Over the last decade there has been a surge in the number of biopics being produced in the Indian film and television industry. With the growing demand for content, various producers have taken to sharing stories of individuals in different spheres who have become well known to the members of public for some reason or the other, sparking public interest in their life stories. This has, however, also given rise to controversy since the consent of the individual or kin has not always been obtained before such content is produced and published. Individuals concerned or their kin have objected to the production and publication of such films / web series / TV shows inter alia on the ground that it violates their right to 'publicity'.
Right to publicity refers to the right of a public figure to control the commercial use of her / his identity or personal characteristics such as the name or likeness. The right to publicity, has been held to emanate from the right to privacy under Article 21 of the Indian Constitution. Interestingly, whilst the rationale for publicity rights and that for the right to privacy is quite the opposite, they are intricately connected. Right to publicity confers on an individual the right to commercialize the image or likeness whereas, the right to privacy grants an individual the right to be left alone. There is no other statutory framework which deals with or recognizes celebrity rights or publicity rights and this has been developing through judicial pronouncements over a period of time. Publicity rights have been held to subsist in individuals and not in corporations or events that have resulted in the celebrity status of the individual in question.1 Whilst there are various facets of publicity rights / celebrity rights which include for eg. the use of the persona, image, identity or attributes in (i) advertisements of products; or (ii) for creating merchandise connected with the individual; or (iii) for depicting the life story or events related to the individual (biopics and the like), etc., this article seeks lay out some principles and jurisprudence relating to publicity rights / celebrity rights as they have evolved through various judicial pronouncements over the years relating to the third aspect aforementioned i.e. biopics and the like.
The Indian Constitution under Article 21 recognizes the right of a citizen to enjoy privacy. However, this right is also not absolute and there are exceptions to the same. The Supreme Court of India, in the case of Rajagopal v. State of Tamil Nadu2, had laid down the broad principles to be borne in mind with regard to the exploitation of the right to privacy. It was held 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 that none can publish anything concerning the above matters without her / his consent, unless such person herself / himself raises or put themselves in controversy. Any publication concerning the aforesaid aspects also becomes unobjectionable if such publication is based upon public records including court records. Similarly, in the case of public officials, the right to privacy or the remedy of an action for damages is not available with any acts or conduct relevant in the course of discharge of their official duties. However, for matters not pertaining to the public official's discharge of official duty she / he shall continue to enjoy the right to privacy.
Public records are defined under the Public Records Act, 1993 and generally include any documents, images or records created by a record keeping agency which is defined to include any government or statutory body. Similarly, Section 74 of the Indian Evidence Act, 1872 defines public records as documents that form the acts or records of the acts of the sovereign authority and/or official bodies and/or tribunals and/or public officers and/or legislative and/or judicial and/or executive of any part of India or commonwealth or of a foreign country. It also includes public records that are maintained of private documents.
The question as to what constitutes public records and whether news paper reports or such other reports fall within the purview of the term "public record" as referred to in R Rajagopal's case, came up for consideration in the case of Phoolan Devi v Shekhar Kapoor3. The Delhi High Court observed that the news articles, tabloids etc., do not form a part of "public records". This was reiterated in the case of Selvi J Jayalithaa v Penguin Books India4.
Pursuant to these decisions, filmmakers had to ensure that they take adequate care as regards the sources on the basis of which films were being produced and start including disclaimers that the film was a fictionalized narration of events. Furthermore, care was to be taken while portraying a public figure to avoid any issues pertaining to such public figure's right to publicity.
In connection with the above, the subject of post-mortem rights which includes both the right of publicity and right of privacy, has also emerged as a contentious area of law. Indian courts have, in recent times dealt with this issue as well. However, the jurisprudence on this aspect is still nascent and in developing stages.
One of the initial cases to discuss the issue of post-mortem rights was The Managing Director, Makkal Tholai Thodarpu Kuzhumam Limited v Mrs V. Muthulakshmi5 ("Veerappan I case") wherein the wife of Veerappan had filed a suit seeking an injunction to restrain the airing of a serial which was claimed to be based on the life and times of her husband, who was charged as a sandalwood smuggler. She had claimed that the post-mortem rights of her husband such as the right to privacy of her husband along with the privacy of her daughter and herself would be breached if the serial was allowed to air. The Madras High Court while deciding the case at the relevant time held that the right of privacy of Veerappan did not subsist after his death. Furthermore, during his lifetime he never objected to the publication of any books or articles pertaining to his life therefore, the position could not be altered pursuant to his death. The makers of the show gave an undertaking that they will not be telecasting the personal life of Veerappan's wife or daughter and that the show will only depict the life of Veerappan on the basis of public records and field information and therefore, no order of injunction was passed against the broadcast of the show.
Later in the case of Akshaya Creations v Muthulakshmi6 ("Veerappan II case") Veerappan's wife again instituted a suit against the makers of the film "Vana Udham" claiming that the same would be violating the right to privacy of her daughter, her late husband and herself. The Madras High Court in this case reiterated that the aspects of Veerappan's life based on public records could be show-cased in the film however, personal matters such as his family or marriage could not be published – whether laudatory or critical, without prior consent. It was held that since the film in question was made on the basis of police records and the scenes pertaining to the first respondent i.e. Veerappan's wife were deleted, no order of injunction could be passed against the release of the film.
The Madras High Court once again had the opportunity to decide the issue of post-mortem rights in the case of in Deepa Jayakumar v A.L. Vijay & Ors7. The suit was filed by the niece of the late Dr Jayalalitha, seeking injunction against the release of the film "Thalaivi" and the web-series "Queen". It was claimed by the plaintiff that the life of her late aunt could not be depicted without any reference to her and therefore, the makers of the aforementioned film and web-series ought to have obtained her consent for the same, since any reference to her life would be an act of breach of privacy. She also invoked the post-mortem rights of her late aunt to restrain the release of the aforementioned film and web-series. The Madras High Court, in this case ruled that the plaintiff's claims of breach of her privacy were unfounded since the plaintiff per se had not been depicted in the film. Furthermore, regarding her claims of breach of her late aunt's post-mortem personality or privacy rights it was once again held that the privacy rights of an individual extinguish with her / his death and unlike movable or immovable property such rights could not be inherited by legal heirs. The Court expressly ruled that "...such personality right, reputation or privacy enjoyed by a person during his life time comes to an end after his or her life time. Therefore, we are of the opinion that 'post-mortem rights' is not an 'alienable right' and the appellant / plaintiff is not entitled to an injunction on the ground that the "post-mortem right" of her aunt is sought to be sullied..." It was also ruled, that such claims of the plaintiff of depicting herself or her aunt in poor light were unfounded since the movie "Thalaivi" had not even been released to draw such a conclusion. Furthermore, since the web-series "Queen" had already released on an OTT platform and the makers of the web-series even put out a disclaimer that the series was not a biography of the former Chief Minister, it was not necessary pass an order of injunction against the same. The Court noted that the only remedy available to the plaintiff was to pursue a claim for damages. Therefore, no order of injunction was granted against the release of the film "Thalaivi" or the web-series "Queen". In its decision, the Madras High Court upheld the fundamental rights of the citizens of freedom of speech and expression, envisaged under Article 19 (1)(a) of the Indian Constitution.
The issue of post-mortem rights has once again recently arisen in the case of Krishna Kishore Singh v Sarla A. Sarogi & Ors. 8before the Delhi High Court. The suit was filed by the father of the deceased actor Mr Sushant Singh Rajput seeking ex-parte, ad-interim injunction against certain producers of a film and also a John Doe / Ashok Kumar order from using or passing off his son's name, caricature, lifestyle or likeness in any upcoming films or other ventures. It was the case of the plaintiff that such publication or depiction would be a violation of the post-mortem rights such as, the right to privacy rights and personality rights of the late actor. In September 2020, the plaintiff's counsel had issued a statement that no movie(s) or book(s) or series based on the plaintiff's son ought to be made without the prior consent of the plaintiff herein. Despite the aforementioned statement, it was the case of the plaintiff that defendants had proceeded with commencing the making of / promoting their respective movies, namely "Nyay: The Justice" (by defendants 1-4), "Suicide or Murder: A star was lost" (by defendants 5-6), "Shashank" (by defendant 7) and an unnamed crowd funded movie (by defendant 8). The plaintiff was seeking to restrain them from making/releasing such movies. Defendants 1-4 claimed that their movie was a fictionalized rendition of events surrounding the death of the plaintiff's son and that it was merely 'inspired' from the coverage of the event in news reports and articles which were claimed to be forming a part of the 'public record'. Furthermore, defendants 1-4 claimed that they will be including a disclaimer in the movie stating that it is not a biopic of the plaintiff's son. Similarly, defendant 7 claimed that the story Shashank is also fictionalized and is based on the struggle of young actors in Bollywood and other events.
The Delhi High Court whilst considering the question of postmortem publicity rights alluded to the decisions of the Madras High Court in the Verrappan I and II cases as well as that relating to late Dr Jayalalitha. The Delhi High Court also referred to the Justice K S Puttaswamy vs Union of India considered by the Madras High Court in both the cases, which held that the right to privacy of a person "... is born with the human being and extinguishes with the human being". The Delhi High Court has however taken into consideration the difference between the right to publicity and the right to privacy and kept the question of postmortem publicity rights open for decision at trial. However, it has observed that to hold that a publicity right of a celebrity has been violated it must not only be shown that the plaintiff owns an enforceable right in the identity or personal of the human being in question, but also that such celebrity must be identifiable from the work that is sought to be injuncted.
Whilst refusing the injunction, the Delhi High Court, in addition to holding that the films contained disclaimers that they did not depict the celebrity, arrived at an interesting finding that the assertions of the plaintiff over the persona of his son was akin to intangible or commercial property and that the claim was similar to the Plaintiff claiming copyright over the life of his son. The court's held that the Copyright Act, 1957 specifies that facts that are historical or biographical or news of the day cannot be subject matter of copyright as they are a part of the public domain and cannot belong to any individual in particular. The court ruled that anyone was entitled to make movies based on such incidents that have occurred. This may be contrary to the earlier settled principles that unless events form a part of the "public record" the same when depicted without consent could violate publicity rights and this observation may be an argument that several filmmakers may rely on in future while making biopics or movies based on historical events.
The Delhi High Court also dealt with another related claim of the plaintiff – of passing off. The court ruled that plaintiff did not satisfy the classical trinity required to prove the same. While the plaintiff's son was recognized as a celebrity by the court (which indicated goodwill and reputation), it was held that prima facie it did not appear that the defendants were misleading that their films were authorized or endorsed by the plaintiff.
To summarise the position as it emerges, where content is created specifically identifying an individual and portraying the life or life events of such individual, such facts as appearing in public records may be depicted, however the depiction of any other aspects would require specific consent. Where the individual has generally permitted the publication / depiction of his life or life events, subsequent exploitation through a biopic film may not be restrained at an interlocutory stage. Where no reference is made to the individual, and specific disclaimers are set out disassociating the content from the disclaimer, the freedom of creative speech and expression may prevail over the right to publicity and/or the right to privacy. It must however be borne in mind that the various judicial precedents dealt with specific fact scenarios, each different from the other and the outcome of each case would depend upon nuances specific to the fact sets of such case. Before embarking upon such projects, it is thus desirable to approach the individuals or their kins, the life or life events of whom are sought to be portrayed / exploited.
Footnotes
1. ICC Development (International) Ltd. v Arvee Enterprises and Anr., 2003 (26) PTC 245
2. 1994 SCC (6) 632
3. (1995) 15 PTC 46
4. (O.A.No .417 of 2011 and Application No.2570 of 2011 in C.S.No.326 of 2011]
5. 2007 (6) MLJ 1152 =2007 (5) CTC 694
6. (2013) 1 LW 612 (Mad)
7. O.S.A No 75 of 2020 and C.M.P Nos. 2945, 2946 and 9240 of 2020
8. CS (COMM) 187 of 2021
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