[This guest post has been authored by Karishma Karthik. Karishma is an associate at Shardul Amarchand Mangaldas, Mumbai. She can be reached at karishma0604@gmail.com for any feedback or comments. Views expressed here are those of the author’s.]
It is not uncommon for artists to reach new heights of appeal after their deaths. Hip-hop icon, Tupac Shakur, the second best-selling hip-hop artist in history, sold the bulk of his albums after his death. The estate of the celebrated late rapper Mac Miller has recently greenlit another posthumous album. Usually, immortalization is fiercely capitalized, leading to tussles over the legacies of such artists. Conflicts on unauthorized biopics (for example, Fred Astaire, Gene Kelly, Sushant Singh Rajput), unreleased works, endorsements, holographic tributes etc., are typically objected to on the grounds of personality rights (publicity rights, celebrity rights, by other names), privacy and (to a limited extent) defamation. However, in the context of the works of such artists, their legacies suffer with the demise of the person most interested in safeguarding the integrity of such works against posthumous exploitation. This is especially true where the owner of the copyright (typically production houses or record studios) is not the author of the work, or otherwise where copyright protection has expired. Such treatment usually amounts to violations of the moral rights of the author. In this post, I shall examine the concept of the moral right of integrity and its potential as a tool in protecting the works of authors posthumously.
Components of the moral right of integrity
In India, the moral right of integrity, set out under Section 57(1)(b) of the Copyright Act, 1957, protects against distortion, mutilation, modification or other act in relation to a work (“derogatory treatment”), which would be prejudicial to the honour or reputation of the author (“integrity right”). The integrity right can be exercised by legal representatives of the author as well. This right is independent of and not limited by the term of the copyright in the said work. However, in contrast to frequently litigated matters such as infringement of copyright, the concept of moral rights has not been meaningfully considered in Indian jurisprudence more than a handful of times (discussed below). This is coupled with a dismal lack of awareness of rights (especially of the non-economic kind) available under copyright law amongst authors in India. As a consequence, the potential of moral rights as an instrument of vindication of authors’ rights in India has unfortunately been overlooked.
At the outset, it is important to set out the components of a violation of the integrity right – first, the factum of derogatory treatment, and second and more importantly, prejudice to either honour or reputation. The deliberate usage of both terms, honour and reputation indicates the legislative intention to treat them as two distinct concepts. This is in line with the negotiating history of the Berne Convention, 1948 and the dictionary meaning of the terms. The Delhi High Court has also drawn a distinction between reputation, “which the author has carved out himself in [the] exercise of his profession”, and honour, which refers to the “author’s integrity as a human being”. Accordingly, reputation, in line with its usage in defamation law, is the regard or esteem in which a person is held by others. Consequently, prejudice to reputation would amount to adverse reaction of a hypothetical audience of members of society, which appears to be a largely objective evaluation. Honour, on the other hand, to have a meaning independent of reputation, would be considered as self-worth, dignity or respectable traits that an author perceives of themselves (as argued here). This interpretation requires a more subjective approach of the author’s own assessment.
The integrity right has been articulated in previous posts; Varsha Jhavar in her analysis had discussed the lack of opinion in Indian jurisprudence on the applicability of a standard in determining prejudice to honour and reputation. Yet, she had argued that the Delhi High Court had implicitly endorsed the subjectivity standard in Amarnath Sehgal v. Union of India (“Amarnath Sehgal Case”) by approving Sehgal’s claim of reputational harm. However, in my opinion, Indian courts appear to have consistently employed a combination of subjective and objective standards in their assessments.
Standards for assessing prejudice to honour or reputation
Different jurisdictions have employed either: (i) an entirely subjective analysis of both reputation and honour, like in France, where an author’s subjective evidence asserting prejudice can conclusively establish a claim; (ii) an entirely objective analysis based on prejudice to a reasonable author in the relevant field, supported by expert evidence, like in the UK; or (iii) a hybrid of subjective and objective tests, like in Canada where an author’s subjective assertion of prejudice is subject to an external reasonableness standard arrived at by public or expert opinion.
It would be difficult to establish subjective evidence of prejudice to reputation, and more importantly, to honour (which lends itself to a meaning that is more reliant on the author’s self-perception), led by the author themselves in a posthumous context. Before exploring the practicalities of posthumously enforcing such a right, it is relevant to understand the standard currently adopted by Indian courts in applying this right.
In Mannu Bhandari v. Kala Vikas Pictures (“Mannu Bhandari Case”), the plaintiff, a reputed Indian author, argued that the commercialization of her novel in its film adaptation by the defendants, a production house, was antithetical to the theme of her original writing and would lower her reputation amongst students, research scholars and the public at large. The Court in considering her assertion concluded that it was “reasonable” and not “imaginary” and her “apprehension of loss of reputation [was] a real one”. The Court, thus, balanced the plaintiff’s claims against an objective yardstick of reasonableness. The Court also considered objective evidence of the plaintiff’s reputation as an author in Indian Hindi literature, demonstrated by details of the success of her writings both nationally and internationally, and her achievements including accolades and memberships in various reputed organizations.
In the case of Arun Chadha v. Oca Productions as well, in evaluating whether unauthorized modifications to the work in question prejudiced the plaintiff’s reputation, the Court first assessed the credentials of the plaintiff to demonstrate his reputation as a filmmaker of high standing.After this assessment, the Court relied on evidence of third parties terminating contracts with the plaintiff and the impugned derogatory treatment’s impact on future business prospects of the plaintiff, both objective facts, to conclude prejudice to his reputation.
In the Amarnath Sehgal Case, the Court also stated that the mural, the work in question, is a “modern national treasure of India”. The Court’s decision to protect the mural, relies on the need to “protect the cultural heritage of India”, citing the national goal of fostering cultural development and international treaties on the state’s moral obligations to conserve cultural property. Thus, it would not be entirely appropriate to suggest that the Court utilized the subjectivity standard by solely relying on Sehgal’s subjective assertion of prejudice to his reputation. The Court appears to have focused on Sehgal’s professional standing, objectively established by his credentials, and eminence of the work in question, implying that the mural, a widely revered work, is not deserving of such treatment. Arguably, adopting a hybrid approach between the subjectivity and objectivity standard. Further, considering that the defendant in this case, against whom allegations of derogatory treatment were levied is the Union of India, an additional layer of the state’s duty in fostering respect for cultural property in its custody, becomes relevant.
Thus, while the author’s subjective assertion of prejudice is a crucial component in assessing a violation of the integrity right, courts have considered objective elements in demonstrating the reputation of an author and how such reputation may be prejudiced. In Part II, I shall discuss the difficulties of satisfying this standard, both normatively and practically.