XYZ FILMS V UTV MOTION PICTURES 908-NMSL1155-16-BAAGHI.DOC ATUL IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION (L) NO. 1155 OF 2016 IN SUIT (L) NO. 344 OF 2016 1. YZ FILMS LLC, a limited liability company incorporated in USA and having its address at 3103 La Cienega Blvd, Los Angeles, CA 90016, USA 2. "T MERANTAU FILMS having its address at !L" K"$" Fa&hr'ddin (o. 6, )Depan Hotel Millenni'm, Tanah Abang, !a&arta Pusat, D#. !a&arta, .ndonesia 3. SI#HYA ENTERTAINMENT PRIVATE LIMITED, a company incorporated under the provisions of the Companies Act, 1956, and having its address at: i, 2975, Gali No. 3, Shalimar Par&, Bholenath (agar, Shahdara, Ne5 Delhi 6 110 032 ii, B'ngalo5 No. 129, Aram Nagar No. 1, 7// Seven Bungalo5, Andheri (8est,, +'mbai – 900 061 ..."$%&'(&))* Bombay versus High Court 1. UTV MOTION PICTURES + UTV SOFT,ARE COMMUNICATIONS LTD.- The 8alt Disney Company, India, 1st Floor, 1 of 35 21 April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 02/05/2016 11:32:43 ::: XYZ FILMS V UTV MOTION PICTURES 908-NMSL1155-16-BAAGHI.DOC Building No. 19, Solitaire Corporate -ar&, 4'r' Hargovind:i Marg, Cha&ala, Andheri );ast,, M'mbai 400 093 2. NADIAD,ALA GRANDSON ENTERTAINMENT PVT. LTD., 1701 Grande'r, Oshi5ara, Veera Desai Road, Andheri (8est,, M'mbai – 400 053 And (adiad5ala Villa Ocean Vie5, !"-" =oad, Versova Andheri (8est,, Mumbai 400 051 ...D.).'/%'(* A""EARANCES F01 the P$%&'(&))* D1. B&1.'/1% S%1%), with Mr. Rohan Sawant, Mr. Mahesh Mahadgut, & Ms. Miloni Gala, i/b Mr. Mahesh Mahadgut. F01 D.).'/%'( No. 1 M1. M3*(%)% D04(01- Seni01 A/504%(., with Mr. Neveille Mukerji, i/b Veritas Legal. F01 D.).'/%'( No. 2 M1. V.R. D20'/- S.'&01 A/504%(., with Mr. Ashish a!ath, Mr. Rash!in handekar, Mr. Ameet Naik & Mr. Ravi Sur"awanshi, Mr. Vaibhav #hure and Madhu Gadodia, i/b M/s. Naik Naik & $o. Bombay HighCORAM6 G.S.Court "ATEL- J DATED6 21*( A71&$ 2016 ORAL JUDGMENT6 2 of 35 21 April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 02/05/2016 11:32:43 ::: XYZ FILMS V UTV MOTION PICTURES 908-NMSL1155-16-BAAGHI.DOC A. OVERVIEW 1. By consent, the (otice of Motion is ta&en 'p /or hearing and /inal disposal" 2. Since the time this S'it 5as /iled, the -lainti//s> case in this copyright in/ringement action has changed more than some5hat" This is partly inevitable1 m'ch has transpired since the date of the /irst application for ad-interim relie/s and today" When Dr" Sara/ first made his application /or ad-interim relie/s on behal/ of the -lainti//s, he said that s'it is based on a copyright in/ringement claim in, as he p't it, @everythingA1 his clients> /ilm, its 'nderlying script, screenplay and storyline" As 5e shall see, this also incl'ded a slightly more partic'lariBed claim" I will ret'rn to that presently" 3. 5as given a copy o/ the *e/endants> screenplay" . str'ggled through it. .t was not shared 5ith Dr" Sara/ or his teasm" Much later, . 5as also given a two-disc *<* copy of the De/endants> 5or&, a /ilm called #aaghi, sched'led /or release on 29th April 2016. A/ter some initial hesitation, +r" Dhond /or the 2nd De/endant agreed to screen the /ilm last evening /or Mr" Mahadg't, the -lainti//s> Advocate on record, and their counsel" . have heard *r" Sara/ again this morning, Mr" Dhond /or the 2nd *e/endant and Mr" Doctor /or Bombaythe 1st De/endant. High Court 4. The two 5or&s in C'estion are two /ilms" The Plainti//s> /ilm is one called %he Raid& Rede!'tion. The De/endants> /ilm is #aaghi" Today, a/ter all the intervening s&irmishes, Dr" Sara/>s case is do5n 3 of 35 21 April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 02/05/2016 11:32:43 ::: XYZ FILMS V UTV MOTION PICTURES 908-NMSL1155-16-BAAGHI.DOC to this1 that s'bstantially the 5hole o/ the %he Raid& Rede!'tion has been compressed into the last twenty min'tes or so o/ #aaghi" He says the length is immaterial" He is possibly right in that, as a general proposition. $e says, tho'gh, that #aaghi is a complete imitation of %he Raid& Rede!'tion1 sho'ld any vie5er see the last twenty min'tes of #aaghi, he or she 5ould 'ndoubtedly concl'de that it is a copy of %he Raid& Rede!'tion" . thin& he is 5rong on /acts" #aaghi>s actual r'nning time is about two hours and twenty min'tes" A necessary sequitur to Dr" Sara/>s arg'ments, there/ore, is that first two ho'rs o/ Baaghi are a 5holly s'per/l'o's add on, entirely inconseC'ential" (ecessarily this also means, and this is, . think, the test in la5, that these last twenty min'tes are &ey to, and are the &ernel of, #aaghi" Ta&e out these twenty min'tes and nothing remains in that wor&" 5. disagree" I have re/'sed the inj'nction. My reasons follo5" 6. On the averments in the -laint, it is di//ic'lt to discern the precise /rame o/ the Plainti//s> case" . say this beca'se even though there has been an amendment 5hich . permitted, the lac& o/ a precise claim still persists" %or the p'rposes o/ this :'dgment, . propose to ta&e the -lainti//s> case at its best, ma&ing additional allo5ance that might not act'ally be 5arranted, and ta&ing the case at its broadest. %or instance, there is a serious disp'te raised by the De/endants, especially the 2nd *e/endant in its A//idavit in =eply, Bombayas to the maintainability o/ theHigh S'it and the claim made Court on behal/ o/ Plainti// (o. 3" . do not propose to hold against the -lainti//s /or that reason. Mr" Dhond has also pointed out that there are clear errors, ones he calls deliberate misstatements, in the -laint and in the A//idavits /iled by the Plainti//s as the content o/ the Plainti//s> o5n 4 of 35 21 April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 02/05/2016 11:32:43 ::: XYZ FILMS V UTV MOTION PICTURES 908-NMSL1155-16-BAAGHI.DOC /ilm" . 5ill let even these pass" The test to my mind is /ar more /'ndamental" ./ the Plainti//s cannot satis/y that test, they /ail" Conversely, i/ the Plainti//s do ma&e out a case o/ infringement, they cannot possibly be de/eated merely beca'se one partic'lar averment is said to be inacc'rate or beca'se the De/endants disp'te some o/ their title claims" B. FACTUAL BACKGROUND 8. The three Plainti//s are, respectively, an American company, an .ndonesian company and an .ndian company" The -lainti//s (os" 1 and 2 are the prod'cers of %he Raid& Rede!'tion" They claim to o5n the copyright in the /ilm and its 'nderlying 5or&s incl'ding the script, screenplay, storyline and dialog'es" The 1st and 2nd Plainti//s entered into a rema&e agreement 5ith the 3rd -lainti//, 5ith 5orld5ide rights to develop, prod'ce and eDploit that /ilm, incl'ding in rema&es and a seC'el" The 3rd Plainti// does not yet seem to have made any progress in that direction. 9. The amendments allo5ed say that 'nder an agreement dated 1st !an'ary 2011, Plainti// (o. 2 employedEcommissioned the services o/ one Mr" 4areth ;vans to 5rite a script /or %he Raid& Rede!'tion" $e 5rote a script, a copy o/ 5hich is said to be at Bombay;Dhibit @AA" Therea/ter, Mr"High ;vans is said to have Court assigned and trans/erred his rights to the 2nd Plainti//" These *eeds of Assignments are said to be registered" 5 of 35 21 April 2016 ::: Uploaded on - 30/04/2016 ::: Downloaded on - 02/05/2016 11:32:43 ::: XYZ FILMS V UTV MOTION PICTURES 908-NMSL1155-16-BAAGHI.DOC :. Act'ally, the history o/ %he Raid& Rede!'tion is a little more than compleD than this" . am not at all s're that it is correct to say that Mr" 4areth ;vans 5as merely engaged to 5rite the script and then to direct this /ilm" There is material available in the p'blic domain indicating that Mr" ;vans 5as at an earlier time shooting a doc'mentary on the 5ell?&no5n .ndonesian martial arts style, F-enca& Silat>" This is one o/ several variants of this martial arts combat style &no5n thro'ghout South ;ast Asia" .t is said to have many in/l'ences, incl'ding /rom China and .ndia" .t is d'ring the ma&ing of this doc'mentary that Mr" ;vans is said to have met +r" .&o U5ais, the lead star in %he Raid& Rede!'tion" .n /act, they seem to have collaborated on an earlier action /ilm be/ore, Merantau, one /rom which the 2nd Plainti// seems to have ta&en its name" 10. On its release in 2011 )2012 in America and .ndia,, %he Raid& Rede!'tion 5on several accolades and a5ards at /ilm /estivals and else5here" Some details are set out in paragraph 3"3 of the -laint. There is no disp'te about this" The /ilm>s distrib'tion and release rights for America were ta&en by Sony Classic Pictures" 11.