Introduction
Madurai Shanmukhavadivu Subbulakshmi is a name of great repute in the Carnatic Music. Golden legacy was left behind by the legendary singer who is still remembered for her brilliant work. To acknowledge the same, the Chennai Music Academy wanted to add M.S. Subbulakshmi's name to the Sangita Kalanidhi Award. Yet, the Madras High Court ordered the Music Academy to cease from doing the same. This decision by Madras High Court has raised many eyebrows, because it revolves around the topic of posthumous publicity rights which is no less than an enigma.
Facts of the case and the interim court order
The suit was initiated by the late M. S. Subbulakshmi's grandson, V Shrinivasan. As per paragraph 6 of the court order, the points of consideration were mainly if the will had excluded awards from being named after her, if the plaintiff had the locus standi and if (the defendant no 4) T.M. Krishna suffered any disqualification from receiving the award at contention, in the view of his opinions about the late singer, which trivialized her achievements. The suit sought permanent injunction against adding the name of his late grandmother in the Sangita Kalanidhi Award and an injunction against granting the award to T.M. Krishna. In a few of his articles, T.M. Krishna had mentioned that the late singer M. S. Subbulakshmi 'is the greatest hoax of the twentieth century' he further asserted that her music was 'hollow and lacked stuff' in another article he had mentioned that 'M.S's memory played host to crass opportunism' hence, Shrinivasan was of an opinion that honoring him with an award in the name of the legendary singer would not be ideal on any facet. He stated that naming an award after his late grandmother was contrary to her will and her desires. The late singer M. S. Subbulakshmi had asserted in
her will that no memorials, foundations or trusts should be created after her. Irrespective of this if the award were to be named after her, it would be a dishonor of her will. Leading to this, the court ordered the Music Academy to refrain from using M.S Subbulakshmi's name in the award, yet T.M. Krishna could still be conferred with the Sangita Kalanidhi award along with the designated cash prize if the authorities deemed fit.
Position of Posthumous publicity rights in India
Right to privacy is the seed which lets the sapling of publicity rights grow.
Article 21 of the Constitution of India suggests that every person has right to privacy. The same was also highlighted in the case of K.S. Puttaswamy v. Union of India 1 every person regardless of their status and popularity has the right to preserve 'their own' privacy emphasis on, 'their own'.
In Phoolan Devi v. Shekhar Kapur 2, safeguarding the right to privacy, the Delhi High Court retrained the defendants from exhibiting the film 'Bandit Queen' in India or elsewhere as it was contrary to the right of privacy. In ICC Development (International) Ltd. v. Arvee Enterprises 3 the Delhi High Court handled the matter of publicity rights, it spoke about who can attain profitability from the right of publicity. Encroaching these rights without consent is not allowed.
Celebrities make their own identity. When alive, they leave a mark on the minds of the people. Even after their death they do not immediately cease to have relevance in the market, this can very well be exploited by some money minded vultures. Posthumous publicity rights stills remain a largely uncharted territory, it is still evolving. The subject matter is yet to see codification and a legal structure, but various precedents have been laid down to lead the way.
Can publicity rights breathe after death of the person?
The age-old legal maxim 'actio personalis moritur cum persona' states that in certain circumstances cause of action can only be brought by a living person and cannot be taken forward by other person after death. The case of Deepa Jayakumar v. AL Vijay 4 filed by the niece of former Chief Minister of Tamil Nadu late Dr Jayalalitha as she was concerned about the projects 'Thailavi' and 'Jaya' based on the late CM'S life. The Madras High Court stated that, with death, various right such as right to privacy, personality and reputation do not exist. Unlike property, these intangible aspects associated to a deceased person cannot be inherited. In Makkal Tholai Thodarpu Kuzhumam Ltd. v. V. Muthulakshmi 5 the daughter and wife of Veerappan sought to restrain the telecasting of serials named 'Maveeran Veerappan' or 'Santhana Kadu' as it would affect their privacy the Madras High Court held that after Veerappan's death there did not persist right to privacy for him and as far as it came to the privacy of late Veerappan's wife and daughter it would be safeguarded. From the above precedents it can be deduced that no, the rights at contention are not persistent after the death.
In the case of Krishna Kishore Singh v. Sarla A. Saraogi & Ors. 6 Father of the deceased celebrity Sushant Singh Rajput sought temporary injunction to protect the reputation and privacy of his deceased son. Being the legal heir, he resorted that his consent was required to publish anything about the deceased celebrity. This case further held that the right to privacy and publicity are intricately intertwined. According to Puttaswamy judgement- right to privacy being a natural right, it is secured by birth, and it remains of that person till the time the person exists as it cannot be separated from that human being. It is born with the person and dies with the said person only.
What governs posthumous publicity rights?
Majorly, torts, contracts and Intellectual Property Laws govern posthumous publicity rights as it does not have its own laws. India currently treats the matter of posthumous publicity rights as intangible, and it comes under torts itself. In torts damages for personal injuries are sought but if the person himself has ceased to exist what would be the damages for? Nothing, as the party so injured is not present to seek the remedy. This same verdict can also be seen in the cases cited above. Whereas if a tangible effect were to be given to the publicity rights it could be inheritable and could be exercised by the descendants but that not being the case the enforcement remains a question.
Peculiarity of the V Shrinivasan v. Music Academy case
In all the cases mentioned above, the outcome was contrary to the ask of the plaintiff so what makes the case of V Shrinivasan v. Music Academy 7 different? The age-old legal maxim 'actio personalis moritur cum persona' which is applicable in most of the cases in this matter was also applied in this case. The maxim states that in certain circumstances cause of action can only be brought by a living person and cannot be taken forward by other person after death. In this case as per paragraph 26 of the court order the defendant employed the same legal maxim to state that when death of the person has already occurred no cause of action arises, yet the court negated the statement stating 'will' is the instrument through which the dead person speaks. The will comes into force upon death of the testator and if the argument of 'actio personalis moritur cum persona' were to be accepted, the very purpose and intent behind the making and enforcing of a will would be negated. Here the mere presence of the will changed the mechanism with which the courts used to previously work in the matter.
Conclusion
It is a very peculiar loophole to the problem or rather the question of inheritance of posthumous publicity rights. A single 'will' brought the decision in the favor of the plaintiff which rarely occurs in this situation. Here, similar demands were made as seen in different cases cited above. Although the matters were diverse the ask was the same i.e. mobilization of posthumous publicity rights. The remedy sought for publicity rights was not granted but here the case is different, as what was wanted by the deceased was clearly asserted by her in her will. The publicity rights are given the status of 'something that cannot be inherited' yet indirectly they were inherited by the will. Disregarding the will would not be an ideal situation hence, the will of the deceased had to be regarded. 'How far would the rights of 'will' go pertaining to this matter?' is the question and how malleable would the posthumous rights become if everything were to be associated to a will is the bigger question. The court currently has contradicted its previous decisions by favoring the desires of the dead but it cannot be subjected to permanence just yet.
References
https://www.khuranaandkhurana.com/2024/12/18/v-shrinivasan-v-music-academy-way-guided-by-the-will/
Footnotes
1 K.S. Puttaswamy v. Union of India (2017) 10 SCC 1: 2017 SCC OnLine SC 996
2 Phoolan Devi vs. Shekhar Kapur 1994 SCC OnLine Del 788: (1995) 15 PTC 46
3 ICC Development (International) Ltd., Vs Arvee Enterprises 2003 SCC OnLine Del 2: (2003) 26 PTC 24
4 Deepa Jayakumar v. AL Vijay 2021 SCC OnLine Mad 2642: AIR 2021 Mad 167: (2021) 2 LW 810
5 Makkal Tholai Thodarpu Kuzhumam Ltd. v. V. Muthulakshmi 2007(5) CTC694, (2007)6MLJ1152
6 Krishna Kishore Singh v. Sarla A. Saraogi & Ors. 2021 SCC OnLine Del 381
7 V Shrinivasan v. Music Academy A.No.5746 of 2024 and O.A.No.602 of 2024 in C.S.No.194 of 2024
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