
3. The Code of Civil Procedure, 1908.
4. Indian Patents Act, 1970.
5. Patent Rules, 2003
6. Indian Penal Code, 1860

II. TABLE OF CASES

Manish Goel v. Rohini Goel, AIR 2010 SC 1099… ................................................ 10

Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC) ................................. 11

N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196… ............................................ 11

Pritam Singh v. The State, AIR 1950 SC 169........................................................... 11

M.C. Mehta v. Union of India, AIR 2004 SC 4618…................................................11

Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15 ................... 11

A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546 ........... 11
8.Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467…........................11

Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806… .............................. 12

Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC .. 12

Mathai Joby v. George, (2010) 4 SCC 3582… ........................................................... 12

Union of India v. Era Educational Trust, AIR 2000 SC 1573 ...................................... 12

DCM v. Union of India, AIR 1987 SC 2414… ......................................................... 12

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Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492… 12
Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622… ............................................ 12

Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563… ......................... 13

Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299 ................................................. 13

Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359 ........ 13

In Computer Associates International, Inc. v. Altai Inc 982 F.2d 693 ....................... 14

Shamoil Ahmad Khan v. Falguni Shah & Ors. IP SUIT NO. 1193 OF 2019 ..............14

Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2013) ......... 14

Eastern Book Comapany V. D.B. Modak 2008 .......................................................... 15

R.G. Anand V. Deluxe Films AIR 1978 SC 1613 ....................................................... 16

III. LEGAL DATABASES

1. Manupatra
2. SCC Online
3. Westlaw
4. LexisNexis
5. HeinOnline
6. E-Libraray
7. AIR Online
8. LawStreetIndia
9. Inflibnet N-list

IV. DICTIONARIES AND LAW LEXICONS

1. Black’s Law Dictionary
2. Merriam Webster Dictionary
3. Oxford Dictionary
4. P Ramanatha Aiyar S – The Law Lexicon

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V. BOOKS AND TREATISES

(1) Copinger and Skone James on Copyright, 14th edition.

(2) Copinger and Skone James on Copyright, 11th edition.

(3) 3.Law of Copyright and Literary Property- Horace G. Ball.

(4) V.K. Ahuja, Intellectual Property Rights in India 934 (LexisNexis 2009).
(5) The Principle of Idea-Expression Dichotomy in Copyright Laws: Legal Scenario in India Compared
to the Laws of U.S.A and United Kingdom - Issue 7 - Volume 7
(6) Principles Of Copyright-Notions Fondamentales Du Droit D’auteur-Professeur Pierre Sirinelli
(7) Berne Convention for the Protection of Literary and Artistic Works,1886
(8) A Hand Book Of Copyright Law-Government of India Department For Promotion of Industry and
Internal Trade Ministry of Commerce and Industry

VI. ONLINE SOURCES: BLOGS AND ARTICLE

1. Copyright of Cinematograph Films and Sound Recording, Legal services India.co

2. Ownership in the copyright of a work? Who is the Author/Creator and Owner of a

Copyright Work

3. India: Idea-Expression Dichotomy Under Copyright Law, 19 October 2016, Senthil Kumar

4. India: Assignment And Licensing Of Copyright, 17 October 2019, Ishan Sambhar

5. Basic Copyright Principles, March 11, 2002, John Etchemendy, Provost

6. Seeing’s Insight: Toward A Visual Substantial Similarity Test For Copyright Infringement Of
Pictorial, Graphic, And Sculptural Works - Moon Hee Lee

7. Jessica Litman, Silent Similarity, 14 CHI.-KENT J. INTELL. PROP. 11, 12 (2015)

8. Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2013)

9. Infringement Analysis in Copyright Law - Adarsh Ramanujan, Prateek Bhattacharya & Esheetaa
Gupta

10. When Are Two Photographs Substantially Similar For Copyright Infringement Purposes?,
Ramey Firm

MEMORIAL ON BEHALF OF RESPONDENTS 4

 10th Intra Moot Court Competition, CAIL, 2020

LIST OF ABRIVIATIONS

ABRIVIATION FULL FORM

SC Supreme Court
AIR All India Reporter

IC Indian Cases
Del Delhi
SCR Supreme Court Reporter

SCJ Supreme Court Journal

& And
Hon’ble Honorable
HC High Court

V/ v. Versus

§ Section
Ors. Others
No. Number
SLP Special Leave Petition

¶ Paragraph

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 10th Intra Moot Court Competition, CAIL, 2020

STATEMENT OF JURISDICTION

1.1 The Hon’ble Court has the jurisdiction to hear the matter under article 136 of the Bindustan
Constitution. The petitioner has filed this petition under article 136 of the Constitution of
Bindustan.

Following is the bare reading of the article:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may,

in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination,

sentence or order passed or made by any court or tribunal constituted by
or under any law relating to the Armed Forces

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 10th Intra Moot Court Competition, CAIL, 2020

SYNOPSIS OF FACTS

Parties to the Dispute:

1. Ghajni Kant, a resident of Limat Nadu, is a famous celebrity with over 500
films tohis credit. He is a well acclaimed Film Actor, who always leaves
his audience mesmerised. He is also a minority shareholder of
WaterSpark Games Private Limited.
2. Mr. Seela Lansali, a critically acclaimed Producer across Bindustan, who
has the business of acquiring rights over several leading movies and films,
for thepurposes of remake or adaptation. He also has all rights to the movie
- ‘Yuvraj of Punjab’, which was directed by Gajni Kant.

Overview:

3. Film: ‘Yuvraj of Punjab’ - based on a warrior who mastered his arts of

swordsmanship. The movie revolves around a family feud, duels with fellow
warriors, and conquering a neighbouring kingdom Jaipur to marry the daughter
of the King of Jaipur, and also reclaim his motherland. This movie received
several accolades and honours at the Tin Cann Film Festival.
4. Video Game: ‘Pharaoh of Egypt’ - WaterSpark Games Private Limited developeda
Video Game based out in eastern Egypt, where a Warrior, ousted by his Step-
Brother seeks to conquer the Kingdom of Learsi, so that he can wage a war
against his Step-Brother and become the Pharaoh of Egypt. Based in Learsi, the
game hadmultiple stages, where from being a Novice, the warrior learns various
skills, and develops his strength and agility, while earning
reward points and different swords, and rising ranks in the Learsi Army Regiment.

Dispute: 5. Mr. Seela Lansali when found out about the similarities between the Video
Game, ‘Pharaoh of Egypt’ and his rightful own movie, ‘Yuvraj of Punjab’
alleged copyright infringement on WaterSpark Games Private Limited and
Ghajni Kant.

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Procedural History:
6. Mr. Seela Lansali appealed in the Trial Court of Limat Nadu.
7. The Trial Court at Limat Nadu held that the rights of Seela
Lansali wereinfringed by WaterSpark Games Private Limited and
Ghajni Kant.
Appeal:
8. Ghajni Kant has now approached the Hon’ble Supreme Court of Bindustan by
thevirtue of Article 136 of the Constitution.

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ISSUES RAISED

The counsel on behalf of the respondent raises the following issues before the Hon’ble Supreme Court of
Bindustan

ISSUE I - Whether the Petition is maintainable before the Hon’ble Supreme Court?

ISSUE II - Whether WaterSpark Games Private Limited and Ghajni Kant

have infringed therights of Seela Lansali?

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SUMMARY OF ARGUMENTS

ISSUE 1: Whether the Petition is maintainable before the Hon’ble Supreme Court?

It is argued before the Hon’ble Supreme Court of Bindustan by the counsel on behalf of the
Respondents that the petition is not maintainable under the virtue of Article 136 of the
Constitution. The scope of this Article does not extend to appellate jurisdiction [1.1]

Furthermore, such right to seek special leave should be exercised with caution [1.2] and only
brought to the court’s attention incase of a grave injustice in an exceptional situation that
warrants a review by the hon’ble court and not otherwise. [1.2.1] By accepting this baseless
appeal the Hon’ble Supreme Court may undermine the honor and integrity of the decision
passed by The Hon’ble Trail court of Limat Nadu. [1.3] The petition filed is eligible for
rejection [1.4] and the counsel on behalf of the respondents humbly requests the court to
dismiss this appeal and not entertain futile matters not worthy of the court's precious time.

ISSUE II - Whether WaterSpark Games Private Limited and Ghajni Kant

have infringed the rights of Seela Lansali?

It is humbly submitted before the Hon’ble High Court of Bindustan that WaterSpark Games
Private Limited and Ghajni Kant have infringed the rights of Seela Lansali. It is he who rightfully
owns the movie along with the concept and idea [2.1]. The access to work is granted to him alone
[2.4]

There exists substantial similarity between the two projects [2.3] The same has been highlighted
before the court by applying the test of extraction [2.3.1] and test of layman [2.3.2]. The counsel
on behalf of the respondent concludes to prove the infringement of Mr. Seela Lansali’s copyright
over the movie Yuvraj of Punjab. [2.4]

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 10th Intra Moot Court Competition, CAIL, 2020

ADVANCE ARGUMENTS

ISSUE 1: Whether the Petition is maintainable before the Hon’ble Supreme Court

It is humbly submitted before the Hon’ble Supreme Court of Bindustan by the counsel on
behalf of the respondents that the special leave petition filed by Ghajni Kant and WaterSpark
Games Private Limited is not maintainable. The same shall be proved in a four -fold manner:

1.1 SCOPE OF ARTICLE 136

1.1.1 The Hon'ble Supreme Court does not function like a typical court of appeals even
though it exercises the authority granted by Article 1361. It does not reappreciate,
review, or weigh the evidence that the Trial Court and the High Court have already
valued in the exercise of the aforementioned power. If the session court was
convinced that the prosecution witnesses were reliable and relying on their
testimony based on the testimony of the aforementioned witnesses. Although the
conviction was recorded and the High Court upheld that portion of the order, it cannot
be maintained that the lower courts' actions were unlawful in any way
1.1.2 In the case of Manish Goel v. Rohini Goel, the Supreme Court has made it clear
that the goal of preserving such extensive power in its hands is to ensure that
injustice is not sustained or committed by judgments of lower courts. A decision
that shocks the court's conscience or a question of law of broad concern should
also be present, as these are some of the primary requirements for granting
exceptional leave. The legal process outlined in the overriding power cannot be
circumvented using this power. Unless a question of principle of considerable
importance emerges, this Court normally does not allow a party to bypas 2 the
regular process of appeal or referral to the High Court.

1
The Indian Constitution,1950
2
Manish Goel v. Rohini Goel, AIR 2010 SC 1099.

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1.1.3 The Supreme Court in Kunhayammed v. State of Kerala3 held that Article 1364
consists of two distinct stages, the first stage where the matter is merely being
decided if it is to be accepted as an appeal or not; if the Supreme Court decides to
adjudicate the matter, it becomes an appeal, if otherwise, the matter was never an
appeal.

1.1.4 Therefore, it is respectfully argued that this Hon’ble Court need not consider the
case because there is no specific issue that calls for its intervention. However, if the
Hon’ble Court does decide to grant the Petition for Special Leave, it is respectfully
argued that the Court should only rule on the Bombay High Court's decision, rather
than on the merits of the case itself.

1.2 NON-MAINTAINABILITY OF THE PETITION

1.2.1 Article 136 only gives the Supreme Court a discretionary power to satisfy the
demands of justice in unusual circumstances; it does not grant a right of appeal. 5
The Supreme Court ruled inPritam Singh v. The State6 that the power granted by
Article 136 should only be used in rare andextraordinary circumstances. The Supreme
Court stated in its ruling on Article 136 that "Generally speaking, this court will not
grant Special Leave, unless it is shown that exceptional and special circumstances
exist, that substantial and grave injustice has been done, and that the case in question
presents features of sufficient gravity to warrant a review of the decision appealed
against."
1.2.2 In M. C. Mehta v. Union of India7 and Aero Traders Private Limited v. Ravider
Kumar Suri8, it was decided that the powers granted by Article 136 should be used
with caution and in accordance with the law and established legal principles, even
though they have been deemed to be plenary, limitless9, adjunctive, and

3
Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC)
4
The Indian Constitution,1950
5
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196
6
Pritam Singh v. The State, AIR 1950 SC 169
7
M.C. Mehta v. Union of India, AIR 2004 SC 4618
8
Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15
9
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546
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unassailable10.

1.2.3 The Supreme Court has criticized the method of resolving private disputes under
Article 136 in the instances of Secretary, State of Karnataka v. Umadev11 and
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills 12, claiming that
it will produce ambiguous outcomes and lack of precedents. Even though the assailed
order contains a legal error, the Court noted that it is not required to intervene.13

1.2.4 It is humbly submitted to this Hon’ble Court that there was no error in the judgement
of theHon’ble Trial Court, there was a copyright infringement by Ghajni Kant in passing
the video game, and the same was observed by the Trial Court. The counsel for the
Respondents would also like to submit to this Hon’ble Court that there is no pressing
matter or question of law, for which, the intervention of this Court would be
necessary, i.e., there is no necessity to invoke the jurisdiction conferred upon this
Hon’ble Court under Article 136.

1.3 NOT UNDERMINING THE DELIVERANCE OF THE LOWER

COURT’S JUDGMENT

1.3.1 The goals of justice and the necessity to uphold judicial discipline necessitate the
Supreme Court to step in if it appears initially that the ruling in question cannot be
justified by any legal standard14. The Supreme Court stays out of it, if any court or
tribunal has considered all relevant factors, it will be satisfied with the conclusion
reached and there hasn't been any improper interpretation of the law's doctrines15.
1.3.2 Unless there is an obvious legal error or an important piece of evidence has been
left out ofconsideration, the Supreme Court typically does not intervene in the
findings of fact reached concurrently by the tribunal and the High Court while

10
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
11
Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806
12
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
13
Mathai Joby v. George, (2010) 4 SCC 358
14
Union of India v. Era Educational Trust, AIR 2000 SC 1573
15
DCM v. Union of India, AIR 1987 SC 2414
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exercising its power under Article 13616. Inan appeal to the Supreme Court, a
question cannot be addressed for the first time17. It would be decline to allow a
question to be developed before it if it had not been raised before any

subordinate courts18. Despite the broad interpretation of Article 136, the Supreme
Court has a policy of staying out of factual disputes unless absolutely necessary and
when the outcome shocks the court's conscience19.
1.3.3 The Supreme Court in this instant case need not interfere in the decision of the Trial
Court.The Trial Court, while exercising its jurisdiction-keeping all the principles of
law, relevant factors and appropriate interpretation has adjudicated the matter in the
fittest way. The counsel on behalf of the Respondents, humbly submitted to this
Hon’ble Court to dismiss the special leave petition of the petitioners.

1.4 GROUNDS FOR REJECTION OF APPEAL

1.4.1 It was determined in Kunhayammed and Others v. State of Kerala and Another 20
that a petition for special permission to appeal may be denied for a number of
reasons. The petitioner's request for this Court to consider his query is not
appropriate or worthy of being handled by the Supreme Court; it is respectfully
stated that there is a justification for using Article 136's jurisdictional clause of this
Honorable Court and this petition does not fit in the ground of appealing under the
virtue of Article 136.

16
Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492
17
Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622
18
Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563
19
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299
20
Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359

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ISSUE II - Whether WaterSpark Games Private Limited and Ghajni Kant

have infringed the rights of Seela Lansali?

It is humbly submitted before the Hon’ble Supreme Court of Bindustan by the counsel on
behalfof the respondents that WaterSpark Games Private Limited and Mr. Ghajni Kant have
infringed the rights of Mr. Seela Lansali, the rightful owner of the Movie- ‘Yuvraj of Punjab’

2.1 RIGHTFUL OWNER OF THE 'EXPRESSION’

When an entire industry in this country, like the media and entertainment business, depends
on"creativity" and consistently contributes something new, copyright protection becomes a
crucial factor in safeguarding such content and preventing piracy. Copyright is a type of
intellectual property right over intangible property. Here comes the Indian Copyright Act of
195721 in the picture.

Literary works, theatrical works, musical works, creative works, cinematographic films, and
sound recordings all have copyright protection under §13 of the Copyright Act of 195722.
The Act's §1323 and § 1424 define copyright and the works in which it is present in great detail.
Simply said, "creativity and its expression" can be summed up as the subject of copyright law.

2.1.1 Idea - Expression Dichotomy: Original literary, artistic, musical, and dramatic
works areprotected by copyright. Though, there is no express stipulation in the
Act that there must be originality as in the case of literary, musical or artistic
works.25 However, it is followed that in order to be entitled to copyright a
cinematograph film should be original, that is, it should originate from the
producer and not a copy of some other copyrighted work.26

21
The Copyright Act of 1957
22
The Copyright Act of 1957
23
The Copyright Act of 1957
24 The Copyright Act of 1957
25
The Principle of Idea-Expression Dichotomy in Copyright Laws: Legal Scenario in India Compared to the Laws of U.S.A
a – July 2020 – Volume 7
26
Copyright of Cinematograph Films and Sound Recording, Legal services India.com
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2.1.2 It's imperative to note that this protection only applies to the expression and not
the idea. In other words, the materialization of abstract concepts into language
is where copyright protection is found. Considering that the word "dichotomy"
literally means "distinction", the actual distinction between an idea and an
expression lies within the inherently immaterial and abstract, the termprovides
an idea with a tangible, defendable form.

2.1.3 Ownership of the Expression: The first owner of copyright in a work is often
the author ofthe work. The author or composer of an original literary, musical,
dramatic, or aesthetic work is responsible; in the case of a sound recording or
cinematographic film27, the producer is responsible.

The exceptions to this rule are covered in § 1728 of the Copyright

Act, as summarized below:

In the case of literary, dramatic or artistic works made by the author in the course of his or her
employment by the proprietor of a newspaper, magazine or similar periodical under a contract of
service or apprenticeship for the purpose of publication in the newspaper, magazine or periodical,
then the proprietor of the publication shall be the first owner of the work for the purposes of
its publication in a newspaper, magazine or similar periodical. In all other respects, the author
is thefirst owner29.

In the case of a work that is a photograph, painting, portrait, engraving or cinematograph film that
has been created at the instance of any person for valuable consideration, then such person is
the first owner of the copyright in the work. However, this does not affect the rights of an
author in any original literary, dramatic, musical or artistic work that is incorporated in a
cinematograph film.

27
Ownership in the copyright of a work? Who is the Author/Creator and Owner of a Copyright Work
28
The Copyright Act of 1957
29
India: Idea-Expression Dichotomy Under Copyright Law, 19 October 2016, Senthil Kumar

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2.1.4 Assignment of Copyright: The term ‘Assignment of Copyright’ mentioned in §

1830 refers to the transfer of copyright of an expression by the assignor to the
assignee. The copyright may be assigned to any person, in whole or in part,
generally or subject to restrictions, for the whole life of the copyright or any
portion thereof, by the owner of the copyright in an existing work or the potential
owner of the copyright in a future work.31 When a copyright assignee gains the
right to exercise any of the rights included in the copyright, the provisions of
this Act will apply to both the assignee with regard to the rights that have been so
assigned and the assignor with regard to the rights that have not been so assigned.
If the assignee passes away before the creation of the work, the term "assignee"
as it relates to the assignment ofthe copyright in any subsequent work includes
the assignee's legal representatives32.

2.1.5 In the present matter, the expression of the idea - ‘Yuvraj of Punjab’ and the
copyrights thereon have been assigned to the respondent - Mr. Lansali by the
petitioner – Mr. Ghajni Kant. Thus, the counsel on behalf of respondent argues
that the respondent has become the rightful owner of copyright on the expression
of the movie with respect to its storyline, cinematography as well as in its
photographic realm¶33.

2.2. ACCESS TO THE ‘ORIGINAL WORK’

2.2.1 Mr. Ghajni Kant, a well-acclaimed actor, acted in the movie - ‘Yuvraj of
Punjab’¶ 34. He was well aware of the storyline. He knew about the scenes and
sequence of the same. From the start till the end of production of the movie -
‘Yuvraj of Punjab’, he was present there, seeing the whole team working hard,
setting down the dirt of making. He had “direct access” to the ‘original work’35.

30
The Copyright Act of 1957
31
Section 18 of The Copyright Act of 1957
32
India: Assignment And Licensing Of Copyright, 17 October 2019, Ishan Sambhar
33
Paragraph Number 3, Moot Problem
34
Paragraph Number 2, Moot Problem
35
Basic Copyright Principles, March 11, 2002, John Etchemendy, Provost

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2.2.2 Being a part of this humongous successful movie, he knew the potential of
making a replica of it as a video game, possessing a minority shareholder ship
in the video game making company– WaterSparkGames Private Limited made
it easier for him to influence the makers into adopting the format ofthe huge
success that he was already a part of. Thus, there is a direct link between Ghajni
Kant and the movie - ‘Yuvraj of Punjab’.

2.3. SUBSTANTIAL SIMILARITY BETWEEN THE TWO EXPRESSIONS

2.3.1 Pictorial Relevance of Expressions: To Prove the Substantial similarity

between the movie - Yuvraj of Punjab and the petitioners allegedly copyrighted
video game - Pharaoh of Egypt, the counsel on behalf of the respondents seek to
perform two tests to analyse whether the defendant’s allegedly infringing work is
substantially similar to that of the copyright holder.

2.3.2 This substantial similarity analysis broadly contains two steps. It is normally
followed that facts and ideas do not receive copyright protection and are filtered
out. However, the two works are compared to see if there is material overlap
between the two works’ remaining creative expression—i.e., whether or not the
two works are substantially similar36. This counsel seeks toapply this two-step
approach with the goal protecting the rights of the respondent over the
expressions of ‘Yuvraj OF Punjab’ while keeping abstract ideas and facts in the
public domain.

2.3.3 The test of Second Circuit articulated three stages of the substantial similarity
test: abstraction, filtration, and comparison37. The filtration step requires
sieving out components of therespondent’s works that would not receive
copyright protection. In the present matter, after sieving out the unprotected
aspects of Yuvraj of Punjab, the movie’s posters and stills remain and receive
copyright protection under § 2(s)38 and § 2(k)(ii)39

36
Seeing’s Insight: Toward A Visual Substantial Similarity Test For Copyright Infringement Of Pictorial, Graphic, And
Sculptural Works - Moon Hee Lee
37
In Computer Associates International, Inc. v. Altai Inc 982 F.2d 693
38
The Copyright Act of 1957
39
The Copyright Act of 1957
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It is therefore submitted that Plaintiff's poster/still for the game 'Pharaoh of Egypt' is
questionable under the copyright Act by the Copyright Act. 40

2.3.3.1 Just like a computer program whose ultimate expression is created by the “composite
result ofinteracting subroutines,” an artwork too is an expression that is the
composition of interacting visual units41. Conducting the abstraction–filtration analysis is
simple in theory. The test can be conceptualized as a ladder of abstraction ranging from
the most concrete expression rung to themost abstract idea rung. The court starts by
determining the lowest rung on which the two works share similarities. If this is proof
enough to show that substantial similarity exists on account of overlap, the owner’s
copyright is infringed42. When compared, the two cover images of the Pharaoh of
Egypt and the Yuvraj of Punjab propels substantive similarity in the following aspects
-

(1) The literal descriptions (dress) - scrutinizing the skills closely, the attire and look of that
of Yuvraj of Punjab matches that of the pharaoh of Egypt. The characters from the stills
have both worn similar war suit attires. The symbol on both the suits contains evident
similarities. Apart from that, the possession of a sword is visible in two. There also exists
similarity in aspects of the possession of a shield when close analysis of the left hand of
fig 1 is done with reference to the left hand of fig 2.43

(2) The abstract visual concepts - The digital imagery of video games, photos and shows etc. is
accomplished with the help of VFX- a cutting-edge technology used in creating videos with
the help of a combination of live-action shots and digital imagery. The stills from the two
expressions, at the first glance, resemble in their background effects and also the setting
(of a mythological fort/ kingdom alongside a river flushed with greenery)

(3) Perceptual facts - The factual inference that can be brought out of the two stills is that of
a warrior/ king/ Kingsman battling with a sword and adorning the war chest. The patches of
light and dark theme used in either ‘stills’ depict much similarity.

40
§ 26 of The Copyright Act, 1957
41
Altai, 982 F.2d at 705
42
Jessica Litman, Silent Similarity, 14 CHI.-KENT J. INTELL. PROP. 11, 12 (2015).
43
Moot Proposition

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 10th Intra Moot Court Competition, CAIL, 2020

Two works are substantially similar if the ordinary observer, unless he set out to detect the
disparities, would be disposed to overlook them, and regard their aesthetic appeal as the
same44.The counsel humbly submits that the stills from the two expressions presented before
the court are similar.

2.3.3.2
A copyright owner has a bundle of exclusive rights: reproduction, distribution,
derivative works, and performance rights45. Copyright protection for PGS
works adhere to “original works of authorship fixed in any tangible medium
of expression.”46 Copyright protection extends only to the creative expression
“that displays the stamp of the author’s originality.”47 Also, as per the
Audience Test 48 there is copyright infringement if the two photographs appear
similar on first glance.49

2.3.4 In Reference to Plotline of Both Expressions: To establish the similarity in the

context of the two expressions, the counsel seeks to apply the test of Extraction
established in the case of Shamoil Ahmad Khan v. Falguni Shah & Ors50. The
Bombay High Court observed that a seed of an idea grows into a theme, then into a
narrative, and finally into a whole novel with the support of characters and
surroundings. It was the amalgamation of all the works that gave the abstract idea
its true substance. If the final work is gradually stripped of all the ancillary
elements, then the unprotectable idea or abstract can be extracted. Also, the test of
layman’s observers is applied in the matter at hand. When applied to the facts of
the case, the plotlines and the narratives of both the movie as well asthe Video
game contain evidential similarity. The basis for establishment of either lies in
the same concept of a family feud and overthrowing of power. The movie
deals with a warrior that battled a family feud to marry a princess. While the
video game, on the same lines as the movie, deals with yet another warrior
who overthrows his brother to capture the kingdom.

44
Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2013)
45
§ 21 of The Copyright Act, 1957
46
§ 22 of The Copyright Act, 1957
47
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985)
48
Infringement Analysis in Copyright Law - Adarsh Ramanujan, Prateek Bhattacharya & Esheetaa Gupta
49
When Are Two Photographs Substantially Similar For Copyright Infringement Purposes?, Ramey Firm
50
Shamoil Ahmad Khan v. Falguni Shah & Ors. IP SUIT NO. 1193 OF 2019

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 10th Intra Moot Court Competition, CAIL, 2020

2.3.5 By applying the test to the facts of the case, it can be established that the
narratives of both themovie and the video game are not just remotely similar
but confirm the test of character delineation. The leads of either expression
have the same personality, character arcs, and objectives in their respective
kingdom.

2.3.6 The excellence of the creativity of the writers of the film is depicted from the
success of the Filmand its accusations at the Tinn Can Festival¶ 51. The court
stated that creativity is apparent in the expression of a work, not the idea on
which the work is based52. In the present matter this creativity has been blatantly
mirrored and disregarded in the video game without the consent ofthe rightful
owner of the movie, Mr. Seela Lansali.

2.4 INFRINGEMENT OF COPYRIGHT

2.4.1 On account of the afforested similarities in pictorial and plotline aspects, the counsel
on behalf of the Respondent contends that Mr. Seel Lansali’s copyright over the
contents of Yuvraj of Punjab have been violated u/§ 5153 and 5254.

2.4.2 To assert the same, counsel takes the judgement of RG Anand v. Deluxe Films55
into account where the court stated that “One of the surest and safest tests to
determine whether or not there has been a copyright violation is to see if the reader,
spectator, or viewer is clearly of the opinionand gets an unmistakable impression
that the subsequent work appears to be a copy of the original after having read or
seen both works.”

2.4.3 The counsel on behalf of the Respondents, therefore, humbly submits that in view
of the substantive similarities that have been verified in various tests the owner’s i.e
Mr. Seela Lansali’s copyright over the movie - Yuvraj of Punjab has been violated
by Mr. Ghajni Kant and WaterSparks Ltd.

51
Paragraph Number 3, Moot Proposition
52
Eastern Book Company v. D.B. Modak (2008)
53
The Copyright Act, 1957
54
The Copyright Act, 1957
55
RG Anand v. Deluxe FilmsAIR 1978 SC 1613

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 10th Intra Moot Court Competition, CAIL, 2020

PRAYER FOR RELIEF

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may
this Hon’ble Court be pleased to:

1. Dismiss the said Petition filed under Article 136 of the Constitution.

2. In view of the infringement, declare that the Petitioners have violated Section 13
and 14 of the Indian Copyright Act, 1957.

3. Grant the respondent a relief amounting to rupees one crore and fifty lakhs (Rs.1,50,00,000)
or fifty percentage (50%) of the total profit earned by the petitioners after the publication of
the copied video game “Pharoah of Egypt”, whichever is more.

4. Order a Permanent Injunction on the copied Video Game, “Pharoah of Egypt”.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience.And for this, the Respondent shall as in duty bound, forever humbly pray.

(Counsels for Respondent)

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