In this case, the father of the deceased renowned actor Sushant Singh Rajput filed a plea to restrain the release of movies purportedly based on the life and death of his son as it infringed the right to privacy, right to free trial, and other concerned rights. Responding to this, Justice Sanjeev Narula rejected the plea and stated that there can be no violation of privacy when information on the events in question was already in the public domain.
Facts of the case
In the present case, the Plaintiff father of the deceased renowned actor Sushant Singh Rajput brought up the present suit for protecting the reputation, privacy, and rights of his deceased son. He asserted to be the Category-I of Class-II legal heir of Sushant Singh Rajput and absolute legal heir under Section 16 of Hindu Succession Act, 1956. Further, the deceased actor passed away under suspicious circumstances on 14th June 2020, whose investigation was under CBI.
As SSR was a renowned actor, he had a huge fan-following, and the people of the country were deeply moved by his unfortunate and untimely demise, and it attracted widespread news coverage on electronic, social, and print media. Thereby, the Plaintiff believed that the Defendants were trying to exploit this media frenzy and public curiosity surrounding SSR’s life and the circumstances surrounding his death, for their commercial gain.
Also, in September 2020, Plaintiff’s Counsel had made a widely circulated statement that no movie(s), book(s), or series based on Plaintiff’s son should be made without obtaining the prior consent of his family. Despite that, without approaching the family, Defendants were making movies that surrounded or depicted the life of the deceased renowned actor.
So, on the ground that their actions were violative of the right to publicity, the right to privacy, and the right to free and fair trial- under Article 21 of the Constitution of India, the Plaintiff filed the present application seeking an ad-interim ex-parte injunction against the named and unnamed Defendants from using his son’s name, caricature, lifestyle or likeness in forthcoming films and other ventures.
Petitioner’s Arguments
Mr Vikas Singh, Learned Senior Counsel for Plaintiff submitted that there was a violation of celebrity rights / the right to publicity. Furthermore, it was contended that Celebrity rights have been acknowledged for the benefit of those who have worked hard to be known as distinguished personalities.
It gave them the right to publicity, which allowed them to control the commercial use of their identity and entitles them to the money that arose from their fame. Such celebrity rights were assignable and licensable for commercial benefits. They also offer posthumous protection to the legal heirs of the celebrities, and cannot be used by third parties for commercial advantage without the consent of their legal heir. In the present case, the public perception of Plaintiff’s son is of tremendous value.
After their death, the public at large cannot be permitted to make windfall gain through commercially exploiting the persona of the deceased. Moreover, there was no strict proof required for the identifiability of a celebrity. It should be enough if there was a resemblance of name, likeness, or reputation of a celebrity. In this regard, reliance was placed upon Titan Industries Ltd. v. M/s. Ramkumar Jewellers, and Mr Shivaji Rao Gaikwad v. M/s. Varsha Productions.
It was an undisputed position that Plaintiff’s son was a celebrity. Moreover, the Defendants also admitted that Plaintiff was the only legal heir. Further, the documents placed on record showed that Defendants were looking to make a movie that was inspired by the life of Plaintiff’s son.
Further, it was contended that there was a violation of the right to privacy under Article 21 of the Constitution of India. Notably, this right included the right to privacy, of not just ones’ own but of one’s family as well. It was contended that any depiction of his own or his son’s life was violative of the Plaintiff’s right to privacy.
Further, it was contended that there was also a violation of the right to free and fair trial as a CBI investigation into the demise of Plaintiff’s son was presently underway, the fictitious portrayal of the circumstances surrounding his death will prejudice the case of Plaintiff. Reliance was placed upon AV Bellaramin and Ors. v. V. Santhakumaran Nair.
Respondent’s Arguments
On the other hand, Dilip Gulati, the director of Nyay, submitted that, though he accepted the celebrity status of the deceased actor, but his right as a celebrity would be infringed only in case, he was identifiable as a part of the artistic work. Gulati denied the use of Rajput’s name, image, caricature, or style of delivering dialogues.
Further, observing the terms of S. 306 of the Indian Succession Act, 1925 he argued that the concerned section already enlisted certain rights that cease to exist after the demise of a person, and thereby the cause of action of defamation as defined in the Indian Penal Code, 1860, would cease to exist upon the demise of a celebrity.
Moreover, the right to privacy of a celebrity or any person lives and dies with the person, and therefore, the same cannot be asserted after the person’s death lifetime cannot be inherited by his legal heir, i.e. his father, like a movable or immovable property. Further, it was submitted that in India, the right to publicity was derived from the right to privacy and these two rights were not independent of each other and cannot exist without the other. Reliance was placed upon the case of Puttaswamy, in which it was decided that if the right to privacy extinguishes with the human being, the only necessary corollary is that right to publicity would also extinguish and would not survive after the death of the person.
Court’s observations
Firstly, the Court clarified that ‘publicity right’, ‘celebrity right’ or ‘personality right’, were not expressly recognized by any statute in India. But there were limited provisions, whereunder, some of these rights can be claimed as intellectual property rights, such as under the Trade Marks Act, and the Copyright Act, 1957 – none of which were, however, relevant to the present case.
Further, in the absence of a statutory definition of a celebrity, the Court referred to the common parlance meaning from the Collins Online, as per the rules of statutory interpretation, wherein a celebrity is “someone famous, especially in areas of entertainment such as films, music, writing, or sport.” Thereafter Court concluded that SSR’s status as a celebrity was not in dispute, and observed that the law on the subject was still at a “nascent stage” and developing through case laws.
Further, the Court referred to some prominent cases and observed that 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 the 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.
Thereby, the Delhi High Court by observing various judgments delineated celebrity rights as 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.
Further, the issue of whether the ‘celebrity rights’ can be enforced posthumously was taken up. In the context of this issue, the Court observed the case of Kirtibhai Raval and concluded that the Court did not delve into rival contentions, noting that the right of privacy and publicity urged therein was a triable issue.
It felt that the questions of whether the documentary evidence on the record as relied upon by the Defendants can be considered ‘public record’, and whether any authentic record was available on the life or incidents as mentioned in the book, would be required to be considered in detail upon leading evidence at the appropriate stage. Thus, in the eyes of the Court, this judgment did not say much on the posthumous rights of a celebrity and did not advance the proposition canvassed by Plaintiff.
Further, responding to the contention made by the Defendants that the posthumous right was not permissible the court observed that while “a limited class of celebrity rights which are protected as intellectual property rights under applicable laws are assignable and licensable, (and) could survive the death of the celebrity.”
However, since it was inextricably interlinked to and birthed from the right of privacy, the Court prima facie found merit in the submission of the Defendants that the posthumous privacy right was not permissible. Further, reliance was placed upon the case of Puttaswamy wherein it was held that the right to privacy of any individual was essentially a natural right and it remains with the human being till he/she breathes last. It was born with the human being and thus extinguished with a human being.
Further, the court relied upon the decision in the case of Titan Industries Ltd., wherein the Court had held that for enforcing the publicity right, the Plaintiff must own an enforceable right in the identity or persona of a human being, and the celebrity must be identifiable from defendant’s unauthorized use. Considering the issue of this case the Court said that the enforceable right being claimed was in the persona of SSR, based on the events that occurred in his life.
Further, Plaintiff claimed copyright over the life of SSR. However, under the Copyright Act, 1957, facts that are historical, biographical, or news of the day cannot be copyrighted as they were a part of the public domain, available to every person, and involve no ‘originality’ and ‘creation’ which lies at the heart of copyright protection.
Court’s decision
Considering the above-mentioned observations, the Court declared that “the name, caricature, lifestyle, and/or likeness of SSR were not being exploited by applying to any merchandise like t-shirts, toys, posters, mugs, etc. to evoke his persona. Moreover, the Defendants were not making any misrepresentation or claiming a false endorsement for their respective films. The Court concluded that it was not convinced on the point of infringement of celebrity rights as Saraogi, Sharma and Gulati, also “represent their work to be fictional, i.e., neither a biopic nor based on true events,”.
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