Publicity Rights Shall Not Be Heritable: Delhi High Court Clarifies Stand On Posthumous Personality

INTRODUCTION

Over time, personality rights have evolved into a distinctive branch of intellectual property. Consequently, celebrities are endowed with a distinct bundle of rights tied to their persona, privacy, and public image. Since in India, there currently exists no specific law that expressly deals with the publicity or personality rights of individuals, the question of whether such rights can be inherited after an individual's passing remains a grey area. 

The Delhi High Court while clearing the air on the subject, recently held in the case of Krishna Kishore Singh vs. Sarla A Saraogi & Ors. that the right to privacy, the right to publicity and the personality rights are not heritable and they die with the death of the individual. 

FACTUAL BACKGROUND

In 2021, the producers of the impugned film “Nyay: The Justice” announced that the film is a biopic of the late actor Sushant Singh Rajput (hereinafter referred to as the “late actor”). Consequently, the parents of the late actor (hereinafter referred to as “the plaintiff”) approached the Delhi High Court seeking permanent injunction against the producers to prevent the unauthorized use of the late actor’s personality and popularity for their projects. The plaintiff contended that being the sole surviving legal heir of the late actor, the vested rights of the late actor had been inherited to them, including his privacy and publicity rights, and the producers were obligated to seek permission of the plaintiff before using the late actor’s persona for commercial purposes. 

COURT’S FINDINGS

The Hon’ble Delhi High Court’s findings are elucidated herein below:

Disclaimer in the impugned film shall not suffice

The Court after watching the impugned film itself, was of the opinion that the story of the impugned film is in reality a re-enactment of the late actor’s life as understood by the public through news reports and media coverage on the subject. The Court, while observing that “hardly any independent inventive input has gone into the impugned film”, rejected the contention of the defendant that the disclaimer in the beginning of the impugned film is a standalone proof for lack of resemblance between the real-life events and those picturized in the impugned film. The Court upheld the plaintiff’s contention that under the garb of creative liberty, the defendants had recreated the whole life of the late actor and a disclaimer claiming any creative input or originality was clearly untrue. 

Publicly Available Information and Inheritance of personal rights 

The plaintiff’s contention with regards to the violation of the legal rights of the late actor due to unauthorized use of his personality was rejected by the Court. The Court observed that since the information contained and shown in the impugned film is entirely derived from items featured in the media, the same constitutes publicly available information. Therefore, there cannot be any violation of the late actor’s or the plaintiff’s rights, especially since the plaintiff had not objected to these media reports at the time of their publication. 

Further, the Court opined that even if it was to be assumed that the impugned film was in contravention of the late actor’s rights and had defamed him in any manner, such rights are the late actor’s personal rights which died with his demise and are not heritable to the plaintiff or any heir of the late actor. Therefore, it was held that the producers of the impugned film were under no obligation to seek consent of the plaintiff.

Celebrity rights: Sub specie of right to privacy

The plaintiff had laid emphasis on the impact of the impugned film on the celebrity rights of the late actor, to which the Court expressed that while individuals are vested with rights related to their personality/persona, the concept of additional rights being granted to an individual merely because of their celebrity status has not received any judicial recognition as of yet. 

Further, the Court stated that celebrity rights are sub species of the right to privacy thus, the plaintiff’s claims of the late actor possessing any additional celebrity rights apart from his right to privacy was without merit.

Passing Off

The court shrewdly pointed out that the tort of passing off implies “portraying the unreal as the real”, however, contrary to the plaintiff’s contention, the impugned film was “portraying real facts behind a façade of fiction” Therefore, the allegation of the plaintiff implied passing off in reverse, and therefore was dismissed for lacking rationality.

RELIEF GRANTED

The Court dismissed the injunction application against the streaming of the impugned film. The Court also clarified that while the relief of injunction was not granted, the plaintiff preserved the right to claim damages from the defendants. 

CONCLUSION

The primary challenge with posthumous rights is the difficulty of enforcing such rights. The demise of an individual implies that any reputation they have earned and the personal rights arising out of it, are extinguished. This is the key rationale that courts in India have applied while deciding cases of such nature. However, the common notion is that the stature of an individual who has garnered immense popularity and adulation from the public deserves to be protected even after their passing. Further, the means to secure elements of one's persona can be found under intellectual property laws as well, wherein reputed celebrities hold trademark protection for their names, signatures and other identifiers. Such protection may allow for partial protection of one's personality, but due to lack of any sui generis legislation on privacy rights or any uniform standard, in India, there is still a long way ahead for celebrities to attain complete autonomy over their personality.