Introduction
Name, identity and likeness (NIL) are unique identifiers that encompass a person’s attributes. The right to control the commercial use of such attributes is known by a legal terminology called “publicity rights” or “personality rights”. It refers to the legal protection of an individual’s name, personal identity, or some recognisable characteristics, such as the person’s appearance, image, voice, or distinctive mannerisms. Publicity right is derived from the broader concept of privacy rights that encompass individuals’ right to maintain control over personal information. Within the realm of privacy rights, publicity rights specifically focus on controlling individuals’ rights over the use of the name, image, likeness, or any other identifiable aspect of the persona, even after their death. Such a right is called posthumous publicity rights or post-mortem publicity rights. It is worth noting the specific laws and regulations surrounding these rights owing to the technology’s exponential progress and digital reproductions. While some civil law countries provide extensive legal provisions on posthumous publicity rights, common law jurisdictions are silent on it and rely largely on case laws.
The privacy right, being a personal right, dies with the person owning such a right. This is based on the legal maxim actio personalis moritur cum persona. For example, civil wrong or tort action based on defamation is in personam and does not survive the death of the complainant.1 But jurisdictions across the world have recognised publicity rights to survive beyond the person’s life. Section II brings out the definition of publicity rights and the key elements associated with publicity rights. Section III comprises a landscape of posthumous publicity rights in the context of varying legal frameworks across some of the civil and common law jurisdictions. In Section IV, important judicial interpretations of the Indian courts on posthumous publicity rights and the varying legal tests and considerations applied by the courts in determining the extent of these rights will be examined.
Definition of Publicity Rights
Publicity rights have evolved over time and in response to the unauthorised exploitation of a person’s name, identity, and likeness, especially with the growing media and commercialisation. The early development of publicity rights was closely tied to the broader recognition of privacy and dignity as fundamental rights. Article 12 of the Universal Declaration of Human Rights (UDHR)2 states that:
12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
This has been enshrined in various written constitutions of the world as a fundamental right to privacy, including India.3
The legal definition of publicity rights may vary from jurisdiction to jurisdiction. In different countries, the legal regulation and interpretation of the term are different. One of the most quoted definitions of publicity rights is in Section 46 of the Restatement (Third) of the Unfair Competition Act of 2006. The definition is as follows:
“One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness or other indicia of identity for purposes of trade is subject to liability for the relief appropriate under the rules stated in Sections 48 and 49.”
The International Trademark Association defines the right of publicity as follows:
The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness or other indicia of personal identity — such as nickname, pseudonym, voice, signature, likeness, or photograph — for commercial benefit.
There are also provisions under trademark laws of some jurisdictions that aim to protect the name, image, and likeness of reputed persons from being commercially used. Section 43(a)(1) of the Lanham Act is one such provision that broadly covers protection to individuals against the use of name or likeness in claiming false endorsements or association of persons with commercial activities.4
In the Indian context, Section 14 of the Trade Marks Act, 1999 refers to the posthumous use of names and likeness. Any application for trademark registration that falsely suggests a connection with a living person or a person whose death took place within twenty years prior to the date of application must seek prior consent from such person or legal representatives of the deceased person.5
From the above definitions, it can be inferred that the key elements commonly associated with publicity rights include the following:
Identifiable persona: Publicity right protects attributes that can identify a person, such as their name, photograph, voice, signature, likeness, or any distinctive characteristics. Though theoretically, the publicity rights seem to apply to all individuals, in reality, it applies to those whose identity is worth in commerce.6 It may be celebrities or persons of reputation or even persons who are infamous. The entertainment industry uses the term “delebs” for deceased celebrities whose names, identities, and likenesses continue to generate substantial revenue after their death. For example, protecting the iconic fame of Michael Jackson’s music or the famous actress, Marilyn Monroe.
Commercial use: Publicity rights apply to situations where an individual’s identity is commercially exploited. It may be used in connection with a product or for advertising or merchandising or any other form of commercial use. To quote an instance on the commercial use of publicity rights, Albert Einstein, in his last will, had pledged his manuscripts, publication rights, royalties, and all intellectual property rights to the University of Hebrew, which he had co-founded in 1918. The use of Einstein’s image for advertising was challenged in General Motors’ case.7 Six decades later, Einstein’s name, likeness, and quotations continue to have commercial significance.8
Consent: Publicity rights arise when the individual’s consent is not obtained before using the identity or name for commercial gain. Using someone’s name, identity, or likeness without permission can constitute infringement.
Economic value: Publicity rights apply to those individuals who have a property interest in the economic value associated with their identity. It allows them to control and profit from the commercial exploitation of their persona.
Legal provisions governing posthumous publicity rights
Publicity rights or personality rights contain both commercial and non-commercial components. The commercial part is in the form of the right of publicity and the non-commercial part is the right to privacy and human dignity.9Posthumous publicity rights diverge considerably from one jurisdiction to another. While some common law jurisdictions govern publicity rights through case laws, some common law provinces in Canada like British Columbia have included publicity rights under the right to privacy. Many civil law countries provide for such protection through civil codes and other legal provisions. This section of the article provides an overview of how posthumous publicity rights are safeguarded at present in some civil and common law countries.
United States of America
The classic article “The Right to Privacy”10, written by Samuel D. Warren II and Louis Brandeis is regarded as the first publication in the United States to advocate the right to privacy, which was primarily articulated as the “right to be let alone”. Several States in the US recognise posthumous publicity rights under State common law or statute. Generally, these laws require consent from the legal heirs of the deceased persona before they are commercially exploited.
Zacchini v. Scripps-Howard Broadcasting Co.11 is an important US Supreme Court case concerning publicity rights. In this case, Hugo Zacchini was an entertainer who performed an act called the “Human Cannonball”, where he is shot from a cannon into a net that is 200 ft away. Each performance lasted approximately 15 seconds. The performance area was open only to those who had purchased a ticket to the show. A Scripps-Howard Broadcasting Company’s cameraman came to the performance with a camera and videotaped the entire performance without Zacchini’s consent. The performance was thereafter broadcast on the news. Protecting the commercial rights of the performer, the Supreme Court took the position that the transmission of a film of the entire act of the petitioner represents a substantial threat to the economic value of the performance. The Court also found that protecting the petitioner’s right to publicity gives it an economic incentive to make the investments necessary to produce a performance in the public interest. The Court further observed as follows:
19. The rationale for protecting the right of publicity is the straightforward one of preventing unjust enrichment by the theft of goodwill. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.
Lugosi v. Universal Pictures12 was one of the earlier rulings of the California Supreme Court on celebrity publicity rights. The Court had then determined that a dead person had no right to their likeness, and any right that existed did not pass to the heirs. The aftermath of the judgment was the recognition of posthumous publicity rights in 1984 under the California Civil Code Section 3344.1. The post-mortem rights extend for 70 years. The Code also clarifies that those who died before the statute’s enactment could retrospectively transfer the right via testamentary instruments or contracts. The statute applies to those who died domiciled in California.
Indiana’s statutory right of publicity is found under the Indiana Code Title 32, Section 36-1.The law provides publicity rights13 for an individual’s lifetime plus hundred years after death. The right of publicity applies to all personalities14, irrespective of whether they died before, on, or after 1994 but the alleged act or event of violation must have occurred after June 1994. The right applies to all such acts or events that occur within Indiana, regardless of the personality’s domicile, residence, or citizenship. The Indiana law also clearly lays down what does not affect publicity rights. For example, where right to publicity is used for news reporting or entertainment mediums.15 Indiana’s right to publicity also includes fundraising for commercial use.
The most recent legislation on posthumous publicity rights was introduced in New York in 2020.16 The new law recognises two type of deceased individuals — a “deceased personality”17 and a “deceased performer”18. Any person who uses the deceased personality’s name, voice, signature, photograph, or likeness on products, merchandise, advertising, or soliciting purchases of products without prior consent from the person/s to whom the publicity rights are transferred, shall be liable for damages sustained by such person or persons injured as a result thereof. The law provides a mechanism for owners of the deceased person’s rights to register their claim with the New York Secretary of State to be able to bring a claim. The term of protection under the law is 4o years after death. The law further makes it explicit that the deceased individual must have been domiciled in the State at death or, at a minimum, have resided there at death, for the posthumous publicity rights to apply.
In Martin Luther King v. American Heritage Products Inc.19, the Supreme Court of Georgia held that the right to publicity survives the death of its owner and is inheritable and devisable. The Court was of the opinion that recognition of the right of publicity rewards and thereby encourages effort and creativity.
Likewise, 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 commercial ways.
In Factors etc. Inc. v. Pro Arts Inc.20 Elvis Presley had assigned his right of publicity to Boxcar Enterprises, which in turn assigned that right to Factors after Presley’s death. In this case, Factors etc. Inc. and Boxcar had filed a suit against Pro Arts for alleged misappropriation and unauthorised use of the name and likeness of Elvis Presley. In this case, the court found that Elvis Presley had exercised his right to publicity during his lifetime by giving Parker the exclusive authority to exploit his image through Boxcar Enterprises. This exclusive authority survived Presley’s death, after which it was validly assigned to Factors. For this reason, Pro Arts was enjoined from manufacturing, distributing, selling, or otherwise profiting from merchandise bearing the name or likeness of the late Elvis Presley.
United Kingdom
Unlike in the US, the United Kingdom law does not expressly recognise a right of publicity or a particular right to protect a person’s name, image, and likeness from unauthorised use. However, intellectual property rights and tort law provide limited protection for publicity rights, such as passing off or copyright infringement.21
With respect to posthumous publicity rights, the estate of the deceased personalities does not have the right to sue for the alleged damage to the reputation of the deceased. However, anyone using the deceased person’s copyright or well-known mark such as a photograph or footage must first obtain prior permission from the deceased estate for commercial exploitation.
France
France recognises and protects the right of the image which is known as droit à l’image. It is considered a dualist system where the personal right to one’s image and the commercial right to one’s image coexist.22 The right to image derives from the regulations for the protection of private life and Article XI.174 of the Code of Economic Law. Under these regulations, a person’s permission must be sought to make, display or reproduce their image.23 Generally living persons can invoke their right to image throughout their lives. After their death, the right remains for twenty years and the legal heirs can invoke the rights. An individual’s image may be used with his or her prior consent for specific, delineated purposes such as to display, reproduce or communicate the image. French law also recognises tacit permission, if the person depicted has been permitted to take photographs, display the image or reproduce it. In the case of minors, the permission of parents or legal guardians is required. As regards public persons such as singers, sportspersons, etc. permission to take images, display and reproduce is presumed, insofar as the images are taken in the course of public activities.24 The French Copyright Law allows the use of images for purposes of parody, provided it is used for informative and non-offensive purposes. Publicity rights in France are described as a blend of the moral rights of authors, privacy right, the right to protect one’s honour and reputation, and the right to control the use of one’s image.25
The 1998 case of Raimu is a popular posthumous publicity rights case in France.26 In that case, the actor’s widow filed a lawsuit against a company for using her late husband’s image in an advertising campaign. The Court granted her compensatory damages because the patrimonial aspect of image rights is descendible if the descendant’s image had acquired economic value during his lifetime.
Germany
Article 8(1) of the European Convention on Human Rights27 guarantees everyone a claim concerning their privacy and their family life, as well as their home and correspondence. This serves as a guideline for German jurisprudence as well. At a general level, personality rights are addressed by the German Constitution under Articles 128 and 229 of the Constitution. The Mephisto decision30 of the Federal Constitutional Court on24-2-1971 was a fundamental decision on artistic freedom and general personal rights. Under a clear interpretation of the provisions of the Constitution, personality right applies only to living persons. However, the Federal Constitutional Court concluded in this case that the existence of post-mortem personality/publicity rights exists from the same right guaranteed by the Constitution based on the principle of the inviolability of human dignity.
Section 823(1)31 of the German Civil Code legally recognises right of publicity as “another right”.32The right of publicity does not depend on the domicile of the right-holder. Section 201a33 of the German Criminal Code criminalises taking photographs of intimate privacy and making them available to a third party. Right to a person’s image received legal protection in 1907, under Section 22 of the Copyright in Works of Art and Photography Act (Kunsturhebergesetz, KUG). In the famous case of — Marlene Dietrich (1999)34, the Federal Court of Justice recognised the general right of personality and its special manifestations. Here, the actress’s image was used to promote the music of her life, and her daughter sued for damages for commercial use of the name and image without prior consent. The Court also held that the right to one’s picture and the right to one’s name, protect not only non-material but also commercial personality interests.35 In this case, the Court also recognised the posthumous publicity right. Regarding the duration of such rights, the former Copyright Law of 1907 provided the right of publicity for a term of 10 years. Analogous to this regulation, the Court in the present case upheld posthumous publicity rights for a term of ten years. The right of publicity is protected irrespective of whether it was exercised during the person’s lifetime.36 Therefore, it can be said that publicity rights or image rights are a combination of torts, human rights, and intellectual property rights in Germany.
Spain
The right to one’s image in Spain finds its roots in the protection of the dignity of the person as it was first recognised in the 1978 Constitution. The Organic Law of 1982 provides civil protection of publicity rights in Spain. According to Article 7.6 of the Organic Law, the use of a person’s name, voice, or image for advertising, commercial, or other similar purposes is illegal. In addition, Article 8.1 lists those activities that do not interfere with the right to publicity. As a general rule, actions that have a predominant and relevant historical, scientific, or cultural interest are not considered illegal.37 The Organic Law also provides for posthumous publicity rights, whereby relatives present during the lifetime of the defendant can exercise those rights for 80 years after the death of the celebrity.38 The case of the Gala-Salvador Dali Foundation (2016) regarding posthumous publicity rights is worth mentioning. In 1982, Salvador Dali made a will in which he named the Spanish State as the universal inheritor of his work. In 1983, he founded the Gala-Salvador Dali Foundation to protect and defend his artistic creations. He died in 1989. In 2001, the Spanish Ministry of Culture entrusted the administration and exploitation of Dalí’s image rights to the Gala-Salvador Dalí Foundation. The Foundation filed a lawsuit against the Real Círculo de Arte de Barcelona for the unauthorised exhibition of the so-called “Clot Collection” of Dali’s sculpture. In addition to the intellectual property rights, the Foundation also claimed infringement of image rights in the dissemination of the artist’s images. The lower judiciary upheld intellectual property rights in favour of the foundation but rejected the claim on the artist’s image rights, noting that the Spanish law (LO 1/1982) does not grant a post-mortem right to prevent the use of images, but would be applicable only if it were to tarnish the memory of the deceased persona. Here, it was found that the suit brought by the Foundation was strictly from a financial perspective rather than a desire to preserve the memory of the artist.39Dali’s artwork has also been a subject of other intellectual property litigations as well. The Dali Foundation also filed a lawsuit against the famous Netflix series, “La CasaDe Papel” or “Money Heist”, where Dali’s image, and especially his moustache appeared on the masks used by the characters in the series to hide the identity of robbers.40
Posthumous publicity rights in India
Publicity rights play an important role in India based on the culture of celebrity worship and the importance of the name, image, and likeness of sports personalities, television and media personalities, political figures, musicians, etc. In India, the right to publicity is recognised as a part of the right to privacy. In this connection, we must also note that in K.S. Puttaswamy v. Union of India41, where the right to privacy was declared a fundamental right under Article 21 of the Constitution of India, the Supreme Court has reflected upon personality rights also and observed that:
625. Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control the commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name, and other aspects of his/her personal life and identity for commercial purposes without his/her consent.
The Delhi High Court in Titan Industries Ltd. v. Ramkumar Jewellers42 stated that a celebrity is defined as a famous or well-known person. A celebrity is a person who many people talk about or know about. The Court noted the basic elements comprising the liability for infringement of the right of publicity as follows:
Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.
Identifiability: The celebrity must be identifiable from the defendant’s unauthorised use.
Publicity rights in India are largely governed under torts, contracts, and intellectual property rights. An action for the protection of publicity rights may take the form of a defamation suit, breach of privacy, violation of economic and moral rights of the individual, unfair trade practices, etc. For example, using images of famous personalities on product packaging without prior consent for marketing and advertisement may affect personality rights.
The concept of posthumous publicity rights is relatively new and is still evolving in India. Just as in common law countries, the last two decades have also seen some notable cases involving the use of the names, images and likeness of the deceased for commercial purposes.
In 2007, the case of Makkal Tholai Thodarpu Kuzhumam Ltd. v. V. Muthulakshmi43 (Veerappan case) came up for a revision petition before the Madras High Court. The case pertained to an injunction brought by the wife and daughter of Veerappan restraining the producers from publishing, broadcasting or telecasting the teleserial in the name of “Maveeran Veerappan” or “Santhana Kadu”, that related to the life story and events of Veerappan, without the prior consent of the family. Late Veerappan’s wife and daughter contended that telecasting the serial would affect their right to privacy. The Court held that the right to privacy does not subsist beyond Veerappan’s death and regarding the right to privacy of the wife and daughter, the Court took an undertaking from the producers that the family’s right to privacy would not be affected. The petition was dismissed based on the condition that the serial would be based on public records and field information.
In Kirtibhai Raval v. Raghuram Jaisukhram Chandrani44, the Gujarat High Court upheld the trial court’s injunction on the depiction of the life of late Shri Jalram Bapa. He was known for his philanthropic work during his lifetime. The injunction suit was filed by a direct descendant of the late Jalram Bapa, restraining the defendant from presenting any literary or artistic expression in respect of the life of the late Jalaram Bapa and/or his family members without their prior consent. The defendant in the present case proceeded to make the film despite the plaintiff’s legal objections to anyone from making, releasing, publishing, exhibiting, publicly or privately selling, promoting, or advertising in any format in respect of the life of late Jalram Bapa. Upholding the injunction order of the trial court, the Gujarat High Court held that no one could make a film on the life of such an iconic figure as the late Jalaram Bapa and exploit them commercially without the consent of the individual concerned or the legal heirs. However, the court did not directly address the discussion on publicity rights or posthumous publicity rights in the case.
The legal position of posthumous publicity rights was further considered in the case of the former Tamil Nadu Chief Minister Jayalalitha’s case.45 In this case, Deepa Jayakumar (appellant-plaintiff), the niece of the late Jayalalitha, brought an injunction against the producer and director of the film “Thalaivi” and also against the producer of the web series “Queen”, from making, releasing, publishing, exhibiting publicly or privately selling, promoting or advertising or entering into a film festival or otherwise producing in any format, any film, drama, serial, teleserial, web serial or any other literary or artistic expression in respect of the life of Dr J. Jayalalitha. The appellant-plaintiff contended that the producers and directors had no authority to release the films without seeking the prior consent of her family. She also contended that the personality rights of her aunt Dr J. Jayalalitha and the interest in her family’s privacy had to be safeguarded. An important issue that arose, in this case, was “Whether the posthumous right of the former Chief Minister of Tamil Nadu is inheritable by the appellant to restrain the respondents from releasing the web series or film?” On this question, the Madras High Court held as follows:
38. … After the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality rights, reputation, or privacy enjoyed by a person during his lifetime comes to an end after his or her lifetime. Therefore, we are of the opinion that “posthumous right” is not an “alienable right” and the appellant-plaintiff is not entitled to an injunction on the ground that the “posthumous right” of her aunt is sought to be sullied by the respondent-defendants by reason of the release of the film titled as “Thalaivi”.46
The Court alsoheld that the director of the film “Thalaivi” which is based on the book “Thalaivi” 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. The web series “Queen”, was found that web series is based on the book “Queen” and this book is inspired by true events.
Posthumous publicity right was again in the limelight in Krishna Kishore Singh v. Sarla A. Saraogi47. Sushant Singh Rajput was a renowned actor in the Indian entertainment industry. He died in 2020 under suspicious circumstances. His father, Krishna Kishore Singh had made a widely circulated statement that no books, movies or series should be made on the actor without the prior permission of the family. Despite the statement, Sarla Saraogi and others went ahead and made movies such as “Nyay: The Justice”, “Suicide or Murder: A Star was Lost”, “Shashank” and others, as a tribute to the late actor. Krishna Kishore Singh filed a suit against Sarla Saraogi and others before the Delhi High Court, seeking a restrain on the use of name, identity, and likeness, which would infringe upon the personality rights and right of privacy which includes the right to publicity. The suit centered around three terms that were used interchangeably — “publicity right”, “celebrity right”, and “personality right” interchangeably.
The application for injunction was dismissed on the ground that the films were completely fictional and inspired by certain events that had occurred in the past and were widely discussed and available in the public domain. However, what is more important in this case is the context of posthumous publicity rights. Narula, J. on this subject, held that whether commercial celebrity rights, such as personality or publicity rights would survive or extinguish after the death of the celebrity, requires a deeper probe. In the absence of codified laws protecting such rights, the common law which governs such rights has to be analysed. Moreover, additional questions emerge, such as whether personality/publicity right is a property, being part of the estate/assets of the deceased, as a concept detached from the theory of dignity, or can only be harmonised with the right of privacy, from where it originated.
The Court also observed that a limited class of celebrity rights that are protected as intellectual property rights, that are assignable and licensable under certain statutes can survive the death of the celebrity. But since posthumous publicity right is inextricably interlinked to and birthed from the right of privacy under Article 21 of the Constitution, the exercise of posthumous privacy rights is not permissible.
In another suit filed by the late Sushant Singh Rajput’s father seeking a permanent injunction restraining the use of the deceased person’s name, caricature and likeness in the movie “Nyay: The Justice”, the Delhi High Court held as follows: “…the rights ventilated in the plaint, that is, the right to privacy, the right to publicity and the personality rights which vested in Sushant Singh Rajput, were not heritable. They died with his death….”48 The Court further observed that:
“the right to publish, or disseminate information, even in the form of a movie, was guaranteed by Article 19(1)(a) of the Constitution49. So long as the publication did not infract Article 19(2) of the Constitution, the right was absolute. The publisher of the allegedly offending information was not required to take permission of the representatives of the person about whom the publication was being made, before making it. Nor was he required to verify the truth of the contents thereof, provided it was earlier available in the public domain”.50
In the context of the use of celebrity names, images, and likenesses for art and satire, the Delhi High Court made an important observation in Digital Collectibles Pte Ltd. v. Galactus Funware Technology (P) Ltd.51 as follows:
74. Indian law recognises the right of publicity of a celebrity to commercially exploit their attributes only to the extent of restraining false endorsements and advertisements. The right does not extend to facts or information relating to the celebrity that is neither personal nor private.
Conclusion
Publicity rights or personality rights of celebrities have recently increased significantly as the unauthorised use of the name, image and likeness of celebrities and well-known persons has increased. Regarding posthumous publicity rights, there is no specific legislation in India that specifically defines whether a celebrity’s publicity rights exist after their death. The law about the publicity rights of celebrities is itself in a nascent stage in India, leave alone the posthumous publicity rights. However, there has been some development in this area over the past decade, largely through legal precedent where courts have begun to recognise posthumous claim rights and provide some protection. The development of jurisprudence discussed in this article highlights two important observations of the Indian courts which are as follows:
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Posthumous publicity rights cannot be claimed if the work in question is based on public records and information.
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Rights of celebrities protected as intellectual property rights, which are transferable and licensable under certain laws, may survive even after the death of the celebrity.
There is no doubt that the law is well established regarding the individual’s right to privacy. It exists during the life of an individual and ceases after his death. But the personality of an individual or celebrity does not die immediately after death. However, a celebrity’s name, image, or likeness may be used for commercial gain in the form of merchandise, movies, or other digital content. It is also possible that a person’s popularity may increase after their death, which can be used by third parties for commercial gain. Therefore, it is fully justified that after the death of a celebrity, the legal heir should have the right and autonomy to adopt or allow commercial use of the persona of the celebrity.
Posthumous publicity rights are slowly developing in India, especially with the onslaught of digital content. Time will tell if the evolution of protection of rights of publicity and especially posthumous rights of publicity will eventually become a sui generis right in India. If this is to happen, the regulatory framework would have to strike a delicate balance between posthumous publicity rights and the promotion of free expression and creativity. The framework should include clear guidance on the nature and scope, duration, portability, exceptions and limitations of posthumous disclosure rights, and the enforcement of such rights.
*Lawyer, Mediator and Co-founder of Techlawlogi Consulting LLP.Editor and Consultant at EBC Learning. Author can be reached at techlawlogi@gmail.com or pratima.narayan@ebcpublishing.in.
1. Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118.
2. Universal Declaration of Human Rights, 1948, Art. 12.
3. Constitution of India, Art. 21.
4. Lanham Act, 1946, 15 USC S.1125 — False Designations of Origin, False Descriptions, and Dilution Forbidden
5. Trade Marks Act, 1999, S. 14
6. Jonathon Schlegelmilch, “Publicity Rights in the UK and the USA: It is time for the United Kingdom to follow America’s Lead”, (2016) 1 Gonzaga Law Review Online 101, <https://www.kmclaw.com/media/publication/236_Schlegelmilch%20Article%203-17-16.pdf> (last accessed 5—6-2023).
7. Hebrew University of Jerusalem v. General Motors LLC, 903 F Supp 2d 932, (CD Cal. 2012).
8. Simon Parkin, “Who Owns Einstein? The Battle for the World’s Most Famous Face”, The Guardian, 17-5-2022.
9. Marcus von Welser, Right of Publicity in 21 Jurisdictions Worldwide, Law Business Research Ltd. (2014), p. 4 <https://www.vossiusandpartner.com/fileadmin/Redakteure/Archiv/2013_Right_of_Publicity.pdf> (last accessed 23-5-2023)
10. Samuel D. Warren II and Louis Brandeis, “The Right to Privacy”, 4 Harv. L. Rev. 193 (1809).
11. Zacchini v. Scripps-Howard Broadcasting Co., 1977 SCC OnLine US SC 153 : 53 L Ed 2d 965 : 433 US 562 (1977).
12. 603 P2d 425 (Cal. 1979).
13. Indiana Code, 32-36-1-7.
14. Indiana Code, 32-36-1-6.
15. Indiana Code, 32-36-1-1.
16. New York Civil Rights Law, S. 50-F.
17. New York Civil Rights Law, S. 50-F. S. 50-F reads as “deceased personality” means any deceased natural person domiciled in this State at the time of death whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, or because of his or her death, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services.
18. New York Civil Rights Law, S.50. S. 50 reads as: “deceased performer” means a deceased natural person domiciled in this State at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument.
19. 694 F2d 674, 682 (11th Cir 1983).
20. 579 F2d 215 (2nd Cir 1978).
21. Hayley Stallard, “The Right of Publicity in the United Kingdom”, (1998) 18 Loyola and Los Angles Entertainment Law Review 565.
22. Alix C. Heugas, “Protecting Image rights in the Face of Digitalisation: A United States and European Analysis” (2021) https://doi.org/10.1111/jwip.12194 (last accessed 23-5-2023).
23. Economie, “Right to Image”, 23-3-2022 (economie.fgov.be).
24. Economie, “Right to Image”, 23-3-2022 (economie.fgov.be).
25. New York Civil Rights Law, S. 50-F.
26. T.G.I. Paris, Ord. Ref., 27-2-1970, Jcp 1970, ii, 16293.
27. European Conventionon Human Rights, Art. 8(1).
28. Constitution of the Federal Republic of Germany, 1949, Art. 1. Human dignity — Human rights — Legally binding force of basic rights.—(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.
29. Constitution of the Federal Republic of Germany, 1949, Art. 2. Personal freedoms.—(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.
(2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.
30. Bundesverfassungsgericht, Beschluss vom 24-2-1971, Az. 1 BvR 435/68 (Mephisto).
31. German Civil Code, 1881, S. 823. S. 823 reads as “Liability in damages.—(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.”
32. Hebrew University of Jerusalem v. General Motors LLC, 903 F Supp 2d 932, (CD Cal. 2012).
33. German Criminal Code, 1981, S. 201a. S. 201a reads as:
“201a. Violation of intimate privacy by taking photographs.—(1) Whosoever unlawfully creates or transmits pictures of another person located in a dwelling or a room especially protected from view and thereby violates their intimate privacy shall be liable to imprisonment not exceeding one year or a fine.
(2) Whosoever uses or makes available to a third party a picture created by an offence under sub-section (1) above shall incur the same penalty.
(3) Whosoever unlawfully and knowingly makes available to third parties a picture that was created with the consent of another person located in a dwelling or a room especially protected from view and thereby violates his intimate privacy shall be liable to imprisonment not exceeding one year or a fine.
(4) The visual media and the visual recording devices or other technical means that the principal or secondary or participant used may be subject to a deprivation order. Section 74a shall apply.”
34. Marlene Dietrich Case, BGH 1 ZR 49/97 (1999) <https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=726> (last accessed 26-5-2023).
35. Marlene Dietrich Case BGH 1 ZR 49/97 (1999) <https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=726>(last accessed 26-5-2023).
36. Hebrew University of Jerusalem v. General Motors LLC, 903 F Supp 2d 932, (CD Cal. 2012).
37. Stephen R. Barnett, “The Right to One’s Image: Publicity and Privacy Rights in the United States and Spain”, (1999) 47 American Journal of Comparative Law 555-582.
38. Alix C. Heugas, “Protecting Image Rights in the Face of Digitalisation: A United States and European Analysis” (2021) <https://doi.org/10.1111/jwip.12194> (last accessed 23-5-2023).
39. Judgment 414/2016, Fundación Gala-Salvador Dalí v. Faber Gòtic, Sl, & El Real Círculo Artístico De Barcelona (Supreme Court of Spain).
40. Anne Desmousseaux, “Casa de Papel and Intellectual Property Rights: Masks Off!”, <https://alatis.eu/en/actualites/casa-de-papel-intellectual-property-rights-masks-off/> (last accessed 25-5-2023).
44. 2010 SCC OnLine Guj 13952.
45. Deepa Jayakumar v. A.L. Vijay, 2021 SCC OnLine Mad 2642.
46. Deepa Jayakumar v. A.L. Vijay, 2021 SCC OnLine Mad 2642.
48. Simranjeet Kaur, “Privacy, Publicity and Personality Rights Not Heritable”; Delhi High Court Refuses to Stay “Nyay : The Justice” movie based on Sushant Singh Rajput.
49. Constitution of India, Art. 19.
50. Krishna Kishore Singh v. Sarla A. Saraogi, 2023 SCC OnLine Del 3997.
