Sushant Singh Rajput Case : Are Celebrity Rights Available Posthumously? Delhi High Court To Decide

BRIEF FACTS:

The Plaintiff, Sushant Singh Rajput's father, Krishna Kishore Singh, asserting to be "the Category-I of Class-II legal heir of SSR and absolute legal heir under Section 16 of Hindu Succession Act, 1956", filed a suit before the Delhi High Court seeking to protect the "reputation, privacy and rights of his deceased son," which he claimed stand to be violated by movies such as "Nyay: The Justice", "Shashank", etc. that are purportedly inspired by Rajput's life and life events.

SSR was a renowned actor from the entertainment industry, who worked in several blockbuster movies and television series, bagged multiple awards, and had attained the status of a public figure and celebrity. He passed away under suspicious circumstances on June 14 last year.

The criminal case registered against the incident by the Plaintiff is being investigated by the CBI, and there is no conclusive report submitted as yet.

SSR's demise attracted widespread news coverage on electronic, social, and print media. The Plaintiff has moved the court seeking, inter alia, an ad-interim ex-parte injunction against the Defendants from using his son's name, caricature, lifestyle or likeness in forthcoming films and other ventures. He contends that any such publication, production, or depiction would be an infringement of personality rights and the right to privacy which includes the right to publicity, amongst others, and cannot be undertaken without the prior approval of his legal heir.

The question for the consideration of the court therefore, was that are celebrity rights available posthumously, and further, can they be inherited?

THE PLAINTIFF - SSR'S FATHER:

Singh has stated that the Defendants – who include the producers, director and outliner of the movie, "Nyay: The Justice", which is slated for release on June 11, i.e. tomorrow, are trying to "exploit the media frenzy and public curiosity surrounding SSR's life and the circumstances surrounding his death, for their commercial gain." He argues that, in September, 2020, his counsel had made a widely circulated statement that, "no movie(s), book(s) or series based on the Plaintiff's son should be made without obtaining the prior consent of his family. Despite that, without approaching the family, Defendants No. 1 to 4 are making a movie which is a self-proclaimed "tribute to Sushant Singh Rajput", titled 'Nyay: The Justice'."

Produced by Sarla A Saraogi and Rahul Sharma, directed by Dilip Gulati, and the film has been outlined by Sarla's husband, a lawyer named Ashok Saraogi, the plaint states.

Kishore Krishna Singh argues that this has resulted in a violation of "celebrity rights" or the "right to publicity" which belonged to his son, Sushant before his death, and which he has inherited as Sushant's only legal heir.

Singh has argued that "the public at large cannot be permitted to make windfall gain through commercially exploiting the persona of the deceased."

THE DEFENDANTS - THE DIRECTOR & PRODUCERS OF "NYAY: THE JUSTICE"

However, disputing the Singh's case, Dilip Gulati, the director of Nyay, submitted that, while he accepted the celebrity status of Rajput, his right as a celebrity would be infringed only in case he was identifiable as a part of the artistic work. Gulati also denied the use of Rajput's name, image, caricature or style of delivering dialogues. He also argued that in terms of S. 306 of the Indian Succession Act, 1925 which enlists certain rights that cease to exist after the demise of a person, the cause of action of defamation as defined in the Indian Penal Code, 1860, would cease to exist upon the demise of a celebrity. Gulati also submitted that 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.

Building on the argument by the Director, the producers, Sarla Saraogi and Rahul Sharma submitted that, the goodwill and reputation earned by Rajput during his lifetime cannot be inherited by his legal heir, i.e. his father, like a movable or immovable property. They submitted that, "In India, the right to publicity is derived from the right to privacy – the two are not independent of each other and cannot exist without the other. In the context of what has been held in Puttaswamy (supra), 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."

THE COURT'S FINDINGS ON VIOLATION OF CELEBRITY RIGHTS / THE RIGHT TO PUBLICITY:

At the outset, the single judge bench of Justice Sanjeev Narula who was delivering the verdict, clarified that 'publicity right', 'celebrity right' or 'personality right', are not expressly recognized by any statute in India. However, there are 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 are, however, relevant to the present case. In the absence of a statutory definition of a 'celebrity', the court referred to the common parlance meaning from the Collins Online Dictionary, as per the rules of statutory interpretation, wherein a 'celebrity' is "someone who is famous, especially in areas of entertainment such as films, music, writing, or sport."

The court concluded that SSR's status as a celebrity is not in dispute, and observed that the law on the subject is still at a "nascent stage" and developing through case laws.

Thereafter, the court referred to the Titan Industries Ltd case, the ICC Development (Intl) Ltd. V Arvee Enterprises and Ors, DM Entertainment case, wherein the courts have concluded that "the right to control when, where and how their identity is used should vest with the famous personality", and that "the right to control commercial use of human identity is the right to publicity." The court also examined the landmark Supreme Court judgment in Puttaswamy, wherein the right to privacy was declared to be a fundamental right on the anvil of Article 21 of the Constitution of India. Further, personality rights also were reflected upon with the observation 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 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."

Reflecting on the various judgments, the Delhi High Court 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."

However, on Singh's submission that the likeness and brand value of a celebrity must only be used with the consent of the celebrity, the court said that, while "Undoubtedly, there are several such cases which recognize this common law right of celebrities to control the commercial use their image and personality… however, as can be seen from DM Entertainment, ICC, and Titan, these rights rest in the concept that a celebrity, who earns a living on the basis of the monetization of their recognition by the public,".

On the question whether 'celebrity rights' can be enforced posthumously, the court noted that Singh had claimed that such rights are inheritable by the legal heirs of a celebrity, placing reliance upon the judgment of the Gujarat High Court in the case of Kirtibhai Raval, contending that celebrity rights can be transferred to a direct descendant.

In the said case law, the Plaintiff, claiming to be direct descendant of late Shri Jalaram Bapa of Virpur, had set up a case based on the right to privacy and right of publicity and sought injunction against publishing any film or artistic work on the life of late Jalaram Bapa, without his consent. The Gujarat High Court had upheld the injunction granted by the trial court, on the consideration that "irreparable harm will be caused by violation of right to publicity or privacy which cannot be compensated monetarily," however, it also took the view that the contentions raised by the parties required detailed consideration upon leading appropriate evidence. The Court thus did not delve into rival contentions, noting that the right of privacy and publicity urged therein was a triable issue.

In SSR's case, Justice Narula has relied on this and the fact that the Gujarat High Court had felt that "the questions of whether the documentary evidence on 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", and held that Gujarat High Court judgment does not apply in the present case.

Singh further placed reliance on another judgment of the Supreme Court of Georgia, USA, in Martin Luther King Jr. Center for Social Change, (1982) wherein the Supreme Court of Georgia had held that, "celebrity rights are assignable and licensable for commercial benefit and survive beyond the life of a celebrity." Therein, it had also been held that "the right to publicity was distinct from the right to privacy," and that "it is an inheritable and devisable right." It was further held that, "while private citizens have the right of privacy, public figures have a similar right of publicity, and that the measure of damages to a public figure for violation of his or her right of publicity is the value of the appropriation to the user".

However, Justice Narula held that the said case "cannot assist the cause of the Plaintiff as it is based on State-specific law and not federal law of USA. Moreover it would not be entirely relevant in view of the legal position in India, especially in view of the observations in the landmark judgment of the Supreme Court in Puttaswamy."

Justice Narula also held that while Singh "has sought to distinguish 'celebrity rights' from the 'right to privacy'…. any assertion of such (celebrity) 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 such rights, the fountainhead of such rights would be the right to privacy emanating from Article 21."

The court said 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 it held with respect to the publicity right that, "Since it is inextricably interlinked to and birthed from the right of privacy, the Court prima facie finds merit in the submission of the Defendants that the posthumous privacy right is not permissible."

The Delhi High Court placed reliance on the judgment of the Supreme Court in the case of Puttaswamy wherein it was held that "the right to privacy of any individual is essentially a natural right…remains with the human being till he/she breathes last… it is born with the human being and extinguishes with human being."

The court also relied on the Madras High Court's view in the case of Managing Director, Makka Tholai Thodarpu Ltd wherein it was held that the "right of privacy of an individual cannot be inherited after his death by his legal heirs and that personality right, reputation or privacy enjoyed by a person during his lifetime, come to an end after his lifetime."

The court further reasoned that in the case of Titan Industries Ltd., 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." On this basis, the bench said that in SSR's case, "the enforceable right being claimed is in the persona of SSR, on the basis of the events that occurred in his life. The Plaintiff specifically contends that "no picture/show or any other related document of Sushant Singh Rajput could be created without the consent of Plaintiff". To put it differently, the Plaintiff claims to have inherited the exclusive right over the life story of SSR as an intangible or commercial property. In another sense, the Plaintiff claims a copyright over the life of SSR. However, under the Copyright Act, 1957, facts which are historical, biographical, or news of the day cannot be copyrighted as they are a part of the public domain, available to every person, and involve no 'originality' and 'creation' which lies at the heart of a copyright protection."

The court concluded by stating that whether these rights exist posthumously would have to be probed deeper, as in the absence of codified laws protecting such rights, the common law which governs such rights has to be analysed and further enquiries would first require evidence to be led by the Plaintiff to prove that the persona of SSR is still surviving as a commercial property, which is alleged to be exploited by the Defendants for profit. The foundational facts have to be established and proved and mere status of a celebrity is not enough.

"Having said that, in the opinion of this Court, whether commercial celebrity rights, such as personality or publicity rights, would survive or extinguish after the death of the celebrity, requires a deeper probe. In the absence of codified laws protecting such rights, the common law which governs such rights has to be analysed...

Concluding, the court said, here "the name, caricature, lifestyle, and/or likeness of SSR is not being exploited by applying to any merchandise as t-shirts, toys, posters, mugs, etc. so as to evoke his persona. The Defendants are not making any misrepresentation or claiming a false endorsement for their respective films." As the Saraogi, Sharma and Gulati, also "represent their work to be fictional, i.e., neither a biopic nor based on true events," the Court said it was not convinced on the point of infringement of celebrity rights.

Case : Krishna Kishore Singh v Sarla S Sarogi and others.

Click here to read/download the order