Can someone’s wishes expressed in their Will overcome the precedents on descendability of publicity rights? Bharathwaj explores this question in light of the recent controversy surrounding the use of late singer M.S Subbulakshmi’s name as part of an award. Bharathwaj is a 3rd year LLB Student at RGSOIPL, IIT Kharagpur, and loves books and IP. His previous posts can be accessed here.
Music Academy v. V Shrinivasan: “Will”ing Posthumous Privacy/Publicity Rights into Existence
By Bharathwaj Ramakrishnan
In a recent interim order (see here for a news report on this development, and for the Order see here (pdf)) issued by the Madras HC in the case of Music Academy v. V Shrinivasan, the Court had injuncted the respondent from using late M.S. Subbulakshmi’s name from as part of an award (Sangita Kalanidhi M.S. Subbulakshmi Award) that was to be presented to Carnatic singer T.M. Krishna. Reportedly, the Court gave an injunction, so as to give effect to the desire expressed by the late M.S. Subbulakshmi in her Will against using her name as part of any trust, foundation, or memorial. The case raises interesting questions about posthumous rights even though the order surprisingly never discussed it. This interim order (on the question of interim orders serving as precedents see here) is significant considering that courts in previous circumstances were not inclined to recognize the existence of posthumous privacy/publicity rights and holding on to the position of what Prof. Rothman (see here) called “no-privacy-rights-for-the dead doctrine”. In this post, I will first discuss the current state of precedents in the context of posthumous rights. Then, I will discuss the interim order in brief. Then I will show how it is different from the past posthumous cases. Finally, I will discuss the impact of the Will on Posthumous rights and finally, what is the relevance of the desire expressed by individuals in their Will with regard to the use of their name, image, or likeness after their death.
Courts and Posthumous Rights, the Position Thus Far:
This blog has seen a lot of discussion on privacy rights and one of its important sub-parts, publicity rights (see here for Akshat’s three-part post on the right to publicity, here, here, here) and its status post-death (see here)). These debates have focused on the form or in other words, the nature of the right (whether it is a property right, a tort, a constitutional right, or a quasi-property right) and also its content and scope. The status of the right lasting beyond death is an issue that turns on whether the right is to be considered a property right or a right arising in common law as a tort.
It was established in Krishna Kishore Singh vs Sarla A Saraogi (SSR) (2023)(see here, and here) that privacy/publicity rights are not descendible following existing precedent. The reason was two-fold. Starting from the Rajagopal case (1994), the right to privacy is conceived as a right arising under the law of torts and it has two facets, with one directed at private parties and the other against the state. Later, it stated that this right also provided a cause of action against the use of a person’s name or likeness for any purpose, which was seen as a violation of the right to privacy, and such right is protected under Article 21 of the Indian Constitution (here). Yet courts have deviated from this understanding and have treated the right to publicity as a property or quasi-property right (see here). The issue of privacy/publicity rights extending beyond death was initially dealt with in Deepa Jayakumar vs A.L. Vijay (2019), it rejected the existence of a posthumous right of publicity by adopting the position taken in Rajagopal. It combined this understanding from Rajagopal with an old common law maxim which stated that “actio personalis moritur cum persona” or personal cause of action dies with the parties (see here for a paper discussing its murky common law origins) which in turn was stated by the Supreme Court in Melepurath Sankunni Ezhuthassan vs Thekittil Gopalankutty Nair (1985) in the context of defamation when referring to Section 306 of the Indian Succession Act. The Court in the Deepa Jayakumar case, concluded that the principle applied to the right to privacy/publicity since it is a right arising in tort law and hence, the right to privacy/publicity is extinguished with the person’s death.
The Interim Order
Now, coming to the interim order passed by the Madras High Court. The major nub of the issue was that the grandson of the late MS Subbulakshmi had filed a suit seeking firstly a permanent injunction against the issuance of the “Sangita Kalanidhi M.S.Subbulakshmi Award” with M.S. Subbulakshmi’s name in it and secondly, an injunction against issuing the award to T.M. Krishna as he has written some articles that the plaintiff considered to be offensive to the memory of Late M.S. Subbulakshmi (see here, and here). The interim injunction was granted to prevent the use of the name of the late M.S Subbulakshmi to give effect to the wishes of the deceased.
Pious Wishes and Desires of the Deceased:
The most interesting fact about the interim order and the case in general, which was absent in previous cases, is the existence of a Will expressing a desire by the future-deceased (Late M.S. Subbulakshmi) regarding the use of their name, likeness, or other attributes post his/her death. Attempting to manage the future use of one’s image and likeness through the legal instrument of Will is not new; Robin Williams barred the use of his name and likeness from being used for 25 years after his death (here). But in India, from existing precedent, as was discussed above, privacy/publicity rights emerge in Tort law, have constitutional roots, and when combined with an old common law maxim, such a right is extinguished post-death due to the application of the common law maxim discussed above. Section 306 of the Indian Succession Act restricts the application of the common law maxim to certain defamation, personal injuries (etc); this was taken into account by Deepa Jayakumar and yet still stated that the right to privacy/personality does not last beyond the identity holder and that the common law maxim applies. To push this point further, a Will is defined in Section 2(h) of the Indian Succession Act as a “legal declaration of the intention of a testator with respect to his property” and Section 30 of the Hindu Succession Act allows a Hindu to dispose of any property through the legal instrument of Will. Even though the Late M.S Subbulakshmi had stated in her Will that her name would not be used as part of any trust or memorial, it might not have any legal significance as the right extinguishes with the identity holder because it is not conceived as a property right (in the context of Posthumous rights) and hence when Late Subbulakshmi passed away whatever right to privacy/publicity she might have enjoyed might be extinguished.
Property or Tort, or Does It Even Matter?
Prof. Jennifer Rothman, one of the most pre-eminent scholars on Privacy/Personality rights, observes how arguments around Posthumous rights have revolved around the question of whether the right to Privacy/publicity is a property right or is a right arising in Tort law and is a personal action (see here). Those who support posthumous rights tend to conceive it as a property right, while those who oppose posthumous rights see it as a tort or a personal action that dies with the identity holder. Prof Rothman notes how this debate about the nature or form of the right has become all-consuming and has diverted attention from articulating reasons for whether we should grant such a right in the first place (see here). In her latest paper (see here), she articulates reasons why we should consider having a posthumous right of publicity. One reason that Prof Rothman provides that could be relevant in our context of the interim order is the dignity and autonomy of the future-deceased and to provide mechanisms to communicate their desires. Yet it is important to assert here that the current legal position surrounding posthumous rights does not provide support to this understanding. Likewise one must ask to what extent such pious wishes can be upheld when significant free speech concerns are raised irrespective of how the right is conceived (for example, in the SSR case the court recognized making movies as part of free speech under Article 19(1)(a)). It also makes one wonder about the relevance of such desires expressed in Wills in the context of generative AI and deep fakes which can generate accurate representations (see here and here for Tejaswini’s post on a similar issue) of a deceased person or even a person who is alive (I request readers to provide their thoughts on this).
It is interesting to also note that the court in SSR clearly stated that an individual cannot seek to protect another person’s privacy/publicity without prior authorization, it makes one wonder to what extent a Will can provide such authorization after the person’s death ignoring the debate that is taking place with regards to its inheritability. But the Court instead of taking a nuanced approach has created a broad de-facto property right by privileging the desire of the deceased. The Court ignored existing precedent surrounding posthumous rights and merely upheld the Will of the deceased.
The author wishes to thank Swaraj, Praharsh, and his dear friend Sankarshanan VV for their valuable input.