We, humans, have an odd penchant for worshipping others of our kind who’ve hit the jackpot of fame and fortune. Enter the celebrity, that shiny beacon of societal adoration. In India, the term “celebrity” is not officially defined in any legal texts. The Delhi High Court in the case of Titan Industries Ltd. v. M/s. Ramkumar Jewellers, however, gave it a shot, and described a celebrity as “a famous or a well-known person” and “merely a person who many people talk about or know about”.
But with the baggage of fame comes a greater need for protection as it’s not just about living the dream, but also about protecting it. While the law and the courts have recognised the importance of protecting the unauthorized usage of a celebrity’s name, likeness, voice, nickname/voice imitation or a look-alike, they come with an expiry date (literally!). So, what happens after the celebrity has passed on? Do these rights go to the grave with them, or can they continue to be protected?
Posthumous Publicity In The Legal Spotlight
Posthumous publicity rights are all about who controls a person’s name, image, and likeness after they’ve kicked the bucket. The laws around this are especially important today, thanks to technology’s ability to bring the dead back to life digitally.
In civil law countries, these rights are well-guarded, with comprehensive laws in place. But in common law countries, it’s more of a legal wild west, relying heavily on case law.
Personality rights have been developed based on two principles of right to privacy and right to publicity. right to privacy includes the right to be left alone, to be forgotten and the identity of a person without their consent is violative of this right. Right to publicity is when the identity of a famous personality is used in advertising without their consent, wherein that celebrity has a right to control when, where and how their identity should vest. The rules on posthumous publicity rights vary wildly across the globe. Some common law jurisdictions let the courts handle things, while others, like certain provinces in Canada, tuck these rights neatly under the right to privacy.
India: A Developing Narrative
In India, the right to publicity is a key part of the right to privacy, which was officially recognised as a fundamental right by the Supreme Court in the Puttaswamy case. The court also waded into the murky waters of personality rights, laying down some ground rules.
The right to publicity includes:
1. Validity: The person must have a legally recognized claim to their identity or persona.
2. Identifiability: The misuse by another must clearly identify the celebrity.
The idea of posthumous publicity rights in India is still in its nascent stages, evolving through important court rulings. In 2007, the Madras High Court took on the case of Makkal Tholai Thodarpu Kuzhumam Ltd. v. V. Muthulakshmi. Here, the court decided that privacy rights die with the individua. This position was further upheld in the Deepa Jayakumar case, where the niece of the late Tamil Nadu Chief Minister Jayalalitha tried to stop the release of a film and web series about her aunt’s life. The court had to wrestle with whether these rights could be inherited, which was answered in the negative.
In Krishna Kishore Singh v. Sarla A. Saraogi, the court grappled with whether commercial celebrity rights, like personality or publicity rights, should live on after the celebrity’s death. However, the Court observed that publicity rights are inextricably linked to and emanate from the right to privacy under Article 21 of the Constitution. Further, relying on the judgement of the Supreme Court in the Puttaswamy case, the Court held that as the right to privacy extinguishes with the human being, the right to publicity would also die with the person.
The United States: Protecting Fame Beyond The Grave
In the United States, some states respect the dead by protecting their publicity rights posthumously. For example, in California, after a battle in the Lugosi v. Universal Pictures case, the state codified posthumous publicity rights, giving them a 70-year lifespan. In Indiana, they take it a step further, stretching these rights for a whopping 100 years after death. Different states provide different levels of protection for deceased celebrities. However, generally speaking, these laws grant a transferable property right in the deceased’s persona to the deceased’s heirs, requiring consent from the holder of those rights before they can be used in a commercial way.
The United Kingdom: Till Death Do Us Apart
The UK does not have a specific legal protection covering personality rights. To safeguard an individual’s image, both from a dignity and commercial point of view, the UK frames the protection in the context of tort law, namely the torts of breach of confidence and passing off. Specifically with respect to posthumous personality rights, like India, UK too takes a narrow approach, as they follow the rule of “action personalis mortar cum persona” (personal action dies with the person). According to this rule, the dead have no surviving privacy rights that could be infringed. The estate, relatives, or heirs of the deceased would only be capable of bringing an action if the infringement affects them directly. However, only the tort of passing off which provides a right against unauthorised reproduction of a celebrity’s persona if it seems to evoke a false endorsement, the celebrity’s successors has posthumous applicability by the celebrity’s successors.
France: Upholding Legacy with Droit à l’Image
In France, the right to one’s image—droit à l’image—is sacred. Before using someone’s photo, you better have their consent. This right continues for 20 years after death, and the heirs can claim it. In the famous Raimu case, the court sided with the widow of an actor whose image was used without permission in a commercial campaign. In France, even the dead can win in court.
Conclusion
With the advent of generative AI, having the ability to not only generate images of celebrities post their death but also use voice cloning of beloved singers to make fresh renditions of new songs. The possibilities of posthumous use of the personality rights of celebrities are endless. Although certain jurisdictions do provide the legal heirs and successors of such celebrities the right to seek protection, it is imperative now more than ever that other countries also take a wider approach and re-look at the transferability of personality rights. However, the biggest challenge in developing the laws and jurisprudence would be balancing the rights of celebrities with the artistic and creative freedom of artist.
Authors: Sneha Makaria, Shreeya Sharma & Samriddhi Kabra