Life Rights & Copyright The Jhund Judgment
Life Rights & Copyright The Jhund Judgment
The jurisprudence on personality rights is still evolving and it would be exciting to note whether true life events of a real person which are already in public domain can be considered property which can be bought and sold and whether the same will be entitled to copyright protection
The Hon'ble Supreme Court recently refused to lift the stay imposed by the civil courts and the Telangana High Court in the case of M/S Super Cassettes Industries Private Limited v. Nandi Chinni Kumar and Ors.1, on the release of the cinematographic film produced by Super Cassettes Industries Private Limited ("Super Cassettes") titled "Jhund" starring Mr. Amitabh Bachchan ("Film"). The issue before the courts in this matter has been violation of copyrights in the "life rights" of a particular individual. This is an interesting case as it deals with two connected individuals who have granted rights to separate entities to create a film based on their respective lives.
Akhilesh Prakash Paul ("Paul") was allegedly a gangster who turned into a soccer player, coached by Vijay Barse ("Coach") and thereafter became the captain of the Indian Slum Soccer Team in the Slum Soccer World Cup followed by becoming a football coach. Nandi Chinni Kumar ("Kumar"), after coming across Paul's story on a popular television show, had approached Paul and entered in a Life Story Rights Agreement dated 19.11.2017 for assignment of true-life story events to make a feature film in any language. Kumar and Paul entered into another agreement dated 19.2.2018 for making biopic/ feature film based on the true-life story of Paul. Paul also executed a no-objection certificate and a declaration letter to Kumar confirming that Kumar had acquired exclusive true-life story events of Paul and that Kumar was the only authorized person to make a screenplay on the life of Paul, and Kumar paid an advance of ₹5.5 lakhs out of the ₹12 lakhs to Paul for the assignment of the rights. Kumar registered a script based on the life of Paul titled "Slum Soccer" with the Telangana Cinema Writers' Association.
Kumar learned from print and electronic media about the Film produced by Super Cassettes, which revolved around the life of the Coach. Kumar sent cease and desist notices to Super Cassettes, Paul, the Coach and other co-producers of the Film. Paul sent a reply to Kumar wherein he supported Super Cassettes and the other defendants. Kumar contended that Paul admitted to him that he has signed an agreement with Super Cassettes and had received consideration, thereby permitting Super Cassettes to incorporate Paul's character in the Film.
In these given circumstances, Kumar initiated proceedings against Super Cassettes alleging that Super Cassettes, Paul, the Coach and other co-producers of the Film were all conspiring against him and that the Film would inevitably incorporate certain parts of Paul's life which are depicted in "Slum Soccer" leading to violation of the exclusive life rights granted by Paul to Kumar. The trial court held that the teaser of the Film prima facie showed that there were distinct similarities in the plot, depiction and the life and story of Paul in the Film and Kumar's registered script of 'Slum Soccer'. Though such specific similarities were mentioned by Kumar in his plaint, there was no specific denial regarding those similarities by Super Cassettes or the other defendants. The trial court granted temporary injunction against release of the Film by Super Cassettes and the other defendants, without ruling on the point of copyright infringement, primarily on the ground that the release of the Film will cause damage to Kumar.
Super Cassettes being aggrieved by the trial court order challenged the same before the Telangana High Court. Super Cassettes stated some interesting arguments in support of its case, seeking to vacate the injunction restraining the release of the Film viz.:
(a) the Film was based on the real-life incidents of the Coach and not on the life of Paul;
(b) Super Cassettes had paid consideration to Paul and obtained rights to incorporate his character in the Film;
(c) the information and incidents pertaining to Paul's life were already available in the public domain, and thus no person can claim monopoly over events that are available in the public domain;
(d) the work on the Film commenced prior to Kumar's registration of his script and that Super Cassettes had no access to Kumar's script; and
(e) Super Cassettes had already spent ₹66 crores in the production and publicity of the Film and had created third party rights by licensing digital rights.
The Telangana High Court relied on the precedent of RG Anand v. Deluxe Films2 of the Supreme Court of India, to emphasize upon the look and feel/lay observer test for infringement, even at the prima facie stage. The Telangana High Court held the possibility of similarity in expression and copyright infringement in both the films as Paul had narrated the same events and ideas to both Kumar and Super Cassettes – rendering it "possible" for the expression to be substantially similar. To that effect, the Telangana High Court held that a prima facie case of injunction was made out. Surprisingly, the Telangana High Court quoted the precedent in ICC Development (International) Limited v. Arvee Enterprises3, where the Delhi High Court held that "the right to publicity evolves from the right to privacy and can only inhere in an individual. Any effort to take away the right to publicity from the individual to a non-human entity would be violative of Article 19 and 21 of the constitution. No individual can be monopolized." Along this precedent, the Telangana High Court held that Paul would constitute a celebrity and him having "assigned" away his right – the right shall vest with Kumar (this being contradictory to the "non-human "ownership finding in ICC Development (International) Limited v. Arvee Enterprises). The Telangana High Court accordingly stated that Kumar had shown a strong prima facie case whereas Super Cassettes had not produced any documentation including the script of the Film or DVD of the Film, to back Super Cassettes' contention that Film "Jhund" was different from Kumar's work "Slum Soccer" thereby upholding the injunctions granted by the trial courts.
Being aggrieved by the Telangana High Court order Super Cassettes challenged the same before the Supreme Court contending that Kumar had agreed to an amount of ₹1.3 crores to settle the matter amicably, however, was now refusing to do so. Super Cassettes also contended that a cinematograph film was a perishable commodity and would lose its value with the litigation going on for years. The Supreme Court not being persuaded with the arguments advanced by Super Cassettes dismissed the matter, however directed the trial courts to complete the trial within a period of 6 months.
The Supreme Court has given its verdict on this case however the decision raised a lot of questions. The right to make a life story is not a statutory right. It basically involves a party authorizing someone to showcase events of their life - through a medium - in return of certain compensation.
Life rights arise from the right to publicity4. These rights allow one to commercialize their likeness and to convey certain information about their lives – which can be exploited – in return of compensation. In this case, Paul had conveyed factual/although private, information about his life to Kumar in return for ₹12 lakhs and a permission to make a movie on the same. However, can the information provided by Paul be copyrightable as the same are ideas and facts. According to the R.G. Anand5 case it is the expression of an idea or fact which can be copyrighted and not the idea or fact itself. Thus, does copying the facts or relying upon the information conveyed by Paul is sufficient to establish copyright infringement particularly in the absence of access to Kumar's work.
The reliance by the Court on ICC Development (International) Limited v. Arvee Enterprises6 wherein the Delhi High Court held that any right that arises out of publicity rights (which in fact stem out of the right to privacy) are not alienable or transferable, although they can be licensed. Hence an assignment of life rights would be void as the same would be violative of Article 217, which in light of the decision of K.S.Puttaswamy v. Union of India8, has horizontal application (i.e. to non-state entities as well). In light of this judgment was the assignment agreement entered into between Kumar and Paul void.
It will be an interesting wait to observe the developments in the concept of "life rights" "personality right" and "publicity right" in light of the Jhund judgment. The jurisprudence on personality rights is still evolving and it would be exciting to note whether true life events of a real person which are already in public domain can be considered property which can be bought and sold and whether the same will be entitled to copyright protection. This case also raises a pertinent factual issue, whether two people having interconnected life stories, can grant copyrights to separate entities and if they can, will the overlap in these individual's respective lives amount to infringement. A third and very important point of discussion arises from this case – whether a producer of a cinematograph film can be held liable for infringement and have to face losses when an individual grants rights to 2 separate people for exploitation of his life story.
Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.