Privacy and publicity rights denied to a deceased Bollywood actor

Celebrity rights have emerged as a unique category of intellectual property rights over time. As a result, a celebrity has a special set of personality rights, privacy rights, and publicity rights. This post concerns the protection of privacy and publicity rights of Sushant Singh Rajput (‘SSR’), an actor who debuted in Bollywood in 2009 and met an untimely end in June 2020. The circumstances in which SSR breathed his last remain murky, and the dust has yet to settle.

The Delhi High Court recently held that “the right to privacy, the right to publicity and the personality rights vested in SSR, are not heritable. They died with the death of SSR. The said rights, therefore, did not survive for espousal by the Plaintiff”.

Background and facts

  • The dispute arose when SSR’s father (‘the Plaintiff’) became aware that the Defendants, encompassing the movie’s producers, director, and writer, were developing a film titled Nyay: The Justice (‘the movie’ or ‘film’) based on SSR’s life, without obtaining consent from any of his authorized representatives, including himself. As a result, the Plaintiff brought a quia timet action [Krishna Kishore Singh v. Sarla A Saraogi & Ors., CS(COMM) 187/2021, decided on July 11, 2023].
  • However, the Court did not grant an interim injunction while noting that: On the aspect of irreparable loss, we may note that the suit is not premised as a tortious action for defamation. It is founded on the basis of breach of celebrity/publicity rights inhering to the Plaintiff. It is thus opined that if an interim order is granted, it would be difficult to compensate the Defendants in the event the Plaintiff ultimately does not succeed in the suit. Whereas, the Plaintiff can always re-apply at a later juncture for injunction, if there is a change in circumstances after the release of the said film, and has an adequate remedy of being compensated by award of damages, if the Plaintiff proves in trial that the celebrity/publicity rights were inheritable and inured to him exclusively.
  • Meanwhile, the movie was completed and released on the OTT platform. Because of its release, the Plaintiff filed the amended Plaint along with a fresh interlocutory injunction application against the continued streaming of the movie by the Defendants to protect possible irreparable injury and damage to the Plaintiff, his son and his family’s reputation, defamation and politicization of the event of death of SSR, which was decided by way of the present order.

Plaintiff’s arguments:

  1. The right to publicity and celebrity rights are heritable. Celebrity rights continue to exist, posthumously, in his legal representatives, after his death. Commercial exploitation of the persona of such a celebrity without the express permission of the legal representatives would, therefore, amount to an infraction of the celebrity rights of the personality.
  2. The movie has been made based on defamatory statements and news articles, which alleged that SSR was subject to various vices such as drug addiction, etc., without any verification and without obtaining any report from any official agency to the said effect. Additionally, the film alleges that SSR was mentally unwell, that he was anxious and depressed, and that he died by committing suicide. In so doing, the Defendants have violated the right to privacy of SSR and the Plaintiff, which inhere in them under Article 21 of the Constitution.
  3. Any misuse of the Plaintiff’s name, or image, or caricaturing would result in infringement of the personality rights vested in the Plaintiff. It would also amount to passing off. The Plaintiff is the lawful successor to the said rights which earlier vested in SSR.
  4. The events which led to the death of SSR, and post his death, were events which were very personal not only to SSR, but also to the Plaintiff, his family and his friends. Streaming or broadcasting of the said events without the consent of the Plaintiff was completely illegal.
  5. The investigation into the circumstances which led to the death of SSR is still in progress, and the release of the movie is likely to prejudice fair trial in the case. A right to fair trial inheres in every citizen by Article 21 of the Constitution of India.
  6. The Defendants exploited the news circulated in the public domain for commercial gain without even taking the trouble to verify the authenticity of the same. Also, the disclaimer accompanying the movie is untrue.
  7. The Plaintiff accepted that, in view of the law enunciated in Puttaswamy, (2017) 10 SCC 1, while the right to privacy could not be said to survive SSR, the right to publicity continues to do so.

Defendant’s contentions:

  1. Puttaswamy case confirms that both the right to privacy and the right to publicity are birthed in Article 21 of the Constitution. If, therefore, the right to privacy does not survive a person’s death, neither would the right to publicity.
  2. No right to privacy or publicity can be said to be violated if, as in the present case, the movie is based on facts which are in the public domain. The right to privacy can obviously never extend to publicly known facts.
  3. Having not objected to the publications available in the public domain, Plaintiff cannot complain that the movie violates the right of SSR to privacy. Plaintiff cannot claim absolute rights over SSR, his persona, and everything that has to do with him.
  4. Even if it were to be assumed that the Defendants had commercially exploited the persona of SSR, the Plaintiff would, at the highest, be entitled to damages, and no more.
  5. The disclaimer, which prominently figures at the start of the movie, should suffice to negate the Plaintiff’s plea of the movie being a retelling of SSR’s life and death.
  6. On the information available in the public domain, the law does not require the movie maker to obtain prior consent from the Plaintiff and to undertake an inquiry or investigation into the truth of the material contained in the articles based on which the movie was made. This is part of the sanctified right to free speech which inheres in every citizen by Article 19(1)(a) of the Constitution of India.
  7. The rights to privacy, publicity, and protection against defamation are personal rights that do not survive the person concerned and are not heritable.

Plaintiff’s rejoinder

The Plaintiff, in his rejoinder, countered that there is a distinction between ‘public record’ and ‘public domain’. That the Supreme Court, in R. Rajagopal, (1994) 6 SCC 632, has protected publications which published material forming part of prior public record, from the taint of defamation, or of infraction of another’s personality rights.

Court’s observations and decision:

The Court refused to injunct the movie while making the following notable observations:

  1. After seeing the film, it is evident that it is an overt re-enactment of SSR’s life and times, focusing primarily on the circumstances surrounding his death and the subsequent investigation.
  2. The disclaimer inserted in the movie cannot detract from the reality that it is a celluloid retelling of the life and death of SSR.
  3. The Court, after examining in detail the legal position in previous decisions, held that:
    1. The rights ventilated in the Plaint i.e., the rights to privacy, publicity, and personality vested in SSR, are not heritable. They died with the death of SSR and cannot be espoused by the Plaintiff.
    2. The information contained and shown in the movie is entirely derived from items featured in the media and, therefore, constitutes publicly available information. In making a film on the basis thereof, it could not, therefore, be said that the Defendants had violated any right of SSR, much less of the Plaintiff, especially as the said information had not been questioned or challenged when it appeared in the media. Nor were the Defendants required to obtain the consent of the Plaintiff before making the movie.
    3. The remedy with the Plaintiff, if any, would not be to seek an interdiction against further transmission or telecast of the film but to claim damages, as already claimed.
    4. Injuncting further dissemination of the movie would infract the Defendants’ rights under Article 19(1)(a) of the Constitution.

Our comments:

In the absence of a sui generis legislation on Privacy laws in India, the courts rely upon Article 21 of the Indian Constitution which states that right to life and personal liberty is a fundamental right and the right to privacy is read into the said fundamental right. The jurisprudence on the right to privacy is still developing in India through the courts. The recent landmark judgement of the Supreme court in Puttaswamy interpreted that right to privacy is a fundamental right under Article 21 of the Constitution. The current case reiterates the right to privacy as a fundamental right but clarifies that the right is not heritable and there is a difference between the right to privacy and publicity rights.

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