Shivaji Rao Gaikwad v. Varsha Productions

Shivaji Rao Gaikwad v. Varsha Productions

IN THE HIGH COURT OF MADRAS

Decided on: 03.02.2015

2015 (62) PTC 351 (Madras)

Plaintiff filed the present case against the Defendant from using the Plaintiff’s name/image/caricature/style of delivering dialogues in the forthcoming project/film titled ‘Main Hoon Rajinikanth’ in any manner whatsoever amounting to infiltration of the Plaintiff’s personality rights.

Plaintiff’s Case:

• Plaintiff is a famous and well acclaimed actor in the Indian film industry.

• Plaintiff is regarded as a cultural icon across the world

• Plaintiff’s irrefutable acting ability, charisma, distinct personal style, mannerisms and stylised delivery of dialogue in films have contributed to his mass popularity and appeal.

• Any use/misuse of the Plaintiff’s name/image/caricature/style of delivering dialogues amounts to infringement of his personality rights.

• Plaintiff has come across various press releases, video releases, web articles and posters about the Defendant’s feature film titled ‘Main Hoon Rajinikanth’.

• The various press releases, video releases, web articles, posters and information from other sources about the feature film ‘Main Hoon Rajinikanth’ reveal that the Defendant has exploited the superhero image portrayed by the Plaintiff in various movies.

• The Defendant has not approached the Plaintiff or obtained his consent or permission either written or oral to use his name/caricature/image/style of delivering dialogue in the Defendant’s feature film.

• Plaintiff through his hard work and persistence has attained immense goodwill that even a child would relate the name “Rajinikanth” only with that of the Plaintiff.

• Plaintiff has got personality right as a celebrity and if the Defendant should not be allowed to use the name of the Plaintiff in the movie ‘Main Hoon Rajinikanth’, which has many immoral scenes as it would amount to infiltration of the Plaintiff’s personality right.

• A website page titled as ‘Hot Kavita Radheshyam As Sex Worker For Rajinikanth’ comes up when one searches for the movie ‘Main Hoon Rajinikanth’ which is also a promotion line for promoting the movie. Thus, the image and reputation of the Plaintiff amongst the public is affected.

Defendant’s Case:

• ‘Main Hoon Rajinikanth’ is not a biopic of the Plaintiff or a film based on the life of the Plaintiff/

• The Defendant has not put the Plaintiff in bad light.

• The Defendant has not put the Plaintiff’s image/caricature/style of delivering dialogues/film sequence/song/tune in the film titled ‘Main Hoon Rajinikanth’.

• The only place where the Plaintiff has anything to do with the movie is in the title ‘Main Hoon Rajinikanth’, which happens to be the first name of the protagonist in the movie.

• The cause of action seems to have been accumulated on mere apprehension and on unreliable source of information taken from the internet, which has been generated by the third party elements beyond the control of the Defendant.

• Film has no scenes of immoral nature that it could cause gross damage to the reputation/goodwill of the Plaintiff amongst the public.

• Downloaded websites pages referred to by the Plaintiff were hosted by some other third parties and not by the Defendant. Thus, the contents on the said website pages will not have any bearing in deciding the issue involved in this case.

• Infringement action is available where there is violation of specific property right acquired under and recognised by the statute. Whereas in the instant case, the Plaintiff claimed a right called ‘Personality Right; which does not have a definition and is not recognised by any statute in India; on this ground alone.

• Defendant also invited the attention of the Court to an Article in the Missouri Law Review, Volume 55, Issue-I, Winter-1990, which scrutinizes various case laws pronounced by the Courts in United States of America on the issue of unauthorised use of Celebrity name in the Movie Title, which was relevant to the instant case. In the said Article, the author, after discussing the case laws of various courts in United States of America, stated that a celebrity whose name is used in the title of a movie without the celebrity’s permission will find it very difficult to get an injunction; to recover under the right of publicity, the celebrity must show that the tile is ‘wholly unrelated’ to the movie, or that the title is actually a ‘disguised commercial advertisement for the sale of goods or services’.

Plaintiff’s Rejoinder:

• Plaintiff has specifically sought for infiltration of personality right and the Courts in India have also recognized personality rights in name and it is governed by law of Tort under the Common Law.

Court’s Observations:

From a reading of ICC Development (International) Ltd. v. Arvee Enterprises and Anr.; 2003 (26) PTC 245 and Titan Industries Ltd. v. Ramkumar Jewellers, I am of the opinion that the personality right vests on those persons, who have attained the status of celebrity. Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable.

In the instant case, on seeing the title of the impugned movie, it could be easily inferred that the public perspective about the impugned movie appears to be only with reference to the Plaintiff herein alone and not connected to any other person, which is evident from the website pages hosted by various persons making comments on the Plaintiff with regard to the title of the impugned movie. Though the learned counsel appearing for the Defendant contended that the defendant cannot be held responsible for the comments made in the internet website pages, the comments made on the said pages would go to prove that on seeing the title of the impugned movie, the name of the Plaintiff alone gets etched in the minds of the persons who come across the advertisement depicting the title of the movie.

If any person uses the name of a celebrity without his/her permission, the celebrity is entitled for injunction, if the said celebrity could be easily identified by the use of his name by the others.

Even assuming for a moment that the impugned movie is not a biopic of the Plaintiff, since the name found in the title of the impugned movie is identifiable only with the Plaintiff, who happens to be a celebrity and not with any other person, the Defendant is not entitled to use the said name without the permission of the Plaintiff, particularly when he had chosen to advertise the movie with a title ‘Hot Kavita Radheshyam As Sex Worker For Rajinikanth’.

Held:

The Defendant was restrained from using the title ‘Main Hoon Rajinikanth’.