Alliance Center for
Intellectual Property Rights
JUDICIAL ANALYSIS OF MORAL RIGHTS OF THE CELEBRITIES POSTHUMOUSLY
December 1, 2023
*Ms. Anchal Kanthed
**Ms. Sameena Sayyed
"Intellectual property is the oil of the 21st century. All today's men have made their money out of intellectual property."
-Mark Getty
INTRODUCTION
Roscoe Pound’s theory of “the law must be stable, and yet it cannot stand still” is extremely relevant in this age where law, being a form of social engineering, must play a role in balancing the competing interests of society. The unreleased works of celebrities become the new trends even after their death. This had become prominent after the death of Sushant Singh Rajput in India. Moral rights facilitate the author to control the fate of their work when an individual creates an artistic work with their intellect and hard work. Moral rights under their purview protect the right of the author to seek credit for her work and have the rightful say in controlling the use of their creation. Within the domain of celebrity photographs, the legal framework regarding moral rights is conspicuously devoid of explicit provisions. The copyright law generally grants the original creator of an artistic work the rights of paternity and integrity. Therefore, the photographer is typically credited with these moral rights when it comes to celebrity images. Photographers are entitled to some moral rights, but the fundamental appeal of celebrity images stems from the person's reputation and personality. Although celebrities are the primary subject matter of photographs, they are frequently not given explicit moral rights over their own photos. The law recognizes the photographer's rights as the originator of the work, granting celebrities only limited authority over the utilization and dissemination of photos that depict their appearance.
This legal intricacy demonstrates the intricate interaction between the rights of individuals who create material and the individuals who are depicted in that content. Therefore, it is pertinent to examine the tool of moral rights that can help protect the works of the posthumous. Moral rights may be claimed during the life of an individual and also by the people related to them after their demise. Due to increased instances of legal heirs claiming moral rights to protect the rights of the dead, there needs to be a settled position in the law regarding the laws under which such moral rights are protected and how an individual can use such provisions of the law.
Moral rights were created in French law; they were added to the Berne Convention of 1886 by The Rome Act of 1928.
Article 6bis (1) of the Berne Convention provides:
“Independently of the author’s economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.”
Section 57 of the Copyright Act of 1957 mentions the special rights of an author's work. Moral rights are not granted by any authority or any individual. It is automatically provided to the author. All the things mentioned above stand correct for a person who is alive, but does the moral right of a person die with them? Do celebrities or people in the public eye have any right regarding everything that happens to their image after death?
The legal protection of moral rights for celebrities, particularly posthumously, is a complex issue involving intellectual property law and cultural rights. These rights, which typically include the right of attribution and the right of integrity, protect the creator's connection to and reputation associated with their work.
It could be seen in several cases around the world and in India that the fame of a public figure left behind after their demise is often used maliciously, and the legal heirs of such public figures have raised questions regarding such acts. Furthermore, when the case proceeded to the Court of Law, the relatives complained and asked the Court to issue an injunction stopping these actions right away.
ANALYZING JUDICIAL TRENDS DEALING WITH THE MORAL RIGHTS OF CELEBRITIES POSTHUMOUSLY
Enforcing moral rights after a celebrity's death can be challenging, as the deceased individual cannot actively protect their rights. Since no explicit statutory provision governs the moral rights of celebrities after their death, the application of moral rights can vary by jurisdiction, with some countries having inalienable rights that can be passed down to heirs or beneficiaries. Judicial analysis of moral rights in posthumous cases often relies on previous legal decisions and precedents.
United States
Case: Martin Luther King Jr. Center for Social Change, Inc. v. American Heritage Products, Inc.( 1982)
In this case, the defendant company sold the rights of Dr. Martin Luther King Jr. for commercial purposes. The U.S. Court held that celebrities have the right to publicity even after death. Any such publicity using the name of a posthumous celebrity involves the person's name and fame. Using such a name without consent and financial gain is a tort.
Case: Price v. Hal Roach Studios Inc.(1975)
The plaintiffs in this case were Oliver Hardy and Stanley Laurel, widows, who were sole beneficiaries of their husbands' estate and claimed exclusive rights to their husbands' merchandise. The Court held in favour of widows in getting the rights attached to their deceased husbands.
Case: Reeves v. United Artists. (1983)
In this case, Jimmy Reeves' claimed the rights to Louise Reeves' merchandise. The Court held the contrary to the right to publicity by opining that the proper ends with the celebrity's death, and any such claims that arise after the death must be dismissed.
Case: Lugosi v. Universal Pictures Co. (1972)
In this case, the Court held that any company or individual exploiting the celebrity's personality (Bela Lugosi in this case) to earn profit out of it, the Court must allow the relatives to take against their relative's personality.
Germany
Case: Marlene Dietrich Case (1999)
In this case, the image of a deceased actress was used to promote a musical album about her life. The daughter claimed the personality rights of the deceased celebrity mother. The Court held that there can be posthumous protection of personality rights, which the legal heirs of the individual can inherit.
India
Case: Kirtibhai Raval & Ors v. Raghuram Jaisukhram Chandrani. (2010)
The Gujarat High Court held that the posthumous right to publicity is available to celebrities after their death. This right can be transferred to their ‘direct descendants'. The rights can be transferred to the descendants, who can claim the violation of those rights.
Case: A. Balakrishnan v. R. Kanagavel Kamaraj and Anr. (1999)
Certain rights are dissolved with the person's death as given under Section 306 of the Indian Succession Act, 1925. Any cause of action arising out of the defamation of the celebrity ceases to exist when the celebrity dies.
Case: Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair. (1986)
The Court held that the family members cannot inherit goodwill or reputation earned by an individual during his/her lifetime. The plaintiff's cause of action under defamation of a son who has died will not survive. Thus, there are no moral rights for posthumous celebrities.
Case: Krishna Kishore Singh v. Sarla A. Saraogi & Ors. (2021)
In this case, the father of Sushant Singh Rajput (SSR) claimed rights after the death of SSR for not producing a film/biopic based on his life as a legal heir. The Court rejected the plaintiff's contention because the defendants are not exploiting the name of SSR to make merchandise for commercial purposes. Instead, they represent that their work on the biopic would be 'fictional’ in nature. Thus, no celebrity or moral rights exist with the father of SSR.
Although the moral right to integrity is non-economic and may not be preserved by legal representatives as accurately as the original author, the Union Budget has increased IPR allocation by 15%, suggesting mechanisms to fund moral rights protection in culturally significant works.
Section 57 of the Copyright Act of 1957 provides for indefinite moral rights, but how they would be enforced after the author's term expires raises concerns about the possibility of arbitrary exercise of these rights. As inheritors of the estate, legal representatives may choose not to pursue the moral right, perhaps resulting in costly litigation. Courts should have supervisory jurisdiction in such circumstances and examine applications from interested parties such as family members, collaborators, writers, cultural organizations, and copyright societies.
CONCLUSION
In various Indian statutes, it has been mentioned that certain rights associated with an individual exhaust with the demise of such a person, but rights such as moral rights are differently associated with an individual as compared to other property rights. Celebrities, being in constant public and media scrutiny, often come to face their privacy and personal lives being violated. There are multiple cases of discriminatory statements and acts targeted towards such public figures that are far away from the truth and highly demeaning. Imagine the entirety of it being directed at a deceased individual. While it is a widely accepted principle to allow the departed to rest in peace, the individual who violated moral rights abstains from adhering to such ideals. It is indeed a struggle to safeguard the integrity of the work from posthumous illicit exploitation, which ultimately results in damaging the legacy. Such instances of exploitation can be observed in cases where the author is not the owner of the work and is associated with either some production agency or publishing house.
Section 57 of the Copyright Act of 1957 provides for indefinite moral rights, but how they would be enforced after the author’s term expires raises concerns about the possibility of arbitrary exercise of these rights. As inheritors of the estate, legal representatives may choose not to pursue the moral right, perhaps resulting in costly litigation. Courts should have supervisory jurisdiction in such circumstances and examine applications from interested parties such as family members, collaborators, writers, cultural organizations, and copyright societies. The moral right to integrity, is non-economic and in many instances may not be preserved by legal representatives as accurately as the original author, thereby necessitating the copyright law to adapt to such situations.
RECOMMENDATIONS:
- Guidelines and rules for exercising Section 57 can be issued to address these concerns, including the deceased in implementing Section 57, towards protecting the integrity and legacy left by the artist.
- Contractual agreements between the celebrities, artists and the production company signed during a celebrity's lifetime can be more specific on the moral rights on the demise of the celebrities that can influence the enforcement of their moral rights after death.
- Courts can grapple with balancing the interests of the deceased creator’s legacy and the public interest in accessing and preserving cultural heritage in shaping legal decisions.
REFERENCES:
- Betsy Rosenblatt, Moral Rights Basics, Harvard Law School, https://cyber.harvard.edu/property/library/moralprimer.html (last assessed at 21 oct 2023).
- Berne Convention.
- The Copyright Act, 1957, § 57, No. 14, Acts of Parliament, 1957 (India).
- Martin Luther King Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 296 S. E. 2d 697.
- Price v. Hal Roach Studios Inc., 71 Civ 413.
- Reeves v. United Artists, 572 F. Supp. 1231 (N.D. Ohio 1983).
- Lugosi v. Universal Pictures Co., 172 U.S.P.Q 541 (1972).
- Marlene Dietrich Case, BGH 1 ZR 49/97.
- A. Balakrishnan v. R. Kanagavel Kamaraj and Anr., Appeal from Order No. 262 of 2007.
- A. Balakrishnan v. R. Kanagavel Kamaraj and Anr., 1999 CTC 247.
- Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, AIR 1986 SC 411.
- Krishna Kishore Singh v. Sarla A. Saraogi & Ors., C.S. (COMM) 187/2021.
- Budget 2023: Allocation for IPR ecosystem up by 15% to Rs 329 crore, Business Standards, https://www.business-standard.com/budget/article/budget-2023-allocation-for-ipr-ecosystem-up-by-15-to-rs-329-crore-123020101801_1.html (last assessed at 21 oct 2023).
Authors:
*Ms. Anchal Kanthed
Law student, Institute of Law, Nirma University.
**Ms. Sameena Sayyed
Law student, Institute of Law, Nirma University.
Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights(ACIPR) and the Centre does not assume any responsibility or liability for the same.