POSTHUMOUS SURVIVAL OF PRIVACY & PERSONALITY RIGHTS – Part 1

POSTHUMOUS SURVIVAL OF PRIVACY & PERSONALITY RIGHTS – Part 1

PART 1 – POSTHUMOUS SURVIVAL OF PRIVACY & PERSONALITY RIGHTS

Introduction:

Every individual is entitled to various rights during his lifetime, of which, one of the most basic, is the right to privacy. Closely related and connected with privacy, is the right of each individual to protect his reputation, as well as to prevent the use of his personal and identifying attributes. While reputation and personality are both derived from, and fall under the umbrella of privacy, the lack of specific legislation in India, to carefully differentiate between these rights, often results in the dissolution of their delicate boundaries, and thus, their interchangeable use and combined treatment. With the advancement of technology and increase in social media presence, there is an increased awareness amongst individuals to protect their privacy, reputation and use of their attributes, and accordingly, a rising need to distinguish these rights from each other, from a legal enforcement perspective. Further, recent cases on this subject have also prompted the question of whether such rights continue to survive after an individual’s death.

In Part 1 of this article, the author shall discuss the genesis and evolution of the right to privacy in the United States of America, United Kingdom, and India, by looking closely at the jurisprudence surrounding the same, its equation with reputation and defamation, and the recognition and development of what is commonly referred to the “other side of the coin” in the context of privacy rights, i.e., personality/publicity rights. Part 1 shall also briefly answer the question of whether such rights, being of a personal and individualistic nature, can survive after a person’s death, so as to enable the deceased person’s heirs to claim violation of his rights, on his behalf.

Part 2 of this article shall continue the discussion on posthumous survival of these rights in detail, through a detailed analysis of two recent cases on this subject. In addition, the author will also highlight the interchangeable and combined treatment of such rights in these claims.

Before proceeding, it is important for the reader to understand the basic definitions of privacy rights, publicity/ personality rights, and the right of reputation (covered under the law of defamation) which are as under:

  • Privacy rightis the right of an individual to keep his/her life private and from being discussed or interfered with, by the Government or by any other third party. Under Article 12 of the UN Declaration of Human Rights[1], every individual is entitled to protection of his/ her private life and to prevent attacks on his/ her honour and reputation. Indian law includes the right to privacy under Article 21 of the Constitution[2] under the right to life and personal liberty. The right to privacy has been recognized as a fundamental right in various jurisdictions of the world, including India.

 

  • Personality/ publicity right is the right of an individual to control the commercialization and monetization of his name, image, likeness, voice, photographs, videos, other personal identifiers and attributes and to prevent the use of such personal attributes by other people without one’s consent/ approval.

 

In comparison to privacy rights, violation of which would cause injury of a non–economic nature, violation of one’s personality/publicity right would cover injury of an economic nature, in the sense that compensation would be due and payable by a third party to the individual, for utilizing his/her personal attributes without consent.

 

  • Protection of reputation” is encompassed under the right to privacy, in so far that the right to privacy includes the right to prevent a third–party from attacking one’s honour and reputation[3]. The essence of the law of defamation is, protection of an individual’s reputation, and the right to privacy safeguards individuals’ sensitivities about what people know and believe about them, therefore, creating an intrinsic link between the right of privacy and one’s right of reputation. However, legally speaking, “protection of reputation” is a more extensive right and is covered under the law of defamation. In India, defamation is an offence under both, civil and criminal law.

 

  • Under civil law, defamation is punishable under the Law of Torts by imposing punishment in the form of damages to be awarded to the claimant.
  • Under the criminal law, defamation is covered under Section 499 of the Indian Penal Code, 1860[4], according to which “Defamation” is the act of communicating false statements about a person that injures the reputation of that person. Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly, with the intention to damage someone’s reputation is defamation.
  • Under the law of defamation, a person’s reputation is treated as his/ her property and such damage is punishable by law.

Genesis of the right to privacy and personality/ publicity rights in the USA and UK:

Samuel Warren and Louis Brandeis in 1890 in their article titled “The Right to Privacy”[5] described the right to privacy as an already existing common law right which embodied protections for each individual’s ‘inviolate personality’ and argued that it was necessary for the legal system to recognize the right to privacy because, when information about an individual’s private life is made available to others, it tends to influence and even to injure the very core of an individual’s personality. While the jurisprudence revolving around privacy rights developed in the United States of America (USA), publicity rights grew simultaneously and originated as a subset of privacy rights, until it was recognized as a distinct right in itself, which is covered under various state laws in the USA.

In a landmark case, Haelan Laboratories v. Topps Chewing Gum, Inc.[6],  it was held by Judge Frank that people, especially prominent ones, in addition to and independent of their right of privacy, have a ‘right in publicity value of their photographs’. Even as Judge Frank was the first to coin this term, no judicial rationale was offered for the new right, except that without it, prominent persons would be denied image revenues and would thus feel ‘sorely deprived’, thus, paving the way for commodification of personality. The development of publicity rights as an independent right and cause of action is in line with the distinction created by Nimmer in The Right of Publicity[7]. Nimmer categorically stated that what performers or celebrities required was a right to control the commercial value of their identity, given the hard work and skill that performers undertook, sometimes over many years, to build their persona and create goodwill in their favour, rather than protection against unreasonable intrusions into privacy.[8] The USA Supreme Court further clarified this separation between privacy and personality rights in Zacchini v. Scripps-Howard Broadcasting Co.[9] The court, in this case, while protecting the petitioner, held that privacy was a personal right, whereas the right to publicity was a commercial right that had a wider ambit to cover performer’s rights. This case led to the development of the right to publicity as a property-based doctrine and the exclusive right of a celebrity to commercial use of fame acquired by him/her as a part of his/her professional persona.

In the case of Hoffman v. Capital Cities/ABC Inc[10], Mr. Hoffman filed a complaint against Los Angeles Magazine’s (“LAM”) parent company, Capital Cities/ABC, Inc. LAM had digitally edited an image of Dustin Hoffman’s character from the film “Tootsie”, to impose his head on the body of a male model who was wearing a woman’s dress and shoes, along with the caption: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels”. The complaint alleged that LAM’s publication of the image misappropriated Mr. Hoffman’s name and likeness, thereby violating California’s common law and his statutory publicity right since LAM had not obtained permission from Mr. Hoffman to publish this image. While, in this instance, the Court ruled against Mr. Hoffman on First Amendment grounds, by holding that the magazine’s appropriation of identity was “communicative” rather than “commercial” and that the article published was not commercial speech[11], what is interesting to note is that Mr. Hoffman’s complaint was based on the argument that his name and likeness is an extremely valuable commodity and that he does not permit commercial use of his identity.

Despite the clear demarcation in privacy rights and publicity/ personality rights, the implementation of specific legislation in relation to the right of publicity is not uniform throughout the USA. Although there has been discussion to implement federal legislation, there is currently no federal publicity law in the USA. Several states have not adopted a legal framework to protect the right of publicity at all. Nineteen states have enacted statutes to protect rights of publicity, including Florida, Illinois, New York, and California. In other states, including some that have enacted statutes, there are common law rights of publicity, instead of, or in addition to, statutory protection.

While the right of personality has been afforded protection in the USA for well over 50 years, the United Kingdom (UK) remains skeptical about creating monopoly rights in one’s personality. The absence of a holistic personality right regime in the UK must not be equated to an absence of protection because effectively, case law has shown that the unauthorized exploitation of personality features has been, to some extent, restricted in English law as well. Unauthorized use of a person’s image can be challenged under other existing regimes such as passing off, trademark infringement, data protection, advertising regulations or breach of confidence. The law in the UK on the subject has seen considerable growth and change. The introduction of the Human Rights Act, 1998, which incorporated the European Convention of Human Rights (“ECHR”) and certain provisions of the ECHR, helped pave the way for recognizing privacy as a right; and under the Data Protection Act 1998[12], certain obligations are placed on those who control and process personal data i.e., information about living individuals, and those collecting information have to follow certain principles in relation to holding and processing the information.

In Irvine v Talksport[13], it was established that a racing driver was well known to a significant proportion of the UK public in the field of motor racing through endorsement deals, private sponsorship, and merchandising, and so had sufficient goodwill in his name and likeness to support a passing off claim. In the case of Campbell v. Mirror Group Newspapers Ltd.[14], photographs of Naomi Campbell were taken when she was leaving a narcotics clinic. These images were manipulated, one to add the caption ‘Therapy: Naomi outside Meeting’ and the other to add the headline ‘Naomi: I am a drug addict’. Campbell sought damages based on breach of confidence.[15] Her action concluded successfully in the House of Lords, in which the court restored the trial judge’s “modest” award of £3,500 in damages. Because Campbell presented her case only on the basis of a breach of equitable duty of confidence under common law, the House of Lords was not required to consider broader issues which arise from other forms of invasion of privacy. The House of Lords, however, acknowledged that the UK still does not have an “over-arching, all-embracing” cause of action for “invasion of privacy,” in contrast to the USA. Even though a considerable amount of crystallization in the development of personality/ publicity rights still remains, it can now be seen that some extent of protection under English law for commercial use of an individual’s image and information does exist.

Being a former British colony, India has adopted a vast portion of its laws from the UK and India, like the UK, does not have an independent legislative provision protecting an individual’s right of publicity. For a long time, the right of publicity has largely been enforced in India under the common law tort of passing off and/or filing of a defamation suit. But in recent cases, we can observe a shift in the judicial pronouncements in India, which, like the USA, has been recognizing and deriving the right of publicity, from the right of privacy.

Development of the right to privacy in India:

The right to privacy as an independent and distinctive concept, originated in the field of tort law, under which a new cause of action for damages, resulting from unlawful invasion of privacy, was recognized. There is no separate codified law in India dealing with privacy or publicity rights and the position and on-going development of such rights and laws in India is still largely governed by judicial pronouncements of courts.

The scope of the right to personal liberty under Article 21 of the Constitution of India[16] was widened in the landmark ruling in Maneka Gandhi versus Union of India[17], wherein the passport of the petitioner in this case, was impounded by the authorities under the provisions of the Passport Act. The judgement altered the landscape of the Indian Constitution and widened Article 21’s scope immensely and it realized the goal of making India a welfare state. The Supreme Court in the case stated that the interpretation of ‘personal liberty’ should not be construed in a narrow and strict sense but should be done in a liberal and broad sense. The judgement paved the way for the Apex Court to bring into the ambit of Article 21 other important rights like right to privacy, right to clean water and air, standard education, etc.

Thereafter, the case of Phoolan Devi vs. Shekhar Kapur[18] exemplifies the need to recognize privacy rights as critical to one’s existence. A suit was filed to restrain the defendants from exhibiting publicly or privately the film “Bandit Queen” in India or elsewhere. The Delhi High Court injuncted the defendants from exhibiting the film and found the film to be violating the privacy of plaintiff’s body and person. The Court held that the right to privacy is implicit in the right to life and property, guaranteed to the citizens of this country by Article 21 of the Constitution, consent and public record being exceptions in contravening the right to privacy. They further held that if the defendants were allowed to exhibit the film further it would cause further injury to the plaintiff. No amount of money can compensate the indignities, torture, feeling of guilt and shame which has been ascribed to the plaintiff in the film. The matter was eventually settled between the parties.

The right to privacy was finally recognized as a fundamental right protected under Article 21 of the Constitution of India[19] by the Hon’ble Supreme Court in the landmark judgement of Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors.[20], wherein the petition was filed to challenge the constitutional validity of the government’s proposed scheme for a uniform biometrics-based identity card (Aadhar Card) which would be mandatory for access to government services and benefits. The judgement passed by a nine-judge bench affirmed the constitutional right to privacy and declared privacy to be an integral part of our fundamental rights.

Evolution of Publicity Rights in India:

As one can see from the Puttaswamy judgment[21], the Apex Court, following years of legal precedent, finally arrived at the conclusion that an individual’s right to privacy is a fundamental right. Justice Sanjay Krishna Kaul in his opinion in the judgement, touching upon publicity rights said, “Every individual should have the 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 means that an individual may be permitted to prevent others from using his/ her image, name, etc.”. Given that Justice Sanjay Krishna Kaul’s opinion in the judgement refers to a form of publicity/ personality rights, it becomes critical to evaluate the correlation between a person’s right to privacy and publicity/ personality rights, and understand through judicial precedent, as to whether one’s publicity/ personality rights will get a status akin to one’s right to privacy. The right to publicity was perhaps first recognized in India by the Supreme Court in Rajagopal v. State of Tamil Nadu[22], where the Supreme Court stated that “the first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent”.

In 2003, the Delhi High Court, in the case of ICC Development (International) Ltd., Vs. Arvee Enterprises[23], expressly dealt with publicity rights as a facet of privacy right under an action of the tort of passing off. The court held that: “The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals to the organiser (non-human entity) of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of publicity vests in an individual and he alone is entitled to profit from it”.

Thereafter, the Madras High Court has been seen to recognise personality/ publicity rights on a standalone basis as seen in the case of Shivaji Rao Gaikwad vs. Varsha Production[24]  wherein  the filmmakers were restrained from using the title, “Main Hoon Rajinikanth” as the name of the film could undoubtedly be associated with the superstar Rajnikanth due to the perception/impression of the public, who would necessarily associate the film with the Rajnikanth. The Madras High Court held that even if the movie was not a biopic of Rajnikanth, his name could not be used without his prior permission as personality rights vest with persons who have attained the prestige of a celebrity and no proof of falsity, confusing or deception is required when the celebrity is identifiable. Similarly, in D.M. Entertainment vs. Baby Gift Horse[25], the Delhi High Court held that violation of publicity rights had taken place in addition to false endorsement and passing off, by Baby Gift Horse who was selling dolls which looked like the popular music composer, lyricist, and singer – Mr. Daler Mehndi, which dolls could also sing a few lines from some of his compositions. Whilst assessing infringement of publicity right, the Court inter alia, considered, (a) public recognition and popularity of Mr. Daler Mehndi; (b) identifiability of Mr. Daler Mehndi from the unauthorized use; and (c) sufficiency, adequacy, and substantiality of the user to identify the appropriation of the persona of Mr. Daler Mehndi or some of the essential attributes.

As can be seen, Indian courts have started recognizing and have established, through various judgements that, apart from the right to privacy, there also exists a publicity right in favour of individuals, which flows from the right to privacy, and is capable of commercial exploitation.

Defamation equated with invasion of privacy in India:

Privacy and defamation have been equated, used interchangeably, and treated as one and the same thing. Violation of privacy rights has often been covered under suits for defamation, despite the fact that defamation and privacy rights raise issues which are quite distinct. The main difference between invasion of privacy and defamation is that truth is not a valid defense against the former. Even though both protect violation of a person’s dignity, the cause of action under both rights are separate. The following two cases point out how claims for defamation and invasion of privacy have been combined and how the courts in India have dealt with them. In the case of Akshaya Creations v. Muthulakshmi[26], the wife of a convicted criminal named Veerappan filed a suit, that the film based on the life of her husband depicted her husband in bad light and infringed upon his right to privacy. The Supreme Court while clarifying that though every citizen had right to privacy under Article 21 of the Constitution, any information based on public records could be published by the press. However, the Court directed that the portions which depicted Veerappan’s marriage and private life to be removed from the film as the same infringes upon the right to privacy. In the case of Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai[27], a writ petition was filed by Silk Smitha’s brother, claiming that the movie ‘The Dirty Picture’ portrayed her sister in a defamatory and obscene manner. The Court observed that the said film was not a biopic or a fictional representation of the life of the petitioner’s sister as the film carries a specific disclaimer to the effect that the said film was a work of fiction and that all characters are fictitious and therefore there is no violation of any right of privacy or reputation of the deceased actress or her family including the petitioner. The Court held that “Anybody is allowed to make a movie on the life-story of a person relying on facts which appear in the public records, even without his consent or authorization. But if they go beyond that then they may be invading his right to privacy and will be liable for the consequences in accordance with law.”

Need for Statutory Legislation to create Distinction:

Courts in India have been depicting an increased awareness regarding the separate treatment of these rights and creating a distinction between them. While the law is still developing through case law, there is a need for creation of statutory legislation which clearly sets out the differences and boundaries between these rights. It will be interesting to observe the distinct implications and impact that violation of these rights could result in, if they are capable of enforcement as separate causes of action. When recognised and treated as separate rights, the arguments and outcome of a given case could change and depend on the whether the basis of the claim is a violation of privacy, reputation or publicity.

Posthumous Survival of the Right to Privacy and Publicity:

Under common law, it has been a general rule that a personal action dies with the person, meaning that the death of a party extinguishes any cause of action in tort that he may have had while he was alive. This is expressed by the maxim “acto personalis moritur cum persona”. In 2017, the Supreme Court in the Puttaswamy judgment[28], stated that “right to privacy of an individual remains with the being till he/she breathes last. It is born with the human being and extinguishes with human being”.

While it is established that the right to privacy is a fundamental and inalienable right, which does not survive the death of an individual, it remains to be seen whether courts in India will decide whether:

  1. Publicity rights can continue to exist and survive posthumously, given the difference in economic nature between the two and the aspect of commercialization associated with publicity rights; and
  2. Whether a deceased individual’s heirs can claim violation of, or enforce, the publicity/personality right of a such deceased individual.

In Part 2 of this article, we will continue this discussion through a detailed analysis of two recent cases revolving around the posthumous rights of deceased individuals, which have been filed by the heirs of certain deceased individuals, claiming violation of such deceased individuals’ rights, on account of unauthorised commercial exploitation of their names and life stories, after their death.

[1] Article 12 of the UN Declaration of Human Rights – No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

[2] Article 21 in The Constitution of India 1949: Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.

[3] Supra Note 1

[4] Section 499 of the Indian Penal Code, 1860: Defamation – Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives.

[5] Warren & Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890)

[6] 202 F 2d 866 (2nd Cir.) (1953) [The relevant facts of the case were as follows: Plaintiff, a chewing gum manufacturer, had contracted with certain well known baseball players for the exclusive right to use their photographs in connection with sale of its products. Subsequently, Russell Publishing Company, acting independently, obtained like grants from same players. Russell then assigned rights to the defendant, also a chewing gum manufacturer, which used the players’ photographs in promoting its products. Plaintiff sought an injunction on the ground that the defendant’s action conduct violated its right of exclusive use. The defendant countered that the players possessed no legal interest in their photographs other than right to privacy, which is personal and not assignable.]

[7] Nimmer, The Right to Publicity, 19 Law and Contemporary Problems 203 (1954).

[8] Ibid

[9] Zacchini v. Scripps-Howard Broadcasting Co., 1977 SCC OnLine US SC 153, 53 L Ed 2d 965, 433 US 562 (1977).

[10] Hoffman v. Capital Cities/ABC Inc, 255 F.3d 1180 (9th Cir. 2001).

[11] “These facts [that the body double was identified as wearing Ralph Lauren shoes and that there was a Ralph Lauren advertisement elsewhere in the magazine] are not enough to make the photograph pure commercial speech…. LAM did not use Hoffman’s image in a traditional advertisement printed merely for the purpose of selling a particular product.” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1185 (9th Cir. 2001).

[12] Data Protection Act 1998 (DPA) gives effect in the UK law to EC Directive 95/46/EC.

[13] Irvine v Talksport, [2002] EWHC 367 (Ch).

[14] Campbell v. Mirror Group Newspapers Ltd., 3 [2002] H.R.L.R. 28

[15] Campbell also sought damages for breach of the Data Protection Act of 1998, but it was accepted that this legislation provided parallel protection with the equitable action and the case proceeded on the basis of the equitable action.

[16] Article 21 in The Constitution of India 1949, Supra Note 2

[17] Maneka Gandhi v. Union of India, AIR 1978 SC 597, 621.

[18] Phoolan Devi vs. Shekhar Kapur, 57 (1995) DLT 154.

[19] Article 21 in The Constitution of India, Supra Note 2

[20] Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors., 2017 (10) SCC 1

[21] Ibid

[22] Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632

[26] Akshaya Creations v. Muthulakshmi, (2013) 1 LW 612 (Mad)

[27] Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai: Writ Petition No. 30376 of 2011

[28] Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors., Supra Note 20

Authors:

Anushree Yewale, Principal Associate

Anushree Yewale has over 6 years of work experience in the media and entertainment sector. Prior to joining TMT Law Practice, Anushree has worked with a boutique intellectual property rights law firm. She has provided end-to-end support to numerous production houses, broadcasting companies, talent management agencies, and independent artists, provided transactional and advisory related services for content creation and content exploitation across various modes, media. and formats, structured, negotiated and implemented complex transactions involving S&P compliance for scripts, development and production of audio-visual content, distribution, and acquisition of audio-visual content, merchandising deals, film licensing and assignment deals and other ancillary transactions, negotiated sponsorship and endorsement contracts including celebrity licensing, cleared advertising for use in online and off-line media, and handled product placement and media productions.

Riddhi Tulshian, Associate

Riddhi Tulshian has around 2 years of work experience in the intellectual property and media & entertainment industry. She earned the degree of B.B.A. LL.B (Hons.) in 2019 from SVKM’s NMIMS Kirit P Mehta School of Law with a specialization in Business Laws. She joined TMT Law Practice in May 2019. She specializes in strategizing IPR transactions and has worked with production houses, OTT platforms and radio broadcasters, has worked on production and distribution deals, rendered legal assistance in acquisition of film and format rights, service agreements, licensing agreements and technology related to intellectual property as well as e -commerce, advised on copyright related transactions including script & content clearances, due diligence for ascertaining IP ownership and advising, structuring and negotiates deals on transactions for production, distribution and licensing. She is enthusiastic about and looks forward to working in the fields of technology and privacy law.

Meghana Chandorkar, Partner

An Alumnus of ILS Law College, Pune, Meghana has 12 years of experience as an Intellectual Property and Media & Entertainment lawyer.

After graduating in 2009, she has worked with the intellectual property teams of leading law firms, with a strong focus on trademark and copyright law, as an in-house counsel for a music company, and for a broadcast, media, and entertainment company.

Working with law firms in the initial half of her career has helped her create and develop a strong base of legal knowledge and, working in-house has been instrumental in giving her an insider’s perspective, to better understand client requirements, from a business and commercial point of view, and to provide specific, appropriate and well-rounded legal advice, draft and structure agreements and minimize risks, keeping in mind the business requirements.

While working as an in-house counsel, she was selected for, and has completed, a certificate program, in 2018, called the ‘Young Leader Development Program’ from MICA, Ahmedabad, designed specifically to develop young leaders across business and corporate functions, to tackle real-time problems and put forth innovative business solutions.

Her core areas of expertise include structuring, drafting, and negotiating agreements, and providing advice and opinions, pertaining to the creation, maintenance, protection, acquisition, and exploitation of intellectual property rights. She is skilled in copyright, media and entertainment, broadcast, trademark, and contract law, and she has been recognized as a professional whose advice is valued in providing creative legal solutions and advice to clients.

LIFE RIGHTS AND COPYRIGHT: THE JHUND JUDGMENT

LIFE RIGHTS AND COPYRIGHT: THE JHUND JUDGMENT

LIFE RIGHTS AND COPYRIGHT: THE JHUND JUDGMENT

The Hon’ble Supreme Court recently refused to lift the stay imposed by the civil courts and the Telangana High Court in the case of M/S Super Cassettes Industries Private Limited v. Nandi Chinni Kumar and Ors.[1], on the release of the cinematographic film produced by Super Cassettes Industries Private Limited (“Super Cassettes”) titled “Jhund” starring Mr. Amitabh Bachchan (“Film”). The issue before the courts in this matter has been violation of copyrights in the “life rights” of a particular individual. This is an interesting case as it deals with two connected individuals who have granted rights to separate entities to create a film based on their respective lives.

Akhilesh Prakash Paul (“Paul”) was allegedly a gangster who turned into a soccer player, coached by Vijay Barse (“Coach”) and thereafter became the captain of the Indian Slum Soccer Team in the Slum Soccer World Cup followed by becoming a football coach. Nandi Chinni Kumar (“Kumar”), after coming across Paul’s story on a popular television show, had approached Paul and entered in a Life Story Rights Agreement dated 19.11.2017 for assignment of true-life story events to make a feature film in any language. Kumar and Paul entered into another agreement dated 19.2.2018 for making biopic/ feature film based on the true-life story of Paul. Paul also executed a no – objection certificate and a declaration letter to Kumar confirming that Kumar had acquired exclusive true-life story events of Paul and that Kumar was the only authorized person to make a screenplay on the life of Paul, and Kumar paid an advance of Rs. 5.5 lakhs out of the Rs. 12 lakhs to Paul for the assignment of the rights. Kumar registered a script based on the life of Paul titled “Slum Soccer” with the Telangana Cinema Writers’ Association.

Kumar learned from print and electronic media about the Film produced by Super Cassettes, which revolved around the life of the Coach. Kumar sent cease and desist notices to Super Cassettes, Paul, the Coach and other co – producers of the Film. Paul sent a reply to Kumar wherein he supported Super Cassettes and the other defendants. Kumar contended that Paul admitted to him that Paul has signed an agreement with Super Cassettes and had received consideration, thereby permitting Super Cassettes to incorporate Paul’s character in the Film.

In these given circumstances, Kumar initiated proceedings against Super Cassettes alleging that Super Cassettes, Paul, the Coach and other co – producers of the Film were all conspiring against him and that the Film would inevitably incorporate certain parts of Paul’s life which are depicted in “Slum Soccer” leading to violation of the exclusive life rights granted by Paul to Kumar.  The trial court held that the teaser of the Film prima facie showed that there were distinct similarities in the plot, depiction and the life and story of Paul in the Film  and Kumar’s registered script of ‘Slum Soccer’. Though such specific similarities were mentioned by Kumar in his plaint, there was no specific denial regarding those similarities by Super Cassettes or the other defendants.  The trial court granted temporary injunction against release of the Film by Super Cassettes and other defendants, without ruling on the point of copyright infringement primarily on the ground that the release of the Film will cause damage to Kumar.

Super Cassettes being aggrieved by the trial court order challenged the same before the Telangana High Court.  Super Cassettes stating some interesting arguments in support of its case seeking to vacate the injunction restraining the release of the Film viz.:

  • the Film was based on the real-life incidents of the Coach and not on Paul;
  • Super Cassettes had paid consideration to Paul and obtained rights to incorporate his character in the Film;
  • the information and incidents pertaining to Paul’s life were already available in the public domain, and thus no person can claim monopoly over events that are available in the public domain;
  • the work on the Film commenced prior to Kumar’s registration of his script and that Super Cassettes had no access to Kumar’s script; and
  • it had already spent 66 crores in the production and publicity of the Film and had created third party rights by licensing digital rights.

The Telangana High Court relied on the precedent of RG Anand v. Deluxe Films[2] of the Supreme Court of India, to emphasize upon the look and feel/ lay observer test for infringement, even at the prima facie stage. The Telangana High Court held the possibility of similarity in expression and copyright infringement in both the films as Paul had narrated the same events and ideas to both Kumar and Super Cassettes – rendering it “possible” for the expression to be substantially similar. To that effect, the Telangana High Court held that a prima facie case of injunction was made out. Surprisingly, the Telangana High Court quoted the precedent in ICC Development (International) Limited v. Arvee Enterprises[3], where the Delhi High Court held that “the right to publicity evolves from the right to privacy and can only inhere in an individual. Any effort to take away the right to publicity from the individual to a non-human entity would be violative of Article 19 and 21 of the constitution. No individual can be monopolized.” Along this precedent, the Telangana High Court held that Paul would constitute a celebrity and him having “assigned” away his right – the right shall vest with Kumar (this being contradictory to the “non-human “ownership finding in ICC Development (International) Limited v. Arvee Enterprises). The Telangana High Court accordingly stated that Kumar had shown a strong prima facie case whereas Super Cassettes had not produced any documentation including the script of the Film or DVD of the Film, to back Super Cassettes’ contention that Film “Jhund” was different from Kumar’s work “Slum Soccer” thereby upholding the injunctions granted by the trial courts.

Being aggrieved by the Telangana High Court order Super Cassettes challenged the same before the Supreme Court contenting that Kumar had agreed to an amount of Rs. 1.3 crores to settle the matter amicably, however, was now refusing to do so. Super Cassettes also contended that a cinematograph film was a perishable commodity and would lose its value with the litigation going on for years. The Supreme Court not being persuaded with the arguments advanced by Super Cassettes dismissed the matter however directing the trial courts to complete the trial within a period of 6 months.

The Supreme Court has given its verdict on this case however the decision raised a lot of questions. The right to make a life story is not a statutory right. It basically involves a party authorizing someone to showcase events of their life- through a medium- in return of certain compensation.

Life rights arise from the right to publicity[4]. These rights allow one to commercialize their likeness and to convey certain information about their lives – which can be exploited – in return of compensation. In this case, Paul had conveyed factual/ although private, information about his life to Kumar in return for 12 lakhs and a permission to make a movie on the same. However, can the information provided by Paul be copyrightable as the same are ideas and facts, which according to the R.G. Anand[5] case cannot be copyrighted. The expression of an idea or fact can be copyrighted, not the idea or fact itself. Does copying the facts/ or relying upon the information conveyed by Paul is sufficient to establish copyright infringement particularly in the absence of access to the Kumar’s work.

The reliance by the Court on ICC Development (International) Limited v. Arvee Enterprises[6] wherein the Delhi High Court held that any right that arises out of publicity rights (which in fact stem out of the right to privacy) are not alienable or transferable, although they can be licensed. Hence an assignment of life rights would be void as the same would be violative of Article 21[7], which in light of the decision of K.S.Puttaswamy v. Union of India[8], has horizontal application (i.e. to non-state entities as well). In light of this judgement was the assignment agreement entered into between Kumar and Paul void.

It will be an interesting wait to observe the developments in the concept of “life right”personality right” and “publicity right” in light of the Jhund judgement.  The jurisprudence on personality rights is still evolving and it exciting to note whether true life events of a real person which are already in public domain can be considered property which can be bought and sold and whether the same will be entitled to copyright protection.  This case also raises a pertinent factual issue, whether two people having interconnected life stories, can grant copyrights to separate entities and if they can, will the overlap in these individual’s respective lives amount to constitute infringement. A third and very important point of discussion arises from this case – whether a producer of a cinematograph film can be held liable for infringement and have to face losses when an individual grants rights to 2 separate people for exploitation of his life story.

[1] M/S Super Cassettes Industries Private Limited v. Nandi Chinni Kumar and Ors., Civil Miscellaneous Appeal Nos.355, 356, 357 and 358 of 2020 and CMA.No.355 and 356 of 2020, Telangana High Court, Judgment Pronounced on 19.10.2020.

[2] R. G. Anand vs. Delux Films, AIR 1978 SC 1613

[3] ICC Development (International) Limited v. Arvee Enterprises, 2003 VIIAD Delhi 405

[4] Right to publicity is the right of every individual 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 means that an individual may be permitted to prevent others from using his image, name, etc.

[5] Supra Note 2

[6] Supra Note 3

[7] Article 21 of the Constitution of India – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

[8] Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors., (2017) 10 SCC 1

Author: Ms. Sapna Chaurasia, Partner, TMT Law Practice

Sapna has post graduated in Constitutional Law and has worked both on litigation and transactions. She has a vast experience of 10 years in media and entertainment sector and has been working on production related transactions, distribution of channels, acquisition/licensing of content and copyright infringement cases, amongst others.

Author: Riddhi Tulshian, Associate, TMT Law Practice

Riddhi Tulshian graduated from NMIMS School of Law in 2019 and is working in the Intellectual Property and Media & Entertainment sector. She has been working on film production transactions, acquisition & licensing, trademark prosecution and copyright infringement cases, amongst others.

POSTHUMOUS SURVIVAL OF PRIVACY & PERSONALITY RIGHTS – Part 1

Posthumous Survival of Privacy & Personality Rights: Part 2

PART 2 –  POSTHUMOUS SURVIVAL OF PRIVACY & PERSONALITY RIGHTS

Introduction:

In Part 1 of this article, the author carved out the distinction between privacy rights, publicity rights and the right to reputation and established that the right to personality/publicity flows from the right to privacy. While the Supreme Court of India in the Puttaswamy case[1] has clarified that privacy rights do not survive the death of an individual, the question that remains is: Even though personality/ publicity rights flow from the right to privacy, owing to the difference in their nature, can publicity rights survive the death of an individual even though the right to privacy does not?

This question remains to be answered, given that, in this era, even a deceased person’s publicity right can be exploited to generate millions. According to Forbes, one group of dead celebrities tracked by the magazine generated $363.5 million between October 2013 and October 2014, with Michael Jackson’s music and publicity rights generating $140 million alone.[2] The value associated with these individuals’ names did not disappear when they died. Indeed, in some instances, it is the person’s death that created the mystique that transformed them from merely famous to iconic. However, the concept of posthumous publicity rights is recognized only in a few states in the world. A few states in the United States of America (USA) recognize a right of publicity, but there are differences as to whether the right of publicity survives death and, if so, for how long. In some states of USA, the right of publicity survives death because it is a property right that can be assigned during an individual’s life to another person or after death to the individual’s estate. For example, Florida recognizes the survival of this right for 40 years after death, Illinois for 50 years, California for 70 years and Indiana for 100 years. There are other states – most notably New York – where the right of publicity does not survive death.

The jurisprudence of publicity/ personality rights is in its developing stages in India. There is no separate codified law in India dealing with publicity/ personality rights and the position and development of such rights and laws in India is still largely governed by judicial pronouncements of courts. In Part 2 of this article, the author shall discuss two recent cases of Indian courts, both revolving around the subject of privacy, reputation and personality rights of deceased individuals.

The Dr. J. Jayalalitha Judgement[3]

An appeal was filed in the Madras High Court in 2020 by former Chief Minister Dr. J. Jayalalithaa’s niece J. Deepa (“Petitioner/ Appellant”) against a 2019 single Judge’s refusal to injunct the release of Kangana Ranaut and Arvind Swami-starrer film titled “Thalaivi” in Tamil and “Jaya” in Hindi (“Film”) produced by Vishnu Vardhan Induri (“1st Respondent”) and directed by A.L. Vijay (“2nd Respondent”), based on the book “Thalaivi” (“Book 1”); and the release of the web – series titled “Queen” (“Series”) directed by Gowtham Vasudev Menon (“3rd Respondent”) and inspired from the book “Queen” (“Book 2”)  (the 1st, 2nd and 3rd Respondent hereinafter collectively referred to as “Respondents”). The appeal was filed on the ground that the Film and the Series were not made with the Appellant’s consent, and therefore, will violate the right of privacy of Dr. J. Jayalalithaa and her family.

Facts and Decision of the Single Judge: The Petitioner filed a case in the Madras High Court contending that while the Film and Series portray Dr. J. Jayalalitha and her personal life, the Petitioner’s part in the Film and the Series may be depicted by the 1st & 2nd Respondents and 3rd Respondent respectively in a manner which may affect the family privacy of the Petitioner. The apprehension of the Appellant was that, during the production of the Film, the Respondents may interpolate the scenes which would affect the dignity and reputation of Dr. J. Jayalalitha, while narrating the story, for their commercial enrichment. Thus, the Petitioner contended that to safeguard the posthumous personality and privacy rights of her aunt – Dr. J. Jayalalitha and the interest of her family’s privacy, the 1st & 2nd Respondents and 3rd Respondent should not be permitted to proceed with the production of the Film or Series or releasing the same for public exhibition. In this instance, it becomes clear that the petitioner’s contentions were three-fold; (i) the unauthorized usage of Dr. Jayalalitha’s personality rights; (ii) breach of Dr. Jayalalitha’s right of privacy; and (iii) how in turn, such unauthorized usage of the deceased’s personality and privacy rights would violate the surviving family members’ right to privacy.

The single Judge of the Madras High Court in tackling the three-fold issue held that since it was categorically stated by the Respondents that the Petitioner would not be depicted in a single scene in the Film, the privacy rights of the Petitioner would not be infringed. However, without opining on the legal point of posthumous privacy rights and personality rights, the single Judge stated that release of the Film would be subject to certification by the Central Board of Film Certification (CBFC), and during such certification process, if any objectionable material is contained therein, the CBFC would raise objections or if necessary, insist upon removal of such objectionable materials as a condition precedent for grant of censor certificate. However, in relation to the Series, the single Judge held that as regards to the personality rights, it is difficult to accept that the Petitioner has inherited the personality rights of her aunt and that the question as to whether such rights are capable of being inherited would have to await trial. Thus, the single Judge of the Madras High Court did not pass any interim order to stop the production or release of the Film or the Series.

It is pertinent to note that the line of reasoning adopted by the single Judge towards the Film was more on the merits of certification requirement and a checks and balance system already in place. This line of reasoning is a commonly used line of argument as far as contentious content goes, in relation to the subject matter of films. In relation to the Series, which does not have a robust certification framework to fall back upon, the single Judge was constrained to pass a prima facie opinion which addresses the question of this article: Whether personality rights can be inherited? In relation to the question to Dr. Jayalalitha’s privacy rights in relation to the Series, emphasis was placed on the fictional nature of the Series, and therefore, it would not be infringing Dr. Jayalalitha’s privacy rights (i.e., by demarcating and differentiating it from the assertion of posthumous rights of privacy, for which a balance of convenience test seems to be preferred).

Appeal to the Division Bench: The Appellant aggrieved by the order passed by the learned single Judge, appealed the order, and submitted that:

  • The Appellant as a Class I legal heir (as per Hindu Law) of late Dr. J. Jayalalitha is entitled to institute the present suit to safeguard the “posthumous right of privacy” and to protect the dignity and legacy of her late aunt Dr. J. Jayalalitha. While making this submission the Appellant cited the case of Rajagopal Vs. State of Tamil Nadu[4] (“Rajagopal Judgment), wherein, the Supreme Court of India, while summarizing the principles therein, had 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 and no one can publish anything concerning the above matters without his consent–whether truthful or otherwise and whether laudatory or critical, and if he does so, he would be violating the right of privacy of the person concerned and would be liable in an action for damages. It is pertinent to note that the 1st and 2nd Respondent also placed reliance on the case of Rajagopal Judgment stating the Supreme Court held that a right to publish exists if it is based on public records. The arguments presented by both sides relying on the Rajagopal Judgment[5] in fact shapes the contours of the right to privacy and essentially leads back to the Single Bench’s reasoning that the right to privacy has to be balanced with the right of freedom of expression under the Constitution, both being fundamental rights i.e., the balance of convenience theory.

 

  • The Appellant contended that the Series shows untrue and disturbing scenes including scenes where Dr. J. Jayalalitha is shown to cut her wrist, where Dr. J. Jayalalitha is shown to be begging her male co – star to marry her and scenes where Dr. J. Jayalalitha’s brother is shown as a drug addict. The Appellant claimed that these were not real instances and they portrayed Dr. J. Jayalalitha and her family members in poor light; and Respondent No.3 is using the defense of the Series being wholly fiction as a smoke-screen, as it seeks to sensationalize the personal life of Dr. J. Jayalalitha. Prima facie, when one looks at the averment made by the Appellant herein, it appears that the these are more on the lines of defamation than on the violation of the right to privacy and unauthorized usage of the personality rights i.e., that the aforementioned dramatized scenes in the Series would harm the reputation of such person, as they were factually incorrect. It is pertinent to note that reliance was placed by Respondent No. 3 on the fact that the Series was a “dramatization and fictional recreation of true events”, was based on Book 2, and had included a disclaimer specifically stating that the Series was not a biography of Dr. J. Jayalalitha. This combination of fictionalization along with reliance on a prior publication and an appropriate disclaimer has been seen to be adopted in numerous defamation matters as discussed in the case of Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai[6]. This element of defamation was not elaborately tackled by the Division Bench in this judgement but was briefly opined upon during the reading of Section 306 of the Indian Succession Act, 1925[7] along with Rule 1 of Order XXII of the Code of Civil Procedure, 1908[8].

Upon hearing both the parties, the major question before the Division Bench was that: “Whether the posthumous right of the former Chief Minister of Tamil Nadu is inheritable by the Appellant to restrain the Respondents from releasing the Series or the Film”?  While dealing with this issue, the Madras High Court referred to the following judgements:

  • Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors.[9] – In this case the Supreme Court had held that “right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguishes with human being”.

 

  • Managing Director, Makkal Tholai Thodarpu Kuzhumam Limited Vs. Mrs. V. Muthulakshmi[10] – In this case the Madras High Court held that the “right of privacy” of the late forest brigand Veerappan, did not subsist after his death, in view of the undertaking that the “right of privacy” of Veerappan’s wife and daughters, would not be affected. In this judgment, the Court categorically rejected the argument regarding inheritability of the “right of privacy” because even during the lifetime of Veerappan himself, publications had been made and he had not taken any steps to oppose them, so the question of continuation of privacy after his death is not at all an acceptable argument.

 

  • Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair[11]Under the common law, the general rule was that death of either party extinguished any cause of action in tort by one against the other. This was expressed by the maxim ‘acto personalis moritur cum persona’ (a personal action dies with the person). In India, which causes of action survive and which abate is laid down in Section 306 of the Indian Succession Act, 1925[12]. Section 306 speaks of an action and not of an appeal. Reading of Section 306 along with Rule 1[13] of Order XXII of the Code of Civil Procedure, 1908, it is, however, clear that a cause of action for defamation, existing in favour of or against a person at the time of his decease, does not survive the death of the appellant.

Decision of the Division Bench: Upon analysing the arguments of both the sides and the above – mentioned judgements, the Division Bench held that:

  • Privacy or reputation earned by a person during his or her lifetime, extinguishes with his or her death. After the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality right, reputation or privacy enjoyed by a person during his lifetime comes to an end after his or her lifetime. Therefore, we are of the opinion that “posthumous right” is not an “alienable right” and the Appellant is not entitled for an injunction on the ground that the “posthumous right” of her aunt is sought to be sullied by the release of the Film. The Division Bench reiterated the single Judge’s judgment that release of the Film is subject to the certification to be given by the CBFC. The CBFC will have an opportunity to go through the contents of the Film.

 

  • As regards the Series, the Division Bench stated that the Appellant alleged that certain scenes in the web-series have portrayed the former Chief Minister in poor light but the same was not pleaded in the plaint. It is the opinion of the author that it is this observation by the learned Court that stresses on the importance of identifying the right cause of action, and not using the terms “right to privacy”, “personality/ publicity rights” and “defamation” interchangeably even if they are connected. This course of action is even highlighted in the order of Bombay City Civil Court in relation to the Gangubai Film as discussed below.

 

  • The right of freedom of speech and expression enshrined under Article 19 (1) (a) of the Constitution of India is not conditioned/restricted on the premise that a filmmaker must only portray one version of facts. Therefore, there is no obligation on the part of the Respondents to take prior consent from the Appellant. To this effect the court referred to the case – Rangarajan vs. Jagjivan Ram[14], wherein, it was held that it is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.

 

The Gangubai Kathiawadi Order[15]

Bhansali Productions and Pen India Limited (collectively referred to as “Producers”) produced a film titled ‘Gangubai Kathiawadi’ starring Alia Bhatt and directed by Sanjay Leela Bhansali (“Gangubai Film”). The Gangubai Film is based on a chapter about Gangubai Kothewali from the novel ‘Mafia Queens of Mumbai: Stories of women from the ganglands’, which is an Indian 2011 non-fiction crime novel written by Hussain Zaidi with original research by reporter Jane Borges.

Order of the Bombay City Civil Court: After the release of the trailer of the Gangubai Film, the adopted son of Gangubai Kathiawadi – Babuji Shah, filed a case in the Bombay City Civil Court in February 2021, stating that the chapters on Kathiawadi in the novel were defamatory, tarnished her reputation and infringed upon the right to privacy and self-respect of his purported deceased mother. However, the only relief he claimed for was an injunction on the release of the Gangubai Film or promo in public, without claiming any further right or declaration that the Gangubai Film was defamatory. Since the plaintiff did not claim for the relief of declaration that the Gangubai Film was in fact defamatory in nature, the court held that no court could presume straight away a film/ article is defamatory, else it would be a pre-determination and pre-conception of the said issue and no court can be a party to that issue. Thus, without delving into the merits of the case or penning any opinion on privacy or personality rights, the Court dismissed the suit, notwithstanding other procedural shortcomings that were raised in the filing of the suit.

Order of the Metropolitan Magistrate at Mazgaon: In March 2021, the Metropolitan Magistrate at Mazgaon, Mumbai – Shital Bangad, issued summons to authors of Mafia Queens of Mumbai, the Producers and Alia Bhatt in relation to the criminal defamation complaint filed by Babuji Shah. The complaint filed by Babuji Shah claimed that Kathiawadi lived her life with dignity and respect; she was a social worker who fought for the rights of sex workers and to prevent human trafficking. Babuji Shah also claimed that he was unaware of the novel written by Hussain Zaidi till it came to light on social media and in the news after the release of the Gangubai Film’s promo. Babuji Shah further stated that after the release of the promo, people in his vicinity started passing inappropriate comments about him and his family members; he stated that the female members in the family allegedly suffered the consequences of being associated with a prostitute. The Court noted that no consent was obtained from Babuji Shah prior to the publishing of the novel written by Hussain Zaidi or releasing the promo of the Gangubai Film; and that portraying the image of deceased Gangubai without consent of family members amounted to defaming her image. The court stated that even though the novel written by Hussain Zaidi was released in 2017, the cause and effect of the act of defamation ensued only after the promo was released, considering the large – scale viewership of TV channels, films, OTT platforms and other social media mediums. Finding sufficient grounds to attract Section 499 – Explanation 1 of the Indian Penal Code, the court decided to “issue process” against the authors of the novel and the Producers for the offence of defamation as per Sections 500[16], 501[17] and 502[18] of the Indian Penal Code.

It is pertinent to note that in the City Civil Court case, the City Civil Judge while relying upon the case of N.S. Veerabhadraiah V/s. Aroon Purie and Ors.[19], treated the concept of privacy and defamation as one and the same thing and stated that the suit was not maintainable on the ground that a personal right of action dies with the person. However, the paragraph of the N. S. Veerabhadraiah judgement reproduced by the City Civil Judge stated: “When the suit was pending trial, Plaintiff died on 12.12.2008. By order dated 23.4.2010, the application filed by the legal representatives of Plaintiff was dismissed on the ground that the suit is founded on torts which is purely a personal right of the plaintiff and as per Section 306 of Indian Succession Act[20], cause of action does not survive, and the suit will stand abated”. It is this author’s opinion that the City Civil Judge’s reliance on this judgement was incorrect as Section 306 of Indian Succession Act[21] only talks about the survival of existing claims and actions of and against a person, at the time of death, and specifically excludes defamation, implying that the right to defend/action any defamation claim (existing at the time of death) does not survive and cannot be passed on the heirs of the deceased individual. Section 306 of Indian Succession Act[22] does not talk about new claims or actions which arise after the death of a person, whereas Section 499 of the Indian Penal Code, 1860[23] states that “it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives”.

While the Metropolitan Magistrate at Mazgaon has stated that Section 499 – Explanation 1 of the Indian Penal Code[24], applies to this case, the decision to “issue process” against the authors of the novel and the Producers, is not a determination of the matter on the merits of this case, and it remains to be seen whether the authors of the novel and the Producers are held to be guilty of defamation.

Conclusion:

While the Division Bench of the Madras High Court in the Dr. J. Jayalalitha case[25], relying on principle laid down in the legal maxim ‘actio personalis moritur cum persona’a personal right of action dies with the person, carved out that all three rights – personality right, reputation and privacy, enjoyed by a person during his lifetime, come to an end after his or her lifetime and cannot be inherited or enforced by such person’s heirs, Section 499 of the Indian Penal Code[26] leaves the door open for possible defamation of a deceased person if, anything that is attributed to such deceased person, would have harmed his reputation if he was alive and is intended to be hurtful to the feelings of his family or other near relatives. Thus, suggesting that, for an action for defamation of a deceased person, one should file a criminal action rather than a civil action, and for a criminal action of defamation in respect of a deceased person, the defamatory content must also hurt his family or near relatives.

These issues are still in a nascent stage, the law is developing and there is an urgent need to establish a clear distinction between privacy rights, publicity rights, and defamation, as the three cover separate rights and reliefs, given the rise in cases surrounding such subject matter.

In contrast to the law being developed by the Indian courts as discussed above, it is interesting to note the legislative intent of the lawmakers in India with respect to Section 57 of the Copyright Act, 2012[27], which states that the moral rights of an author[28] of a work[29] can be enforced by his/her legal representatives. This codified copyright law in India grants the rights to legal representatives to protect the honour and dignity of the author. Since personality rights are much like copyrights, i.e., rights which protect damage of economic nature, Section 57 helps strengthen the argument for enforcement of posthumous personality rights by the heirs/ legal representatives of a deceased individual.

There is a need for the Indian law to form a statutory distinction between privacy and personality rights owing to the glaring difference in the nature of the rights – privacy rights are constitutional rights which vest in individuals comparable to the right to life and liberty; on the other hand, personality/ publicity rights are rights of economic nature and like copyrights should be assignable to heirs or legal representatives.

As a final thought to leave the reader with: In the most recent case on this subject, Sushant Singh Rajput’s father has filed a plea in the Delhi High Court seeking to restrain anyone from using his son’s name or likeness in movies on the ground that any production, or depiction of the private life of Sushant Singh Rajput would be a blatant and willful breach of the fundamental right to privacy which cannot be taken away without the prior approval of his legal heir. Vast coverage of Sushant Singh Rajput’s death in the media has resulted in a lot of private details about his life being made public. And it would be interesting to note the Delhi High Court’s judgment in this matter, in terms of this discussion above, considering that the plea has been filed on the ground of breach of right to privacy and not violation of personality rights. Time will reveal whether the Delhi High Court aligns its decision with that of the Madras High Court or whether new jurisprudence is developed on this evolving subject.

[1] Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors., 2017 (10) SCC 1

[2] Dorothy Pomerantz, Michael Jackson Tops Forbes’ List of Top-Earning Dead Celebrities with $140 Million Haul, Forbes (Oct. 15, 2014), http://www.forbes.com/sites/dorothypomerantz/2014/10/15/michael-jackson-tops-forbes-list-of-top-earning-dead-celebrities/

[3] Deepa Jayakumar v. AL Vijay and ors., O.S.A.No.75 of 2020

[4] R.Rajagopal Vs. State of Tamil Nadu, 1994 SCC (6) 632.

[5] Ibid

[6] Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai, Writ Petition No. 30376 of 2011.

[7] Section 306 in The Indian Succession Act, 1925: Demands and rights of action of or against deceased survive to and against executor or administrator—All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.

[8] Rule 1 of Order XXII of the Code of Civil Procedure, 1908: No abatement by party’s death if right to sue survives – The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives

[9] Justice K.S. Puttaswamy (Retd.) vs. Union of India & Ors, Supra Note 15

[10] Managing Director, Makkal Tholai Thodarpu Kuzhumam Limited Vs. Mrs.V.Muthulakshmi, 2007 (6) MLJ 1152

[11] Melepurath Sankunni Ezhuthassan Vs. Thekittil Geopalankutty Nair, 1986 (1) SCC 118

[12] Section 306 in The Indian Succession Act, 1925: Supra Note 6.

[13] Rule 1 of Order XXII of the Code of Civil Procedure, 1908: Supra Note 7.

[14] S. Rangarajan vs. Jagjivan Ram, 1989 (2) SCC 574

[15] Babuji Shah vs. Bhansali Productions & ors., C.C. No. 6900483/ SS/ 2021.

[16] Section 500 in The Indian Penal Code: Punishment for defamation—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

[17] Section 501 in The Indian Penal Code: Printing or engraving matter known to be defamatory—Whoev­er prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

[18] Section 502 in The Indian Penal Code: Sale of printed or engraved substance containing defamatory matter—Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

[19] N.S. Veerabhadraiah V/s. Aroon Purie and Ors., Reported in MANU/TN/2304/2010.

[20] Section 306 in The Indian Succession Act, 1925, Supra Note 6.

[21] Ibid

[22] Ibid

[23] Section 499 of the Indian Penal Code, 1860: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Explanation 1—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives.

[24] Ibid

[25] Ibid

[26] Section 499 of the Indian Penal Code, 1860, Supra Note 22.

[27] Section 57 of the Copyright Act, 2012 – Author’s special rights— (1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right— (a) to claim authorship of the work; and (b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.

(2) The right conferred upon an author of a work by sub-section (1), may be exercised by the legal representatives of the author.

[28] According to Section 2 (d) of the Copyright Act, 2012, “author” means, — (i) in relation to a literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer; (iii) in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.

[29] According to Section 2 (y) of the Copyright Act, 2012, “work” means any of the following works, namely — (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a sound recording.

Authors:

Meghana Chandorkar, Partner

An Alumnus of ILS Law College, Pune, Meghana has 12 years of experience as an Intellectual Property and Media & Entertainment lawyer.

After graduating in 2009, she has worked with the intellectual property teams of leading law firms, with a strong focus on trademark and copyright law, as an in-house counsel for a music company, and for a broadcast, media, and entertainment company.

Working with law firms in the initial half of her career has helped her create and develop a strong base of legal knowledge and, working in-house has been instrumental in giving her an insider’s perspective, to better understand client requirements, from a business and commercial point of view, and to provide specific, appropriate and well-rounded legal advice, draft and structure agreements and minimize risks, keeping in mind the business requirements.

While working as an in-house counsel, she was selected for, and has completed, a certificate program, in 2018, called the ‘Young Leader Development Program’ from MICA, Ahmedabad, designed specifically to develop young leaders across business and corporate functions, to tackle real-time problems and put forth innovative business solutions.

Her core areas of expertise include structuring, drafting, and negotiating agreements, and providing advice and opinions, pertaining to the creation, maintenance, protection, acquisition, and exploitation of intellectual property rights. She is skilled in copyright, media and entertainment, broadcast, trademark, and contract law, and she has been recognized as a professional whose advice is valued in providing creative legal solutions and advice to clients.

Anushree Yewale, Principal Associate

Anushree Yewale has over 6 years of work experience in the media and entertainment sector. Prior to joining TMT Law Practice, Anushree has worked with a boutique intellectual property rights law firm. She has provided end-to-end support to numerous production houses, broadcasting companies, talent management agencies, and independent artists, provided transactional and advisory related services for content creation and content exploitation across various modes, media. and formats, structured, negotiated and implemented complex transactions involving S&P compliance for scripts, development and production of audio-visual content, distribution, and acquisition of audio-visual content, merchandising deals, film licensing and assignment deals and other ancillary transactions, negotiated sponsorship and endorsement contracts including celebrity licensing, cleared advertising for use in online and off-line media, and handled product placement and media productions.

Riddhi Tulshian, Associate

Riddhi Tulshian has around 2 years of work experience in the intellectual property and media & entertainment industry. She earned the degree of B.B.A. LL.B (Hons.) in 2019 from SVKM’s NMIMS Kirit P Mehta School of Law with a specialization in Business Laws. She joined TMT Law Practice in May 2019. She specializes in strategizing IPR transactions and has worked with production houses, OTT platforms and radio broadcasters, has worked on production and distribution deals, rendered legal assistance in acquisition of film and format rights, service agreements, licensing agreements and technology related to intellectual property as well as e -commerce, advised on copyright related transactions including script & content clearances, due diligence for ascertaining IP ownership and advising, structuring and negotiates deals on transactions for production, distribution and licensing. She is enthusiastic about and looks forward to working in the fields of technology and privacy law.

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