Over the course of decades, the mainstream Bollywood industry has recreated
copyrighted Hollywood films for the Indian market without fear of any kind of
legal ramifications and has formulated into an established pattern. Although the
"concept" of remaking Hollywood films into Bollywood storylines has been floated
about for some years, it has lately come under the radar from Hollywood, which
accuses Indian filmmakers of copyright infringement and other violations of
their Intellectual Property Rights.
The United States of America and India are direct signatories to the 1866 Berne
Convention for the Protection of Literary and Artistic Works, as amended in 1971
by the Paris Convention. India and the United States are obligated by the 1994
Trade-Related Aspects of Intellectual Property Rights ("TRIPS") agreement as WTO
TRIPS requires all WTO members to adhere to the Berne Convention and Paris
Act2 rules and introduces intellectual property rights into the realm of
commerce. TRIPS covers phrases but not "ideas, techniques, methods of operation,
or mathematical concepts," as represented in the United States and India's
respective intellectual property legislation.
For the purposes of enforcing copyright violations involving Hollywood and
Bollywood films, the relevant articles of the Berne Convention that TRIPS makes
enforceable respect writers' exclusive rights to authorize reproductions and
adaptations of their original work, including cinematographic material. When
a film draws the plot and protected material from another work, it is referred
to as a "derivative work." Unauthorized derivative works are deemed damaging if
the derivative is seen by society as being sufficiently close to the original
that it negatively impacts demand for the original.
- Rachana Desai examines India's film industry, which produces more
films than any other country in the world, as well as the country's lengthy
history of producing "cultural copies" rather than unique works. The advent of
the internet and improved global contacts bridged the divide between westerners
and Indians, acquainting them with Indian film scenarios. Thus, in light of the
case Bradford v. Sahara Television, this article examines the ramifications of
foreign copyright infringement in India as a result of the entertainment
industry's globalization. Additionally, the article discusses the ramifications
of TRIPS, a WTO-mandated legal framework that governs intellectual property
rights infringement in India. As such, this article examines potential barriers
and outcomes in light of local and international law, as well as the Bradford
- Tejendra Meena, Utsav Kum, and Siddharth Bhagat examines the
underlying reasons for entities in Bollywood to imitate American entertainment.
It then establishes the nature, frequency, and scope of Bollywood's plagiarism.
The repercussions of Indian filmmakers' copies and imitations of American films
are briefly discussed. Additionally, it discusses pertinent United States and
Indian copyright laws and analyses whether any of Bollywood's copying techniques
and practises constitute actionable copyright infringement.
discusses the difficulties associated with enforcing Hollywood copyrights in
India and updates readers on recent positive developments in Indian copyright
law pertaining to Hollywood. Lastly, the final section of this paper discusses
how the international intellectual property enforcement mechanism established by
the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS")
is effectively inconsistent to the Hollywood claimants.
As a remedy for the
infringement, this article ultimately proposes a special contractual agreement
between Hollywood and Bollywood film production entities that discourages
unauthorized remakes and establishes transaction models to facilitate
compensation for copyrighted work owners. This agreement would establish more
effective and expeditious remedies and lay the groundwork for improved relations
and increased cooperation between the two film industries.
- Basi, Hariqbal examines the international standard for the
intellectual property rights infringements and also enunciates the standard of
review for such cases: "Ordinary Observer Test". The article draws comparison
between the copyrights law in US and India and their enforcement mechanisms.
Thus, the article examines the ramifications of foreign copyright infringement
in India as a result of the entertainment industry's globalization, with the
help of a case: (Partner v. Hitch). Lastly, the article discusses as to why
litigation is not the optimal response and hence cannot yield favourable
outcomes for Hollywood in their enforcement of copyrights infringement in India.
- Standard of Evaluation in US & India
While considering the factors that constitute illegal "derivative" work in
Copyright, different standards of tests are referred to by the various
jurisdictions. Both Indian and US courts use a variant of the "ordinary"
observer test to determine if two works bear a high degree of resemblance. The
"Ordinary Observer" test determines whether two works are substantially similar
if an ordinary observer of reasonable diligence would infer that the defendant
illegally copied the claimant's protected speech.  According to the Supreme
Court of India, a copy must be sufficient enough to demonstrate that an
- Differentiating between an Idea and Expression
Copyright protection is applicable only for the expression of an idea in its
original form. A "thought" cannot be protected by copyright. If a work just
appropriates the original work's concept, it is not regarded to infringe on the
copyrighted work. To demonstrate this notion further, consider that a certain
film, for example, is about a particular subject. The filmmakers use a variety
of techniques to convey their message. A following film is still about a topic,
but it expresses it via a different medium. In this instance, the second film
does not infringe on the first since it communicates a common, but unprotectable,
concept differently from the first film.
The aforementioned issues shall be expanded and discussed at length in the
- To expand on the idea of creating a universal standard of evaluation for
dealing with copyright infringement especially in the film industry
- To discuss the key factors that determine the difference between and
idea and expression when dealing with "derivative" movies that are inspired
- The paper would aim to take inspiration from foreign jurisdictions and
suggest new and creative ways of preventing copyright infringement in cases
of inspired work.
The present paper would be a combination of doctrinal and empirical research and
has relied on both primary and secondary sources of research. Through its
analysis of various literature on the concept of "Copyright Infringement in
Films", the authors have identified a research gap with special emphasis of the
Moreover, the present paper seeks to work on preventing lack of distinctiveness
and looks forward to an empirical data analysis based on data collected from
companies and people across the spectrum which would help them analyze the
public opinion which forms the most important factor for determining
Having spent decades recreating Hollywood films without gaining official rights,
Bollywood filmmakers have now found themselves the target of lawsuit or the
threat of litigation by Hollywood studios attempting to protect their
intellectual property rights against the Indian film industry. Many Bollywood
filmmakers believe that their recreated films should be treated as original
goods because of the creative labour necessary to Indianize the remakes, and
hence do not consider their practice of reproducing foreign works to be a
violation of intellectual property rights.
The expected outcome of this research outline would be as follows:
- To identify the standard of evaluation and suggest incorporating a test in
the TRIPS agreement for universal acceptance.
- To successfully highlight the factors that distinguish ideas from
expression and its applicability in the context of "derivative" works in
- Timm Neu, Bollywood is Coming! Copyright and Film Industry Issues
regarding International Film Co-Productions Involving India, 8 SAN DIEGO
INTL L.J. 123, 133 (2006)
- TRIPS: A More Detailed Overview of the TRIPS Agreement, http://www.wto.org/english/tratop
- Article 2(3) of the Berne Convention
- Jishnu Guha, Time for India's Intellectual Property Regime to Grow Up,
13 CARDOZO J. INT'L & COMP. L. 225, 232 (2005).
- Rachana Desai, Copyright infringement in Indian film
industry, Vanderbilt Journal Of Entertainment & Technology Law, Volume 7,
Issue 2 - Spring 2005, https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1219&context=jetlaw (Last
visited Mar, 9 2022).
- Tejendra Meena, Utsav Kum, and Siddharth Bhagat, The Impact of the
Bollywood Industry to the Global Economy & Efficacy of the Copyright laws in
association with Indian Law � "Can the Concept of Indianization be used as a
Defence to Evade Legal Liability for Bollywood?", Ijrar, Volume 5, Issue
3, https://bit.ly/3tI58wK (Last visited Mar, 9 2022).
- Hariqbal Basi, Indianizing Hollywood: The Debate Over Copyright
Infringement By Bollywood, UCLA Entertainment Law Review, Vol. 18, Full
360: How the 360 Deal Challenges the Historical Resistance to Establishing a
Fiduciary Duty between Artist and Label, A (escholarship.org) (Last visited
Mar, 9 2022).
- Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F. 2d 487, 489 (2d
- R.G Anand v. Deluxe Film, A.I.R. 1978 S.C. 1613
- Justice P.S. Narayana, Intellectual Property Law in the New
Technological Age, (2002) PL WebJour 6