This article is written by Anuja Saraswat, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Smriti Katiyar (Associate, LawSikho).
Table of Contents
The right of publicity is one of the developing rights in India that protects people from others against using their name and likeness for commercial gain without their consent. It guarantees the right to protect one’s identity, personality, and associated qualities and attributes. Even though there are no clear rules to safeguard publicity rights in modern India, the jurisprudence on the subject is continually developing. However, there’s a question about these publicity rights: do they exist only as long as the celebrity is alive? Is the celebrity’s right still valid after his or her death? This article analyses such posthumous availability of celebrity rights in India in light of the recent case of Krishna Kishore Singh v. Sarla A. Saraogi & Ors. Over the years, the Indian judiciary’s judgments on the issue vary due to the lack of specific statutory provisions for the same. In light of this, the author proposes that the right of publicity be separated from other overlapping rights in India. This article tries to compare Indian laws to various international jurisdictions’ laws and justify the need for an exclusive law addressing the posthumous availability of personality rights rather than any modifications or changes to the current legal system.[D2]
The concept of personality rights : the main issue
Being a famous personality provides a lot of fame, money, and status, but there are two sides to every coin and being a celebrity comes with its own set of problems. Even their name bears weight, which is determined by the monetary value associated with their persona. Laws such as the right to privacy and the right to publicity are used to safeguard people from being freely exploited for commercial gain. According to the right to privacy, no one can publish anything about an individual without his or her consent. The common law right to publicity, on the other hand, recognizes a famous person’s commercial value and protects his proprietary interests so that he can profit from his public reputation or persona. It offers the celebrity a right to safeguard his image and personality from commercial exploitation.
In the case of Titan Industries Ltd. v. M/s. Ramkumar Jewellers, the court, while discussing publicity right of a celebrity noted:
“A celebrity is defined as a famous or a well-known person. A ‘celebrity’ is merely a person who “many” people talk about or know about. When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where, and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity.”
It recognizes the concept of celebrity rights. As a result, it is fair to say that ‘celebrity rights’ is essentially a collection of additional rights that a person acquires upon obtaining the position of a ‘celebrity,’ consisting of a collection of rights such as intellectual property rights, publicity, personality, and privacy rights.
While the Supreme Court of India clarified in the Puttaswamy case that privacy rights do not survive an individual’s death, the question remains whether, even though personality/publicity rights flow from the right to privacy, can publicity rights survive an individual’s death while the right to privacy does not?
The law on celebrity rights is still in its developing stage, particularly in India, and has been developing primarily through judicial precedents, in which courts have provided recognition and protection to a few such rights on being approached. The case of Krishna Kishore Singh v. Sarla A. Saraogi & Ors., in which the Delhi High Court refused to stay the release of the upcoming film Nyay: The Justice, which is based on the death of the late actor Sushant Singh Rajput, is one such event that has lately come under the spotlight.
The late actor’s father Krishna Kishore Singh, claiming to be his “absolute legal heir” by falling into “the Category-I of Class-II legal heir” of Sushant Singh Rajput and under Section 16 of the Hindu Succession Act, 1956, filed a suit in the Delhi High Court seeking to protect his son’s reputation, privacy, and rights, which he claims have been violated by films such as “Nyay: The Justice,” “Shashank,” and others that are allegedly inspired by the late actor’s life.
The plaintiff claimed that the Defendants were attempting to exploit his deceased son’s personality rights to obtain media frenzy and public curiosity for their commercial gain, and therefore by way of an application under Order 39 Rule 1 & 2, sought for an ad-interim ex-parte temporary injunction restraining the use of SSR’s name, caricature, lifestyle or likeness in the forthcoming projects/films of the Defendants.
The question of posthumous availability of celebrity rights : contentions of the parties
As the late actor’s legal heir, Kishore Singh stated that publishing, producing, or depicting material relating to SSR without his consent would be an infringement of the deceased celebrity’s right to personality and privacy, which includes the right to publicity, among other things. The plaintiff relied on the case of Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani, in which the Gujarat High Court granted posthumous protection to the plaintiff’s legal heirs and issued an injunction against third parties seeking economic gain without the legal heir’s consent.
The defendants, on the other hand, argued that a celebrity’s right is only breached if the celebrity is identified as a component of artistic work and that no use of the late actor’s name, image, caricature, or way of delivering dialogues was made in any of the films in question. Furthermore, the film they produced is neither a biopic nor a biography of Plaintiff’s son, but rather a fictionalized dramatization of true events generally surrounding the lives of TV celebrities who have reportedly died of unnatural causes, with a disclaimer that any resemblance to a real person is disclaimed. They further claimed that because there is so much information about Plaintiff’s son’s life and death in the public domain, there can be no claim of privacy over information that is already public. They further denied plaintiffs’ claims, stating that celebrity rights do not apply in a posthumous situation, citing the decisions in Justice K.S. Puttaswamy v. Union of India and Managing Director, Makka Tholai Thodarpu Ltd. v. Mrs V. Muthulakshmi and Deepa Jayakumar v. AL Vijay.
Hon’ble Justice Sanjeev Narula in the present case defined celebrity rights as “a compendium of the other rights gained by a person upon obtaining the status of a “celebrity,” consisting of a bundle of rights such as intellectual property rights, publicity, personality, and privacy rights.“
On the issue of posthumous availability of celebrity rights, the court evaluated the plaintiff’s reliance on Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani, in which they opined that while the Gujarat HC in the aforementioned case upheld the injunction granted by the trial court against the producers, it also took the view that the parties’ contentions required detailed consideration upon leading appropriate evidence and as a result, the court avoided delving into opposing arguments, stating that the right to privacy and publicity asserted therein was a triable issue. It was felt that the issue of whether the defendants’ on-the-record documentary evidence should be evaluated in-depth upon leading evidence, should be addressed at the appropriate time. Thus, in this case, Justice Sanjeev Narula stated that the judgment relied upon by Plaintiff says little about a celebrity’s posthumous rights and does not further the Plaintiff’s argument. Plaintiff had also sought to separate ‘celebrity rights’ from ‘right to privacy,’ but the Court noted that in the absence of statutory recognition of celebrity rights, the right to privacy derived from Article 21 would constitute the fountainhead of such rights. The ‘right to publicity’ in India is derived from the ‘right to privacy,’ and the two are not entirely separate, as the former cannot exist without the latter. As a result, the Court upon assessing the judgment of K. S. Puttaswamy v. Union of India relied upon by the defendant, noted that the right to publicity is inextricably linked to and birthed from the right to privacy and that if the right to privacy expires with the death of the human being, the only necessary corollary is that the right to publicity will also expire and will not survive after the death of the human being.
The Hon’ble Court finally decided that there is no reason to grant a restraining order against the Defendants because the Defendants’ films are neither portrayed as a biopic nor a factual narration of what happened in SSR’s life and are depicted to be completely fictional and inspired by certain events that occurred in the past and are available in the public domain. However, Krishna Kishore Singh filed an appeal to the single bench of the Delhi High Court shortly after, claiming that the single judge had erroneously ruled that celebrity rights ceased to exist after death. Since then, the film ‘Nyay: The Justice’ has been made available on a remote website known as ‘Lapalap.’ In light of this, a Delhi High Court bench of two judges finally decided that Krishna Kishore Singh might now approach a single judge of the Delhi Court to have his earlier claims examined, given that the movie and its contents are now available on the digital platform.
A global perspective on posthumous availability of personality rights
While personality rights have not yet attained proper recognition in India, the majority of international jurisdictions are enacting provisions concerning infringement of personality rights after the death of a celebrity. Even though there are no explicit federal publicity legislation made for it, the US jurisdiction grants postmortem personality rights to some extent. Although it is primarily done by statute, certain US states recognize the postmortem Right of Publicity under Common Law. There is currently no overarching Supreme Court judgment or Federal Act governing personality rights. As a result, the level of protection provided by the Right of Publicity varies on the state one is claiming.
Interestingly, the Right of Publicity is recognized in several U.S. states even after death. Indiana, Tennessee, and California, in particular, are the entertainment capitals of the United States. The states that recognize post mortem Right of Publicity protection differ from one another in terms of duration, extent, standards, limitations, and so on. For example, some states require the decedent to use his image rights during his lifetime in order for them to be preserved after his death. Nonetheless, in the United States, the prevailing norm is that rights of publicity are recognized, descendible, and extended postmortem without the need to exercise them during one’s lifetime. It turns out that most US courts that have addressed the question of post-mortem Right of Publicity have found it to be descendible, which is good news for heirs of deceased people who want to file a complaint regarding the latter’s unconsented image use in holograms. In California, for example, the right is protected by the State’s Common Law Right of Publicity and Statutory Right of Publicity, both of which are codified in California Civil Code 3344 for the living and 3344.1 for the deceased. This postmortem protection lasts for 70 years after the individual’s death, but only if the deceased’s heirs register their claim with the California Secretary of State if they want exclusive exploitation of the celebrity’s persona and compensation in the event of an infringement. According to California law, “any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is plainly identified” requires the celebrity’s or his estate’s consent.
In Europe, Personality Rights legislation is chosen by the state, resulting in a wide range of protection across the continent. Nonetheless, for members of the European Union who are bound to uphold the European Convention of Human Rights (ECHR) as well as the EU Charter of Fundamental Rights (CFREU), there is some harmonization. In Europe, as in the United States, finding the correct balance between an individual’s Freedom of Expression (as defined in Articles 10 ECHR and 11 CFREU) and Right to Privacy (as defined in Articles 8 ECHR and 7 CFREU) is a balancing act. The European Court of Human Rights does not specifically reference the Right of Publicity in its decisions, but it does protect a person’s image rights as part of the Right of Privacy. In the Marlene Dietrich Case of Germany, The actress’ image was used to promote a musical about her life, and her daughter sued for damages claiming that the illicit image use infringed on her mother’s personality rights. The German Federal Supreme Court was asked to examine whether, in addition to nonmaterial interests, Personality Rights also covered economic interests. It also had to determine if the latter interest may be transferred and inherited after the person’s death. In the end, the Court found in favour of the plaintiff, confirming that posthumous protection of personality rights was recognized and that self-determination with the ability to regulate the commercial exploitation of one’s identity should be deemed an essential protected value. This financial protection lasts for ten years after the individual’s death, during which time the heirs must consent to commercial use of his image or other features. As a result, the case confirmed that both material and nonmaterial parts of personality rights are protected under Articles 1 and 2 GG.
In the age of international mass media, significant economic reasons drive the cult of stardom; therefore, the legal structure controlling its commercial exploitation must likewise evolve. Celebrity publicity rights are one-of-a-kind, and they cannot be adequately addressed under any of the IPR laws. As stated previously, some European countries, such as France and Germany, have enacted special legislation to protect celebrity rights on a global scale. In addition to their courts actively recognizing this right, many states in the United States also have enacted legislation to that effect. However, Indian law has not progressed much in terms of the Right of Publicity as far as the present situation is concerned. In the aforementioned case, Justice Narula opined that determining whether celebrity rights live or expire after the death of the celebrity needed further investigation. As a result, there is still no clarity on the subject. Because there is no clear-cut entitlement to post-mortem celebrity rights in India, the court verdicts vary, which further creates confusion before the public. Following the lead of other countries, India should consider implementing legislation to protect publicity rights, lest superstars suffer. The judiciary will have to play a big role in this direction, as it has the power to legislate when laws are unclear. Furthermore, having an express statutory provision for the same is the need of the hour which will provide an appropriate and adequate protection and will further relieve the Indian courts of all their celebrity rights dilemmas.
- CS(COMM) 187/2021
- 2012 (50) PTC 486 (Del)
- (2017) 10 SCC 1
- Appeal from Order No. 262 of 2007, dated 20th January 2010 by the Gujarat High Court
- 2007(6) MLJ 1152
- Marlene Dietrich Case BGH 1 ZR 49/97
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