Explanation Of The Scene
Jane is the protagonist of the show titled "Jane the Virgin
" (also known as
"Jane" in short). She is an aspiring writer who is a struggling waiter in order
to make ends meet for herself as well as her family. In Season 1, Episode 15 of
the show, she finds out that a renowned romance novelist, Angelique Harper is
coming to her hotel, so she decides to take that opportunity and show her
manuscript so that she can give inputs as an expert in the genre and suggest any
Unfortunately, Angelique mistakes her for a masseuse, but eventually reads the
chapter and publishes a book, which Jane starts reading and finds it awfully
similar to her concept note shown. Jane approaches a district attorney for
advice. The scene which the author of this assignment has chosen is from Season
2, Episode 14 of the TV series, Jane and her friend are travelling in a car, and
hears an announcement on the radio related to a book signing for a book titled
"Revolution of the Sun".
She explains to her friend that the author stole her idea from her chapter. She
was preparing to confront the author at a book signing and threaten her with
legal action as the expression of her idea was stolen from a chapter of a book
manuscript she wrote and practiced it on her friend, so that she could seem
convincing and firm. When it was finally her turn at the book signing, she was
not able to challenge the authenticity of the book, as she had to leave because
her pregnant friend goes into labour. Thus, the problem does not get resolved.
When she gets home from the hospital later on, she re-reads her book and feels
that it was not that similar after all, but this could also just be a way of
convincing herself to not go through expensive litigation, especially against a
powerful and established writer. This happens a lot in the entertainment
industry with people filing suits for infringement, even if the story is loosely
based on theirs, in order to extort money from big companies.
6 people claimed James Cameron's Avatar copied their stories, a woman
sued Disney for using her personality rights without her authorization for the
film Frozen and another man alleged that the film The Matrix ripped off the
screenplay he wrote about Hitler's son attempting to kill mortal humans. Some
authors may tend to find similarities that just aren't there or aren't evidence
of copying. Jane may also not be able to prove access to the work or prove that
her work came first.
She also did not have any proof that Angelique read or even received it, because
the encounter happened in a private room with no written or video evidence.
Angelique did not sign a release form either. The chapter was also unpublished
and no copyright registration was done, which is not a mandate, but could've
worked in her favour if she'd done so. Jane may have a case for infringement
because of how her timeline of events matches with how the author got "inspiration" to execute the same premise, but it can also be considered just a
Also, a renowned author may come across many people showing them their scripts
for review or collaborative purposes, so maybe other people had a similar idea
to Jane, so it is not all that novel.
Instrumentalism: The theory of instrumentalism believe that through copyright,
authors can make a living out of their work because they are paid for it
and argued that exclusivity of copyright needs to be clearly defined. Jane, the
rightful owner and author of the manuscript, felt that Angelique was unjustly
enriched by her efforts, so this theory was not satisfied.
Romanticism: They cared less about structure and exclusivity, and felt that
copyright protection restricted development of cultural advancements. They
rebelled against defining strictly as to what comes under copyright
infringement, because otherwise it places a restriction on other authors'
creativity. This is essentially contradicting instrumentalism. They argue that
if a writer or a society has to constantly worry about whether a certain scene
or storyline is borrowed, they will be reluctant to put out work, which leads to
depriving society of the expression of art. This can be applicable to
Angelique's case, as she could claim that even though the idea might be similar,
the expression was highly different. Incidental similarities like the place
where the story is set do not constitute infringement.
Personhood: Jane's inspiration for writing a story often comes from real life
events, and themes of romance and family. Thus, it can be said that she pours
her heart and integrates her personality into the work, and thus she should get
copyright protection. This can be relevant as a defence for Jane, but it is also
unlikely to stand as in the romance genre, there are bound to be essential
themes and plots (scene á faire).
The nature of intellectual property violated is here is copyright, as the work
in question falls under Section 13(1)(a) of the Copyright Act, 1957, which
includes literary, dramatic, artistic and musical works within the purview of
its subject-matter, where the first one is relevant in this situation. Ideas
cannot be copyrighted, but expression of the idea in a tangible form can be
protected under copyright laws. The concept identified here is known as
It is difficult at times to differentiate the idea
from the expression of the idea, but it must be done so as to not stifle
creativity of artists. Jane had an idea for a story, and she also wrote it down
in the form of a manuscript, which is a tangible expression. Furthermore, as she
wrote it down, it can be classified as a literary work. Section 2(o) defines
literary work as "including computer programmes, tables and compilations
including computer databases".
Generally, any work in written down form in
literary manner constitutes literary works. Some common examples may be scripts,
concept notes, books, manuscripts, research papers and screenplays. It does not
have to be a completed or published book in order to constitute copyright
As per Section 2(d)(i), "author" of a literary or dramatic work is considered to
be the author of the work. Jane has not been hired by anyone to write the
manuscript for her eventual book, so Section 17 does not apply as she is the
owner. Jane exercised skill, labour and judgement along with applying her
creativity to write a story, so the US doctrine of modicum of creativity can be
applied here, especially since the series is set in Florida, USA. India takes
a middle-approach between the doctrine of sweat & brow from the UK and the
doctrine of modicum of creativity from the USA, so the skill and judgement test
can also be relevant here.
The Act also makes it clear that unpublished works
are covered under its scope, and the legislative intent also affirms the same.
This can be seen under Section 16 of the Act, which mentions the
terms "published or unpublished" works not having copyright other than the
copyright protection vested by virtue of the Act.
The only limitation for
unpublished works is that they do not specify a term of copyright for them.
Chapter V of the Act only covers published works. Another provision that could
be applicable here is Section 57 of the Indian Copyright Act, 1957, which deals
with the moral rights of an author, that is perpetual cannot be waived beyond a
certain extent even with authorisation through a contract or after the term of
copyright expires. Jane did not give permission to the author to base her book
on Jane's work or publish such a book without giving her credits, which violates
her right to integrity.
In Wiley Eastern Ltd. & Anr. v. Indian Institute of Management
defendants referred to many other books from other authors without giving them
due recognition, which affected sale of plaintiff's book. Court held this was
violation of moral rights.
In Macmillan v. Cooper
, court held that the pages which are copied
from Thomson North's book (publisher was Macmillan) cannot be claimed as
Cooper's original work. Concept note or a more developed form into a draft of a
chapter as part of a book can have copyright subsisting on it from the moment it
is created, like other copyrightable works.
In Anil Gupta v. Kunal Dasgupta
, Anil was a director of many TV
programmes, who came out with an idea of a matchmaking programme with the name
"Swayamvar" and shared it with Kunal and his team. The details of the execution
were thoroughly mentioned in the note. Anil registered the concept note before
showing it to Kunal. He saw a newspaper article advertising a new reality show,
which was basically produced by Kunal. It was a matchmaking programme, but with
a changed name titled "Shubh Vivah".
The Court ruled in favour of Anil. In Urmi Chiang v. Global Broadcast News,
Urmi was also a director, who came out with a unique format for a show named
"Work in Progress", where filmmakers document the complaints of the citizens in
that area and address the issues to the politicians so it can be resolved faster
and with more accountability. She had pitched it to Global Broadcasting, which
was a production house, but later on found that her idea was plagiarised into a
new show produced by them titled "Summer Showdown".
Comparison To International Copyright Framework
In Baker v. Selden
, court held that Baker's book was not infringing
upon Selden's work, because the idea of bookkeeping was similar, but the
expression was different. Similarly, Angelique can argue that even though plot
may contain some similarities, it is not substantial or fundamental to
The Berne Convention of 1886 was established to provide creators/authors of
literary and artistic work with some exclusivity and monopoly rights over their
work, and to prevent others from making authorised usage of such work subject to
copyright. Article 6 bis of the Berne Convention enjoins the members of the
Berne Union to provide legal recognition for the moral rights of attribution and
integrity in a work upon which copyright exists.
India is currently a signatory to the Berne Convention and in Amarnath Sehgal
v. Union of India
, the court cited Article 6 bis, which allows the
author to seek appropriate legal remedies if the moral right of attribution and
integrity in his work is violated. As per this Convention, Jane can be entitled
to moral rights even if/when she decides not to gain commercial benefits from
The minimum duration of copyright is for the life of the author and fifty years
after his death, but in Europe and US, that legal term of copyright has been
extended to seventy years after the death of the author and in some instances
even beyond. For book publishers, the duration of copyright is important to know
as different terms apply in different countries and national treatment under the
Berne Convention is limited by the rule of comparison of terms.
- RG Anand v. Delux Films, AIR 1978 SC 1613.
- NRI Film Production Associates v. Twentieth Century Fox Films, ILR 2004
- Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340.
- Eastern Book Company & Ors v. D.B. Modak & Anr., (2008) 1 SCC 1.
- Wiley Eastern Ltd. & Anr. v. Indian Institute of Management, 1995 SCC
OnLine Del 100.
- Macmillan v. Cooper, (1924) 26 BOMLR 292.
- Anil Gupta v. Kunal Dasgupta, 2002 IVAD Delhi 390.
- Urmi Juvekar Chiang v. Global Broadcast News Ltd., 2008 (2) BomCR 400.
- Baker v. Selden, 101 U.S. 99 (1879).
- Amarnath Sehgal v. Union of India, 2005 (30) PTC 253 (Del).