I. ABSTRACT
This article examines the intricate realm of posthumous publicity rights which extend beyond an individual's passing and have an impact on their reputation, image, and legacy by looking at both the Indian and global systems. The Indian context is especially fascinating because of landmark decisions such as R.R. RajaGopal v. State of Tamil Nadu, which illuminate the intersection of constitutionally recognised rights to publicity and privacy. The article highlights the question whether to publicity the death of a person available and whether it is alienable in India. It underscores the lack of precise legal rules pertaining to posthumous publicity rights in India. It draws attention to the conflicting viewpoints on this matter by highlighting recent legal proceedings involving Sushant Singh Rajput's case. The article also looks at international jurisdictions, examining the legal systems in the US, UK, EU, and China. The article concludes by asking for clear statutory safeguards in India to guarantee legal heirs' autonomy over a deceased celebrity's image, proposing a coordinated worldwide effort to regulate intellectual property rights globally.
II.INTRODUCTION
According to the legal doctrine, Ubi Jus Ibi Remedium, where there is a right there is a remedy. It suggests that without a ‘right’, the right to live with dignity would lose significance. The concept of publicity right is developed from the more general idea of privacy rights. Publicity rights are a subset of privacy rights that are particularly concerned with limiting the use of a person's name, image, likeness, or any other recognizable part of their persona, even after their death. This right can be described as Posthumous rights. In our country, celebrities are frequently subjected to abuse and violations of their right to privacy both during and after their lives. In this piece, we examine the idea of personality rights and also discuss about the case laws that have shaped personality rights both domestically and internationally.
III. POSTHUMOUS INTELLECTUAL PROPERTY RIGHTS: LEGAL PERSPECTIVES AND CHALLENGES IN INDIA
In India, the Supreme Court first recognized the right to publicity in the form of right to privacy in the case of R.R. RajaGopal v. State of Tamil Nadu and observed that, “the first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising - or non-advertising purposes or for any other matter.”[1]
Furthermore, the Right to Privacy was first recognized as a fundamental right under Article 21 of the Indian Constitution in the landmark judgement of KS Puttaswammy v. the Union of India. In this judgement, Hon’ble Justice Sanjay kaul reflected upon publicity rights and said, “Every individual should have the right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This means that an individual may be permitted to prevent others from using his/ her image, name, etc.”[2] This is suggestive that there is a correlation of privacy rights and publicity rights and the Right to Privacy is inclusive of the Right to publicity.
IV. WHETHER SAFEGUARD TO THE PUBLICITY RIGHT POST THE DEATH OF A PERSON IS AVAILABLE IN INDIA IS ALIENABLE?
There are no particular statutory provisions addressing posthumous publicity rights because the subject is still in its infancy in our nation. It’s the legal precedents that provide insight into its evolution and development. Recently, in the case of Krishna Kishore Singh v. Sarla A. Saraogi & Ors.,[3] this question was raised. In this case, the father of late Sushant Singh Rajput filed a lawsuit, claiming that any attempt to use the deceased's name, caricature, or likeness in the film "Nyay: The Justice" would violate his or any other legal representative's personality rights and that the movie was released without their consent. Sushant Singh Rajput was one of the most well-known actors in Indian entertainment. The plaintiff relied on the case of Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani,[4] in which The Gujarat High Court imposed an order against third parties pursuing financial benefit without the legal heirs' approval and extended posthumous protection to the plaintiff's heirs.
The Court relied on two aspects to decide the case.
· Firstly, the Right to Publish which was guaranteed in Article 19 1(a)[5] of the Constitution, according to which no consent is required to be obtained to publish the facts present in public records.
· Secondly, interestingly, the Hon’ble Supreme Court of India upon assessing the judgment of K. S. Puttaswamy v. Union of India,[6] observed that the Right to Publicity is indissolubly linked to and derived from the Right to Privacy, and since the Right to Privacy expires with a person's death likewise, the Right to publicity also ceases to exist after death of a person.
Therefore, relying on this, the Court denied the claim of posthumous publicity rights to the plaintiffs.
However, it becomes crucial to consider the difference between privacy rights and publicity rights. Comparable to the rights to life and liberty, privacy rights are constitutional rights that belong to individuals. In contrast, personality and publicity rights are commercial rights that, like copyrights, should be transferable to heirs or legal representatives.
Similar to this, earlier in the Jayalalitha case, the niece of former Chief Minister Dr. J. Jayalalithaa asked for an injunction to prevent the production of the Tamil and Hindi films "Thalaivi" and "Jaya" in order to protect her aunt's posthumous personality. The Court relying on principle laid down in the legal maxim ‘actio personalis moritur cum persona’ which literally means that a personal right of action dies with the person, held that after the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. [7] Hence, publicity rights cannot have posthumous applicability and inalienability.
V. CAN INDIAN INTELLECTUAL PROPERTY AND DEFAMATION LAWS ADEQUATELY ADDRESS PUBLICITY RIGHTS?
Presently, in India, contracts Act, Intellectual Property Rights (hereinafter IPRs), and torts primarily regulate publicity rights. A lawsuit for the defense of publicity rights may be filed under them in the event of defamation, invasion of privacy, infringement of an individual's moral and economic rights and unfair trading practices.
The contentious question of publicity rights also came into light in the Gangubai Kathiawadi case.[8] In this instance, the late Gangubai's son sued the video's creators for criminal defamation, claiming that the film violated his mother's alleged deathbed rights to privacy and self-respect and damaged his reputation. This case was filed under Section 499 of the Indian Penal Code, 1860 which states that “it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives.”[9] Therefore, it can be said that India offers a posthumous right against criminal defamation. However, as opposed to defamation, publicity rights are concerned with the unapproved commercial use of someone's identify, while defamation is concerned with making false assertions that damage someone's reputation.
Therefore, it is imperative that the law clearly distinguishes between privacy rights, publicity rights, and defamation, as each covers distinct rights and reliefs and in the absence of statutory acknowledgements for publicity rights protection, celebrities endeavour to obtain protection via intellectual property laws. 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.[10]
However, celebrity publicity rights are one-of-a-kind, and they cannot be adequately addressed under any of the IPR lawsor defamation. For instance, though Section 22 of the Copyright Act, 1957 grants protection to authors, 60 years after their death, the act merely defines a ‘performer’ under Section 2(qq) and grants them protection but nowhere draws a distinction between a performer and a celebrity.
VI. POSTHUMOUS PUBLICITY RIGHTS: JURISDICTIONAL VARIANCES IN IPR LAWS ACROSS GLOBE
The merging of IPRs with the relentless progression of time has led to a complex network of challenges concerning the transfer of individuals' works after their demise.[11] Hence, it becomes crucial to investigate the worldwide scenario of IPRs encompassing analysis of legal structures and difficulties encountered that influence the course of a creator's work after their demise.
In certain jurisdictions following different legal systems, there exists a distinction in the recognition of posthumous publicity rights. Some states in the US acknowledge the rights of deceased individuals to control their public image after death, either through state common law or specific legislation. Generally, these legal provisions mandate obtaining consent from the rightful heirs of the deceased individual before utilizing their image for commercial purposes.[12]
One of the earlier landmark rulings by the California Supreme Court on the legal foundations governing celebrities' rights to their public image was in the case of Lugosi v. Universal Pictures.[13] At that point, the Court came to the firm conclusion that departed people had no authority to govern how their likeness was used, and that their successors could not inherit such rights. However, as a result of this decision, ‘California Civil Code Section 3344.1’[14] was introduced in 1984, thus recognizing the idea of posthumous publicity rights. The lifespan of these post-mortem rights is seventy years. Moreover, the Code clearly states that anyone who died before this law went into effect can still transmit these rights retrospectively through testamentary.[15]
The Supreme Court of Georgia rendered a major decision in the historic case of ‘Martin Luther King v. American Heritage Products Inc.,’[16] confirming that the right to publicity survives the death of its owner and can be inherited and carried on. According to the Court, granting the right of publicity not only recognizes but also encourages people's efforts and creativity. As a result, many states have implemented unique policies to protect the rights of deceased celebrities. These laws, in general, give heirs of the deceased a transferable asset in their identities, and any economic exploitation of this asset requires permission from its legitimate holders.[17]
A thorough understanding of legal frameworks and cultural factors is necessary for managing IPRs for deceased individuals in the United Kingdom. The foundation of this approach is found in estate laws and probate procedures, which regulate inheritance and asset distribution, including copyrights that last for the creator's lifetime plus an extra 70 years.[18] The UK meticulously maintains a delicate balance between commercial interests and the value of creators' works, demonstrating its unshakable dedication to safeguarding cultural heritage. Furthermore, an extra degree of protection is provided by the domain of moral rights, which includes both attribution and integrity, underscoring the significance of upholding authors' rights even after their passing.[19]
In United Kingdom, regarding publicity rights after death, it is important to note that the estate of deceased individuals does not possess the authority to take legal action for perceived harm to the reputation of said individuals. Nevertheless, individuals or entities seeking to utilize copyrighted material or recognizable assets associated with the deceased individual, for commercial purposes are obligated to secure consent from the heirs of that individual before any such exploitation can occur.
The intellectual property of individuals in European Union countries is safeguarded by copyright for a period of seventy years following their demise. In the case of a collaborative creation, copyright protection lasts for seventy years after the death of the last surviving author.[20] Copyright duration outside the European Union, for countries that have ratified the ‘Berne Convention,’ may differ but must persist for at least 50 years after the author's death.[21]
In China, the legal system contains special guidelines pertaining to deceased individuals' IPR. These rules provide precise restrictions about copyright duration and inheritance.[22] The nation's inheritance laws are essential for managing IPRs after death since they facilitate the lawful transfer of assets, including trademarks and copyrights, to legitimate heirs or beneficiaries. Economic rights are guaranteed even after death because copyright protection is in force for the duration of the creator's life plus an additional fifty years. A further crucial component to preserving a creator's legacy is the acceptance of moral rights, which include elements like originality, identification and maintaining a work's integrity.[23]
VII. CONCLUSION AND SUGGESTIONS
It is critical to recognize that everyone has the right to protect their reputation and to take the appropriate precautions against third parties using their personal and identifying information without authorization. Publicity rights and privacy rights are not interchangeable concepts. A person's personal existence ends with their death, therefore the issue of invasion of their private space might not come up afterward. Nonetheless, a person's celebrity status does not instantly vanish after they pass away. Such a status is nevertheless valuable commercially and can be appropriated for financial gain. Indeed, it is conceivable for a celebrity's fame to increase greatly after their passing. A realistic examination of the idea that publicity rights do not survive death can reveal that a deceased celebrity's name, likeness, signature, photo, etc. could be exploited for financial advantage. Therefore, the legal heir's autonomy and right to approve or disapprove the economic exploitation of the celebrity's image or certain personality traits should not be restricted after the star passes away. Furthermore, it is imperative that there be an express statutory provision for the same, as this will offer suitable and sufficient protection and further absolve the Indian courts of all celebrity rights-related issues.
Similarly, achieving effective management and preservation of intellectual property rights after demise of an individual requires careful coordination on a global scale also. It is crucial to adapt to various copyright terms, and digital complexities. The synchronization of international efforts is essential to successfully safeguard and handle the creative legacies of deceased individuals. Striking a balance between economic concerns and cultural principles within the complex realm of global legal systems continues to be of utmost importance.
[1] R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
[2] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[3] Krishna Kishore Singh v. Sarla A. Saraogi & Ors,2023 SCC OnLine Del 3997.
[4] Kirtibhai Raval v. Raghuram Jaisukhram Chandrani, 2010 SCC OnLine Guj 13952.
[5] INDIA CONST. art. 19, Cl. (1).
[6] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[7] Deepa Jayakumar v. A.L. Vijay, 2021 SCC OnLine Mad 2642.
[8] Sharmeen Hakim, Gangubhai Kathiawadi Movie: Bombay High Court Stays Defamation Proceedings Against Alia Bhatt, Sanjay Leela Bhansali and Others (Dec 22, 2021,4:05 PM),
[9] Indian Penal Code, 1860, § 499.
[10]The Trademarks Act,1999, No. 47, Acts of Parliament,1994.
[11]Dr. Pratima Narayan, Beyond the Grave: Exploring the Legality of Posthumous Publicity Rights, SCC Online (Oct. 24, 2023), https://www.scconline.com/blog/post/2023/10/24/beyond-the-grave-exploring-the-legality-of-posthumous-publicity-rights/.
[12] Samuel D. Warren II and Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 194-96 (1809).
[13]White v. Samsung Electronics America, Inc., SCC OnLine US CA 9C 1(1992).
[14]Williams Michael Hicks v. PGA Tour, SCC OnLine US CA 9C 159 (2018).
[15] Souvanik Mullick* & Swati Narnaulia, Protecting Celebrity Rights Through Intellectual Property Conceptions, 1 NUJS L. REV. 1, 4-8 (2008).
[16] American Legion et al v. American Humanist Assn. et al, SCC OnLine US SC 73 (2019).
[17]Ibid.
[18]Shaurya Nagpal, The Intellectual Property Regimes: Compare and Contrast in India and UK, JUDICATEME (Nov.18, 2023), https://judicateme.com/the-intellectual-property-regimes-compare-and-contrast-in-india-and-uk/.
[19]Ibid.
[20]J Berg, Grave secrets: Legal and ethical analysis of postmortem confidentiality, 34 CON. L. REV. 81-122, 94 (2001).
[21]Edina Harbinja, Does the EU Data Protection Regime Protect Post-Mortem Privacy and What Could Be The Potential Alternatives?, SCRIPTED (2013), https://script-ed.org/article/eu-data-protection-regime-protect-post-mortem-privacy-potential-alternatives/ .
[22]Joseph Longo, A Brief Analysis of the Chinese Intellectual Property Regime, MICHIGAN STATE UNIVERSITY (2019), https://a-capp.msu.edu/article/a-brief-analysis-of-the-chinese-intellectual-property-regime/ .
[23]Ibid.
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