Your Story! So What? – Books, Similarity and Copyright Infringement – Copyrights and Writers Part 11

Copyright does not protect ideas except to the extent they are expressed, and a writer will not be liable for copyright infringement if she copies only ideas of another writer. Ideas, facts, historical events, and public domain works are open to all writers, and no writer can claim exclusivity over them under the copyright law. However, a writer is not permitted to copy expressions of another writer, and such copying without authorization gives rise to copyright infringement.

Copyright Infringement

If an author exercises exclusive rights of another author with respect to his copyrighted book without permission, the first author will be liable for copyright infringement. A literary work like a book gets the following exclusive rights in India:

  1. Right to Reproduce and Issue Copies of the book;
  2. Right of Public Performance and Communication to Public;
  3. Right to make a Cinematographic Film or Sound Recording from the book; and
  4. Right to translate or adapt the book.

The copyrights over a book are not limited to preventing others from copying the work, they extend to book reading in the public, recording and making the audio version available for public access, making a movie based on the story in the book, translating it to another language, and adapting the book into a drama, cartoon, etc.. If any person does any of the foregoing without the permission of the writer, the person will be liable for copyright infringement. One question that must of course be answered in order to conclude that a book’s copyright has been infringed is whether the book has actually been copied. A book will be considered to be copied if the work in question is substantially similar to the story, plot, characterization, events, sequences, etc. of the book, and if the alleged infringer had access to the book.

Substantial Similarity

Access is presumed in case of published books because these books are generally accessible to the public. When it comes to unpublished books, access must be specifically proved. For published books, copyright infringement assessment primarily revolves around substantial similarity. There is said to be infringement if the work in question is substantially similar from the point of view of an ordinary reader.
The similarity between two novels may be in the story, plot, characters, scenes, dialogues, or even in narration. Under certain circumstances, copying even one sentence can give rise to copyright infringement. Except in cases of slavish copying, assessment of whether one book is substantially similar to another book is subjective. Before taking up the analysis, the book must be broken down into its individual elements such as story, plot, characters, and sequences. Once that is done, each of the elements must be compared to determine substantial similarity. Several tests are adopted for this analysis, and the popular among them for books are ‘Look and Feel’ test and ‘Pattern’ test.
In a case involving two books, an ordinary reader on reading both the books must end with the unmistakable feeling that one is a copy of the other. Existence of similarities is not enough, the similarities must be substantive and substantial. On the same note, existence of dissimilarities between the books does not mean that there is no infringement. Despite the dissimilarities, if an ordinary reader is left with the impression that one book is a copy of the other, infringement exists.
Colourable imitation of copyrightable elements in a book to make the works feel dissimilar will not make a book non-infringing. If the dissimilarities have been incorporated to merely colour the work as different, the book will be infringing. Also, if there are general similarities that do not contribute to the value of the story, plot, characters, or sequences, the book will not be infringing. It is well accepted that the same idea, concept or theme may be represented in the form of different stories, and copying an idea, theme or concept will not give rise to copyright infringement.

Illustrations – What Can a Writer Copy?

A writer can copy ideas, concepts and themes without fear of copyright infringement liability. For example, if a writer wishes to write a novel on the theme  of Lord Shiva’s life using modern language, he will not be liable for infringing copyrights of Amish Tripathi or his publisher in the Shiva Trilogy as she would be copying only the theme, which is not copyrightable. As the story in Amish’s trilogy is part of public domain, a writer can copy the story as well. However, the writer must stay away from copying specific sequences/scenes, dialogues and narration, which might give rise to copyright infringement.
When the question of infringement is raised in a case, the stories are generally compared as a whole before getting down to their constituents. For illustration, review these two example stories:
Story 1: A freedom fighter takes his daughter to the emergency ward of a general hospital. The doctors refuse to treat her unless a bribe is paid. The freedom fighter goes to the police station, and even there, they ask for money to file a case. Wherever he goes, Government officials demand bribes. His daughter dies and the freedom fighter starts his struggle to free the country of corruption. He kills every one seeking a bribe. He does not even spare his son. Government officers start falling in line.
Story 2: An army officer comes home on leave. He takes his ailing mother to the hospital, where the doctors ask for bribe to give medicines. His mother dies at the hospital. He goes to the police station to give a complaint. They take the complaint, but take no action as he refuses to pay them. He then goes to the local collector and MLA, who ignore him. Learning that they are all stakeholders in the medicine scam, the army officer kills each one of them. Finally, he also kills his father, who enables the scam. The officer is finally caught, but the police inspector lets him go as his actions have helped in instilling fear in the minds of corrupt officials.
Is Story 2 substantially similar to Story 1? If yes, Story 2 will infringe the copyright of Story 1. In both stories, the protagonist loses a loved one at the hospital as he refuses to pay a bribe. The police do not take any action in both the stories, and the protagonist decides to kill the corrupt officials. The protagonist achieves his end in both the stories and goes free. From this perspective, the writer of Story 2 has copied Story 1 and is liable for copyright infringement.
But, infringement analysis is not so simple. The question to be asked after the first level analysis is whether the similarities between the stories are those of copyrightable elements, or are those of common elements that form part of several earlier stories. Killing corrupt Government officers to stop corruption forms part of several earlier stories, and so does corruption by doctors and police officers. In such a case, it may be argued that similarities between the stories are of common elements, which do not give rise to copyright infringement. Having said that, if it can be shown that the plot in Story 1 is not common, and though it includes some general elements, the plot as a whole is unique, then it is copyrightable and its copying in Story 2 will be infringing. In such a case, an analysis of dissimilarities along with similarities assumes importance.
While one story involves a freedom fighter, the other has an army officer. The protagonist loses his sister in Story 1 and his mother in Story 2. In Story 1, the police refuse to take the complaint, but in Story 2, the police do not act. Story 2 includes specific scenes with the collector and MLA, but Story 1 does not include such scenes. Story 2 is based on a specific scam and people involved in it, while Story 1 views corruption from the freedom struggle perspective. Overall, though the stories are based on the same theme of corruption, it may be argued that their plotting, characterization and sequence of events are different, making them substantially dissimilar and ruling out any possibility of copyright infringement.
The determination of copyright infringement will finally depend on the tussle between the similarity and dissimilarity arguments. The analysis is not easy, and will never be except in cases of slavish copying of expression. A smart writer can easily adapt work of another writer and modify it to an extent that takes it outside the scope of substantial similarity tests. Such copying of ideas do not give rise to copyright infringement. Having said that, minor modifications will not be sufficient to avoid infringement liability.

Publisher Control

When a writer publishes his book with a publisher, the publisher merely publishes and distributes the book, but takes away the copyright in the book along with all the aforestated rights. Very few publishers take only the publication right in the book and leave the rest with authors. If someone exercises rights in a book and the writer comes to learn about it, she may not have the authority to go after the infringer as the copyright vests with the publisher. The publisher will not act unless the profit to be gained is substantial enough to invest in a law suit, and will definitely most certainly not take action if the infringing author also publishes with it.

Fair Use/Dealing

Fair Dealing or Fair Use is an exception to copyright infringement. If a book or its contents are used for purposes of fair dealing or use, the person copying will not be liable for copyright infringement. The next post will discuss fair dealing/use and its nuances for writers.

Cases on Novels and Copyright Infringement

Some copyright infringement cases involving novels are provided hereunder for interested writers.
Barbara Taylor Bradford vs Sahara Media Entertainment Ltd. –
E.M. Forster And Ors. vs A.N. Parasuram –
Madhavan vs S.K. Nayar –
Blackwood And Sons Ltd. And Ors. vs A.N. Parasuraman And Ors. –
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