CELEBRITY RIGHTSTHE SUSHANT SINGH RAJPUT ORDER
CELEBRITY RIGHTSTHE SUSHANT SINGH RAJPUT ORDER
Sushant Singh Rajput (“SSR”) was a renowned actor from the Bollywood industry. SSR passed away under suspicious circumstances on 14th June 2020, which matter is being investigated by the Central Bureau of Investigation (“CBI”), however no conclusive report has been submitted by the CBI yet.
Facts: In September 2020, SSR’s father – Krishna Kishore Singh (“Plaintiff”) had made a statement that no movie, book, or series based on SSR’s life should be made without obtaining prior consent from SSR’s family. Earlier this year, the Plaintiff filed an application in the Delhi High Court seeking ex-parte injunction against use of SSR’s name, caricature, lifestyle or likeness in forthcoming films and other ventures, contending that any such publication, production, or depiction would be an infringement of personality rights, right to privacy which includes right to publicity and a violation of right of fair trial – under Article 21 of the Constitution of India. The Plaintiff believed that the defendants are trying to exploit this media frenzy and public curiosity surrounding SSR’s life and the circumstances surrounding his death, for their commercial gain. Plaintiff filed the suit seeking enforcement of John Doe orders against 8 known defendants, and other unknown defendants (collectively “Defendants”), 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, whereby the Defendants are making several movies titled ‘Nyay: The Justice’ ‘Suicide or Murder: A star was lost’, ‘Shashank’ and one untitled movie.
Contentions of the Plaintiff:
Violation of Celebrity Rights/ Right to Publicity – The Plaintiff contended that since SSR was a celebrity, he had the right to control the commercial use of his identity and entitled him to the money that arises from the fame. Such celebrity rights are assignable and licensable for commercial benefits. He also claimed that the rights 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.
Violation of Right to Privacy – The Plaintiff stated that any depiction of his own or SSR’s life is violative of the Plaintiff’s right to privacy. The only exception to right to privacy is if the information is mentioned in public record documents. He stated that the right to privacy of SSR and his family have already been recognized and enforced by a Division Bench of the Bombay High Court. Therein, the Court directed the media to exercise restraint and refrain from publishing news, debates or interviews which would intrude on the privacy of the deceased or cause prejudice to an ongoing inquiry or investigation.
Violation of Right to Free Trial – The Plaintiff contended that as a CBI investigation into the demise of SSR is presently underway, the fictitious portrayal of the circumstances surrounding SSR’s death will prejudice the case of the Plaintiff, and that the right to fair trial trumps the right to free speech.
Contentions of the Defendants:
The following is a summary of the main contentions of the all the Defendants surrounding the posthumous rights of SSR:
No violation of Celebrity Rights/ Right to Publicity - Since the right to publicity is derived from the right to privacy – if right to privacy extinguishes with the human being, so does right to publicity. Reliance has been placed on Section 306 of the Indian Succession Act, 1925 which clearly enlists certain rights that cease to exist after the demise of a person and on the Indian Penal Code, 1860, which states that the cause of action for defamation shall cease to exist upon the demise of the person.
No violation of Right to Privacy - News coverage pertaining to SSR’s death is already in the public domain, and the Plaintiff has not raised any objections against the author or publishers of widely available news coverage, thus, estopping the Plaintiff from claiming violation of the right to privacy, since the Defendants are only fictionalizing such information available in the public domain into a movie inspired by such events.
No violation of Right to Free Trial - It was contended that the right to fair trial was not being violated as the investigative agencies and the judicial system do not rely on cinematographic films for the purpose of investigation or criminal trial.
No violation of Freedom of Speech and Expression - The Plaintiff, under the guise of the present interim application, is seeking to assert a gag order on all movies, web-series, books, interviews, or other material may be published about the deceased, which is in violation of the freedoms granted under Article 19(1)(a) of the Constitution of India.
Existing legal framework under the Cinematography Act, 1952 - Films are determinable by the Censor Board of Film Certification/ CBFC, under the Cinematography Act, 1952. The films are creative dramatizations of true events and not a biopic or biography of SSR. The films have appropriate disclaimers which denounce any resemblance to a real person.
Analysis by the Delhi High Court:
The Delhi High Court noted that the movies had not been released for public viewing yet and that the contents of the films were being speculated by the Plaintiff based on publicity materials, such as the teasers available on the internet and statements made in the media by persons who are associated with it. Even though the films are yet to be released for public viewing, the Plaintiff sought restraint orders against their exhibition, not just against named persons, but also attempted to invoke John Doe jurisdiction of the court against unknown persons. The Delhi High Court observed the following:
Courts grant pre-publication injunctions only in exceptional circumstances - This reluctance is rooted in the importance attached to the right of free speech and expression. Blanket injunctions or gag orders are avoided, unless extremely imperative.
There is no express statutory recognition of publicity, personality, or celebrity rights in India, and it has been developing predominately through judicial precedents which have given recognition and protection of such rights, as and when the Courts have been approached in diverse situations.
Relying upon the judgements of Titan Industries Ltd. v. M/s. Ramkumar Jewellers, ICC Development (International) Ltd. v. Arvee Enterprises and Ors., DM Entertainment v. Baby Gift House, and Mr. Shivaji Rao Gaikwad v. M/s. Varsha Productions, the Court noted that Indian jurisprudence clearly recognizes that celebrity rights “are a bundle of rights, including publicity, personality, and privacy and in some cases, intellectual properties rights, and that any assertion of such rights (except those claimed through Intellectual Property Rights for which special statutory protection is provided) cannot be appreciated, divorced of the concept of right to privacy. In the absence of statutory acknowledgement of celebrity rights, the fountainhead of celebrity rights would be the right to privacy emanating from Article 21”.
Notwithstanding the above, the Court acknowledged that the matter of posthumous publicity/ celebrity/ personality rights would require a deeper understanding. The Court stated that while dealing with posthumous publicity/ celebrity rights, there is a need to address to subjects like – whether personality right can be treated as property and whether personality rights can form part of the estate of a deceased.
The Court noted that it prima facie did not find any element to hold that the film would lead the public to believe that it is a true story or a biopic that has been authorized or endorsed by the Plaintiff. The Court believed that once the disclaimer is included at the beginning of the cinematograph film, any apprehension that the Plaintiff has about passing off that the film is a biopic of SSR, will be put to rest.
The Court noted that the Defendants had not made any misrepresentation or claimed a false endorsement for their respective films, given that the Defendants did not evoke SSR’s persona by exploiting the name, caricature, lifestyle, and/or likeness, by applying it to any merchandise as t-shirts, toys, posters, mugs, etc. rather the films were represented to be fictional, i.e., neither a biopic/ biography nor based on true events.
On the point of right to fair trial, the Court stated that investigative agencies and judicial system do not rely on cinematographic films for the purpose of investigation or judicial pronouncements and that the agencies have to proceed to decide the issues before them by drawing their own inferences and conclusions based on the materials placed before them, in accordance with the law.
On the Plaintiff’s cause of action for defamation, the Court found this plea to be misconceived and the allegation to be entirely speculative, based on assumptions and presumptions. The Court stated that without knowing the contents of the said films and only by relying on some news articles, the Plaintiff cannot argue that the depiction in the films is intended to be tarnished by the Defendants. The Court found no prima facie case in favour of the Plaintiff’s tort action for defamation and rejected the prayer for injunction. It is pertinent to note that in this particular case, the Court took notice of Plaintiff referring to the film being “defamatory in nature”, however, the Plaintiff did not seek any relief in this regard.
Conclusion:
The Delhi High Court did not pass any definitive order on the point of law – whether personality/ publicity rights can survive posthumously. The Court has left this debate open for another time. Looking at the approach of the Court in this case and comparing the same with the Madras High Court’s judgement in the case of Deepa Jayakumar v. AL Vijay, it can be the noted that the courts in India are reluctant to bypass the existing legal framework under the Cinematography Act, 1952 wherein the CBFC reviews films and suggests what is appropriate for viewing of the Indian public. The courts have often opined that CBFC being a statutory body, CBFC certification is adequate safeguard for regulating public exhibition of films. We can also infer from the above judgement that the even though the Court noted that Indian jurisprudence recognizes celebrity/ personality rights, the courts have repeatedly clubbed personality/publicity rights, and privacy rights under the same umbrella of rights citing that personality rights stem from the right to privacy.