Delhi High Court’s take on celebrity rights/publicity rights and their relationship with right to privacy

In the matter of Krishna Kishore Singh Vs. Sarla A. Saraogi & Ors., CS(COMM) 187/2021 decided by the Hon’ble Delhi High Court on 10.06.2021.

Facts of the case-

The Plaintiff (father of late actor Sushant Singh Rajput [SSR]) by way of application under Order 39 Rule 1 & 2, sought a limited prayer restraining the use of SSR’s name, caricature, lifestyle or likeness in the forthcoming projects/films of the Defendants. The contentions of the Plaintiff are three folds-
(i) Violation of celebrity rights/ right to publicity- Celebrity rights are assignable and licensable for commercial benefits and 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 heirs.
(ii) Violation of Right to Privacy- it is the case of the Plaintiff that any depiction of his own and his son’s life is violative of the Plaintiff’s right to privacy.
(iii) Violation of the Right to free and fair trial as a CBI investigation regarding the demise of Plaintiff’s son is underway and the fictious portrayal of the circumstances surrounding his death will prejudice his case.
The Defendants on the other hand contended that there is a plethora of material available in the public domain on the life and death of the Plaintiff’s son, hence there can be no question of privacy over that which is already in the public realm. Furthermore, the film made by D/f No. 1 to 4 is neither a biopic nor a biography of the Plaintiff’s son, but instead is a fictional rendition with creative dramatization of true events generally surrounding the lives of TV celebrities who have reportedly passed away due to unnatural causes and also contains a disclaimer which denounces any resemblance to a real person. Similarly, D/f No. 7 contends his film is portraying the struggle of young actors in Bollywood and is inspired by real events.

Observation of the Hon’ble Court-

The Court first dealt with the issue of celebrity or publicity rights, observing that the law on celebrity rights is still in nascent stage and it has been developing predominantly through judicial precedents. These judicial precedents clearly recognize the concept of celebrity rights and it can be said that ‘celebrity rights’ is essentially 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, 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, must be entitled to the tangible, economic benefit arising from the utilization and assignment of their image or likeness, be it through advertisements, merchandise, etc.
Therefore, the question that is raised before the Court is whether ‘celebrity rights’ can be enforced posthumously?
Undoubtedly, a limited class of celebrity rights which are protected as IPRs and are assignable and licensable under relevant statutes, could survive the death of the celebrity, however, in the present case, the Plaintiff claims that the deceased celebrity has a posthumous publicity right. The Court also noted that the Plaintiff has sought to distinguish ‘celebrity rights’ from ‘right to privacy’, however, in the absence of statutory acknowledgement of celebrity rights, the fountainhead of such rights would be the right to privacy emanating from Article 21. In India, the ‘right to publicity’ is derived from the ‘right to privacy’ and the two are not completely independent of each other as the former cannot exist without the later. Therefore, the Court in the context of the judgement of Apex Court in Justice K. S. Puttaswamy v. Union of India ; (2017) 10 SCC 1, noted that the publicity right is inextricably interlinked to and birthed from the right of privacy and 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 further explained that in the present 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 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 necessary corollary, therefore, is that anyone is entitled to make movies on events which have actually occurred.
Regarding the contentions of right to fair trial as raised by the Plaintiff, the Court emphasized that the investigative agencies and judicial system do not rely on cinematographic films for the purpose of investigation or judicial pronouncements.
The Hon’ble Court at last concluded that since the Defendants’ films are neither portrayed as a biopic, nor a factual narration of what transpired in the life of SSR and are depicted to be complete fictional and inspired from certain events which have occurred in the past and are available in public domain, there is no reason to grant a restraining order against the Defendants.