Protecting Celebrity Rights or Restricting Free Speech? – The Karan Johar v. India Pride Advisory Case

Introduction

In the case of Karan Johar v. India Pride Advisory Pvt. Ltd.,[i] the Bombay High Court delivered a significant ruling, issuing a restraining order against the release of the film “Shaadi Ke Director Karan Aur Johar” / “Shadi Ke Director Karan Johar”. The Court halted the film’s release and also prohibited the use of any promotional material associated with it.

The case was brought before the Court by the renowned producer and director, Karan Johar, who argued that the film’s title implied an association with him, thereby exploiting his reputation and goodwill without authorization. The case raises important concerns about the balance between protecting personality rights and upholding artistic expression and also raises several other questions. It is therefore important to discuss and analyse the precedent in order to understand it’s future implications.

Facts

The film “Shaadi Ke Director Karan Aur Johar” was scheduled for release on 14th June 2024. The description of the film seen on the site BookMyShow[ii] reveals that the film is about “Karan and Johar, two eccentric wedding planners, as they navigate the chaos and comedy of orchestrating the most extravagant weddings.” It seems that the film centres around two different people by the names of Karan, and Johar, and therefore, it seems that no direct reference is being made towards the plaintiff.

However, the Plaintiff alleged that that the Defendants are using the name “Karan Johar” in the title and in the promotion, endorsement and publicity of the film, without permission, thereby violating his personality rights, publicity rights, and privacy rights, seeking to obtain unjust profits / unlawful gain and cause wrongful loss to the Plaintiff.

Arguments

The Plaintiff argued that Karan Johar had gained celebrity status through the blockbuster films which he had directed that played a great role in transforming the Bollywood film industry and launched the careers of several successful actors. It was argued that “an entity who has obtained celebrity status has personality rights, right of publicity and right to privacy and unless his consent is taken for using his personal attributes such as his name and profession there is violation of such rights.”

The Plaintiff contended that he was distressed by the unauthorized use of his name in the film titled “Shadi Ke Director Karan Aur Johar” or “Shadi Ke Director Karan Johar“. The Plaintiff argued that the film’s title and content made direct references to him, which constituted a misuse of his name and identity. The Plaintiff further asserted that the Defendants were using his name with malicious intent to mislead the public into believing that he was associated with the film.

This was particularly evident in the film’s trailers, which suggested that the characters named “Karan” and “Johar” collaborated to become Bollywood directors and were depicted making a Bollywood film. The Plaintiff claimed that this scenario clearly exploited his persona. It was also contended that by consciously using such brand name of the Plaintiff, the Defendants were seeking to obtain unjust profits / unlawful gain and cause wrongful loss to the Plaintiff. Reliance was placed upon various decisions of the Delhi High Court where personality rights have similarly been protected.

The Defendants on the other hand failed to appear in the proceedings, even though they were served with papers and intimated about mentioning of the matter. They had not bothered to contest the claim of the Plaintiff.

Order

The Court noted that a strong prima facie case was made out to protect personality rights of the Plaintiff, as he enjoyed a celebrity status from the several blockbuster films which he had directed.

The Court held that it was of the prima facie view that the film “Shadi Ke Director Karan Aur Johar” / “Shadi Ke Director Karan Johar” made an unauthorized and unlawful use of Plaintiff’s name.

It was also noted by the Court that the use of the term “Director” alongside “Karan Johar” clearly indicated that the Defendants were exploiting the Plaintiff’s persona. The Defendants were trying to create confusion among the general public, leading them to believe that the film was associated with the Plaintiff. The general public was likely to identify and associate Karan Johar with the film when it got aware of the film’s title.

The Court held that as the Plaintiff sought protection of his personality rights and privacy, the Defendants, by making unauthorized use of the Plaintiff’s name and personal attributes, including his name and profession, had, in a prima facie view, violated the Plaintiff’s personality rights, right to publicity, and right to privacy.

Therefore, an ad-interim injunction was granted and the Defendants were restrained from using Karan Johar’s name or any other attributes, and the film was restrained from being released, until the Defendants removed the name of Karan Johar and his attributes, altogether, from the film.

Analysis

As the views are prima facie, meaning on first impression, and as the Defendants were not present for opposing the order, an opportunity was missed for the Court here to lay the foundation of a valuable precedent where freedom of artistic expression was given importance. This is especially required in today’s practice, where people are generally sending notices or filing lawsuits for anything and everything, with the intention of grabbing a few extra bucks (not talking about this case particularly).

It is likely there will be a revision in the decision of Court. This seems evident from the clarification that “Defendants are at liberty to seek variations, modifications and / or vacation of the ad-interim relief”.

However, in light of this order, there are several interesting points and questions raised that I feel are necessary to discuss.

Privacy Rights

It is interesting to note, the Court held that right to privacy of the Plaintiff was violated. In what manner, and how? This was not answered. In fact, very less reasoning has been given for coming to this decision, understandably due to the urgency of the order.

The Supreme Court in R. Rajagopal v. State Of T.N.,[iii] had recognized the right to privacy wherein it was observed that: “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.

However, it was also observed that “any publication concerning the aforesaid [privacy] aspects becomes unobjectionable if such publication is based upon public records”.[iv]

In my opinion, an individual’s name cannot be considered as personal data, especially when it is publicly available on social media platforms, thereby becoming a part of public records.

Otherwise, every article or work that uses or references the name of Karan Johar would have to be taken down, due to violation of his “right to privacy. This certainly cannot be the intention of the Court here. Therefore, the order that right to privacy was violated merely by the use of Plaintiff’s name, seems a bit extreme.

Publicity Rights

The only violation apparent here can be that of personality rights or publicity rights, given the celebrity status of the Plaintiff.

However, even in that case, a valid defence to violation of publicity rights is available for the Defendants, taking aid of a pertinent observation made in Digital Collectibles v. Galactus Funware Technology.[v] It was observed by the Court there that the “… use of celebrity names, images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and would not fall foul to the tort of infringement of the right of publicity.[vi]

Therefore, it can be argued that the use of the name of a celebrity merely in the title for artistic purposes should be permissible as a facet of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The Court seems to have rushed to its conclusion without considering this vital and fundamental aspect.

Rogers v. Grimaldi

Another pertinent case here that could have been referred to, was that of Rogers v. Grimaldi[vii] decided in the United States. The facts were that Ginger Rogers, a renowned entertainer famous for her performances with Fred Astaire, sued Alberto Grimaldi and others over the film “Ginger and Fred”.

The Film “Ginger and Fred”, portrayed two retired dancers who earned the nickname “Ginger and Fred” from imitating Ginger Rogers and Fred Astaire. The film’s plot centred on their reunion for an Italian television special.

Rogers argued that the film’s title misled the public into believing she was associated with or endorsing the film, thereby violating (1) her right to publicity; (2) her right to privacy; and (3) the Lanham Act.

Note: Lanham Act provides for a system of trademark registration in the United States and protects the owner of a mark against the use of similar marks, if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.[viii]

The issue therefore was if the use of a celebrity’s name in the title of an artistic work violated her the right to privacy, personality or publicity rights, or if it violated the Lanham Act?

The Court found that Rogers’ claims failed as a matter of law because the film “Ginger and Fred” was protected as an artistic expression under the First Amendment. The court determined that the film is not a commercial product or advertisement, and thus does not fall under trade or advertising laws. It is a satire about modern television featuring a reunion of two performers who once imitated Rogers and Astaire, which is central to the film’s artistic content. Therefore, both the film and its title were entitled to full First Amendment protection.

It was very rightly observed by the Court here: “Equally protected is the title of the Film, an integral part of the work’s artistic expression, which is a reference to its central characters.

This case, and its observations, are strikingly similar to the case at hand, because similar to the names “Ginger” and “Fred”, the name “Karan” and “Johar” were being used to describe two separate characters who are central to the film’s artistic content. The title being an integral part of the work’s artistic expression, the usage should have been permissible and protected by freedom of expression, thereby being an exception to the violation of privacy rights, personality rights, or any trademarks.

Final Thoughts

Keeping in mind various Indian precedents and exceptions carved out, and also keeping in mind the case of Rogers v. Grimaldi, it seems that, a different decision could have been given here by this Court, considering that the official title of the film: “Shadi Ke Director Karan Aur Johar”, used the name “Karan Johar” for two different people, which were artistically relevant to the story of the film. The facts here seem to strongly incline towards being protected as artistic expression, being an exception to violation of privacy, personality or publicity rights.

However, in my opinion, it is true that the use of the word “Director”, as pointed out by the Court, might give a misleading message to the consumers, that the film was sponsored or related to Karan Johar, as he is considered famous for his role as a director in many famous Bollywood films. Taking down this word would be a viable option to prevent all direct references. But in any case, even this aspect should be covered under freedom of speech and expression.

The test of Rogers may not be applicable in India, but it is definitely something to keep in mind. Similar to that case, personality rights or publicity rights should not have taken precedence over genuine artistic expression.

In any case, even though an opportunity was present for both the parties to further expand the jurisprudence over this everlasting conflict between artistic expression and privacy/personality rights, the failure by the Defendants to appear in Court greatly limited any possible conclusion. It can only be hoped that the final judgement might take into consideration all these points, and the Court will give its reasoned decision.

End notes:

[i] Karan Johar v. India Pride Advisory Pvt. Ltd., Interim Application (L) No.17865 Of 2024 in Com IPR Suit (L) No.17863 Of 2024.

[ii] https://in.bookmyshow.com/pune/movies/shaadi-ke-director-karan-aur-johar/ET00401267.

[iii] R. Rajagopal vs State Of T.N., 1995 AIR 264, 1994 SCC (6) 632.

[iv] Para 26, Ibid.

[v] Digital Collectibles v. Galactus Funware Technology, CS(COMM) 108/2023

[vi] Para 57, Ibid.

[vii] Rogers v. Grimaldi, 875 F.2d 994 (1989)

[viii] https://www.law.cornell.edu/wex/lanham_act

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