Case Analysis: Case Analysis of Arbaaz Khan Production Private Limited v. Northstar Entertainment Private Limited and Ors.


This case is related to copyright issue and specifically a new issue i.e. character copyright. The concept is not developed in India but cases are in series. This case analysis has focused on the problematic part that existed in this case and tried to explore the lacuna in Copyright Act, 1957 as well as the judicial interpretation of the issue. The case is based on famous Hindi movie ‘Dabangg’ and its character named ‘Chulbul Pandey’ performed by Salman Khan and its sequel ‘Sardar Gabbar Singh’ that having star Mr. Pawan Kalyan. Judge have tried to interpret some term like ‘sequel, fictional character.


On April 5, 2016 the Bombay High Court denied to give any interim relief with respect to copyright protection in character for which a suit was filed by the Arbaaz Khan Production Pvt. Ltd. against North Star Entertainment Private Limited & Ors. and held that lead character in a film remake has independent rights and it is not necessary that lead character will pass off the character of the original film. The court rejected an ad interim application moved by plaintiff for restraining defendant from releasing their sequel entitled Sardar Gabbar Singh. Here the plaintiff claimed a character copyright protection and claiming that defendant’s movie character is having similarity with its own character. The court rejected the suit as plaintiff failed to prove the sufficient unified characteristics in its own character which can make his character so unique so that if anyone copies face infringement of copyright and he was only showing the generalities in character for which the court was not agree to accept. Other arguments were not considered by the court as sufficient but difficult to accept.

The case analysis addresses the findings of the court with respect to the agreement of assignment, its interpretation with respect to its stated clause and the important issue whether there is character copyright in chulbul Pandey when comparison arises with Gabbar Singh. Other than this the case note address towards the character copyright issue in compliance with the precedent.



There was an agreement on 21st January, 2011 which gives absolute right to exploit the assigned movie (Dabang) but with some restrictions as no remake in other than Tamil language etc. The movie named Gabbar Singh was released after that assignment in which the character Gabbar Singh was evolved but the other defendant made the sequel of that film with same character performed by Pawan Kalyan named ‘Sardar Gabbar Singh’. Now the issue raised that the chulbul Pandey is so unique that cannot be copied by other defendant, without having assignment, previous character Gabbar Singh for the remake of prior remake movie. For such issue the plaintiff (the assignor) approached to the court against the first assignee and the new movie producer.


In India, the Copyright Act, 1957 provides protection to certain type of work as mentioned under section 13. The provision is not inclusive rather than restrictive and mainly covers six types of work. If there is any discussion regarding the character copyright, then we find no place to put it under the Act. And if any effort is made to include it in any existing defined work then it is quite difficult task to interpretation. In the present case this problem has been arisen before the court as how to grant copyright to character or what essential it requires. As it is not defined so it has become the subjective analysis and the judiciary is enjoying the great liberty. Here the judge has not tried to define it rather keen towards the giving some basic requirement like first to have copyright issue in character it must have all the characteristics rather than generalities so that if any character who has all these qualities will necessarily be an infringement second if the second character brought into existence with different persona then creator will be having right to use even document/ assignment is against it. However here the Judge tried to define the character as literary work as “writing up” of that character in underlying literary work but I will say that if it is interpreted in both literary and artistic work then it can reduce the problem.


In India there is no specific test as to the character copyright. The court determines according to the facts of the case as Merchandising Test[1] is laid down that means that the much exploitation happens in same proportion it gets protection or character gains reputation in eyes of people. In present case the court has adopted test as the realization of persona with iconic characteristics and traits that make him unique which means that character must have such characteristics that makes him unique and not like general which were raised by plaintiff. The third test is reputation in single character in serial at all, this can be helpful in series of cinematographic work[2]. Other than this test some others are as i. to show real likelihood of harms/ damages[3] that means if the character taken causes harm to the owner and he is able to proof it then only it will be deemed that it is infringement of character copyright otherwise not. II. Character must have reputation in the market/public.



In India, there are most of the cases of character copyright which are decided according to the comparison of two characters like in present case the Chulbul Pandey and Gabbar Singh and one more comparison of Nagraj and Nagesh[4]. In this comparison, the court only looks towards the qualities of one and other character side by side and go through the substantially similar in content and appearance[5]. This approach is in reality not correct as court ignores the basic question which should be on the first place i.e. Is there copyright in character? If the answer is positive then move forwards otherwise rests it. If the court were go through in this case through step by step, there were possibility of discussion on whether in India law grants the character copyright and if not then do certain positive acts via judicial activism or legislature.


Copyright subsists in expression of idea and not in abstract idea. Here in this case it was not in discussion that whether expression of idea is necessary whereas it is the important principle of copyright law. As to have copyright on character the first requirement is to see that whether there is expression of idea with respect to that character on any tangible form or it remains still an abstract. In this case the court ignores this basic requirement and jumps in comparison of characters. However in one of the case it was discussed first before going into the character copyright infringement.[6]


In this case, the court is not ready to accept the judgment of judgment of foreign courts, my point is when in India there is no fix law or test or satisfactory judgment then why not considering the U.S. court judgments as it will give clarity to judges through which they can develop own law. As ‘Story being told’[7] test says that character is copyright able when the story is essentially the character’s story itself. The character really constitutes the story being told, but if the character is only the chessman in the game of telling the story then it is not within the area of protection afforded by the copyright. The second test is ‘character delineation’[8] it prescribes that more developed character, the more likely it is to be copyright able. This test was not clear hence the above mentioned test was evolved. But I am advocating the point is that Indian judges are neither trying to evolve any test nor accepting judgments of foreign court, in that case how will you evolve such law as there is no such legislation to cover copyright character.



Even the court has tried to put the character under the existing work list as mentioned under section 13, rather suggesting any new work category, has failed as after considering it a single work can not satisfy its whole objective. The court has not taken different approach in terms of comparative study of the characters. The court is not putting any fix test for ascertaining the character copyright whereas has given new test in this case. As character copyright is not too much developed in India so for test of character copyright I will say to adopt the Especially distinctive , which is not tough as story being told test rather provides the solution of situation where the main character is not too much developed then in that circumstances it is not possible to give copyright to such character, here this test gives enough respect to the surrounding context in the second stage of infringement analysis.

[1]  Star India Private Ltd. v. Leo Burnett (India) Pvt. Ltd., 2003 (2) BomCR 655, 2003 (27) PTC 81 Bom.

[2]  Id.


[3]  V.T. Thomas v. Malayala Manorama Co.,  AIR 1989 Ker 49

[4]  Raja Pocket Books  v. Radha Pocket Books, 1997 (40) DRJ 791.

[5]  Id.


[6]  Zee Telefilms v. Sundial Communications (2003) 3 MahLJ 695.

[7] Warner Bros. v. CBS, 216 F.2d 945 (9th Cir. 1954).

[8] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).


This article is authored by Chandra Shekhar & Anand Kumar Singh, student of LL.M. at NALSAR University of Law, Hyderabad.

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