Until death do us part’ - Can a celebrity’s publicity rights be inherited

 

After a while you learn that privacy is something you can sell, but you can’t buy it back.”

-Bob Dylan.

 

Every celebrity possesses a universal and intangible asset – their public image. They spend years cultivating it and protect it fiercely. Like a game of chess, every public interaction becomes a calculated move. However, can this ‘asset’ be inherited?

Historically, Indian celebrities have had recourse to a common law right to control the use of their image or personality by any other person. There is no express statutory recognition of publicity, personality or celebrity rights in India, although there are limited provisions, whereunder, some of these rights can be claimed as intellectual property rights. The law on the subject of celebrity rights is still in its nascent stage, and has been developing predominately through judicial precedents, wherein the courts, upon being approached, have granted recognition and protection to a few such rights. In the last decade, India’s courts have seen an influx of litigious activity on this issue of ‘celebrity rights,’ also known as personality rights. Cases involving Shivaji Rao Gaikwad (aka Rajinikanth)[1], Gautam Gambhir, Titan Industries[2] (involving Mr. Amitabh Bachchan and his wife Mrs. Jaya Bachchan), the late Sridevi (where her husband Boney Kapoor served a legal notice on Bollywood producer Ram Gopal Verma), Daler Mehndi[3] and Sonu Nigam (restraining the singer Mika Singh and the recording label OCP Music) are some of the notable instances that showcase this trend.

Celebrity rights are once again in the spotlight. On June 10, 2021, Justice Sanjeev Narula of the Delhi High Court rejected an application for grant of a temporary injunction filed by late Bollywood actor Sushant Singh Rajput’s (“SSR”) father, Krishna Kishore Singh (Krishna Kishore Singh v. Sarla A. Saraogi & Ors. CS(COMM) 187/2021) (“SSR Case”). While rejecting the application, Justice Narula also expressed his prima facie views on permissibility of a posthumous privacy right.

Brief facts

Krishna Kishore Singh, asserting to be “the Category-I of Class-II legal heir’ of SSR and ‘absolute legal heir’ under Section 16 of Hindu Succession Act, 1956, filed a suit before the Delhi High Court seeking to protect the reputation, privacy and rights of his deceased son, which he claimed stand to be violated by movies such as “Nyay: The Justice“, “Shashank“, etc. that are purportedly inspired by SSR’s life.

The circumstances surrounding the actor’s death (on June 14, 2020) had attracted widespread coverage on electronic, social, and print media. Claiming that the Defendants were trying to exploit this media frenzy and public curiosity for their commercial gain, SSR’s father sought for an ad-interim ex-parte temporary injunction. Being the legal heir of the late actor, Kishore Singh claimed his consent was needed to publish, produce, or depict matters related to SSR, otherwise it would be an infringement of the deceased celebrity’s right to personality and privacy which extends to the right of publicity, amongst others.

Submissions

Several contentions for the temporary injunction (including the violation of the right to free and fair trial, passing off, etc.) were submitted to the Court for consideration. On the specific issue of enforceability of ‘celebrity rights’ posthumously, SSR’s father had placed reliance upon the judgment of the Gujarat High Court in Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani [4] Therein, the Plaintiff, claiming to be direct descendant of late Shri Jalaram Bapa (a prominent Hindu saint from Virpur, Gujarat), set up a case based on the right to privacy and right of publicity. He sought injunction against publishing any film or artistic work on the life of late Jalaram Bapa, without the Plaintiff’s consent. Defendants claimed that they had based their film on a pre-published book on the deceased’s life. While the court upheld the injunction granted by the trial court on the consideration that violation of right of publicity or privacy can cause irreparable harm that cannot be compensated monetarily, it also urged to deliberate on the contentions raised by the parties, backed by appropriate evidence. Thus, the Gujarat High Court did not evaluate rival contentions, noting that the right to privacy and publicity urged therein was a triable issue.

Justice Narula dismissed the applicability of Kirtibhai as the judgment “did not say much on posthumous rights of a celebrity, and does not advance the proposition canvassed by the Plaintiff.” Justice Narula also dismissed applicability of a judgment of the Supreme Court of Georgia, USA, in Martin Luther King Jr. Center for Social Change, Inc. v. American Heritage Products, Inc [5] wherein the Supreme Court of Georgia had held that, “celebrity rights are assignable and licensable for commercial benefit and survive beyond the life of a celebrity.” Therein, the Supreme Court of Georgia drew distinction between right of publicity and right to privacy, and that the former is an inheritable and devisable right. Justice Narula noted that the said case “cannot assist the cause of the Plaintiff as it is based on State-specific law and not federal law of USA. Moreover, it would not be entirely relevant in view of the legal position in India, especially in view of the observations in the landmark judgment of the Supreme Court in Puttaswamy…

It is imperative to note here that in the 2017 case of  Justice K. S. Puttaswamy v. Union of India[6], wherein the right to privacy was declared to be a fundamental right on the anvil of Article 21 of the Constitution of India, the Supreme Court had also reflected upon personality rights, and observed (at Paragraph 58) that,

58.     Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent.”

The Puttaswamy case also upheld the judgment in R Rajgopal v. State of Tamil Nadu & Ors.[7] that recognises the right of publicity for individuals. Justice Narula noted that undoubtedly the concept of celebrity rights is well recognised on account of judicial pronouncements. “They are essentially a compendium of the other rights accrued by a person upon attaining the status of a ‘celebrity’, comprising of a bundle of rights which include certain intellectual properties rights, publicity, personality and privacy rights.”

However, in the present case, the Plaintiff had sought to distinguish ‘celebrity rights’ from the ‘right to privacy’. In the opinion of the Delhi High Court, such celebrity rights cannot be divorced from the concept of right to privacy.. In the absence of statutory acknowledgement, the fountainhead of such privilege would be the right to privacy emanating from Article 21 of the Constitution. The Court recognised that a limited class of celebrity rights, protected as intellectual property rights that are assignable and licensable under such statutes, could survive the death of the celebrity. However, publicity rights were “inextricably interlinked to and birthed from the right of privacy,” would extinguish upon the death of an individual. In support of this reasoning, Justice Narula drew reference to Paragraph 557 of the Puttaswamy judgment –

“557.   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.

Reference was also drawn to the Madras High Court’s order in the case of Managing Director, Makka Tholai Thodarpu Ltd v. Mrs. V. Muthulakshmi [8] wherein it has been held that privacy rights of the late forest brigand Veerappan, did not subsist after this death. A similar view was taken in the 2019 judgment of Deepa Jayakumar v. AL Vijay [9], where the Madras High Court ruled that Jayalalithaa’s niece, Deepa Jayakumar did not inherit the former Tamil Nadu Chief Minister’s personality rights. The Madras High Court adjudged that an individual’s right to privacy is not inheritable after death and all rights relating to personality, reputation or privacy, enjoyed during a person’s lifetime, cease with death.

Basis the reasoning cited above, Justice Narula adjudicated that that prima facie a posthumous privacy right was not permissible.

An unfinished story

In Paragraph 26 of the judgment, Justice Narula notes “whether commercial celebrity rights, such as personality or publicity rights, would survive or extinguish after the death of the celebrity, requires a deeper probe.” Questions whether personality/publicity right is a property (being part of the estate/assets of the deceased) also remain unanswered. The Court believed “this debate should be kept for another day.” Nevertheless, the Court noted that SSR’s father could prove in trial that the persona of his late son is still surviving as a commercial property, inheritable and inuring upon him exclusively.

Should this discussion be viewed from a different lens? After all an individual’s reputation is an intangible asset, which the right to publicity ultimately seeks to protect. Celebrities expend significant resources and time in shaping this asset. Like the goodwill of a business, it is not easily quantifiable. Several actors, musicians and directors (and their spouses) have branched into diverse businesses today. Their public image is intrinsically linked to the commercial prospects of such ventures. If their legal heirs have the right to inherit such businesses, should they not have the right to challenge acts of commercial appropriation?


[1] Mr. Shivaji Rao Gaikwad v. M/s. Varsha Productions, 2015 SCC OnLine Mad 158

[2] Titan Industries Ltd. v. M/s. Ramkumar Jewellers, 2012 SCC OnLine Del 2382.

[3] DM Entertainment v. Baby Gift House, MANU/DE/2043/2010.

[4] Appeal from Order No. 262 of 2007, dated 20th January, 2010 by the Gujarat High Court

[5] Decided on 28 October 1982 by the Supreme Court of Georgia, 296 S. E. 2d 697

[6] (2017) 10 SCC 1

[7] (1994) 6 SCC 632

[8] 2007(6) MLJ 1152

[9] MANU/TN/3107/2021