The Telangana High Court, in a recent decision titled M/S Super Cassettes Industries Private Limited v. Nandi Chinni Kumar and Ors., has upheld the concept of “life rights” as elements of copyright- and in fact, upheld an order for an injunction against the Appellant’s (hereinafter, “Defendant”) film, for violating the “life rights” of a particular individual, who had supposedly assigned the same in favor of the Respondents (hereinafter, “Plaintiff”), in the Appeal. This decision has gone on to be approved by the Supreme Court in SLP No. 12886-87/2020. (order here) – wherein the Special Leave Petition has been dismissed, without even issuing notice.
I seek to analyze and highlight the potential problems with this decision.
Brief Facts
The case revolves around the story of Akhilesh Paul, alleged to be a gangster turned Slum Football captain, who was first showcased in the TV show – Satyamev Jayate. Inspired by the contents of this show, the plaintiff approached him to make a film on his life, and signed an exclusive “assignment” agreement, over the contents of his life – which were of course narrated by Paul to the plaintiff. This agreement was upon a consideration of Rs. 12 lakh – and in effect meant that all rights to showcase the life of the plaintiff (in any medium – be it a book or a film), were exclusively “bought” by the Plaintiff, for the feature film – “Slum Soccer”. This contract also had a creative freedom clause (in effect allowing one to skew the narrative around one’s life and portray the same). The Plaintiff, thereon, through print and electronic media came to know about the release of a Hindi Film titled “Jhund”, which revolved around the life of the coach of Paul. The plaintiff herein claimed that this movie would inevitably incorporate certain parts of Paul’s life which are depicted in “Slum Soccer”, and would thereon violate the exclusive right of portrayal, assigned to the Plaintiff. To this effect, the plaintiff went on and claimed an injunction against the release of Jhund. Interestingly, an exhibit was filed before the Court by the plaintiff, claiming that some amount of money was paid by the producers of Jhund (Defendants) to Paul, in order to showcase his life – completely contrary to the earlier exclusive assignment undertaken by Paul. The Plaintiff further stated that that he owns the concept, thought, image identity as well as the Copyright in respect to the true-life story of Paul, and an agreement thereto by Paul with the Defendant was void (although “true” events and “Copyright” do not go together). Therefore, he argued for the release of the film to be injuncted.
The Defendant producers in this case, surprisingly did not question the validity of the assignment, however, went on to argue that (i) the claim was presumptuous as the content of the film was not out for the public– and the Plaintiff solely relied on the teaser, and (ii) also that the claim was belated, just before the release of the film – to injure the Defendant and all the investments undertaken thereto in making the film possible – at the last moment. However, the court didn’t pay heed to this.
Decision
The HC, in its prima facie evaluation of the case for the injunction application, relied heavily upon the exhibit given by the plaintiff – with respect to the exchange between the Defendant producers and Paul, in spite of an exclusive assignment agreement on the same in favor of the plaintiff. The court also relied on prima facie evidence to conclude a finding based on the “existence” of Paul’s character in the film “Jhund”, contrary to the exclusive right of portrayal which was assigned.
The court further relied on the precedent of RG Anand v. Deluxe Films of the SC to emphasize upon the look and feel/ lay observer test for infringement – even at the prima facie stage. The court held the possibility of similarity in expression and copyright infringement -as Paul had narrated the same events and ideas to both the Plaintiff and the Defendant – rendering it “possible” for the expression to be substantially similar. To that effect, the court held that a prima facie case of injunction was made out.
Interestingly, the court in its decision relied upon the decision in Titan Industries v. Ram Kumar Jewelers, where there was an exclusive “license” in favor of the Plaintiff to endorse the character of Amitabh Bachchan on their Jewelry ads – and the Defendants were found to be infringing the Copyright of the Plaintiff by putting up “exact copies” of the hoardings. The court also relied upon the underlying rationale in Haelan Laboratores v. Topps Chewing Gums, where once again, in the context of advertisements, the court had allowed for commercial “licenses” (and not assignments) in the context of publicity rights. Funnily, the court also quoted the precedent in ICC Development (International) Limited v. Arvee Enterprises, where the Delhi HC had held that “the right to publicity evolves from the right to privacy and can only inhere in an individual……Any effort to take away the right to publicity from the individual to a non-human entity would be violative of Article 19 and 21 of the constitution. No individual can be monopolized.” Along this precedent, the Court held that Paul would constitute a celebrity and him having “assigned” away his right – the right shall vest with the Plaintiff (in fact contradictory to the “non-human “ownership holding in ICC (Supra)).
Accordingly, an injunction was granted, and an SLP challenging this decision was dismissed by the SC
Analysis
This decision raises a lot of questions. A few that come to my mind are:
1) Where do life story rights find their genesis?
2) Are the elements of the story, communicated by Paul, copyrightable in themselves – given that they are true events?
3) Even if the content is presumed to be copyrightable, can a presumptuous claim of infringement, merely based on a teaser, subsist – given that Slum Soccer hasn’t even released -and the script i.e the expression of the Plaintiff is not even in circulation yet?
4) Can such rights be “transferred/ alienated” as against being merely “licensed”?
5) How does this decision impact the freedom of speech and narrative heterogeneity- especially in context of content which comes within the banner of “Infotainment”, rather than purely fictional entertainment-based stuff?
6) Can such a belated claim be entertained by the court, even at a prima facie stage?
Biopics are important creative works. They bring many stories into light- inspiring and entertaining many individuals. This piece does not doubt the relevance of biopics, or question the investment undertaken by producers in making these. However, these are core legal questions which require consistent analysis with developed and logical legal principles.
The right to make a life story is not a statutory right. It basically involves a party authorizing someone to showcase events of their life- through a medium- in return of certain compensation. These rights are often exercised by “celebrities” who sometimes, may be relatively obscure – but do have an inspiring story. Biopics have become a crucial market for the entertainment industry – however the way these rights and authorizations are taken raise some essential legal questions.
Life story rights arise from the right to publicity/ personality rights – i.e., the right of one to commercialize their own identity. These rights allow one to commercialize their likeness and even to convey certain contents/ factual information about their lives – which can exclusively be exploited – in return of compensation. Herein as well, Akhilesh Paul had conveyed factual/ although private, information about his life to the Plaintiffs in return of 12 lakhs and a permission to make a movie on the same.
This information, however, can never be equated to being a copyrightable expression – as these are merely ideas and facts which, as held in the R.G. Anand case as well as Article 9.2 of the TRIPS Agreement, cannot be copyrighted. What can be copyrighted on the other hand is the use of this content to make an expression out of it – i.e., the resultant script and its expression thereto. Merely copying these facts/ or relying upon the information conveyed in another script (which does not copy any expressions from the first one) does not make a case for copyright infringement. Importantly, Plaintiff’s script was not available publicly. Without knowing the content of the script of the Plaintiff, the Defendant could have never possibly, copied the expression therein. (As also held in Vinay Vats v. Fox Star Studios – covered here). Further a possibility analysis as performed by the HC, is extremely futile as it effectively renders non-copyrightable elements protected. For a claim of infringement to subsist, even at a prima facie stage, it is essential to compare the two works in question, to the extent factually possible – which has not been done by the court. Therefore, the question of copyright shouldn’t even have arisen in this case. Various other jurisdictions have also identified this flaw in justifying life story rights under the banner of copyrights. (See here and here). Further, the Delhi HC, has clearly, in the case of Giant Rocket Media v. Priyanka Ghatak, recognized that mere information or reproduction of information (in this case being one concerned with certain case files of crime and investigation) are not copyrightable – and narrations to that effect are factual and devoid of any copyright – which is only given on an “original expression”.
Coming to the question of personality rights, the decision in ICC v. Arvee (Supra) has resolved quite a lot of these concerns, convincingly, however the court seems to have misinterpreted this decision. The court in ICC (Supra) has clearly stated that any right that arises out of publicity rights (which in fact stem out of the right to privacy) are not alienable or transferable, although they can be licensed. To that extent – contracts which facilitate the buying or selling of these rights are void contracts, being violative of Article 21, which in light of the decision of K.S.Puttaswamy v. Union of India, has horizontal application (i.e. to non-state entities as well). In Basheshwar Nath v. CIT, the SC of India had ruled that a right backed by a justification present within Part III of the Constitution, shall not be permitted to be contractually alienated. To that extent, the use of the term “assignment” in the genesis of the contract, involving publicity related rights, renders it void. In fact, assignment of such rights has problematic consequences. Few scholars have argued alienability of such rights to be against public policy (Pg. 133-136) as they possibly are capable of skewing factual narratives. For e.g. If one assigns away their right to publishing their life story – and the assignee ends up skewing the factual narrative therein, to show untrue events- there is nothing that the assignor can do. Further – these are also capable of portraying a monologic discourse around a person’s identity – rendering it impossible for someone to refute the claims made in these “infotainment” works, without infringing upon these rights. This could potentially be violative of the right to freedom of factual expression. To that extent – one could argue that these agreements are void in public policy – as they can potentially cheat the public.
Licensing out these rights are definitely permissible – there being a larger control in the hands of the licensor as against assignments. Even in the cited case of Titan Industries (Supra) there was a “license” which was upheld and not an “assignment”. Therefore, this agreement, if touted in the terms of a license could have been enforceable, but that obviously ensures larger control in the hand of the licensor. The court should have, in light of this, held the assignment agreement to be void – and in fact ordered for a repayment of the sum paid- in consideration of the same – or rather a negotiation for a licensing agreement instead.
Coming to the final question of delay, courts in India have time and again covered the pitfalls of making last making injunction requests with respect to entertainment-based works. We have covered this extensively on this blog here– and for the sake of repetition, would avoid here.
The Telangana HC decision raises a lot of questions and is quite problematic in its reasoning as well as structure. It is unfortunate that the SC, inspite of all this did not deem it fit to even hear the matter.
Image source: here
