India: The Start Of An Unfinished Story

"You become a celebrity, not because of your work or what you do, but because you have no privacy", said Lisa Kudrow. Celebrities across the globe are faced with the daunting task of keeping their personal lives away from public scrutiny. At the same time, along with this right to privacy, is also the public image that every celebrity possesses, hones and protects passionately. This public image is often considered to be an intangible asset owned by a celebrity.

The rights enjoyed by celebrities are a bundle, including publicity rights, image rights, distribution rights, personality rights, and privacy rights. These rights are intangible and are often prone to misuse and misappropriation. In India, personality rights, publicity rights, privacy rights, celebrity rights and all such other rights have gained immense traction of late, attributable to the number of litigations related to these rights present before Indian courts. Indian law in this context is still at a nascent stage, with no statutory law recognizing personality rights or celebrity rights. Development in this field of law has been based mainly on judicial precedent. The foremost question today related to celebrity rights today is – whether celebrity rights are available posthumously or do they extinguish with the death of the celebrity.

SSR Case: Brief Facts

While celebrity rights have been discussed and deliberated upon by Indian courts in several different cases, one such recent case before the Delhi High Court was that of the celebrity rights of the late Sushant Singh Rajput (SSR), whose unfortunate and untimely death under suspicious circumstances on 14th June, 2020 attracted widespread news coverage across all forms of media. In April 2021, SSR's father brought before the Delhi High Court, a suit to protect the reputation, privacy and rights of his deceased son – SSR. Krishna Kishore Singh, in an application for grant of a temporary injunction filed by SSR's father, in Krishna Kishore Singh Vs. Sarla A. Saraogi and Others¹ (SSR Case) sought an ad-interim ex-parte injunction against multiple defendants from using SSR's name, caricature, lifestyle or likeness in any forthcoming films and other ventures. The Delhi High Court rejected the application but also expressed its views on what celebrity rights were and on whether such rights could be enforced posthumously.

The matter can be traced back to September, 2020, when Krishna Kishore Singh's counsel made a widely circulated statement that no movie(s), book(s) or series based on the SSR should be made without obtaining the prior consent of his family. Despite that, without approaching the family, Defendants No. 1 to 4 proceeded to make a movie which is a self-proclaimed "tribute to Sushant Singh Rajput", titled 'Nyay: The Justice' slated to then be released on 11th June, 2021. The other defendants were also involved in making movies titled 'Suicide or Murder: A star was lost', 'Shashank' both which are allegedly based or influenced by SSR's life and death. Krishna Kishore Singh was of the opinion that the defendants in the SSR Case were trying to exploit the media frenzy and public curiosity surrounding SSR's life and the circumstances surrounding his death, for their commercial gain.

Violation of Celebrity Rights / The Right to Publicity

Krishna Kishore Singh filed the injunction application in his capacity as an absolute legal heir of SSR. On the point of celebrity rights, Krishna Kishore Singh contended that celebrity rights have been acknowledged for the benefit of those who have worked hard to be known as distinguished personalities. It gives them 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. They also offer posthumous protection to the legal heirs of the celebrities and cannot be used by third parties for commercial advantage without the consent of their legal heir. After their death, the public at large cannot be permitted to gain through commercially exploiting the persona of the deceased.

The defendants contested heavily that the goodwill and reputation earned by SSR during his lifetime cannot be inherited by Krishna Kishore Singh like a movable or immovable property.

Delhi High Court Analysis

While analysing the SSR case, the Delhi High Court delved into the nature of 'celebrity' or 'publicity' rights are. Justice Sanjeev Narula explained how the suit is centred around the celebrity rights of SSR, and the plaint and interim application refer to the terms 'publicity right', 'celebrity right' and 'personality right' interchangeably. He further states that there is 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. The Court then elaborated on the notable precedents cited by both parties, some of which are as follows:

• In the Titan Industries Ltd. case², the Plaintiff, who owned the brand 'Tanishq', filed a suit against the Defendant for putting up hoardings, depicting Mr. Amitabh Bachchan and Ms. Jaya Bachchan endorsing the Defendant's jewellery, which were exact copies of the Plaintiff's hoardings put all over the country. The Plaintiff also had an exclusive license agreement with the actors for endorsement of its jewellery. This Court, while discussing publicity right of a celebrity noted: "When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity."
• In DM Entertainment³, Mr. Daler Mehndi had assigned all his rights, title, and interest in his personality, inherent in his rights of publicity, along with the registered trademark 'DALER MEHNDI' as well as goodwill vested therein, in favour of the Plaintiff company, which then brought an action against the Defendants who were involved in the sale of dolls in the image and likeness of Mr. Daler Mehndi. In this context, injunction was granted, and this Court observed:
• • "14. The right of publicity can, in a jurisprudential sense, be located with the individual's right and autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality. However, a word of caution has to be expressed here. In a free and democratic society, where every individual's right to free speech is assured, the over emphasis on a famous person's publicity rights can tend to chill the exercise of such invaluable democratic right. Thus, for instance, caricature, lampooning, parodies and the like, which may tend to highlight some aspects of the individual's personality traits, may not constitute infringement of such individual's right to publicity. If it were held otherwise, an entire genre of expression would be unavailable to the general public. [..]"
• In Shivaji Rao Gaikwad⁴, the Madras High Court was dealing with a suit filed by the actor Mr. Shivaji Rao Gaikwad (who goes by the screen-name Rajinikanth) against the release of a film titled 'Main Hoon Rajinikanth' on the ground that his name in the title would cause gross damage to his goodwill, infringe his personality rights, and cause deception in the minds of public, leading to passing off. The Court granted the injunction in favour of the Plaintiff against the release of the film, and made the following observations:
• • "21. (...) I am of the opinion that the personality right vests on those persons, who have attained the status of celebrity. In fact, in the present case, it has been categorically admitted by the defendant himself in the counter affidavit that the Plaintiff is a well acclaimed actor with high reputation, and he is a doyen of the film industry in India. Therefore, the defendant now cannot say that the name 'Rajinikanth' is a common name and as such it does not refer to the Plaintiff alone. A celebrity must be identifiable from defendant's unauthorized use. Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable."
• Lastly the Court observed that on the aspect of publicity rights, one must also note that in Puttaswamy⁵, wherein the right to privacy was declared to be a fundamental right on the anvil of Article 21 of the Constitution of India, the Supreme Court has reflected upon personality rights also, and observed that:
• • "58. 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 Court, relying on the above judgments and many others on the subject, held that:

• it was evident that Courts in India clearly recognize the concept of celebrity rights.
• It can, therefore, be fairly said that 'celebrity rights' is 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.
• undoubtedly, there are several such cases which recognize this common law right of celebrities to control the commercial use their image and personality, and in situations where a third party, without consent, has given an impression that a merchandise, product or service has been endorsed or associated with the celebrity, the courts have granted injunctions accordingly. However, 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, be it through advertisements, merchandise, etc.

While considering the question of whether celebrity rights could be enforced posthumously, the Delhi High Court analysed the precedents relied on by Krishna Kishore Singh. The first being the judgment of the Gujarat High Court in Kirtibhai Raval⁶ in which the Court upheld that the right to publicity of a celebrity is transferred to their direct descendant after their death. While the Gujarat High Court upheld the injunction granted by the lower Court, it also took the view that the contentions raised by the parties required detailed consideration upon leading appropriate evidence. It further noted that the right of privacy and publicity urged was a triable issue. It felt that the questions of whether the documentary evidence on record as relied upon by the defendants can be considered 'public record', would be required to be considered in detail upon leading evidence at the appropriate stage. Thus, Justice Narula held that this judgment does not say much on posthumous rights of a celebrity, and does not advance the proposition canvassed by Krishna Kishore Singh.

Krishna Kishore Singh also relied upon a judgment of the Supreme Court of Georgia, USA, to argue that celebrity rights are assignable and licensable for commercial benefit and survive beyond the life of a celebrity. The Delhi High Court, dismissing this reliance, stated that the judgment cannot assist the cause of the plaintiff as it is based on State-specific law and not federal law of the USA.

Krishna Kishore Singh, through the plaint, sought to distinguish 'celebrity rights' from the 'right to privacy'. As noted earlier, celebrity rights comprises a bundle of rights, including publicity, personality, and privacy and in some cases, intellectual properties rights, and in the opinion of the Delhi High Court, any assertion of such rights (except those claimed through intellectual property rights for which special statutory protection is provided), cannot be appreciated, divorced of the concept of right to privacy. In the absence of statutory acknowledgement of such rights, the fountainhead of such rights would be the right to privacy emanating from Article 21. There can also be no doubt that a limited class of celebrity rights which are protected as intellectual property rights, and are assignable and licensable under such statutes, could survive the death of the celebrity. However, with respect to the plaintiff's claim that the deceased celebrity has a posthumous publicity right, the Delhi High Court opined that since it is inextricably linked to and birthed from the right of privacy, the Court prima facie finds merit in the submission of the defendants that the posthumous privacy right is not permissible and relied heavily on the following viewpoint of the Supreme Court in Puttaswamy:

The defendants have argued that personality rights are recognized through the right to privacy and publicity, which are considered to be the mirror rights of each other. They have argued that in India, the 'right to publicity' is derived from the 'right to privacy' and the two are not completely independent of each other, as the former cannot exist without the latter. It has then been argued that, in the context of the reasoning in Puttaswamy (supra), as noted above, if the right to privacy extinguishes with the human being, the only necessary corollary is that right to publicity would also extinguish and would not survive after the death of the person.

Justice Narula, on this subject, held that whether commercial celebrity rights, such as personality or publicity rights, would survive or extinguish after the death of the celebrity, requires a deeper probe. In the absence of codified laws protecting such rights, the common law which governs such rights has to be analysed. Moreover, additional questions emerge, such as whether personality/publicity right is a property, being part of the estate/assets of the deceased, as a concept detached from the theory of dignity, or can it only be harmonised with the right of privacy, from where it originated. Such enquiries would first require evidence to be led by the Plaintiff to prove that the persona of SSR is still surviving as a commercial property, which is alleged to be exploited by the Defendants for profit. The foundational facts have to be established and proved and mere status of a celebrity is not enough. Therefore, this debate has been kept for another day and will not detain this Court in this instance, keeping in view the specific nature of the case put forth by the Plaintiff, the rights asserted, and the reliefs sought at this stage.

The story doesn't quite end there and shortly thereafter Krishna Kishore Singh filed an appeal to this judgement by the single bench of the Delhi High Court and was of the opinion that the single judge had erroneously ruled that celebrity rights ceased to exist after death. Since then the movie 'Nyay: The Justice' has been released on a remote website by the name 'Lapalap'. Against this background, a bench of two judges of the Delhi High Court have as recently as June 26^th 2021, directed that Krishna Kishore Singh can now approach the single judge of the Delhi Court to examine his earlier contentions given that movie and its contents were now available on the digital platform.

Publicity rights across the globe are viewed as distinct rights and will only gain more attention in the coming years, keeping in view the ever more invasive onslaught on privacy unleashed by the digital world. While the Indian judiciary has recognized these rights as being a part of the right to privacy, it may be time to fill the void in statutory legislature and introduce specific law(s) that recognize the commercial and property rights aspect of publicity rights even posthumously and give specific recognition to celebrity rights.

Footnotes

1. Krishna Kishore Singh vs. Sarla A. Saraogi and Ors, CS(COMM) 187/2021

2. Titan Industries Ltd. v. M/s. Ramkumar Jewellers, CS(OS) No.2662/2011, 2012 SCC OnLine Del 2382.

3. D.M. Entertainment Pvt. Ltd. vs. Baby Gift House and Ors, MANU/DE/2043/2010.

4. Shivaji Rao Gaikwad vs. Varsha Production, 2015 SCC OnLine Mad 158.

5. Justice K. S. Puttaswamy (Retd.) v. Union of India, Writ Petition (Civil) No 494 Of 2012.

6. Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani, Appeal from Order No. 262 of 2007, dated 20th January, 2010 by the Gujarat High Court.

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