Case Summary and Outcome

The High Court of Delhi ruled that the father of a deceased actor could not seek to restrain the broadcast of a film on the actor’s life. After his son died and he learned that a film was being made, the father brought various applications to restrain the use of his son’s name, caricature or lifestyle in any projects or films without his prior permission on the grounds that doing so would infringe his son’s personality rights. The Court held that the rights to privacy, publicity, and personality were not inheritable and ceased to exist upon the actor’s death and therefore, his father could not pursue them. The Court noted that the information used in the disputed film was derived from publicly available sources in the media, and so the filmmakers had not violated any rights using this information as it had been unchallenged when originally published. The Court held that any injunction about distribution of the film would infringe the filmmakers’ rights to freedom of expression.

Facts

On June 14, 2020, Sushant Singh Rajput (SSR), a Bollywood actor, died. The circumstances under which he died are unclear, and investigations into the cause of death were initiated. In March 2021, his father, Krishna Kishore Singh, filed a lawsuit against two filmmakers and a director who were making a film about SSR’s life. Singh argued that none of these parties had obtained permission from SSR’s legal representatives, including himself. Singh sought a decree of permanent injunction, restraining the specific filmmakers and all others from using SSR’s name, caricature or lifestyle in any projects or films without his prior permission, submitting that any such effort would infringe the personality rights of SSR and also cause deception in the minds of the public, which would amount to passing off.

Singh also filed an interlocutory injunction against the filmmakers intended to prevent them using SSR’s name, likeness, or lifestyle in any films or projects until the main lawsuit was resolved. On June 10, 2021, this application was dismissed on the grounds that the lawsuit was not based on defamation but rather on the breach of celebrity/publicity rights, and if an interim injunction was granted, it could be difficult to compensate the filmmakers if Singh did not ultimately succeed in the lawsuit. However, the High Court emphasized that Singh could reapply for an injunction if circumstances changed after the film’s release and could seek compensation through damages if he could prove his exclusive right to SSR’s celebrity/publicity rights.

Singh then appealed to a Division Bench of the Court which issued an order on July 26, 2021, allowing Singh to press claims as the filmmakers’ completed film, titled ― “Nyay: The Justice”, was in existence. After the film’s release, Singh filed an application to amend the original lawsuit to include additional claims and allegations based on the content and impact of the released film.

Decision Overview

Justice C. Hari Shankar of the High Court of Delhi delivered this judgment. The central issue for consideration was whether the file production inspired by real-life events of SSR’s life violated his and his father’s rights.

Singh argued that the film was produced based on defamatory statements and unverified news articles, which accused SSR of various vices such as drug addiction. The film also portrayed SSR as mentally unwell and that his death had been by suicide. Signh submitted that this violated SSR’s and his own right to privacy, protected by Article 21 of the Indian Constitution. Singh made the distinction between news reporting on an incident and the making of a commercial movie capitalizing on the reputation of a celebrity, and accused the filmmakers of exploiting news for commercial gain without first verifying its authenticity. Singh argued that celebrities possessed the right to control and manage their name, image, and likeness, and that any misuse or misappropriation of their name or image would infringe upon their personality rights and constitute “passing off”. He also argued that celebrity rights and the right to publicity were inheritable, and SSR’s posthumous rights now vested in his legal representatives. Singh submitted that commercial exploitation of the persona of a celebrity without the express permission of the legal representatives would, therefore, amount to an infraction of the celebrity rights of the personality, which was impermissible in law. With reference to the case of Justice K.S. Puttaswamy v. Union of India, which impacted the right to privacy, Singh argued that the right to publicity continued to exist as an independent right, encompassing various aspects beyond privacy.

The filmmakers disputed Singh’s characterization of the movie as a biopic of SSR, and argued that the film did not refer to SSR’s name, image, photograph, or caricature; it drew inspiration from widely reported, publicly known events, which were part of the public record. The filmmakers submitted that the prominent disclaimer at the start of the film should alleviate Singh’s concerns about it being a biopic. They maintained that the law did not require movie makers to seek prior consent or investigate the truth of materials in articles while making a film based on publicly-available information. The filmmakers argued that the right to make a movie based on publicly-available data was a fundamental part of the right to free speech protected by Article 19(1)(a) of the Indian Constitution, and reiterated that no violation of the right to privacy or publicity could be claimed when the impugned movie was based on facts in the public domain. With reference to Singh’s admission that the film drew inspiration from publicly-available media articles, they argued that it was not permissible to extend the right to privacy to publicly known facts. The filmmakers submitted that one person could not advocate another person’s rights to privacy, publicity, or defamation and that as both the right to privacy and the right to publicity were rooted in Article 21 of the Indian Constitution, if the right to privacy did not survive a person’s death, the right to publicity would likewise cease to exist posthumously and could not be advocated by Singh.

The Court rejected as misleading the filmmakers’ argument that the film was merely a generalized version of struggling Bollywood actors and was merely inspired by news items, holding that the film closely mirrored the day-by-day life of SSR as reported in articles and magazines. The Court found that the film had very little independent creative input and identified that specific events – such as investigations, relationships, and family matters – were identical when comparing SSR’s life and the film: the Court found these coincidences excessive and that the film essentially used aliases for SSR, Rhea Chakraborty, and Singh. The Court concluded that the film was a retelling of SSR’s life and death.

On the rights of privacy, publicity and personality, the Court undertook a comprehensive analysis of the judicial precedents and set out key principles. These were that “(i) If a person’s name or likeness is used, without his consent, for any purpose, or his life story is written or published without his consent, the person‘s right to privacy is violated”; “(ii) In such an event, the remedy … is to sue for damages, and not to seek injunction of the offending publication. This position would continue to apply even if the offending publication was defamatory in nature.”; “(iii) This right to privacy cannot be canvassed by one person, on behalf of another, without due authorization.”; “(iv) If the publication is based on public records, including Court records, however, there is no invasion of the right to privacy”; “(v) No action for damages on the ground of violation of the right to privacy can be maintained by public officials, or public figures, even if the publication is untrue, unless it is made with reckless disregard for truth. All that the person publishing the publication, be it a member of the press or the media, has to show is that he had reasonably verified the facts”; “(vi) This defence would not, however, be available if the article, or publication, is actuated by malice or personal animosity”; “(vii) Where the article, or publication, or movie, is based on prior published material, available in the public domain, which the plaintiff had not chosen at that time to impugn or challenge, no injunction could be sought by the plaintiff against the subsequent publication or movie, which was merely based thereon. That the prior publications, in which the information figured, were not public documents stricto sensu, made no difference. What was relevant was that the information was available in, and taken from, the public domain”; “(viii) The plaintiff‘s right to sue for damages would, nonetheless, continue to subsist even in such a case;” “(ix) The right to publish, or disseminate information, even in the form of a movie, was guaranteed by Article 19(1)(a) of the Constitution of India. So long as the publication did not infract Article 19(2), the right was absolute;” “(x) The publisher of the allegedly offending information was not required to take permission of the representatives of the person about whom the publication was being made, before making it. Nor was he required to verify the truth of the contents thereof, provided it was earlier available in the public domain;” “(xi) The fact that the plaintiff had also sought damages, and that the suit was awaiting trial, was also a factor which militated against injuncting, ad interim, dissemination of the allegedly offending publication, or telecast of the movie;” “(xii) Publicity rights recognized the commercial value of the image or the persona of a person, and protected his proprietary interest in the profitability of his public reputation;” “(xiii) Proprietorial interest in the image and persona of the person concerned, leading to an enforceable right in the identity of such persona was the sine qua non to maintain a claim predicated on personality rights”; “(xiv) Reputation, personality, and privacy and personality rights that emanate there from, are not heritable.”

The Court assessed whether the right to publicity could be passed down to heirs and whether Singh had legal standing to pursue it after SSR’s death, and discussed the Supreme Court’s observation in the Rajagopal v. State of Tamil Nadu case which stated that “It is not stated in the counter-affidavit that Auto Shankar had requested or authorised the prison officials or the Inspector General of Prisons, as the case may be, to adopt appropriate proceedings to protect his right to privacy. If so, the respondents cannot take upon themselves the obligation of protecting his right to privacy.” [para. 19.4.7] The Court also referred to the decision in Jayakumar v. Vijay where the High Court confirmed that the “reputation of a person, personality rights, and the right to privacy which emerge as its sequelae, were not heritable, and stand extinguished with the extinguishing of the person concerned; and that the maker of such movie or web series was not required to take prior consent from the person on the basis of whose life and events the movie or web series was being made”. [para. 19.8.7]

The Court applied the legal principles to the present case and found that Singh had not presented a compelling case for the grant of interlocutory relief. It highlighted that the relief sought in the lawsuit pertained solely to protecting the rights associated with the deceased individual, SSR, and no rights of Singh were addressed in the complaint. The Court held that the rights in question, including the right to privacy, the right to publicity, and personality rights, were not inheritable and ceased to exist upon SSR’s death and therefore Singh could not pursue them.

The Court found that the information used in the disputed film was derived from publicly-available sources in the media, and filmmakers did not violate SSR’s rights by using this information, as it was unchallenged when originally published. It added that Singh did not have the authority from SSR to protect these rights on his behalf. The Court held that even if the film infringed SSR’s publicity rights or defamed him, such rights were personal to SSR and could not be inherited by his father and so the appropriate remedy, if any, would be to seek damages, which Singh had already claimed.

The Court noted that the alleged infringements mentioned in Singh’s complaint were unchallenged and could not be the subject of an injunction at this point, especially since the film had been widely disseminated for some time, and injunction against further dissemination of the film would infringe the Filmmakers’ rights under Article 19(1)(a) of the Constitution of India.

On “celebrity rights,” the Court rejected the notion that there is a distinct legal concept for such rights, emphasizing that all individuals – and not just celebrities – should enjoy rights that emanate from their personality, achievements, and persona. The Court stated that it could not support an “extra” bundle of rights exclusive to celebrities and found no legal precedent supporting the concept of “celebrity rights.” The Court also dismissed the argument that allowing the film to be broadcast would prejudice the right to a fair and dispassionate trial, asserting that the legal system was not so fragile as to be influenced by the film’s contents. Finally, the Court held that the tort of passing off did not apply in this case since Singh’s allegations were the reverse of “passing off”, as the film depicted real facts rather than portraying them as fiction.

Accordingly, the Court dismissed Singh’s interlocutory application for injunction but allowed him to maintain and prosecute the suit insofar as it claimed damages from the defendants.