Between Originality and Replication: The Intricate Dance of GUI Copyright in Delhi High Court’s Hulm Entertainment Case

The ongoing legal dispute in the realm of intellectual property between Hulm Entertainment, the plaintiff, and Fantasy Sports, the defendant, currently awaiting adjudication before the Delhi High Court, presents intriguing inquiries into the copyrightability of emerging concepts, particularly graphical user interfaces (GUI), and the pursuit of safeguarding mobile applications through the medium of concept notes. The judicial proceedings involving the Delhi High Court, characterized by the granting, subsequent vacating, and subsequent reinstating of a previously modified interim injunction, contribute to the complexity and fascination surrounding the case.

Hulm Entertainment has posited an allegation that Fantasy Sports has engaged in substantial replication of its ‘original trading and stock features,’ along with the GUI employed in their Fantasy Sports mobile application named “Exchange22”. The uniqueness of this application, as asserted by Hulm Entertainment, lies in its fusion of stock market trading features with fantasy gaming—a combination purportedly absent in the market prior to the introduction of “Exchange22.” Hulm Entertainment claims proprietorship of the copyright pertaining to the application, grounding its argument based on a registered copyright for a literary concept note delineating the operational intricacies of the application. The contention put forth by Hulm Entertainment is that the application represents an adaptation of the aforementioned literary concept note, further bolstering their claim to copyright ownership.

The Case Background

The Single Bench initially granted an ex-parte interim injunction on April 13, 2022, which was later modified on April 25, restricting Fantasy Sports from using copyrighted materials but allowing app downloads. Despite Supreme Court directives on caution, the SB’s original injunction lacked evidence of uniqueness or a clear delineation of the alleged copyright in the GUI. After 1.5 years, the SB revoked the injunction on October 17, 2023, citing a lack of GUI specification and the restrictive impact of the merger doctrine. However, the matter returned to the Division Bench DB, which suspended the SB order, emphasizing the need to investigate the suppression of facts and assess commonality between apps. The DB reinstated the modified injunction order but overlooked key aspects of the SB’s findings on originality and GUI copyrightability.

For procedural history check the following – here, here, here, here, and, here

Conceptual Clarity

Nascent Concepts like Graphical User Interface:

Nascent concepts encompass innovative ideas and technologies that are at the forefront of technological or design advancements. In the realm of intellectual property, these concepts, characterized by their novelty and potential to reshape existing practices, often undergo legal scrutiny and protection. One illustrative example of a nascent concept is the GUI, which transformed computing by introducing a visual and intuitive mode of interaction. GUIs represent a pioneering approach to user engagement, emphasizing creativity and innovation in the design of interfaces for software, applications, or devices. As these nascent concepts continue to emerge and evolve, they play a vital role in driving progress and shaping the future of technology and design. Nascent concepts may face hurdles in securing intellectual property protection due to factors such as their early-stage development, which may lack tangible embodiments required for protection. Concepts rooted in functionality might encounter challenges, as IP laws often focus on protecting expressions of ideas rather than functional aspects. Additionally, the risk of unintentional overlap with existing knowledge or prior art may diminish the novelty required for IP protection. These challenges underscore the importance of a concept’s maturity and distinctiveness in navigating the complexities of intellectual property laws, highlighting instances where nascent concepts may not be immediately eligible for such protection. Concept notes form the primary and the most nascent form of what might become a GUI someday.

Copyrightability of The Concept Note:

The concept note in question, outlining the operational intricacies of Hulm Entertainment’s mobile application “Exchange22,” faces challenges in being deemed copyrightable. The court’s scrutiny revolves around factors such as the originality and novelty of the concept note, the distinction between ideas and expressions, the level of detail provided, and the potential overlap with functional elements. For a work to qualify for copyright protection, it must exhibit a sufficient degree of creativity and be expressed in a tangible form. In this case, concerns raised by the court about the lack of novelty and originality, coupled with the need for detailed and expressive content, contribute to the challenges surrounding the copyrightability of the concept note in the ongoing legal dispute between Hulm Entertainment and Fantasy Sports.

Merger Doctrine in the Context of GUIs:

The merger doctrine recognizes that certain ideas and their expression may be so intertwined that allowing copyright protection would effectively grant a monopoly over the underlying idea. In GUIs, functional elements essential to user interaction might be denied protection under the merger doctrine. For example, if a particular button’s design is the most intuitive for users, denying others the right to use a similar design could stifle competition. When there are only a limited number of ways to express a particular idea effectively, the merger doctrine may come into play. In the case of GUIs for certain applications (like fantasy sports apps mentioned earlier), there might be a limited set of design choices that make sense from a user experience perspective. Granting copyright protection to these common elements might excessively limit the ways competitors can design their interfaces. GUIs are often designed to provide a seamless and user-friendly experience. The merger doctrine acknowledges that certain design choices are not just ornamental but are essential for the user to navigate and interact with the software. Protecting these elements might hinder the development of user interfaces that are intuitive and familiar to users.

Arguments by Parties

The contention regarding the application of the Concept Note in legal discourse unfolds against the backdrop of Copyright law, where, despite the absence of mandatory registration for safeguarding intellectual property, Hulm Entertainment posited a claim that its application constituted an adaptation of its duly registered literary work, specifically the concept note. Consequently, Hulm Entertainment sought protection from purported infringements perpetrated by Fantasy Sports. However, this argument failed to withstand scrutiny before the adjudicative body, the SB, on two primary grounds.

Primarily, the SB dismissed Hulm Entertainment’s assertion by giving credence to Fantasy Sports’ counterargument, asserting the existence of fantasy league applications featuring stock trading functionalities predating Hulm Entertainment’s offering. The SB thus contended that the concept note lacked novelty. Secondly, the SB articulated that Hulm Entertainment had not sufficiently articulated how Fantasy Sports had substantially replicated the concept note. While a determination based solely on the second ground would have sufficed, the first ground assumes particular significance due to the intriguing finding that the originality of the concept note rested ultimately on the originality of its derivative work—the application developed by Hulm Entertainment.

A meticulous examination of the Copyright Office’s practice and procedure manual reveals that a concept note is accorded protection when it has been definitively expressed and imbued with substantive details. This perspective aligns with the judicial stance, where the court underscored the necessity of elucidating a concept with comprehensive details. However, in the instant case, the court did not delve into an assessment of whether the concept note sufficiently expounded upon the underlying concept. Instead, the court deemed the note unoriginal by drawing parallels between Hulm Entertainment’s application—its adapted creation—and other existing applications.

In essence, the legal discourse surrounding the adaptation of the Concept Note in the context of Copyright law underscores the importance of establishing the originality of the derivative work, the application in this instance, and raises questions about the criteria employed in determining the novelty of a concept note, particularly when juxtaposed with the intricacies of procedural guidelines and judicial precedents.

The Court on Originality

The examination into how the court arrived at its determination regarding the originality of Hulm Entertainment’s application necessitates an in-depth exploration of the foundational principles guiding the court’s reasoning. The court emphatically stressed the paramount importance of originality as the bedrock for conferring copyright protection, asserting that creative works must emanate genuinely from the author to qualify for legal safeguarding. This doctrinal tenet, extensively elaborated upon in legal discourse posits that protection is bestowed upon the expression of ideas rather than the ideas themselves.

Moreover, the court expounded upon key considerations that: (i) Copyright infringement, according to the court, hinges on the substantial similarity between competing works, a criterion firmly cemented in the landmark EBC v. Modak case. (ii) The court articulated that the assessment of similarity should adopt the standpoint of an average reasonable reader or spectator, eschewing hypercritical scrutiny. (iii) Significantly, the court discerned that the existence of similarity between competing works does not automatically imply copyright infringement, particularly if such similarity stems from a shared subject or source.

In its deliberations, the court’s core reasoning converged on the crucial issue of originality, drawing inspiration from the precedent set by the University of London Press Limited v. University Tutorial Press Limited. The court astutely noted that while novelty does not singularly stand as the criterion for copyright protection, the evidentiary bar for establishing originality in Hulm Entertainment’s trading market feature was deemed insufficient. This insufficiency was underscored by the existence of analogous applications predating Hulm Entertainment’s offering, thus shaping the court’s resolution in the adjudication of this intricate legal matter.

Court on Copyrightability of GUIs and The Merger Doctrine

The SB’s nuanced comprehension of the GUI framework unfolded by parsing it into three distinctive components eligible for copyright claims. These components encompassed a computer program facilitating both functionality and aesthetic attributes as per section 2(ffc) of the Copyright Act, the artistic and graphic elements under section 2(o) of the Copyright Act and the textual or literary content perceptible to users under section 2(c) of the Copyright Act. In the wake of this categorization, the SB meticulously examined Hulm Entertainment’s contentions, wherein claims of copyrightability in the GUI were rooted in legal precedents like Whelan Associates, Inc. v. Jaslow Dental Laboratory and the Bombay High Court’s pronouncement in Maraekat Infotech Ltd v. Naylesh Kothari. However, the SB discerned a conspicuous absence of specific pleadings from Hulm Entertainment concerning copyright in each of these individual GUI components.

Moving forward, the SB embarked on a comprehensive scrutiny to ascertain whether Hulm Entertainment’s GUI could merit protection as an independent work. Through an intricate comparative analysis of rival GUIs, the SB preliminarily concluded that Fantasy Sports had not substantially replicated Hulm Entertainment’s GUI. Despite acknowledging certain similarities, the court deemed them to be of negligible consequence.

Concurrent with this evaluation, the SB invoked the doctrine of merger to gauge the viability of copyright claims on the application. This legal doctrine posits that asserting copyright over expressions of an idea, when a limited array of such expressions exists, would effectively result in monopolizing the underlying idea. Scrutinizing screenshots of analogous applications, the court recognized inherent commonalities intrinsic to fantasy sports apps. Applying the doctrine of merger, the SB concluded that the shared elements between the rival applications did not transgress into the realm of infringement. Intriguingly, the court abstained from explicitly addressing the broader question of whether copyright could be asserted over an entire GUI, opting instead to allude to the US case Apple Tech v. Microsoft. The court, mirroring the approach of the ‘abstraction-filtration-comparison’ test witnessed in Computer Associates International v. Altai, Inc., underscored the necessity of abstracting elements from the idea, filtering out non-copyrightable components, and subsequently comparing the residual elements for potential infringement. The discussion on the merger doctrine and the court’s usual approach to them is also done in the previous section of this post.

The case navigates a shift from design-focused to copyright protection for GUIs, differing from previous judgments. It involves contrasting views on GUI copyright, with the Ministry of Electronics and Information Technology supporting protection based on ‘look and feel essentially means the overall design.


In the recent pronouncement by the SB, the court underscored the fundamental tenet that legal protection extends solely to the expression of an idea, not the underlying idea itself. This pertained specifically to the conceptualization of a fantasy league game infused with elements from the stock market. The SB’s findings on GUIs held the promise of advancing the ongoing discourse surrounding the safeguarding of GUIs within the ambit of intellectual property law, as extensively deliberated in prior discussions. However, the transient nature of the remarkably brief stay order has effectively halted any momentum in these discussions.

It is evident from the foregoing discussion that the DB refrained from delving into the substance of the SB order, relying instead on the submissions that the SB had unequivocally identified as absent from the original pleading when the ex-parte injunction was initially granted. Moreover, the nuanced insights provided by the SB into the realm of GUIs and its emphasis on the crucial element of originality did not receive the requisite attention. The trajectory of this legal matter is poised to offer an opportunity to observe the approach the DB adopts in its subsequent deliberations.

About Amisha Mittal 13 Articles
Amisha Mittal is a final-year law student pursuing a BA. LLB. (Hons) at Jindal Global Law School, Haryana. Her interest areas align with Intellectual Property Law, Competition law and other technology related laws. She shares a passion for research and writing and with a strong interest in academia, she aspires to contribute to the legal scholarship in these areas.

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