Injunction denied on the film “NYAY: THE JUSTICE”: Till when will celebrities be left bereft of justice?

Introduction

In the judgment passed on the 10th of June in the case of Krishna Kishore Singh v. Sarla A. Saraogi & Ors., the Delhi High Court refused to grant a pre-emptory injunction on the plea of restraining the exhibition of the film “Nyay: The Justice”. The film is purportedly based upon the life of the late celebrity Sushant Singh Rajput (“SSR”). It was alleged in the plea that any form of depiction of SSR’s name, lifestyle or the like is infringing upon his right to privacy, right to fair trial and celebrity/personality rights- which are a bundle of rights that are inured to a person by virtue of having created a distinct “identity” for himself in the face of public. Further, the plaintiff claimed that there was an absence of prior permission from the legal heir before the execution of the film.

This judgment tried to shed light on the issue of post-mortem publicity rights, which is devoid of any formal codification in Indian law, as precedents had not established any concrete point on this issue. Another aspect covered in this judgment was the question of what constitutes publicity rights in India with regard to a celebrity, and the adequacy of disclaimers before any movie. However, it cannot be said that the judgment was without its loopholes. These issues, amongst others, will be evaluated in this article.

Brief facts of the case

The legal heir (father) of SSR filed a petition before the Delhi High Court requesting an injunction on the release of the film titled ‘Nyay: The Justice’. He claimed that this film was intended to exploit the public curiosity and media frenzy surrounding SSR’s life and events following his death, in order to gain commercial profits without his permission (as the legal heir). In this background, the defendants were accused of infringing the right to publicity, right to privacy and right of free trial. Following this petition, the Delhi High Court on 10th June, denied the grant of stay on release of the film. The latest Order was passed on 14th July, in which the Court directed the parties to work out the issue amongst themselves, while granting a week to the filmmakers to respond to the plaintiff’s application.

The ratio decidendi given by the Court

Firstly, while attempting to define celebrity rights, the court amalgamated various rights like the right to privacy, personality, publicity and Intellectual Property Rights. Publicity Rights are basically the rights accrued on a person by virtue of which they can exploit the economic value of the name and fame associated with their identity. The Court further held that “any assertion of such rights 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.” This Court applied the definition that was given to the ‘right to privacy’ in the case of K.S.Puttaswamy v. UOI of being functional only till the death of the person, to ‘publicity rights’ as well. The Court then used this as the basis for denying its post-mortem applicability.

Secondly, the infringement of celebrity rights by the defendant was denied by the Court on the grounds that “the name, caricature, lifestyle, and/or likeness of SSR is not being exploited by applying to any merchandise as t-shirts, toys, etc. so as to evoke his persona”. In the author’s opinion, the court based this analysis on a very narrow precinct of merchandise application, as celebrity rights includes any form of identification.

Thirdly, the Court dealt with the plaintiff’s contention of passing off by holding that prima facie there is no element which shows that the public would be led to believe that the film is a real story or a biopic, endorsed by the plaintiff. Further, the Court believed that the use of disclaimer before any cinematographic film would resolve any apprehension about passing off the film as a biopic of SSR. From this statement we can also see that the Court accepted the Defendant’s contention that the film was not a biopic but merely a work of fiction.

Finally, the Court dealt with the copyrightability of the life of celebrity. It held that this right cannot be granted, as under the Copyright Act, 1957 merely historical facts, biographical descriptions, or news of the day cannot be copyrighted due to their being a part of the ‘public domain’, thereby eluding ‘originality’ and ‘creation’.

Analysis of the judgment

Firstly, although the Court tried to give direction to post-mortem celebrity rights, it erroneously amalgamated the right to privacy with the publicity/personality rights in the attempt. It failed to appreciate the difference between publicity rights and privacy rights whereby publicity rights is similar to property rights (with regards to the potential for monetisation) while the latter is a set of rights. Another difference between publicity rights and privacy rights is their creation. While the latter is accrued to a person by birth and retains till his death, the former is earned by an individual through his efforts in his lifetime. Further, since property rights like that of copyright are descendible, and the same could be implied for the publicity rights, being in the nature of property rights.

There are several countries which recognize post-mortem publicity rights. In USA, many states have recognized this right. For instance in the famous case of The Martin Luther King, Jr. Centre for Social Change, Inc., et al. v. American Heritage Products, Inc., et al., the Supreme Court of Georgia defined publicity rights to include “…the right of publicity survives the death of its owner and is inheritable and devisable…” The court addressed the repercussions of denial of post mortem rights celebrity rights in this case. It stated that it would diminish the commercial value of the celebrity during his lifetime as in case of his untimely death, the value of continued commercial use will be greatly hampered. However, this right varies from State to State.

Even in Spain, descendibility of right to one’s image is recognized. The family members, alive at the time of his death can claim this right. When the legal heirs are absent, the Ministry of Justice can enforce the celebrity’s image right for 80 years after his death.

Secondly, the Court denied any infringement of celebrity rights, claiming that there was no application to any merchandise. It further reasoned that there is no violation of privacy since such movies do not use photos, images or caricatures of SSR.

However, this narrow reasoning awaits broader interpretation as it was explicated in the case of Mr. Shivaji Rao Gaikwad v. M/s. Varsha Productions that “public perspective” could be a reasonable test to ensure “identification” with the celebrity. The Court in the above mentioned case had given the reasoning that “…the comments made in the internet website pages would go to prove that on seeing the title of the impugned movie, the name of the plaintiff alone gets etched in the minds of the persons who come across the advertisement depicting the title of the movie…” In a similar light, the present case becomes a fit case for using this precedent- as the poster of the movie, the similar events depicted in the trailer, and the personality along with media reports and public perception might lead to identification of the late actor. In fact, upon a simple Google search, it becomes evident to the public that the movie is based on SSR.

Thirdly, the court relied on a simple “disclaimer” to hold that the public would not be led to think that it is a true story or a biopic. This claim is erroneous prima facie because a disclaimer adds to the fuel by creating intrigue in the minds of the public when a suspicion of real events being showcased is created. The best example was the film Zubeidaa, which was seen as depicting the story of the “erstwhile royal family of a state.” While a majority may not be aware of the actual proceedings, the crowd sits there with bated breath to know what actually transpired. In fact, the Court may rule the disclaimer null and void, if the fictitious claims seem too close to the actual happenings. Keeping this in mind, the Court should have annulled the disclaimer- as had happened with the Hollywood film “The Idolmaker.”

Finally, on the point of non-copyrightability of biographical and historical facts, it can be held that if and when a statute establishing protection of celebrity rights is brought in the Indian domain, it will become clear that it is not the “biographical facts” or history which is sought to be protected by this right. Rather, it is the efforts, identity and the element of creativity which a celebrity creates for himself under the stake of exploitation which is actually in need of protection.

Conclusion

In the current Indian scenario, it can be said that the judicial precedents are the ones keeping the rights of celebrities afloat. However, if courts start giving such erroneous judgments, disregarding the publicity rights of celebrities- the future for celebrity rights starts seeming bleak in India. Support from different jurisdictions can be taken to enforce a wholesome celebrity right in India, before the advent of a specific statute in this regard.