The lack of adequate protection of posthumous personality rights for celebrities is an existing threat to not only their privacy but also their family members. This article analyses the case of Krishan Kishore Singh v Sarla A. Sarogi & Ors. and similar precedents to understand the current legal status of posthumous personality rights of celebrities in India and outlines the need to have a strong legislation for the protection of the same.
On 10th June 2021, the Delhi Court pronounced its verdict on the much-awaited case dealing with the publicity rights of the deceased actor Sushant Singh Rajput. His father, Mr. Krishna Kishore Singh, the petitioner in this case submitted that the defendants are making a number of featured films based on the life of the late actor for their commercial gains without obtaining his consent as he is the actor’s legal heir. Krishna Kishore Singh had alleged that the movies, if released, would not only violate the publicity and privacy rights of the late actor but would also violate the privacy of his family members. Consequently, this would further hinder the late actor’s right to a fair trial. In this article, the author attempts to analyse the current legal status of posthumous personality rights of celebrities in India. It outlines the need to have a strong legislation to safeguard their rights by analysing the recent judgment by the Delhi HC in the case of Krishan Kishore Singh v Sarla A. Sarogi & Ors. To that end, it firstly discusses the precedents on publicity rights followed by the interplay of privacy and personality rights, and lastly, a brief segment on the inheritance of posthumous personality rights in India.
Publicity Rights: the Journey so far
Owing to the lack of uniform statutory legislations defining personality/publicity or celebrity rights and its nuances, this field of law is governed mostly by case laws almost all over the world. For the first time, the question of personality rights was decided by the Supreme Court of the US in the case Zacchini v. Scripps Howard Broadcasting Co. In India, the case of ICC Development v. Arvee Enterprise had classified publicity rights as evolving from the right to privacy and inheriting an individual’s name, personality, etc. This was followed by several other cases which recognised the principle of prohibition of the commercial exploitation of a celebrity’s publicity rights without their consent. In the case of Titan Industries Ltd., the Delhi High Court recognized the core elements of infringement of the right to publicity as – (i) validity of an enforceable right in the identity of a human being & (ii) identifiability of the celebrity from the defendant’s unauthorised use.
Given the non-existing statutory acknowledgements for protection of publicity rights, celebrities have still attempted to secure protection through IP legislation. For instance, celebrities like Yuvraj Singh have tried getting their names registered as marks for protection through section 2(m) of the Trademarks Act of 1999. Further, the Copyright Act defines a ‘performer’ under section 2(qq) and grants them protection but nowhere draws a distinction between a performer and a celebrity, let alone define it. Whereas on the other hand, section 22 of the Copyright Act grants protection to authors even 60 years after their death.
Unfolding the Privacy Dilemma
In the present case before the Hon’ble Court, there was no dispute regarding the celebrity status of SSR as he was a globally renowned celebrity and hence there existed a bundle of his personality rights during his lifetime. Thus, the Court was left with the question of the inheritance of those rights. In order to reach the conclusion for the inheritance of posthumous publicity rights, the Court framed the issue- whether or not Krishna Kishore Rajput could have inherited the publicity rights of SSR. The Court categorically relied on several precedents that dealt with the subject of posthumous publicity rights.
This issue was also raised in the earlier case of Managing Director, Makkal Tholai Thodarpu Kuzhuman Limited v. Mrs. V. Muthulakshmi (Veerappan case). In this case, the wife of the late forest brigand Veerappan submitted before the Madras High Court that a tele series based on the life of Veerappan would violate her and her daughters’ right to privacy. The court adjudicated this particular issue. On the question of the existence of the right to privacy, the court was of the opinion that the facts and materials which the tele series had depicted were already present in the public domain and hence it cannot be said to be a violation of their right to privacy. Further, in the case of Rajgopal v. State of Tamil Nadu, where the court had to deal with the issue of publication of an autobiography which conflicted with the right to privacy of the people who were named in that autobiography, the court pointed out that the appellant’s submission of violation of their right to privacy has to be balanced with the respondents’ freedom of speech and expression. Thus, the question left to be decided by the court was whether or not the right to privacy of a deceased celebrity can be inherited by their legal heirs.
This question was again raised in the present case and in order to answer it the court relied on the case of Deepa Jayakumar v. AL Vijay (Jayalalitha case). In this case, an appeal before the Madras High Court was filed by the niece of Dr. J. Jayalalitha against the release of a couple of movies. The case raised two contentions. Firslyt, the movies allegedly depicted her aunt in a bad light. Secondly, the release of the movies would be violative of her and her family’s right to privacy. The first issue was resolved by relying on the Rajgopal case as the right to freedom of expression of the defendant had to be balanced with the right to privacy of the plaintiff. Finally, in both the Veerappan case and the Jayalalitha case, the question left to be adjudicated upon was of the inheritance of the privacy rights of a celebrity post his death.
Auditing Posthumous Personality Rights
Interestingly, in the present case, along with the case of Deepa Jayakumar, the High Court faced the question of the inheritance of publicity rights of a celebrity. In order to reach a verdict, both the cases relied on the landmark Puttaswamy judgment. The Puttaswamy judgment states that “the right to privacy is indeed inseparable and inalienable from a human being. In other words, it is born with the human being and extinguishes with a human being” (para 557) This judgment not only answered several of the questions on privacy rights but also added substantial clarity to the subject of publicity rights. Since publicity rights are inextricably linked and are birthed out of the right to privacy, and a person’s privacy rights extinguish after their death, the question of inheriting those publicity rights is answered in negative. Hence, in the present case, the Hon’ble Court applied the Puttaswamy judgment to extinguish the publicity rights over the deceased actor, as an offshoot of his extinguished privacy rights, to hold that the same cannot be inherited.
But what the court failed to notice is that publicity rights are only born from privacy rights but are not limited to privacy rights. They also come along with the value a specific name or a celebrity carries with itself which is commercial in nature. For instance, after five years of Michael Jackson’s death in 2009, his publicity rights were worth a whopping 363 million USD in 2014. The Indiana state’s statute of publicity gives protection to celebrities during their lifetime and 100 years after their death as well. Along with this, thirteen other states in the United States recognize these rights by statute and six other states through Common Law. The state of California also protects the posthumous personality rights of a celebrity for 70 years. Not only this, the Supreme Court of the state of Georgia had in the case of Martin Luther King Jr. Centre for Social Change held that the right to privacy is distinct from the right to publicity and can be inherited by the legal heirs of the celebrity. This case being a state-specific law of the USA cannot be binding on Indian courts but it does reflect the drawbacks of the existing legal regime in India for posthumous personality rights as it classifies personality rights equally to privacy rights but fails to consider the commercial factor these rights entail.
Therefore, even if the publicity rights of a celebrity are derived from their privacy rights, there also exist commercial rights that can be realized through the image that the celebrity is associated with. Hence, equating the constitutional nature of the privacy rights to a different commercial nature of publicity rights would inhibit the legal heirs of the deceased celebrity to further protect the commercial exploitation of their personality.
Illustratively, Section 9A to the schedule of The Emblems and Names (Prevention of Improper Use) Act, 1950 prohibits the pictorial representation of Mahatma Gandhi or the Prime Minister of India for any commercial purpose. This suggests that Indian law has provisions to prevent the commercial depiction of certain symbols, which also include the encapsulation of the posthumous personality rights of some celebrated leaders of the country. Therefore, this gives a sliver ray of hope for the development of posthumous personality rights. Given the fact that personality rights in India have a commercial value, exploitation of those rights after a celebrity’s death would be violative of the existing commercial rights. This shows that certain celebrated leaders in India are granted protection for their posthumous personality rights. But in The Emblems and Names Act, such symbols are protected primarily to protect certain nationalistic sentiments. However, similar protection is not extended to celebrities, which gives rise to frequent exploitation of their publicity rights by certain individuals. This calls for a drastic statutory development in the realm of posthumous publicity rights of celebrities.
The court finally held that the right to privacy of a deceased celebrity ceases to exist after his death and that the privacy of their family members shall be protected only to the extent that the information is not present in the public domain. To this effect, the Court upheld established precedent on the matter. While the court remarkably recognised the publicity rights by relying on the Puttaswamy judgment, it fell short of understanding the commercial nature of the aforesaid publicity rights by equating them with the constitutional nature of privacy rights. Hence, the question of posthumous personality rights remains unresolved and still demands more judicial attention.