POSTHUMOUS AVAILABILITY OF CELEBRITY RIGHTS: THE SUSHANT SINGH RAJPUT CASE

Often the Right to Privacy is viewed in conflict with certain other constitution safeguards: primarily the fundamental right of Freedom of expression, and often the scope and nature of the right to Privacy is tested through new parameters. Consequently, a balance needs to be struck and the boundaries and contours of these two rights needs to determined, both tentatively and definitively.

One such instance recently cropped up before the Delhi High Court discussing the right to privacy, the personality rights, and the celebrity rights in the posthumous context. On an application moved in the Delhi High Court by Mr. Krishna Kishore Singh, the father of the late actor Sushant Singh Rajput (SSR), the court refused to stay the release of upcoming film Nyay: The Justice, which is based on the death of the late actor. Read order here.

A bench of Justice Sanjeev Narula noted that the details of the demise of Sushant Singh Rajput received widespread and protracted news coverage in all media, and there was thus no justification to restrain publication of work that is claimed to be fictional and only draws inspiration from such events.

The court observed that the artistic freedom to create fictional works cannot be controlled, limited, or confined within set boundaries and that an artist’s inspiration can come from any source, and the court cannot filter real-life events. The Court further held that the protection to free speech guaranteed under Article 19(1)(a) needs to be applied with “equal rigour” to publications for commercial gains as well.

The plaintiff sought for ad-interim ex-parte injunction against the makers of all the movies made on his son’s life alleging the violation of personality rights, right to privacy, and “passing off”.

The Plaintiff (Father of SSR) who asserts to be the Category-I of Class-II legal heir of SSR and absolute legal heir under Section 16 of Hindu Succession Act, 1956 filed a suit for protecting the reputation, privacy and rights of his deceased son who passed away under mysterious circumstances on 14^th June’2020. Since, then a lot of controversy has come to light regarding the actor’s death due to which a lot of projects and movies are being made on this subject. The plea sought to recognise the wilful breach of the fundamental right to privacy which includes personality rights in the country, using the personal information of the late actor for commercial gains and extending that right posthumously.

ISSUES

The issues in the present case have come to the public eye on many occasions recently and the courts in unison have sided towards the artistic freedom enshrined through Article 19 (1) (a) “the freedom of expression”.

Though, most of the times, the courts have opted to not delve deep into the jurisprudence of celebrity rights, especially in posthumous context.

In this case, the bench of Justice Sanjeev Narula has deliberated on each issue in detail and have paved way for the resolution of a lot of similar disputes. The Court in the present instance dealt with the following issues of law, namely:

• Celebrity Rights and its Posthumous Context
• Right to Privacy
• Passing Off
• Fair Trial
• Defamation
• Freedom of Expression against other rights

In this post, we will view each issue from the perspective of both the parties and will analyse the finding of the court with respect to each issue in detail.

A. Celebrity Rights/ publicity/ personality rights

The present interim application referred to the terms ‘publicity right’, ‘celebrity right’ and ‘personality right’ interchangeably. The court noted that there exists no express statutory recognition of publicity, personality or celebrity rights in India, although there are limited provisions, whereunder, some of these rights can be claimed as intellectual property rights, such as under the Trade Marks Act, the Copyright Act, but again, it does not define the term ‘celebrity’.

The most relevant definition found thereunder, is of the terms ‘author’[i] and ‘performer’[ii], who may not necessarily be celebrities. While the term ‘Performer’ includes an actor within its ambit, the rights ascribed to an actor, under this Act, are neither relevant nor asserted in the instant case.

Further, in the instant case, the status of SSR as a celebrity was not disputed and both parties admitted that he enjoyed widespread fame and had attained the status of celebrity due to his popularity.

Plaintiff’s Arguments

The counsel for the plaintiff raised various contentions in support of his assertion that SSR being a celebrity enjoyed the publicity rights. The plaintiff also argued that the defendants made a movie on the life events of SSR without the consent of his legal heir.

The Plaintiff placed reliance on Titan Industries Ltd. v. M/s. Ramkumar Jewellers, Shivaji Rao Gaikwad v. M/s. Varsha Productions, ICC Development (International) Ltd. v. Arvee Enterprises and Ors and DM Entertainment Pvt Ltd vs Baby Gift House and Others, and further asserted that the Celebrity rights give the plaintiff the right to publicity, which allows them to control the commercial use of their identity and entitles them to the money that arises from their fame. Such celebrity rights are assignable and licensable for commercial benefits.

For Posthumous application of celebrity rights, the plaintiff laid reliance on Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani, where the Gujrat HC offered posthumous protection to the legal heirs of the plaintiff, and gave injunction against third parties for commercial benefit without the consent of the legal heir.

Defendant’s Arguments

The defendants opposed the contentions of the plaintiff’s and asserted that Right of a celebrity is infringed only in case if the celebrity is identifiable as a part of an artistic work. The defendants denied the use of the deceased’s name, image, caricature or style of delivering dialogues in any films or shows in issue. They further rejected the claims of the plaintiff’s and stated that the celebrity rights are not applicable in the posthumous context. The laid reliance on the ruling in Justice K.S. Puttaswamy v. Union of India andManaging Director, Makka Tholai Thodarpu Ltd. v. Mrs. V. Muthulakshmi.

The Court’s Ruling

• In this case, the bench of Justice Sanjeev Narula defined celebrity rights’ as essentially a compendium of the other rights accrued by a person upon attaining the status of a ‘celebrity’, comprising of a bundle of rights which include certain intellectual properties rights, publicity, personality and privacy rights.
• Further, the court described the scope of the celebrity rights as was observed in DM Entertainment (supra), ICC (supra), and Titan (supra), that these rights rest in the concept that a celebrity, who earns a living on the basis of the monetization of their recognition by the public, must be entitled to the tangible, economic benefit arising from the utilization and assignment of their image or likeness.
• For Posthumous context, the court assessed that plaintiff’s reliance on Kirtibhai Raval. They opined that the Gujrat HC in the aforementioned case though upheld the injunction granted by the trial court against the producers, but it also took the view that the contentions raised by the parties required detailed consideration upon leading appropriate evidence and thus did not delve into rival contentions, noting that the right of privacy and publicity urged therein was a triable issue. It felt that the questions of whether the documentary evidence on record as relied upon by the defendants would be required to be considered in detail upon leading evidence at the appropriate stage.
• Thus, Justice Sanjeev Narula in this case opined that the judgment relied upon by the Plaintiff does not say much on posthumous rights of a celebrity, and does not advance the proposition canvassed by the Plaintiff.

In the instant case, the court acknowledged that SSR enjoyed the status of a celebrity and that there can also be no doubt that a limited class of celebrity rights which are protected as intellectual property rights under applicable laws, and are assignable and licensable under such statutes, could survive the death of the celebrity.

However, the court disapproved the Plaintiff’s claims that the deceased celebrity has a posthumous publicity right. Since it is inextricably interlinked to and birthed from the right of privacy, the Court prima facie found merit in the submission of the Defendants that the posthumous privacy right is not permissible.

B. Right to Privacy

Another major issue emancipating from this judgement is of the Right to Privacy. The right in question is disputed on two fronts: Posthumous Context and in conflict with the freedom of expression. The latter will be dealt with in the advance part of the article.

Plaintiff’s Arguments

It was the case of the Plaintiff that any depiction of his own or his son’s life is violative of the Plaintiff’s right to privacy. In this regard, reliance was placed on R. Rajgopal v. State of T.N. & Ors.

Further, the plaintiff laid reliance on the Bombay HC judgement in Nilesh Navalakha and Ors. v. UOI, where the division bench, recognised the right to privacy of the late actor and his family. The Court, therein, directed the media to exercise restraint and refrain from publishing news, debates or interviews which would intrude on the privacy of the deceased.

Defendant’s Contentions

The defendant’s rejected the contentions of the applicants and took the support of the Puttaswamy Judgement by asserting that the right of privacy of a person extinguishes upon his demise. Such a right lives and dies with the deceased.

The Court’s Ruling

The Court referred to the Madras High Court judgement of Deepa Jayakumar (Jayalalitha case- biopic made on the late Chief Minister), to record that the right of privacy of an individual could not be inherited after the death of a person by his legal heirs, and that personality right, reputation or privacy enjoyed by a person during his lifetime ends after his lifetime.

Read our post on this topic here.

C. Passing Off

A passing off action is initiated to safeguard the Plaintiff’s goodwill from another who is designedly trying to mislead the public that his goods or services are that of the Plaintiff.

The Court dealt with the Plaintiff’s claim of passing off in this case and ruled that there doesn’t exist any prima facie element to hold that the film would lead the public to believe that it is a true story or a biopic that has been authorised or endorsed by the Plaintiff.

In view of the specific disclaimer of the Defendants, the court observed that once the disclaimer is included at the beginning of the cinematograph film, any apprehension that the Plaintiff has about passing off that the film is a biopic of SSR, will be put to rest.

D. Fair trial

The right to fair trial flows from Article 21 of the Constitution of India. The sudden death of the late actor under mysterious circumstances have been subject to a lot of theories and controversies since the past year. All of such events and incidents have garnered a lot of public attention and therefore a lot of writers and producers have made an attempt to portray the same in fictional light.

Plaintiff’s Contentions

As a CBI investigation is presently underway into the demise of the Plaintiff’s son, plaintiff contends that the fictitious portrayal of the circumstances surrounding the death of the late actor will prejudice the case of the Plaintiff and places reliance upon AV Bellaramin and Ors. v. V. Santhakumaran Nair.

Further, the plaintiff again laid reliance on the Bombay HC judgement in Nilesh Navalakha (Supra), where the division bench, sought action against news broadcasters that were conducting parallel media trial by tilting and misreporting the incident, on the ground of it being an impediment on right of fair trial. The Court, therein, directed the media to exercise restraint and refrain from publishing news, debates or interviews which would cause prejudice to an ongoing inquiry or investigation.

Defendant’s Contentions

The defendant placed reliance on Adarsh Cooperative Housing Society Limited v. UOI & Dr. Shashi Tharoor v. Arnab Goswami, wherein it was observed that where unsavoury remarks were made against persons when inquiry was ongoing, the court has upheld the freedom of speech to make such remarks.

The Court’s Findings

In response to the apprehensions made by the plaintiff against fair trial, the Court held that the right to fair trial is a valuable right but no foundation was set up to demonstrate as to how the films would impair the fairness in investigation or trial. The court further remarked that:

“While it needs no emphasis that the right to fair trial is a valuable right, however, it must be remembered that the investigative agencies and judicial system do not rely on cinematographic films for the purpose of investigation or judicial pronouncements. They have to proceed to decide the issues before them by drawing their own inferences and conclusions based on the materials placed before them, in accordance with the law.”

E. Defamation

The Plaintiff did not directly take the plea of defamation but indirectly claimed the same via the rejoinder. On the contrary, the defendants, claimed that Section 306 of the Indian Succession Act, 1925 and defamation as defined in Indian Penal Code, 1860, shall cease to exist upon the demise of a celebrity.

The Court’s Findings

The Court observed that the plea was misconceived and the allegation were entirely speculative as they were based on assumptions and presumptions. Without knowing the contents of the said film and only by relying on some news articles, the Plaintiff claimed that the depiction in the films could be intended to tarnish by the reputation of the late actor and his family. Hence, the Court found no prima facie case in favour of the Plaintiff’s action for defamation.

F. Freedom of Expression against Other Rights

The conflict between freedom of speech and expression against the right of privacy and allied rights is one of the major roadblocks for artists to create and produce any work of art or cinematography on the real-life incidents. Even fictional work based on such incidents is also challenged in the court of law on the ground that ground of it being an overreach of the right to freedom of expression under Article 19(1)(a) of the Constitution of India.

Plaintiff’s Contentions

The major argument of the plaintiff was that the depiction of his son’s death in the defendant’s productions was violative of the privacy rights of his and his family including his late son. The plaintiff’s relied on the observations made in R. Rajgopal  (Supra).

Further, to oppose the defendant’s arguments that the cinematographic work was based on the material available in public domain, the counsel for Kishore Singh contended that the news articles covering the death of the late actor were not verified and cannot be construed as ‘public record’ in terms of Section 2(e) of the Public Records Act and Section 74 of the Evidence Act and further relied upon Phoolan Devi v. Shekhar Kapoor, to argue that the usage of newspaper articles and reports is not to be construed as ‘public record’.

The plaintiff also mentioned the Bombay HC judgement in Nilesh Navalakha again, as the division bench, recognised right to privacy of the late actor and his family in that case and further sought action against news broadcasters that were reporting extensively about the private details, relations and lifestyle of the late actor. The Court, therein, directed the media to exercise restraint and refrain from publishing news, debates or interviews which would intrude on the privacy of the deceased.

Defendant Contentions

The defendant’s claimed that the plaintiff was seeking to assert a gag order on all movies, web-series, books, interviews or other material which may be published about the deceased under the guise of the present interim application. The claimed that the same was in violation of the freedoms granted under Article 19(1)(a) of the Constitution of India.

Further, defendants also asserted that there was plethora of material available in the public domain on the life and death of the Plaintiff’s son. The life of the deceased had thus, already become public.

They also claimed that the film carried a disclaimer which denounces any resemblance to a real person. Once the disclaimer is included at the beginning of the cinematograph film, any apprehension that it is a biopic of any character, is put to rest.

The Court’s Findings

The court exclaimed the necessity of closely looking at each right and then the need to strike balance and align the rights and interests of the parties in such cases.

As far as the arguments are concerned, the court observed that any contentions of the plaintiff cannot discern the fact that the events relating to the life and demise of SSR are in public domain. They further went on to scrutinize the R. Rajagopal case(supra), which was relied upon by the plaintiff’s. They observed that in that case it was held that the Petitioners had right to publish what they alleged to be a life-story/autobiography, insofar as it appears from the public records, even without the consent or authorisation of said person. Here, the fictional rendition for dramatic presentation based on certain events falls within the scope of artistic freedom of expression and speech.

The producers of the movies, shows, plays, etc. also claimed that the artistic work is fictional account of news available in public domain and that the artistic freedom to create fictional works cannot be controlled, limited, or confined within set boundaries. Upon which the court acknowledged that an artist’s inspiration can come from any source, and the court cannot filter real-life events. The necessary corollary, therefore, is that anyone is entitled to make movies on events which have actually occurred.

Conclusion

The Delhi High Court concluded that the instant application was founded on the basis of breach of celebrity/publicity rights inhering to the Plaintiff. If an interim order is granted then it would be difficult to compensate the Defendants in the event Plaintiff ultimately does not succeed in the suit.

Whereas, the Plaintiff can always re-apply at a later juncture for injunction, if there is a change in circumstances after the release of the said film, and if the Plaintiff proves in trial that the celebrity/publicity rights were inheritable and inured to him exclusively then there will be an adequate remedy of being compensated by award of damages.

The table below highlights some of the key judgements and their ratios deliberated upon by the court.

[i] Section 2(d), The Copyright Act, 1957.

[ii] Section 2(qq), The Copyright Act, 1957.

Image source: here