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2015 (12) TMI 710 - BOMBAY HIGH COURT

2015 (12) TMI 710 - BOMBAY HIGH COURT - TMI - Copyright infringement and breach of confidentiality - The Plaintiff claims to hold the copyright in a concept note for a proposed television serial called "Ye Tera Ghar Ye Mera Ghar" - Held that:- Nothing in either of the two documents supports the comparative chart that was shown to me on 11th September 2015. Here, the Plaintiff claims its story includes themes about the ghost family claiming ownership of the house, being murdered, hoping for reven .....

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would be so even on an acceptance of the Plaintiff’s assertion that it retained the copyright in the initial work despite the Agreement with Zee. A more helpful comparison is the one that is provided by Star India in paragraph 20 of its Reply, and it shows the very marked difference between the two works

As a matter of law, when copyright infringement is alleged in this form, and in relation to a concept, there must be an established comparable similarity between the work in which co .....

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hat is not done. Second, it must be material not in the public domain. The 'crux and essence’ claimed by the Plaintiff sits squarely in the public domain. Then, the material disclosed must be sufficiently developed to lend itself to realization; and this takes us to the springboard or kernel doctrine, which has it that breach of confidentiality liability will arise where it is shown, the other tests being satisfied, that the plaintiff’s work lies at the heart of the offending or infringing work; .....

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No. 886 of 2015 - Dated:- 8-10-2015 - G. S. Patel, J. For the Appellant : Mr A Daver, i/b Ms Saveena Sachar For the Respondents : Dr V V Tulzapurkar, Sr. Adv., a/w Mr Viraag Tulzapurkar, Ms Apeksha Sharma i/b M/s Kadam & Co, Mr Ravi Kadam, Sr. Adv. , a/w Dr Birendra Saraf, Mr Rahul Kadam, i/b M/s Murudkar & Co JUDGMENT 1. This is an action in copyright infringement and breach of confidentiality. The Plaintiff claims to hold the copyright in a concept note for a proposed television seria .....

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sed on the Plaintiff s concept note, the Plaintiff was informed by the Programming Head of Zee saying that a promotional video had appeared on YouTube for a television show entitled "Zindagi Abhi Baki Hai Mere Ghost" being made by Star India, and that this seemed to be too similar to the Plaintiff s concept note to merit further work by Zee. According to the Plaintiff, Zee has since abandoned further development under its contract with the Plaintiff. 2. The Defendants very seriously co .....

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disclosed to Star India, and that the so-called infringing work is an entirely separate work independently conceived and created. 3. I heard Mr. Daver for the Plaintiff, Dr. Tulzapurkar for the 1st Defendant and Mr. Ravi Kadam for the 2nd Defendant at some length on Friday, 11th September 2015. I placed the matter for orders on 15th September 2015. In the time between those dates, even while the judgment was under preparation, Mr. Daver mentioned the matter on 14th September 2015 at 3:00 pm and .....

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2 have also filed their written submissions. I have not permitted the Plaintiff to file its responses to those; at some point, these endless filings must stop. 4. Having considered all the submissions and the material, I am not persuaded that the Plaintiff has made out a case for the grant of an interim injunction. There is firstly the question of whether or not a prima facie case can be said to have been made out, and then the issues of balance of convenience and irretrievable prejudice. In my .....

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era Ghar", a concept note prepared for a television serial. The Plaintiff seems to have acquired an assignment of this copyright only very recently, between June and July 2015. This concept note is registered with the Film Writers Association. On 21st November 2012, Ms. Kothari applied for a registration of this work in her name under the Copyright Act, 1957.(Plaint, Ex.B, pp. 52-54.) 6. In 2012-13, Ms. Kothari worked with Baba Arts Limited ("Baba Arts") as a creative consultant. .....

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between 9th July 2013 and 30th August 2013. She asked others to work on the draft screenplay and the PowerPoint presentation. Further work was done in that regard. On 8th November 2013, Ms. Kothari obtained her registration from the Copyright Board under number L-56255/2013. On 11th December 2013, Ms. Kothari was among those who met with the representatives of Star India. At this time, Star India expressed its lack of interest in further developing this work. In early 2014, Ms. Kothari sought to .....

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eement dated 9th July 2015 between the Plaintiff and Zee, (Plaint, Ex.T, pp. 112-139A.) pursuant to which Zee proceeded with the development of the TV serial. On 10th August 2015, Zee s programming head telephoned the Plaintiff saying that a promotional video had appeared on YouTube for a new serial by Star India that seemed to be very similar to the project being worked on by Zee with the Plaintiff. Zee apparently told the Plaintiff it could not act further on the Development Agreement. On 15th .....

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a Rejoinder having been filed, the Notice of Motion was placed for hearing and final disposal. 7. Mr. Daver says that there is no denial of the fact that on 11th December 2013 there was a meeting with Star India at which the concept note and Power-Point presentation were disclosed to Star India. That Power-Point presentation clearly shows at the foot of each slide that copyright belonged to Ms. Kothari. There is, he says, therefore no question that a disclosure was made to Star India and that th .....

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(62) PTC 241 (Bom)) and in particular for its statement of the law on what is known as 'springboard doctrine . The Plaintiff s work, Mr. Daver says, even if not then fully realized certainly had that potential in the form in which it was disclosed, and it forms the kernel of the Defendants infringing work. 8. This case differs materially from Beyond Dreams in three critical respects: first, the Defendants question the Plaintiff s standing or right to bring the suit at all saying that Ms. Kot .....

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ion of assessing any similarity will arise only if the Plaintiff can successfully meet these three contentions, all of which are in the nature of threshold or in limine defences. I will, therefore, address these three questions first before turning to the fourth defence, which is, naturally, that the works are dissimilar and there is no infringement. THE CLAIM TO SOLE AUTHORSHIP 9. The Plaintiff says that Ms. Kothari is the sole author and absolute owner of the literary work in question. This is .....

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e original author of" this literary work to have registered it with the Film Writers Association on 29th November 2012 in her own name. The Plaintiff itself is an assignee of the copyright claimed by Ms.Kothari under a Deed of Assignment dated 9th June 2015,(Motion paperbook, pp. 254-256.) and the Plaintiff claims that till that assignment, Ms. Kothari was the 'first author , the 'absolute owner and 'copyright holder of the work in question.(Motion paperbook, p. 215 (Affidavit i .....

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copy of an email dated 18th September 2012 from one Harsh Tyagi, apparently a scriptwriter. (Motion paperbook, p. 245.) The email says that Mr. Tyagi sent Ms. Kothari several documents as attachments to his email. These included files titled "characters of T.docx"; "Ye Tera Ghar ye Mera Ghar.docx" and "Tera Ghar Mera Ghar Episodes.docx". Ms. Kothari seems simply to have forwarded these to her husband, her fellow partner with the Plaintiff, a few days later on 29th S .....

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entered therein The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof or production of the original. 11. Indeed, Section 48 is Mr. Daver s answer to my question whether copyright registration is conclusive proof of autho .....

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ted. The process involved in copyright registration is, as Dr. Tulzapurkar correctly points out, very different from that required for sealing of patents. Indeed, this is as it must be, for although the Registrar may make such enquiry as he thinks fit under Section 45(2), this enquiry is discretionary. The purpose of Section 48 is not to conclude proof of authorship but, as a matter of evidence and procedure, to allow into evidence certified and sealed copies or extracts without requiring proof .....

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ms), subject to a contract to the contrary, the employer is the first owner of that copyright. There is nothing to show that Ms. Kothari employed or commissioned Mr. Tyagi. The Plaintiff only says that she was 'the sole author and 'absolute owner of the copyright, i.e., that she wrote it all herself. At the very least, Mr. Tyagi is very likely, on the Plaintiff s own showing, a joint author of the work in question within the meaning of Section 2(z) of the Copyright Act. If that be so, th .....

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lute ownership and authorship are in doubt, she could not have passed absolute title to the Plaintiff. Had there been some sort of explanation about Mr. Tyagi s involvement, things might have been very different. What the Plaintiff says in paragraph VII of the Rejoinder is only this: (Motion paperbook, pp. 215-216.) VII. ... I say that the Copyright Certificate issued by the Copyright office under Section 48 of the Copyright Act, 1957, wherein it is binds every party to such registration.[sic] A .....

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on the said literary work, discussed the further development on the said literary work with Mr. Vipul Kothari. Annexed hereto and marked as "Exhibit B and C" are copies of the said emails. (Emphasis added) 13. This raises more questions than it answers. The emails in question are produced by the Plaintiff itself. They are of a time before Ms. Kothari began working with Baba Arts. They show Mr. Tyagi to have worked on the 'Literary Work in question. Mr. Tyagi was therefore not an em .....

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18th September, 2012 and referred to the same vide paragraph VII of the Rejoinder Filed By Plaintiff (Exhibit - B, Pg. 244 and Exhibit - C Pg. 245) which indicates that the partners of the Plaintiff were in discussion with each other and person s contracted by the said author with regar d to the said Literary Work titled 'Yeh Tera Ghar Yeh Mera Ghar on such dates. (Emphasis added) Those words "and persons contracted by the said author" are wholly missing from the Affidavit in Rejoi .....

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one who developed the whole of the literary work in question. Even more peculiar is the fact that Ms. Kothari applied for registration both with the Film Writers Association and the Copyright Board only in November 2012, well after Mr. Tyagi s involvement with the work. 14. But these already turbid waters are further muddied by what followed. In October 2013, Ms. Kothari was very much with Baba Arts. Her assignment, such as it was, to the Plaintiff was not till 9th June 2015, and the Plaintiff s .....

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what precisely she claims to have assigned to the Plaintiff (and the Plaintiff in turn to Zee), and whether she was in fact the sole author of the work so assigned. I mention this because the 9th June 2015 Assignment to the Plaintiff (Motion paperbook, pp. 254-256) says that the work in Schedule I is assigned; and that Schedule (Motion paperbook, p. 256) blandly states only "Yeh Tera Ghar Yeh Mera Ghar". This is not qualified to be the work prior to Ms. Kothari s engagement before Baba .....

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e material from third parties or whether these third parties were under contract to Baba Arts. Either of these two scenarios jeopardises the Plaintiff s entitlement even further. THE ASSIGNMENT TO ZEE 15. What is the effect of the Development Agreement dated 9th July 2015 between the Plaintiff and Zee at least as regards the continued vesting of copyright (if any) in the Plaintiff?(Plaint, Ex.T, pp. 112-139A.) Some of the clauses of this Agreement are important and should be noted. In this docum .....

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chedule 2. 1.5 "Development Work" shall mean the work as defined under Clause 2. 1.8 "Zee Elements" means all the assistance provided to the Production House with respect to the Development Work as listed in Schedule 3 and any other material as required by Zee from time to time. 2. Development Work Zee hereby appoints the Production House to further develop the Developed Concept for the creation of this Series and undertake the relevant Services to complete the development wo .....

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rk and in the process of production of the Development Work, any and all parts and portions thereof, constituent elements therein and results and proceeds, tangible and/or intangible, in connection with the Development Work. 5.2 The Production house hereby exclusively, irrevocably and unconditionally grants, assigns, sells, conveys and transfers to Zee solely and absolutely (including without limitation, by way of present grant and assignment of future copyright) all rights, title and interest i .....

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eds of Production House's services and all constituent elements thereto including literary works, musical works, dramatic works and/or artistic works as defined in the Copyright Act,1957 (as amended from time to time) as well as copyright statutes or law subsisting in any other parts of the Universe The Production house hereby confirms, represents and warrants that the ownership of the Rights in and to the Works shall vest with Zee, free of all encumbrances with effects from the moment of co .....

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e rights assigned under this Production House acknowledges and agrees that Zee is not obligated to use the Works or any part thereof or otherwise exploit the Works in any manner whatsoever or continue to do any of the foregoing. The obligations set out in the clause shall survive the termination of the Agreement. 6. Process of Development Work 6.1 ... 6.6 Upon expiry of the Term or failure of the Parties to agree on the terms for production of the Series, the Production House shall have the righ .....

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is important. It includes not only Zee s standardized release form but also a copy of the concept note in which the Plaintiff (and Ms. Kothari) claim copyright. For now, I will assume that this concept note is the same as the one for which Ms. Kothari obtained copyright registration. Clause 2 says there is an assignment of the "Development Work" in perpetuity. That clause itself makes it clear that the "Development Work" is the outcome or result of further work done on or se .....

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is is assigned irrevocably and in perpetuity to Zee. Clause 10.3 also says that these rights survive any termination of that Agreement. The Plaintiff s case is that Zee abandoned the project when it learnt of the Defendant s show and that immediately on that abandonment by Zee, there was a reversion of the copyright assignment to the Plaintiff. Mr. Daver bases this submission on Clause 6.6 of the Agreement. I do not think this is at all correct. All that Clause 6.6 says is that there will be a s .....

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ible to accept that there is, as of the date of the suit, any copyright that though once assigned to Zee has now reverted to, and vests in, the Plaintiff. To maintain this suit, the Plaintiff would need to have in its hands, at a minimum, a formal termination by Zee, and a re-assignment of the copyright in the Initial Concept. 17. A suit such as this one can only be brought by the "owner of copyright". This is defined in Section 54 of the Copyright Act, and the civil remedies of such a .....

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ch preceded the assignment to Zee. 18. Then there is the question of the marked difference between the literary work in which copyright is claimed, annexed as Exhibit "A" to the Plaint,(Plaint, pp. 35-51.) and the document at Schedule 1 to the Agreement with Zee. The two are materially different in structure, language, composition and presentation. Yet it is the Plaintiff s case, as indeed it must be, that the two are the same, and what was registered to copyright by Ms. Kothari was th .....

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egistration on 21st November 2012 with the Copyright Board and before she registered it with the Film Writers Association. There is also now material to indicate that during the interval when Ms. Kothari worked with Baba Arts, yet another person, Mr. Nitin Keswani, too worked on this material; and in paragraph 30 of the Plaint, the Plaintiff says that Ms. Kothari engaged another writer, suggested by Zee, to work on additional material. No particulars of this are disclosed. 19. I mention this bec .....

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l. Besides, nothing in the Agreement with Zee suggests this kind of division of copyright. Had any portion of the copyright been retained by the Plaintiff, the Agreement with Zee would surely have said so. On the contrary, that Agreement clearly suggests that what is assigned to Zee is a work that incorporates and builds on the 'Literary Work in which the Plaintiff claims copyright. Indeed, the entire case proceeds, as I imagine it must, on the basis that what Ms. Kothari disclosed to the De .....

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works including the said Literary Work and all its related works and materials to the Plaintiff company thereby making the Plaintiff Company the owner of the same." This clearly suggests that the assignment to the Plaintiff was some time in 2013 or 2014. Any doubt about what is being averred is disspelled by the opening words of the succeeding paragraph 25: 25. Pursuant to the above, in February 2014, Ms. Nandita Kothari approached Ms. Atmaja Unny representative for Zee to discuss the conce .....

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not produced with the Plaint, a matter I find to be decidedly odd given the circumstances in which the suit is brought, but came only in the Affidavit in Rejoinder as Exhibit F.(Motion paperbook, pp. 254-256.) It may be possible to say that this is immaterial so long as the assignment from Ms. Kothari to the Plaintiff preceded the assignment from the Plaintiff to Zee, and it matters not when that happened, but I think there is something more fundamental at issue here. One expects accuracy and ca .....

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t dubious, this casts a cloud over the entire action. 21. But more importantly for our purposes, this completely puts to rest any remaining doubt about the Plaintiff retaining copyright in the "Initial Work" as its written submissions now claim. In this context, Mr. Kadam s submission for the 2nd Defendant must be accepted: so long as the agreement with Zee is not formally terminated, and without a proper re-assignment of the copyright to the Plaintiff, Zee was at least a necessary par .....

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rranged on 11th December 2013. In paragraph 20 of the Plaint, the suggestion is clearly that Ms. Kothari "along with some others" met representatives of Star India and narrated the 'Literary Work in question. A Power-Point presentation was also made, and the slides of this presentation show Ms. Kothari as the owner of the copyright. What the Plaint does not disclose is that one Nikhil Tanwani signed a Release Form of that date (Motion paperbook, pp. 190-193.)on behalf of Baba Arts. .....

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release document. There is also nothing to indicate in subsequent emails that Ms. Kothari made the pitch or presentation on her own and independently of her engagement with Baba Arts. In fact, the preceding correspondence indicates to the contrary. The email dated 18th June 2013 from Ms. Kothari to Star India appears to be for some other show, but it attaches a profile of Baba Arts and is copied to Mr. Tanwani. (Motion paperbook, p. 55.) Similarly, the email dated 3rd July 2013 from Ms. Kothari .....

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reference to the work in question. (Motion paperbook, p. 61.) Star India says also that Ms. Kothari was present when Mr. Tanwani signed the release form. 23. The Plaintiff says that Mr. Tanwani had no authority to do so. That is hardly credible. He was copied on all mails. With her email of 18th June 2013, (Motion paperbook, p. 55.)Ms. Kothari sent a profile of Baba Arts Ltd to Star India. Before me, there is a great deal of controversy about this. The profile is shown to have been attached to t .....

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2015, Mr. Daver made a marginal note in his own hand that a copy was given to him as Counsel for the Plaintiff in Court. I have that copy on file. It shows the endorsement in blue fountain pen ink on page 3, toward the bottom third of paragraph 3(c). I am separately directing that the whole document as tendered be scanned for preservation. In correspondence the next day, 16th September 2015, the Plaintiff s Attorneys sent a set of 'corrected and 'final written submissions to the advocate .....

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ts Ltd is hardly relevant. Dr. Tulzapurkar is completely correct when he says that Star India was entitled to assume that he had the authority to execute the release form; the company s profile showed his name in some sort of official capacity as part of the 'team with the assigned role of 'Business Development ; (Profile document, separately tendered.) he is the son of the promoter of Baba Arts; Ms. Kothari s emails were copied to him; and Ms. Kothari did not object to his signing the r .....

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es of confidentiality, but also the knowledge of the person to whom disclosure is made that the person making the disclosure has the right to do so and holds subsisting rights in the work in question. This must be unequivocally shown. It can admit of no ambiguity. Therefore, if Baba Arts had no rights over the work, no release form could have been signed (or allowed to be signed) on its behalf. We do not know why, if she had the rights, Ms. Kothari sat by and watched Mr. Tanwani sign that releas .....

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-225.) ill serve their purpose: there is little use in now picking holes in the contents of the release form, where it was signed and by whom. In paragraph 6 of its Affidavit in Reply, (Motion paperbook, p. 169.) Star India says it emailed Mr. Tanwani on 22nd August 2013 asking him to get in touch with another employee of Star India for the specific purpose of signing a release form for any proposal or pitch. It matters not whether he was a Director on the Board of Baba Arts. The profile relied .....

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ed, my handwritten notes of 11th September 2015 show that he argued that Mr. Tanwani had 'merely accompanied Ms. Kothari. His presence is not disputed. Yet, in paragraph 3(f) of the written submissions, the Plaintiff now attempts to deny that Ms. Kothari was aware of Mr. Tanwani signing the release form. Star India insists Ms. Kothari was present at the time when it was signed. Ms. Kothari only now denies it. This is not a matter that lends itself to a prima facie view favouring the Plaintif .....

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ee.(Plaint, pp. 125-127.) There is in addition the other material regarding Mr. Tanwani s involvement to which I have already referred. 27. If this is so, it is material. Clause 2 of the Release Form warrants that the Proposer (evidently Baba Arts) is the sole creator/author/owner of the Proposal and that to the best of its knowledge, no rights vest in any other party.(Motion paperbook, pp. 191-193.) Clause 1 says that the proposal is being made voluntarily and is unsolicited. Clause 9 then says .....

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aintiff or by Ms. Kothari for herself and that it was not made on behalf of Baba Arts. SIMILARITY IN THE WORKS 29. Given all that has gone before, this question is now really redundant, and even at the Bar not much time was spent on this. Mr. Daver showed me a list of the similarities to urge that the Plaintiff s work is the kernel of the Defendants work, and provided the springboard for it. 30. In paragraph 9 of the Affidavit in Reply, (Motion paperbook, p. 170.) Star India says that no literar .....

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protagonist was a destitute youth, orphaned early in life and a fish vendor. He yearns for a family. His inamorata is one of his regular customers. He loses what little money he has to his name and is forced to live on the streets. During a storm, he takes refuge in a bungalow. It is haunted; there is not just one revenant, but a whole caboodle of them, and these apparitions apparently welcome our hero to their phantasmagorical bosom. But there is a more sinister purpose: the spectres seek reve .....

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he lot). Therefore when Mr. Daver claims that the concept of a human living in harmony with a ghost family is unique and is 'the crux and essence of the Plaintiff s work, (Plaint, paragraph 41, p. 16.) this is almost certainly incorrect. 33. There are two documents produced by the Plaintiff to show this similarity. The first is the 'literary work in question annexed to the Plaint as part of Exhibit "A"; (Plaint, pp. 35-51.)and the second is the powerpoint presentation said to h .....

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s concept. The latter seems to have at least an underlying pathos and a definite edginess or menace. The Plaintiff s work is lighter in tone, and directed more to comedy. In neither version of the Plaintiff s work do I find this revenge motif. The slide at page 70 speaks of one Tilak Ambani investing his life savings in a house for his family. That house already has another family in it: the ghost family. "Now these two families must not only stay together, but they must also live together, .....

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slide. (The equivalent of Motion paperbook pp. 78-79.) Each family has its issues, but the ghost family cannot address these. They have unfulfilled wishes or desires, societal and family problems, and the Tilak family becomes their source for addressing these. The two families work together, and the solutions are said to be humorous. The thrust (or, to use the Plaintiff s description, the 'crux and essence ) of all this seems to be the ability of wholly disparate families to get along. Hence .....

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the ghost family claiming ownership of the house, being murdered, hoping for revenge and justice and so on. There is a welter of additional material in this chart, all claiming similarity. But what is the source of this? It is not to be found in the 'literary work annexed to the Plaint and on which the suit is brought. It is not to be found in the slide presentation said to have been made to Star India. Is it a further iteration of the work as developed for Zee? If it is, then it has never .....

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