Film dispute highlights that India must reconsider its approach to posthumous personality rights rules

India has yet to develop specific legislation on the right to publicity and the associated right to privacy; such rights are distinct and cannot be adequately addressed under existing IP laws. However, a fresh case demonstrates that the keen need for specific rules in this area is growing.

Case background

In Kishore Singh v Sarla A Saraogi, the Delhi High Court held that an individual’s publicity and privacy rights are not heritable (CS(COMM) 187/2021). The plaintiff in this case was Kishore Singh, father of young, prominent Bollywood actor Sushant Singh Rajput, who died on 14 June 2020. His death sparked a media frenzy and numerous conspiracy theories.

In 2021 Kishore Singh filed a suit against the defendants (producers and director) who had produced a film titled Nyay: The Justice. This film was based on the life of Rajput, and they had not obtained permission from his legal representatives, which included the plaintiff. Singh sought a permanent injunction to restrain the defendants and others from using Rajput's name, caricature or lifestyle in any projects or films without his prior permission. It was alleged that any such effort would infringe Rajput’s personality rights and deceive the public, which would amount to passing off. Along with the suit, the plaintiff also sought an interlocutory injunction against the defendants.

After reviewing the film, which had been streaming on an over-the-top media platform since 2021, the court observed that it was indeed an overt re-enactment of Rajput's life, with particular focus on the circumstances leading up to his death and subsequent investigation into this. While the film carried disclaimers, the court opined that these might not be sufficient to negate the clear resemblance between the movie and Rajput's life and death.

However, the court highlighted that the film was constructed using news items that were already in the public domain. No rights of Rajput were therefore infringed, especially considering that the plaintiff had not contested nor disputed these reports when they were initially published. Even if, for the sake of argument, it was assumed that the film did violate the actor’s publicity rights or defame him, these rights were personal to him and ceased to exist upon his passing. Likewise, the other rights mentioned in the lawsuit (eg, the right to privacy and personality rights) were specific to Rajput and not transferable to his heirs.

Therefore, the court dismissed Singh’s interlocutory petition. However, it further held that the plaintiff’s right to maintain and prosecute the suit to claim damages from the defendants would stand.

Lasting impact of the case

This decision is significant as it clarifies the issue of posthumous rights of publicity – or lack thereof. Publicity rights play an integral part in the protection of a person by safeguarding a name and identity from any misappropriation by a third party for its own benefit, which can take the form of misappropriating a person’s name, signature or even their voice.

Interestingly, when we look for a global position on personality rights, there is a distinct lack of harmonisation when it comes to statutory laws; this area of law is primarily governed by case precedents across different jurisdictions.

For instance, the Delhi High Court relied on several prior precedents that were laid out by Indian courts, including the landmark case R Rajagopal v State of TN, wherein it was held that “once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others”.  

In the United States, the right of publicity is acknowledged in several states, even after a person's death. Notably, prominent entertainment hubs Indiana, Tennessee and California uphold this right posthumously. However, the states differ widely in terms of duration, scope, standards and limitations of the post-mortem right of publicity protection.

The road ahead

India has yet to develop specific legislation on the right to publicity and the associated right to privacy. Such rights are distinct and cannot be adequately addressed under the existing IP laws. Moreover, as the cult of celebrity grows around the world, India should seriously consider introducing legislation that addresses the preservation and protection of these rights. Explicit statutory provisions would ensure adequate protection and relieve Indian courts of the complexities surrounding celebrity rights. In the meantime, the judiciary plays a pivotal role given its authority to legislate in situations where there is a statutory vacuum and lack of legal clarity.