Taking Publicity and Privacy to the Grave: Delhi High Court on Descendability of Publicity Rights

[This guest post is authored by Devangini Rai. Devangini is a graduate of the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi. She is an IP lawyer based out of New Delhi. The views expressed here are those of the author’s alone. She has previously written for SpicyIP here and here.]

The Delhi High Court in a judgement delivered by HMJ C. Hari Shankar affirmed the legal position on descendability of publicity rights as had been upheld previously by Indian courts. The judgement dated 11^th July 2023 disposed of an interim injunction application moved by the father of the deceased actor Sushant Singh Rajput. The plaintiff sued the makers of the film ‘Nyay: The Justice’ (‘impugned film’) released over an OTT Platform which had a sensational depiction of the life and times of the late actor and the events leading to his death and after.

Factual Background

The case at hand involved the plaintiff seeking an interim injunction against the defendants to restrain them from using the name/likeness of the late actor unauthorizedly through the release of the impugned film amounting to infiltration of personality rights, violation of free trial, passing off et al.  Previously in 2021, the plaintiff’s interim injunction application had been heard by Justice Sanjeev Narula wherein the Hon’ble Court did not deem fit to pass an injunction on the ground of descendability of publicity rights. At that time, the Single Bench passed the order without actually watching the impugned film. An appeal was filed against this order by the plaintiff in 2021 before the Division Bench. The appeal was disposed of allowing liberty to the Plaintiff to press claims to seek damages in case the circumstances change. Since the movie was released after the passing of the Division Bench Order, the plaintiff preferred an application to amend the interim injunction application under Order VI Rule 17 of the CPC to amend the grounds of the application. (The release date is not recorded in the present judgement. However, the film’s Wikipedia page mentions it to be as 11^th June 2021) . In addition to the original prayers of seeking to restrain the defendants from unauthorizedly using the name/likeness of the late actor et al, the plaintiff incorporated additional prayers of seeking to remove the impugned film from the OTT platform and any other platforms or theatres and seeking exemplary damages.

Arguments and Decision

The plaintiff argued that the defendant has violated the late actor’s privacy and personality rights by its unauthorised use. It was also argued that the right of publicity of the late actor is inheritable and can be enforced through the plaintiff. It was primarily alleged that the impugned film is based on defamatory articles and the plaintiff sought an injunction to protect the reputation of the late actor.

 The Hon’ble Court correctly dismissed the injunction application and upheld the non-descendability of the right to privacy and right to publicity. Undertaking a detailed reading of R Rajagopal v. State of Tamil Nadu(‘R Rajagopal’), Khushwant Singh v. Maneka Gandhi and Deepa Jayakumar v. A.L. Vijay amongst other decisions, the Hon’ble Court observed that:

• The makers of the impugned film cannot be restrained from showcasing it to the public as it is based on widely reported public events. Applying the relevant precedents, the Court also held that as the public information on the basis of which the film had been made was not challenged previously, the plaintiff cannot seek an injunction against the communication of the impugned film to the public.  
• Placing heavy reliance on R Rajagopal, the Hon’ble Court observed that the late actor qualifies as a ‘public figure’. As public figures amass significant attention from society, any statements about them will not be tested on the anvils of the right to privacy unless made with a reckless disregard for the truth. Elaborating on this, the Hon’ble Court emphasized that it is the nature of the position of the individual in society which becomes detrimental in cases involving personality rights. The written records basis on which the impugned defamatory material written infringing the right of privacy of the individual becomes a secondary factor to the position of the individual.

• Further, it was observed that no publication would be restrained where the statement made is about a public figure even if it is defamatory. In the case of a defamation action intertwined with publicity rights, it was observed that the defence of truth is not required to be satisfied by the defendant. The burden of proof for the plaintiff was observed to be significantly higher than that of the defendant, where the plaintiff has to establish a reckless disregard for the truth or intentions actuated by malice. Whereas, the defendant should establish that the alleged defamatory material has been published basis publicly available documents and as per a reasonable verification of facts.

• Further, the Hon’ble Court observed that while an injunction is unwarranted in such cases, the tortuous remedy of seeking damages is still available to the plaintiff.

Implications

Indian Courts have consistently held that the right to publicity cannot be inherited and the present decision aptly falls in line with the judicial precedent. (An exception to this is the 2010 Gujarat High Court ruling of Kirtibhai Raval v. Raghuram Jaisukhram Chandwani.) Previously, on the blog, Nishtha Gupta (see here) and Varsha Jhavar (see here) have argued for a descendible right of publicity. The genesis for arguing a descendible and alienable right of publicity lies in perceiving the right of publicity as a standalone property right. However, it cannot be treated like one. As argued by commentator Prof. Jennifer Rothman in her book that if the right to publicity is treated as an alienable right, it would mean dangerous repercussions for the identity holder where there could be a situation where the right to publicity stands transferred away from the identity holder to the assignee. This would ironically imply that the identity holder himself does not have a right to control the usage of his identity.  

Prof. William L. Prosser in a 1960 article titled ‘Privacy’ identified four components of the right to privacy as follows:

1. Intrusion upon the plaintiff’s solitude;
2. Public disclosure of embarrassing private facts about the plaintiff;
3. Publicity which places the plaintiff in a false light;
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

It is visible that the fourth factor of the right to privacy has been largely adopted as the modern-day right to publicity. As Prof. Prosser explains, appropriation of the celebrity’s name or likeness occurs when there is enough evidence to link the usage of the name or likeness to the celebrity’s symbol of identity. This usage is termed as unwarranted when done by the defendant in an unauthorised commercial sense. In the present case, the Hon’ble Court while reading Titan Industries Ltd. v. M/S Ramkumar Jewellers cites an excerpt from the US case of Ali v. Playgirl that the right of publicity recognises “the commercial value of the picture or representation of a prominent person of the former and protects his proprietary interest in the profitability of his public reputation or persona.” It thus becomes evident that publicity rights are closely associated with the persona of the individual.

Publicity rights can therefore be seen to have arisen from an apparent lack of commercial viability of privacy rights. Nevertheless, it should not be forgotten that the right to publicity has risen from the right to privacy. As settled in KS Puttaswamy, the right to privacy of an individual cannot outlive the individual himself. In my reading, the right of publicity often becomes a misunderstood right. The over-emphasis on the right to publicity as yet another property right brings it on a collision course with freedom of speech. For instance, the plaintiff approached the Hon’ble Court with the intention of enforcing control over the image of the late actor in the capacity of a legal heir. This was seen by the Hon’ble Court as crippling the right to freedom of expression. Things would have been radically different had Sushant Singh Rajput been alive and the defendants would have sought to make a film alluding to him and showing the scandalous nature of events occurring in his life. Further, it was aptly held by the court that the right to publicity of the late actor died with him, implying that there can be no ground for descendability of the right. Right to publicity, therefore, requires to be seen as a subset of the right of privacy which provides protection from unauthorised commercial exploitation of one’s persona- which will extinguish upon a person’s death.