Post-mortem Personality Rights and their relevance in Jayalalithaa’s Biopic Suit

“The nicest thing is to open newspapers and not to find yourself in them.” – George Harrison

Being a well-known personality could cost you your personality rights, at times. Living a life which requires you to be cautious of your every move is quite a difficult one. Being a celebrity comes with a lot of baggage because you’re not just any other individual in the eyes of the world. Your name carries weightage which is measured by the commercial value attached to your persona. In order to protect oneself from being freely exploited for this commercial value, laws such as the right to privacy and right to publicity come into play. These laws ensure the right to protect one’s individuality, their personality, characteristics and traits linked to them.

The scenario in India with regard to these personality rights are not particularly clear and have no express statutory mention. These laws are still in their developing stage. Personality rights can be recognised as those rights which are vested in a public figure who has acquired a reputation and personality which adds to the commercial value of their individual persona. Personality rights are not recognised distinctly under Indian law. Instead, these rights are projected through the right to privacy and the right to publicity.

Right to publicity can be seen as a right to protect one’s image from being exploited commercially without their consent. Right to privacy is that right which allow one to keep their life private. It allows them to protect their personality from being represented in public without permission.

These rights have been safeguarded by the Supreme Court and various High Courts. It has been emphasised that the right to publicity and the right to privacy are fundamental rights which are impliedly protected under Article 21 of the Constitution of India. In the case of Justice KS Puttuswamy (Retd.) v. Union of India,[1] the Supreme Court found that publicity is an element of privacy and the same is protected as a fundamental right.

There are other laws which have protection similar to that of personality rights. The Trade Marks Act, 1999 protects names, images, pictures, signatures, etc. provided that they satisfy the prerequisites required to be fulfilled in order to be considered a trademark. The Copyright Act, 1957 protects the moral rights of copyright owners. In case of an infringement, the copyright owner can bring up a claim to show that along with the infringement of the copyright there has also been a violation of his/her personality right. The Tort Law of Passing-off which is often recognised under the trademark law also protects one’s persona.

Jayalalithaa’s Biopic Suit

A very recent event with regard to the right of privacy and publicity arose when former Tamil Nadu Chief Minister Jayalalithaa’s niece, Deepa Jayakumar filed a suit against the director and the producer of the film “Thalaivi” and against the producer of the web-series “Queen”. Deepa Jayakumar filed a suit for seeking a stay on the release of these projects which are allegedly based on her Aunt’s life. The plaintiff stated that the director and producers did not have the legal right or authority to release their film or web-series without seeking consent of her and her family. She claims that the biopics would interfere with her right to privacy. She also stated that it was important and necessary to inspect and verify the stories of these projects in order to make sure that Jayalalithaa’s dignity remains intact. Deepa Jayakumar essentially filed a suit to protect the personality rights of Jayalalithaa and to safeguard the privacy rights of her and her family and has claimed that her consent be taken to produce the film or web-series.

The Madras High Court gave an order against the plaintiff. The order covered the following-

  • The Madras High Court held that the director of the film “Thalavi” which is based on the book “Thalavi” has full adaptation rights and the film will in no way cast a stigma on the plaintiff as she is not portrayed or mentioned in any scene of the movie. This way her and her family’s privacy is protected.
  • With regard to the web-series “Queen”, it was held that the web series is based on the book- “Queen” and this book is one which is inspired by true events.
  • The issue of inheritance of personality rights could not be prima facie decided by the court. It was of the opinion that this would have to await a trial and final disposal.
  • The court saw a tussle between the plaintiff’s right to privacy and the respondent’s right to freedom of expression. The court inclined more towards the respondent’s right to freedom of expression.
  • As regards the film’s director and producer, the court did not issue any directions. Although, the producer of the web-series was directed to provide a disclaimer stating that it is a work of fiction and the resemblance to real persons coincidental and not intentional. It was also directed to make that the no character which closely resembles the plaintiff is depicted in the series pending the adjudication of the suit.

Observation of Post-mortem Personality Right in the Suit

As observed above, the order has given more weightage to the right to privacy and no decision was taken with regard to the right of publicity. The case includes the posthumous use of publicity rights. These are also known as post-mortem rights. On reading the order issued by the Madras High Court, it can be seen that one of the respondents relied on the case of Makkal Tholai Thodarpu Kuzhumam Ltd. vs. Mrs. V. Muthulakshmi,[2] also knows as ‘The Veerappan case’. In this case, the Madras High Court  held that the right to privacy of Veerappan did not subsist post his death and with respect to the undertaking that right the right to privacy of his wife and daughter would in no way be affected. No case is made out of an interim injunction to restrain the release of the serial “Santhana Kadu” subject to the condition that it would be based on public records and field information.

The mention of post mortem rights was also made in a submission made by the respondent where the judgement given by the Kerala High Court in the case of M.P Raju and others v. T.G. Chako and others[3] was relied upon. The Kerala High Court in this case held that a complaint with regard to defamation of a deceased person can be made only by his family or his near relatives. The respondent took into consideration the word “Family” which was used by the Kerala High Court. It was observed that the term family under Section 499 of the Indian Penal Code would be understood so as to include only the husband, wife and children. This essentially shows that immediate family members of a deceased person would inherit the deceased person’s right.

Conclusion

The order made no conclusions on the post-mortem personality rights of Jayalalithaa. There is no statute with regard to post-mortem rights of an individual in India which makes is unclear as to whether there would be inheritance of these rights after the individual’s death.

Author:  Sanika Chandekar, 4th Year-BA LLB student of Symbiosis Law School, Hyderabad, intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at niharika@khuranaandkhurana.com

References:

[1] (2017) 10 SCC 1.

[2] (2007) 6 MLJ 1152.

[3] 2005 SCC Online 430.

[4] Madras High Court Order: O.A.No.1102 of 2019 in C.S.No.697 of 2019.

[5] Makkal Tholai Thodarpu Kuzhumam Ltd. vs. Mrs. V. Muthulakshmi, (2007) 6 MLJ 1152.

[6] M.P Raju and others v. T.G. Chako and others, 2005 SCC Online 430.

[7] Justice KS Puttuswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

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