Legal training for filmmakers & creators

Do you need a permission to create a script/film based on a life of a dead personality?

Do you need a permission to create a script/film based on a life of a dead personality?

Suppose you want to write a script or make a film on the life of a dead celebrity, what kind of rights do you have to acquire? Do you need any permission from the legal heir of the deceased celebrity to create the biopic/script? Do you still need consent if you are merely inspired by the life of a deceased person and creating a fictional work? Is putting a disclaimer sufficient? If you are concerned about legalities, then these confusions are bound to happen. Our law is not very crystal clear on this issue. In this article, we will explore the recent Delhi High Court judgment on this topic in Krishna Kishore Singh vs. Sarla A. Saraogi & Ors, 2021 (Late Sushant Singh Rajput case). We will see whether the Court has comprehensively addressed this issue or it has left some loose threads.


We saw many filmmakers had announced films based on the life and circumstances surrounding the death of late actor Sushant Singh Rajput (SSR), immediately after his unfortunate demise. His father (Mr. Krishna Kishore Singh) filed a case against the known and unknown people for using his son’s name, caricature, lifestyle, or likeness in forthcoming films and other ventures. He argued that such actions of the defendants amount to an infringement of personality rights and right to privacy (including the right to publicity) and free and fair trial. Hence, defendants cannot go ahead with the films without permission from the legal heirs of SSR.


Defendants contested that there is no violation of celebrity rights. They argued that the right of a celebrity is infringed only if they are identifiable as a part of artistic work. They deny any use of the deceased’s name, image, caricature, or style of delivering dialogues in the films. They further argued that the life and circumstance surrounding the death of SSR are extensively present in the public domain. Hence, there can be no privacy claim over the facts that are already in the public realm. Defendants further argued that films do not interfere with the ongoing investigation regarding the mysterious death of the young actor. They reasoned that investigative agencies and the judicial system do not rely on cinematographic films for investigation or criminal trial. They prayed any gag order against the production of the film shall amount to curtailment of their right to freedom of expression guaranteed under Article 19 (1) of the constitution. The Court analyzed the various question of law in this case. In the following paragraphs we are going to understand that subsequently, we shall get back to the issues we posed in the beginning.


‘Celebrity’ or ‘publicity’ rights:

The Court observed the absence of express statutory recognition of publicity, personality, or celebrity rights in India. There is some reference under Trademark law that is not relevant in this case. Copyright Act defines performer. However, it also does not define celebrity. Hence, the Court referred to the Collins Online Dictionary that defined a ‘celebrity’ as “someone famous, especially in areas of entertainment such as films, music, writing, or sport. The Court concluded that SRR celebrity status is undisputed. After referring to various existing judicial precedents, the Court summed that the celebrity right is a bundle of rights that include intellectual properties rights, publicity, personality, and privacy rights. A celebrity has the right to control the commercial use of their image and personality.


However, regarding the question, will celebrity right survive the death of an individual? Are such rights inheritable by the legal heir? The Court held that the celebrity right has been derived from the right to privacy under Article-21 of the Constitution. Hence, it extinguishes by the death of a person. The Court referred to the Madras High Court judgment in Deepa Jayakumar and, concluded the right of privacy of an individual could not be inherited after his death by his legal heirs. The Personality right, reputation, or privacy enjoyed by a person during his lifetime, comes to an end after his lifetime. Court further held that the information of events that have occurred is already in the public domain, one cannot plead any violation of the right to privacy if a movie is inspired by such events.


It is pertinent to note that the Court did not venture into the aspect that whether personality rights can be treated as intellectual property and can survive the death of the celebrity. I think the Honorable Court missed the opportunity by not exploring this crucial aspect of law related to celebrity/personality rights. The Court agreed that celebrity rights also have an intellectual property element. If every IPR is inheritable then, why celebrity rights should not be inheritable? We did not get a comprehensive answer. The Court denied passing off remedy by stating that;


“…specific disclaimer of the Defendants, the Court prima facie does 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. Pertinently, 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.”


At this point, I beg my deference from the observation of the Honorable Court. It is difficult to believe that by merely putting a disclaimer there shall be no confusion among the audience that the film is a biopic. We all know that an audience relates with the content of the film and not with a disclaimer.


Right to privacy

The Court held that defendant had not infringed the privacy rights of the plaintiff. They have neither portrayed the film as a biopic, nor a factual narration of the life of the SSR. They have depicted the film to be fictional and merely inspired by certain events. These events have been widely discussed and are available in the public domain. Hence, any restrain on the display of films shall be the infringement of freedom of expression granted to the defendants (under Article 19 of the constitution).


In my opinion, the Court’s reasoning is not satisfactory. The Court must explain the fine line when one says that they have merely taken the inspiration visa vis when one has created a biopic. Does only changing names and adding a disclaimer sufficient? Court has not explained adequately.


Defamation.

Further, the Court rejected the defamation plea by the plaintiff. The Court held that such a plea is speculative and based on assumptions and presumptions. The Court held that without knowing the contents of the said film, he could not argue that the depiction in films are intending to tarnish his/his son’s image.


Comment:

I think the Court should do more comprehensively analyze the intellectual property aspect of celebrity rights. A celebrity gains his celebrity status only after great efforts. There is no satisfactory justification why it should extinguish immediately after the death of the property. If someone is using celebrity likeliness (even after putting a disclaimer) and receives monetary gain, it should be done with the permission of the legal heir. I strongly feel a need for legislation to cover this aspect of law.

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