Recently, the Bombay High Court passed an interim order in a defamation suit filed by Sakshi Malik, an actress and model against the makers of Telugu film ‘V’.

The suit pertains to a photograph of  Sakshi Malik which was used by the filmmakers in their 2020 Telugu film entitled ‘V’, which was available on Amazon Prime. The picture was apparently taken from her Instagram account and was unauthorisedly used to depict her in the motion picture as an escort or commercial sex worker.

The court observed, that it is not possible to use the image of any person for a commercial purpose without express written consent and if at all any images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty”. Furthermore, it observed “…using anothers image, and most especially a private image, without consent is prima facie impermissible, unlawful and entirely illegal.”

As a result, it was directed that the movie be taken down from Amazon Prime until the images in question have been completely deleted from the movie. The entire sequence containing the image was ordered to be removed from the movie. The court further ordered that any re-edited version of the movie after removing the offending protein was to be released only after showing it to the plaintiff and with the directions of the court.

It is settled position of law that unauthorized usage of image would constitute copyright infringement save and except if the usage is such that it qualifies under the fair dealing/ use provisions under Section 52 of the Copyright Act.

The order is of significance as the Court acknowledged the privacy rights of an individual in relation to usage of image without permission and implied that consent of a person featured in an image is required to be procured in addition to permission from a copyright owner of the image.

It would be pertinent to highlight that the Supreme Court in the case of Justice K.S Puttaswamy (Retd.) v. Union of India and Ors, had held that “Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent”.

The order passed by the Bombay High Court in this case thus reaffirms the ruling of the Supreme Court in the landmark right to privacy case.

Image source: here