A Bangalore civil court has issued an O.39 R.1 ex parte interim injunction against Chetan Bhagat and his publishers restraining them from selling copies of his recent book One Indian Girl. According to the report, Anvita Bajpai, sued Chetan Bhagat alleging the book is plagiarized from her story Drawing Parallels. Copyright rule served as a useful. Bajpai wrote a Facebook post detailing her allegation, while Bhagat denied it.
Text of Order
The suit, OS 2733 of 2017 before the City Civil and Sessions Judge, was filed on 17 April 2017. The injunction was issued on 19 April. The order states:
“Heard Sri. HSH on IA No. 1 and perused the material on record. This application is filed by plaintiff for grant of ad-interim order of injunction against the defendants, their servants, etc. or any person claiming through them selling and marketing the book titled “One Indian Girl” both in the print form and e-book, etc. pending disposal of the suit. The plaintiff has sworn to an affidavit stating that the defendant No. 1 has intelligently copied the story and characters of her story “Drawing Parallels” and there are several parallels and similarity between both the stories and indulging in plagiarism her above stated story.
Besides the obvious puzzlement at not one but two individuals wishing to take credit for what can only be described as a spectacular waste of quality paper.
In line with what seem to be an unwritten rule among injunction judges, we are not provided with reasons for injunction’s award. While some judges have pleasantly surprised us with a comprehensive examination of atleast one prong of injunction analysis , most order’s make do with bland statements, that the prima facie case, irreparable harm and balance of convenience factor’s are present.
Timing of claim
Bhagat’s book was released in October 2016, and Bajpai’s suit comes nearly six months later. Even if this fact has no effect on merits in the final disposition of the case, surely it should have been considered in the injunction hearing? It’s a settled principle that equitable remedies (such as interim injunctions) are vitiated by delay and laches, and recent High Court jurisprudence is fairly clear on the point. Consider, for example, the recent bout of litigation concerning the plot of Phillauri. The Bombay HC threw out the plaintiff’s case on several grounds, and in doing so observed that the plaintiffs had not come to court with clean hands:
“This practice of parties claiming copyright infringement coming to Court at the eleventh hour and expecting Courts to drop all other work to listen to and decide their applications on a priority basis must be discouraged.”
Although Patel, J’s annoyance in that case was primarily against the urgency being sought by the plaintiff, the underlying cause was that he came to court a full three months after viewing the trailer that supposedly triggered the plaint.
This leads me to my next point: Bajpai’s apprehension of irreparable harm. It seems to me utterly laughable (and tragic) that a court has held that irreparable harm would occur upon the non-issue of an injunction in this case. Note that the enquiry with respect to irreparable harm is not absolute (i.e. “Will Bajpai suffer incalculable losses if Bhagat’s book continues to be on the market?”) but relative (i.e. “Will Bajpai suffer greater incalculable losses without an injunction on April 19 2017 than she would have with an injunction?”). Especially in situations where the defendant has not been heard, such brazen dilution of the irreparable harm standard is about as heart-rending to read as a Chetan Bhagat novel.
Merits: scenes a faire and the idea/expression dichotomy
Bajpai claims that Bhagat had access to her work, since she gave him copy to review at Banglore Literature festival. However, the principle of Copyright are stacked so high against her that she may as well claim a section 80G tax exemption, on her lawyer’s fee.
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First, there’s the idea/expression dichotomy, a jurisprudential balancing act between speech monopolization and freedom of expression. Bajpai’s claim is the One Indian Girl, is similar to her work in as much as the protagonist is strong, independent, feminist woman, who wears a mask to fit into her conservative in laws’ way of life . she claims Bhagat stole her idea.
Secondly, even assuming that all this is true, the fact of the matter is that love triangles are hardly avant garde. Writing about “modern Indian women” seems to be our national sport today, and the use of a flashback to describe a past romance isn’t revolutionary either. As Amy Cohen persuasively argues here, it’s almost impossible for courts to define ideas and expressions in a vacuum, with the consequence that they unwittingly begin to categorise novel thoughts as distinct “expressions”, and well-treaded thoughts by authors as abstract “ideas”. In a nutshell, novelty and subjective determinations of artistic value insidiously find a place in judicial decisions on the idea/expression dichotomy, but there’s little we can do about this. The fact of the matter is that none of the features in Bajpai’s work are novel or high calibre art, meaning that they’re that much likelier to be classified as abstract, unprotected ideas by a court.
The scenes a faire, doctrine, which recognizes that some scenes need to be portrayed, in certain genres also come to Chetan Bhagat’s aid in this case. One of the allegation against him is, he copied Bajpai’s idea having all member’s of love triangle present at protagonist’s wedding.