Arjun Shah, Is Bollywood Unlawfully Copying Hollywood? Why? What Has Been Done About It? and How Can it Be Stopped?

• Citation: Vol. 26 No. 1
• Publication year: 2010
• topic: Intellectual Property,Copyright law,Entertainment Law

IS BOLLYWOOD UNLAWFULLY COPYING HOLLYWOOD? WHY? WHAT HAS BEEN DONE ABOUT IT? AND HOW CAN IT BE STOPPED?

INTRODUCTION

A popular film favorite among lawyers and law students is the 1992 Oscar- winning comedy, My Cousin Vinny.1 The film features Joe Pesci as a quick- witted but hapless attorney defending two innocent New York teens from a capital murder charge in the Deep South.2 It was fitting, then, that a film about law and justice would be used as a guinea pig in Hollywood’s most aggressive attempt to enforce its copyrights against unauthorized Bollywood remakes of Hollywood movies.3 In the spring of 2009, Twentieth Century Fox (“Twentieth Century”) took the unprecedented move of filing suit for copyright infringement in the Bombay High Court of India4 against the Mumbai5-based film production company, BR Films.6 BR Films was set to release Banda Yeh Bindaas Hai (This Guy Is Fearless) in June 2009.7 Twentieth Century alleged that the producers and director of Banda Yeh Bindaas Hai blatantly created a “substantial reproduction” of My Cousin Vinny. 8 The Bombay High Court

1. MY COUSIN VINNY (Palo Vista Productions 1992); My Cousin Vinny, INTERNET MOVIE DATABASE, http://www.imdb.com/title/tt0104952 (last visited Apr. 13, 2012).

2. MY COUSIN VINNY, supra note 1; My Cousin Vinny, supra note 1.

3. See Banda Yeh Bindaas Hai: Stuck in Copyright Row, Release on Hold for Multiplex Stir, THE INDIAN EXPRESS (May 21, 2009, 3:35 AM), http://www.indianexpress.com/news/banda-yeh-bindaas-hai-stuck-in-

   copyright-row-release-on-hold-for-multiplex-stir/463253/0.

4. For an overview of the structure of Indian courts, see Rachana Desai, Note, Copyright Infringement in the Indian Film Industry, 7 VAND. J. ENT. L. & PRAC. 259, 265 (2005). For the history of the Bombay High Court, see History of High Court of Bombay, HIGH CT. BOMBAY, http://bombayhighcourt.nic.in (last visited Feb. 13, 2012).

5. In 1996, the city known as “Bombay” was renamed “Mumbai.” The high court in Mumbai, however, retained the name “Bombay.” History of MCGM, MUN. CORP. GREATER MUMBAI, http://www.mcgm.gov.in/ irj/portal/anonymous?NavigationTarget=navurl://d20cb3d618ee8cb6c3a780df7c58030c (last visited Feb. 13, 2012).

6. See Hetal Vyas, Stay Order, MUMBAI MIRROR (June 16, 2009, 3:35 AM), http://www.mumbaimirror. com/index.aspx?page=article&sectid=30&contentid=2009061620090616033535477288d7b5d (“This is the

   first time that a Hollywood film studio has taken a Bollywood filmmaker to court over remaking their film.”).

7. See id.

8. Id.

   issued an injunction delaying the Indian film’s release while litigation ensued.9 Both parties agreed to a settlement before the court could issue a decision.10 The settlement left unanswered the question of whether Bollywood could continue to make unauthorized remakes of Hollywood movies with impunity. Nevertheless, in October of 2010, Twentieth Century presented the Bombay

   High Court with another opportunity to reach a holding regarding the legality of an unauthorized Bollywood remake. 11 This time, the court reached a decision and found that the accused Bollywood studio was liable for copyright infringement. 12 The court’s decision was the first judicial opinion in India holding a Bollywood studio liable for unlawfully copying a Hollywood film.13

   
   

   The major player in the Indian film and entertainment industry, commonly referred to as Bollywood, has had a long tradition of taking Hollywood movies and music and remaking them to serve a primarily South-Asian audience.14 Bollywood consists of the producers, directors, actors, and others who are

   responsible for most of the Hindi-language based films that are produced in cinema. 15 Its films are recognized for their romantic dramas and elaborate song-and-dance scenes that depart from the storyline of the script.16 Bollywood

   
   

9. Twentieth Century Fox Film Corp. v. BR Films & ANR, NMS/1561/2009 (Bombay H.C. 2010) (unreported consent order), available at http://bombayhighcourt.nic.in/data/original/2009/NMS156109050809. pdf.

10. Id.; see also Bollywood Copy Case ‘Is Settled,’ BBC NEWS, (Aug. 7, 2009, 1:47 PM), http://news.bbc.

    co.uk/2/hi/entertainment/8189667.stm.

11. Twentieth Century for Film Corp. v. Sohail Maklai Entm’t Pvt. Ltd., NM-2847 (Bombay H.C. 2010),

    available at http://bombayhighcourt.nic.in/data/original/2010/NMS284710141010.pdf.

12. Id. ¶¶ 33–36; see also Naman Ramachandran, Fox Wins Partial Ruling on Bollywood Remake, VARIETY, (Oct. 15, 2010, 4:00 AM), http://www.variety.com/article/VR1118025734.

13. Ramachandran, supra note 12 (“The judgment marks the first time that an Indian court has ruled that Bollywood infringed a Hollywood copyright.”).

14. See Neelam Sidhar Wright, “Tom Cruise? Tarantino? E.T.? . . . Indian!: Innovation Through Imitation in the Cross-cultural Bollywood Re-make, in CULTURAL BORROWINGS APPROPRIATION, REWORKING, TRANSFORMATION 194 (Iain Robert Smith ed., 2009). Wright also writes:

    
    

    Although I mainly cite Bollywood remakes produced over the past eight years, I do not intend to fix a date-period to this phenomenon. Hollywood narrative adaptations in 1990s Bollywood cinema have been partly explored by Sheila J. Nayar (1997). Also, we can find earlier evidence of such appropriation in films such as Mr India [sic] (1987), which works almost as a cultural inversion of Steven Spielberg’s Indian [sic] Jones and the Temple of Doom (1984), and in the 1950s with screen legend Raj Kapoor’s involvement in reworkings of Charlie Chaplin films, Frank Capra’s It happened One night [sic] (1934), and Vittorio De Sica’s Shoeshine (1946).

    Id. at 206 n.1.

15. TEJASWINI GANTI, BOLLYWOOD: A GUIDEBOOK TO POPULAR HINDI CINEMA 1, 2–4 (2004).

16. See id. at 3.

    has been recognized as the world’s largest film producer since the 1970s.17 The annual growth rate of India’s film industry is several times the growth rate of India’s gross domestic product. 18 The industry’s annual revenues have consistently increased over the past decade.19 Film distribution to international audiences in the forms of DVDs and satellite television has also helped Bollywood increase its profits.20 In fact, approximately half of Bollywood’s multi-billion-dollar annual revenues come from overseas markets like the United States where growing South-Asian communities provide for large audiences.21 This helps explain why “[f]ilms from India do more business in the United States than films from any other country.”22 The Federation of Indian Chambers of Commerce and Industry estimated that by 2013, filmed entertainment in India will gross close to $3.8 billion annually.23 Bollywood’s media caters to a subcontinent with over one billion people24 and a growing international audience. 25 Bollywood’s increasing popularity, both internationally and within the United States, and rising commercial value have recently attracted the attention of Hollywood producers who no longer wish to remain tolerant or apathetic toward unauthorized Bollywood adaptations of Hollywood entertainment.26

    
    

17. See id. (stating that the Hindi-language Bollywood films, together with the feature films produced in approximately twenty other Indian languages, make India the largest feature film-producing country in the world).

18. Manjeet Kripalani & Ron Grover, Bollywood: Can New Money Create a World-Class Film Industry in

    India?, BLOOMBERG BUSINESSWEEK (Dec. 2, 2002), available at http://www.businessweek.com/magazine/ content/02_48/b3810013.htm (“The huge popularity of India’s film industry in emerging markets has fueled an annual growth rate of 15% for the past five years—three times that of India’s 5% gross domestic product growth.”).

19. Id.

20. Id.

21. Lakshmi N. Tirumala, Bollywood Movies and Cultural Identity Construction Amongst Second Generation Indian Americans 5 (Aug. 2009) (unpublished M.A. thesis, Texas Tech University), available at http://www.global.asc.upenn.edu/docs/ICA2009/LakshmiT.pdf.

22. Anita W. Wadhwani, “Bollywood Mania” Rising in United States, WASH. FILE (Aug. 9, 2006), http:// www.america.gov/st/washfile-english/2006/August/20060809124617nainawhdaw0.8614466.html. The author

    is referring to the volume of box office sales when stating the films “do more business.” Id.

23. Sanjaya Baru, Bollywood’s Global Market Beckons, REDIFF.COM (Jan. 11, 2010, 12:17 PM), http://business.rediff.com/column/2010/jan/11/guest-bollywoods-global-market-beckons.htm.

24. India, WORLD BANK, http://data.worldbank.org/country/india (last visited Jan. 19, 2011).

25. Baru, supra note 23 (“While Bollywood’s revenue numbers are nowhere near Hollywood’s, it churns out more films and now screens them in nearly a 100 countries [sic] around the world.”).

26. See Rhys Blakely, Hollywood Is Watching As Bollywood Loses the Plot, TIMES (London), Aug. 7, 2009, at 33 (“It’s going to be very tough to rob ideas from now on. Hollywood’s suddenly looking at Bollywood very minutely.”).

    This Comment emphasizes the notion that enforcing film copyrights is of interest to Hollywood and the United States because legally protected creativity and originality should be given proper international recognition, and unauthorized imitations should be subject to penalties. Furthermore, this Comment reveals that the economic incentives for Hollywood to aggressively enforce its copyrights against Bollywood copycats are now stronger than they

    ever were before. 27 This Comment also suggests that effective intellectual

    property enforcement may provide an incentive for Bollywood to explore its own creative potential rather than implicitly concede creative inferiority by engaging in unauthorized remakes.

    
    

    Part I of this Comment explores the underlying reasons driving entities in Bollywood to copy American entertainment. It then explores the nature, frequency, and extent of Bollywood’s copying. The repercussions of the copies and imitations on the American and Indian entertainment industries are briefly examined. Part II introduces relevant U.S. and Indian copyright law and analyzes whether any of Bollywood’s copying techniques and practices actually amount to actionable copyright infringement. It assesses the defenses and...