Photo Credit: Alltopfive[1]

By: Richard Guerra

Did you know that The Departed was a remake? Scorsese’s film was based on a 2002 Hong Kong movie called MouGaan Dou, which was titled Internal Affairs in English.[2] Or that Terry Gilliam’s 12 Monkeys was “inspired” by the 1962 French short film La Jetée?[3] Hollywood’s recycling, reimagining, and remaking of films is nothing new. This is because remakes are often necessary to continue producing new entertainment products for consumers. In most circumstances, a studio that remakes a film will purchase the rights to do the remake. But often a studio will not, which invariably leads to a lawsuit.

Enter Bollywood, where unauthorized remakes of American films have been common for years. Bollywood studios remade Hitch into Partner, Reservior Dogs into Kaante, What Lies Beneath into Raaz, and Nine Months into Salaam Namaste.[4] In 2008, 46 percent of Bollywood’s films were unauthorized Hollywood remakes.[5] Hollywood did not pay attention to these unauthorized remakes for many years,[6] because compared to Hollywood, Bollywood was not profitable enough to notice.[7] Although Hollywood currently controls between 80 and 90 percent of Europe’s film market, Hollywood only makes up 10 percent of India’s market.[8] Thus, India was one of Hollywood’s least profitable markets.[9] But India’s rapidly growing economy has created the possibility of large profits for Hollywood ventures.[10] Plus, the box-office success of Slumdog Millionare, and the growing Indian American population has caused Hollywood to shift its attention to India’s largest film industry.[11] Globally, Bollywood films have more viewers than Hollywood films, particularly in Arab countries.[12] Realizing this, Hollywood wants a piece of that pie, and many Hollywood studies have started to finance Bollywood filmmakers.[13]

But should Hollywood filmmakers sue Indian filmmakers? On the one hand, Indian filmmakers that create unauthorized remakes of American movies often assert that the “Indianization” of American films creates a distinct, non-infringing, product.[14] According to scholar Hariqbal Basi, Bollywood movies have distinct styles that are different from American movies.[15] Remakes often expand the original stories to include plots that focus on families and social relations.[16]Additionally, Indian films are not genre specific.[17] For example, an American movie is usually a comedy, drama, action movie, or a musical, but Indian films contain elements of all these genres.[18] All Bollywood films are musicals, and usually contain about 40 minutes of song sequences[19] that often resemble American music videos (see here for an example). Thus, Indian filmmakers often see an “Indianized” film as a separate work because of the additional creative elements that were added to it.[20]

On the other hand, American filmmakers might disagree and bring legal action. In 2010, Twentieth Century Fox sued the Bollywood production company Sohail Maklai Entertainment for unlawfully remaking Phone Booth into Knock Out.[21] The Bombay High Court held that Knock Out copied Phone Booth and awarded Twentieth Century Fox damages and a part of Knock Out’s revenues.[22] This was the first time that an Indian court ruled that a Bollywood film infringed on a Hollywood copyright.[23] Even though this case sets a positive precedent for litigation hungry Hollywood studios, Hariqbal Basi warned that litigation might not be the best strategy.[24] As mentioned earlier, since Hollywood studios have started to invest in Bollywood productions, lawsuits could damage the relationships that Hollywood is building with Bollywood studios.[25] Additionally, Hollywood filmmakers will have a difficult time proving damages in a lawsuit against a Bollywood studio because the Hollywood films are not as profitable in Bollywood’s markets.[26]

Interestingly, America and India have similar copyright laws.[27] For instance, America and India’s copyright protection can only apply to an expression of an idea, but not to the idea itself.[28] To plead a successful copyright claim in America, a plaintiff must prove that the defendant’s work is substantially similar to the copyrighted work.[29] In India, the plaintiff must prove that the defendant’s work is a substantial and material copy of the copyrighted work.[30] Therefore, the Supreme Court of India has said that the best way to determine whether a copyright violation has occurred is to “see if the reader, spectator, or viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.”[31]

Nevertheless, copyright holders are rightfully concerned with protecting their properties from unlawful imitations, but imitation is inevitable in all creative ventures. One example is Disney’s The Lion King which is strikingly similar to Osamu Tezuka’s Kimba the White Lion (see here for more information).[32] Sergio Leone’s The Magnificent Seven and A Fistful of Dollars are remakes of Akira Kurosawa’s Seven Samurai and Yojimbo,[33] while the popular Facebook game Farmville is a copy of the Chinese game Happy Farm.[34] Bollywood film director Subhash Ghai once said: “There are only 36 plots in the world drama, and you can make 36,000 stories out of those. So stories don’t change; science changes, times change and values change.”[35] In the coming years, we will see how much change is enough as Hollywood continues to enter Bollywood’s film market.

Richard Guerra is a third year law student at the Penn State Dickinson School of Law. 

[1] http://www.alltopfive.com/wp-content/uploads/2014/01/BollyWood_movies.jpg.

[2] Madhavi Sunder, Bollywood/Hollywood, 12 Theoretical Inq. L. 275, 302 (2011).

[3] Adrian Covert, La Jetée: The Inspiration for 12 Monkeys (and Probably The Terminator), Gizmodo (Feb. 12, 2012).

[4] Arjun Shah, Is Bollywood Unlawfully Copying Hollywood? Why? What Has Been Done About It?  And How Can It Be Stopped?, 26 Emory Int’l L. Rev. 449, 456 (2012); HariqbalBasi, Indianizing Hollywood: The Debate Over Copyright Infringement by Bollywood, 18 UCLA Ent. L. Rev. 33, 44 (2011).

[5] Arjun Shah, Is Bollywood Unlawfully Copying Hollywood? Why? What Has Been Done About It?  And How Can It Be Stopped?, 26 Emory Int’l L. Rev. 449, 458 (2012).

[6] HariqbalBasi, Indianizing Hollywood: The Debate Over Copyright Infringement by Bollywood, 18 UCLA Ent. L. Rev. 33, 37 (2011).

[7] Id.

[8] Supra note 2, at 298.

[9] Supra note 5, at 53.

[10] Id. at 55.

[11] Id. at 44, 57.

[12] Id. at 57-58.

[13] Id. at 58.

[14] Id. at 47.

[15] Id.

[16] Id. at 48.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 49.

[21] Supra note 4, at 481.

[22] Id. at 482.

[23] Id.

[24] Supra note 5, at 67.

[25] Id. at 67.

[26] Id. at 73.

[27] Supra note 4, at 463.

[28] Id. at 463.

[29] Supra, note 5, at 41.

[30] Id. at 42.

[31] Id.

[32] Supra note 2,at 287.

[33] Id. at 291.

[34] Id. at 307.

[35] Id. at 299.