In an order dated July 11, 2023, the Delhi High Court in the case of Krishna Kishore Singh vs. Sarla A Saraogi & Ors. [IA 10551/2021 in CS(COMM) 187/2021] rejected the plea of the father of late actor Sushant Singh Rajput (SSR) seeking an injunction against the continued streaming of the film, "Nyay: The Justice" which is based on the late actor's life.
Before diving deep into the Delhi High Court order, let us look at the status of publicity rights after an individual's death.
In 1979, in a significant ruling, the California Supreme Court held that the name and likenesses of late actor Bela Lugosi were not heritable, and the right of publicity died with him. Thereafter, the Celebrities Rights Act was passed in the year 1985, which established that publicity rights survive the death of the individual. Similarly, in Washington and Indiana, the position is that publicity rights survive the individual's death. However, the position is different in New York, where such a right exists only during a person's life.
This can be better understood through a 2012 judgment of a US Federal Court, wherein the Court prevented Marilyn Monroe LLC from contending that the late actress, Marilyn Monroe, was domiciled in California at the time of her demise. With this contention, Monroe LLC wished to bank on California law (on the posthumous rights of publicity) to assert that the usage of Monroe's image and likenesses by Milton Greene for commercial purposes was in violation of her publicity rights. Rejecting this stand, the Court applied the principle of judicial estoppel since Monroe's legal representatives had earlier maintained that she was domiciled in New York at the time of death to avoid paying California estate taxes1.
In India, there is no law which expressly recognises the publicity or personality rights of individuals yet; hence, the heritability of such rights after the individual's death is a grey area. However, one can rely on case laws in this regard. For instance, the Madras High Court, in the case of Deepa Jayakumar vs. AL Vijay2, held that the reputation, personality and privacy rights of a person come to an end after their lifetime and cannot be inherited by legal heirs, like movable or immovable property. Here, the niece of the late Dr. J Jayalalitha filed a suit seeking an injunction against the release of the film, "Thalaiva" and the web series, "Queen", based on the life story of the former Chief Minister.
Brief Facts of the Present Case
In March 2021, when the movie, "Nyay: The Justice" was still in the making, the plaintiff approached the Delhi High Court seeking a decree of permanent injunction against the defendants to prevent them from using SSR's name, caricature, lifestyle or likeness in any of the projects or films. The plaintiff's contention was that his permission had to be obtained before doing so. He submitted that in the absence of Class 1 legal heirs, he was SSR's sole surviving legal heir in Category 1 of Class 2 legal heirs in accordance with provisions of the Hindu Succession Act, 1956.
Film's Disclaimer
The Court, after watching the impugned film and comparing its story with real-life events, came to the conclusion that its story is indeed a re-enactment of SSR's life based on news reports and commented that "Hardly any independent inventive input has gone into the movie".
Rejecting the defendants' contentions, the Court held that the disclaimer added at the beginning of the film could not be relied upon to determine whether there was any resemblance between the events shown in the film and real-life events.
Publicly Available Information - No Violation of Rights
The Court pointed out that the film was based on news items that were available in the public domain and hence, no right of SSR was violated particularly since the reports were not refuted or challenged at the time of their publication. Even if "arguendo", it was assumed that the film violated SSR's publicity rights or defamed him, such a right was personal to SSR and died upon his demise. Similarly, the other rights referred to in the plaint, including the right to privacy, personality rights, etc., vested in SSR and were not heritable. In arriving at this conclusion, the Court relied on multiple case laws, including the Madras High Court judgment in Deepa Jayakumar vs. AL Vijay3.
The Court reasoned that before making the film, the defendants were not obligated to secure the plaintiff's consent, and since it was released on the Lapalap platform in 2021, an injunction could not be issued at this point.
Celebrity Rights as a Sub-species of Personality Rights
It was expressed by the Court that though individuals are entitled to rights arising from their personalities and persona, the concept of conferring additional rights on a person "merely because he, or she, is a 'celebrity'" has not been accorded judicial recognition.
With this, the Single Judge Bench of Justice C Hari Shankar opined that celebrity rights were a sub-species of personality rights, and the same did not merit further deliberation (since it was already decided that SSR's personality rights were not violated).
Right to Free Trial cannot be affected by Impugned Film
Coming to the petitioner's contention that the investigation into the death of SSR was still underway and the impugned movie would be prejudicial to the right to a free and fair trial guaranteed under Article 21 of the Constitution, the Court remarked that the country's "legal system is, fortunately, not so fickle as to justify any apprehension that the dispensers of justice, who constitute its ethos and backbone, would decide on the basis of the facts depicted in the impugned movie".
Passing Off in Reverse
Explaining that the tort of passing off involves deception, in "portraying the unreal as the real", the Court stated that the allegation made by the plaintiff was in reverse as the impugned film was "portraying real facts behind a façade of artificiality and fiction".
The Outcome
The plaintiff's application for an interlocutory injunction (IA 10551/2021) against the continued streaming of the impugned film was dismissed in the present case. However, it was clarified that the Court's decision didn't have any impact on the plaintiff's right to claim damages from the defendants.
This decision has far-reaching implications on the country's stand when it comes to posthumous rights of publicity. If publicity rights are considered part of an individual's property, it would be equitable if the same were heritable for the benefit of the legal heirs. As depicted at the beginning of the article, the legal position in this matter depends mainly on the concerned jurisdiction. India has yet to develop specific legislation and fill the existing gaps.
Footnotes
1. https://www.theguardian.com/film/2012/sep/03/marilyn-monroe-estate-image-rights
2. OSA No.75 of 2020 and CMP Nos.2945, 2946 and 9240 of 2020
3. Supra 2
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