The Controversy
Parody Studios Pvt. Ltd. [hereinafter Parody Studios] launched a game named Selmon Bhoi on Google Play Store and other similar platforms. Actor Salman Khan sought the recourse of litigation and approached the Mumbai Civil Court claiming that the game was tarnishing his image. The Court while noting that the character and the nature of the game, ordered a temporary restraint in favour of the actor. This article seeks to understand the controversy from two legal perspectives, i.e., defamation and privacy, whilst focusing on the facts of the controversy in detail.
Acquitted yet Defamed: Salman Khan’s Longest Battle
Celebrities are bound to have their private lives distorted and discussed publicly. These discussions only have two possible outcomes; they may lead to praise or set off smear campaigns. More often than not, it is the latter. This is the price they pay to stay relevant and to maintain their status in society. While celebrity managers might very carefully and actively try to control and curate how the celebrity is being perceived by the people, they might not always succeed. This change in public perception tarnishes their reputation and has a possibility of impacting their economic as well as non-economic interests. Inevitably, defamation lawsuits have become a trend among celebrities.
Section 499 of the Indian Penal Code states that any person who makes or publishes any form of content with the intent of harming or with the knowledge that his action might harm the reputation of another person is believed to defame. Salman Khan’s counsel has put forth that it is the very nature of the game that is troublesome. Parallels can be drawn to his infamous hit and run case, wherein Khan was accused of driving while intoxicated and running over five men sleeping on a pavement. Further, the imagery of the character in the game also coincidentally resembles him.
To constitute defamation, the plaintiff is required to prove the following:
i) The content is defamatory.
ii) It refers to the plaintiff.
iii) The content is published.
To prove the defamatory nature of the game, we would need to study the graphics of the game. Parody Studios portray a character who is drunk driving. The goal of this character is to hit people and animals with his car. Therefore, the graphics make an obvious reference to the case of State of Maharashtra v. Salman Salim Khan and Ors[1]. This case is still subjected to the gaze and opinion of the media. Khan was charged with culpable homicide in 2003, following which he was sentenced to jail for 5 years in 2015 by the trial court. However, he appealed against the said decision and was acquitted of all charges.[2] Therefore, the image of Salman Khan that is being depicted is not true and is defamatory in nature.
What’s in a Disclaimer?
While the game begins with a disclaimer that states that “the presentation is fictional in context, and any driver who tries to relate it to the real event is an as*h*le”, it acts as an obvious attempt at tarnishing Salman Khan’s image. To chalk out this conclusion, we may simply refer to the name of the game. The Court noted that the name, “Selmon Bhoi” bears a prima facie resemblance to “Salman Bhai”. It must further be noted that meme pages refer to Salman Khan as “Selmon Bhoi”. The disclaimer has been sarcastically worded, and therefore, does not hold any value. The use of disclaimers dates back to the landmark case of Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd[3]. This case pertains to the way events were portrayed in the movie called, Rasputin and the Empress. It began with a disclaimer that stated that the movie was based on a true story. The movie claimed to document the life and death of Rasputin, who was invited to live with an aristocrat. This aristocrat ended up murdering Rasputin and wrote about the same in his memoir. The movie was released in 1932 and was mostly accurate. However, the movie claimed that Rasputin had raped the aristocrat’s wife. This was far from the truth. The aristocrat’s wife filed a defamation suit against the production and was successful.
In India, there have been a considerable amount of controversies regarding these disclaimers. They seek to protect and enhance artistic freedom. Bollywood movies these days are released with either multiple disclaimers, or none. The most recent controversy pertaining to the absence of disclaimers surrounds the film ‘Newton’. In this case of Tamal Sanyal v. Manish Mundra and Ors., the claimant contended that the movie was defamatory due to the corrupt portrayal of the CRPF officers. They are depicted to be against holding free and fair elections in Naxal-prone areas. The claimant, Tamal Sanyal appeared as an ex CRPF member and contended that he had been humiliated by some people. Further, he contended that there was no disclaimer that stated that the portrayal was fictitious. The court, however, dismissed the complaint. On the contrary, we have movies like Udta Punjab and Padmavat which have multiple disclaimers. Yet, these movies were widely disapproved of by the audience.
Big Reputations and Bad Intentions
It is pertinent to note that section 499 cannot be invoked without proving the intention of the defendants. It states that the act must be supplemented with the “intention to cause harm or knowing or having reason to believe” that the act will harm the plaintiff’s reputation. In this case, any reasonable person making such a game would have a reason to believe that it may tarnish the celebrity’s reputation.
Further, uploading this game to the Play Store authorized millions of people to install and play the game. Therefore, disseminating the said game without Salman Khan’s consent harms his reputation. It depicts him to be guilty of a crime that he was acquitted for[4], and it may distort what the court holds to be the truth. Therefore, the defendant can be held liable for defamation.
Privacy and Unwanted Publicity: Drawing the Line
The Court order states that “When the plaintiff has not given any consent for installing, preparing, and running such a game which is very similar to his identity and the case which was against him, certainly his right to privacy is being deprived and is also tarnishing his image.” The act of uploading the game on Google Play without Salman Khan’s consent enabled the defendants (Parody Studios) to commercialize a celebrity’s personality and reputation. Thus, there has been a breach of his right to publicity.
Commercial Gains at the Cost of Privacy
A celebrity’s right to publicity prevents others from using their name, imitation of their persona, photograph, or videos for commercial purposes without obtaining consent.[5] Intellectual property rights have expanded to be inclusive of rights such as the right to publicity[6], which in turn is a facet of the right to privacy.[7] The latter was upheld in the case of Phoolan Devi v. Shekhar Kapoor and Ors[8]. In this case, the defendants were the makers of the movie ‘Bandit Queen’, based on the life of the plaintiff. Phoolan Devi raised objections against some elements of the movie, specifically the ones which claimed that she had been raped and paraded naked. She contended that her story had been distorted by the defendants, as the aforementioned instances had never occurred. Further, distorting the truth without her consent was a breach of her right to privacy. The defendants, on the contrary, argued that Phoolan Devi did not have the right to privacy as she had attained celebrity status. The court ruled in favour of Phoolan Devi. Further, the High Court established some exceptions to the right to privacy.[9] These exceptions are:
The general public must have a legitimate interest in the information.
The information should not relate to the celebrity’s private life, and
There should be no commercial motives involved in dealing with such information[10].
Furthermore, the order notes that the defendants are prima facie guilty of “using the plaintiff’s identity for commercial gains”. Within the context of this matter, it is pertinent to note that there is an “inherent right” that every person possesses “to control the commercial use of his or her identity”.[11] As per Professor Prosser, a renowned legal luminary, the right to publicity is violated when a person appropriates another’s name for their own unjustified benefit.[12] The gain culminated by the use of the actor’s name can be linked to the fact that he has worked for years to build his distinctive personality in the Hindi Film Industry, and has added value to his name. The basis of this argument relies on John Locke’s Labour Theory.[13]
As noted above the term “Selmon Bhoi” is easily identifiable to the actor directly. This name is known to the public and due to this reason, the usage of the term Selmon Bhoi would fall within the protection of the actor’s right to publicity. This is by the virtue of the fact that “the name clearly” identified him.[14]
In Favour of Protecting Personalities
For the purpose of this article, the authors intend to shed light on certain matters specifically related to personality rights. A parallel can be drawn to matter related to the actor Rajnikanth versus the movie titled “Main Hoon Rajnikanth”, wherein Rajnikanth brought a suit against the makers of the said film for infringement of trademark rights. In simple terms, the Hon’ble Madras High Court while passing an injunction against the usage of the term Rajnikanth in the movie title noted that the personality rights rested with the celebrity and an infringement of the same can be determined solely on the basis of the impugned infringement was identifiable with the celebrity, irrespective of the proof of deception.[15]
However, in another case, the World Intellectual Property Organization considered the existence of “bad faith” to constitute the infringement of the trademark. In this matter, the complainant, Daler Mehndi, alleged the infringement of his trademark right over the usage of the domain name dalermehndi.com by the respondent. It is pertinent to note that Daler Mehndi had an“unregistered” trademark right, and his name was used by the respondent in bad faith to create the domain name. The WIPO accepted the trademark that vested with Daler Mehndi as a valid right, despite being unregistered, and granted the judgment in his favour. [16] The Bombay High Court, in a similar matter, passed an injunction against Amrik Singh (also known as Mika Singh), which refrained him from using Sonu Nigam’s pictures in billboard advertisements as this was an infringement of the latter’s personality rights.[17] Drawing from the aforementioned precedents it can be inferred that in the present matter Salman Khan has a high possibility of having the final order of the court passed in his favour for the protection of personality rights and in the interest of his privacy.
What can we look forward to?
The overall research on this controversy highlights a few factors. The right to privacy for every individual is valuable and this right is interlinked with the right to publicity for a celebrity. A violation of this right, especially when a commercial gain is made out of the same shall not be permissible under the law. It is anticipated that Parody Studios might have to pay compensation to Salman Khan for the violation of his personality rights. Further, a charge of defamation can also be brought up against Parody Studious as Salman Khan was acquitted in the hit-and-run case, and the concerned game hints at him being guilty of the crime, which tarnishes his image. A small reference can be hinted to the celebrated principle of double jeopardy, which states that no one shall be punished for the same crime twice. Establishing a hypothetical parallel, if someone has been tried and acquitted for a crime once by the Court of law, he can’t be tried and subjected to ridicule for the rest of his life by others. It is cautioned that this isn’t the exact legal principle, but for the sake of understanding the issue, the authors have used it as an example here. The future of this controversy will shed more light on the impact on the rights of celebrities and their right to privacy.
[1] State of Maharashtra v. Salman Salim Khan and others, (2004) 1 SCC 525.
[2] Salman Salim Khan v. State of Maharashtra, 2015 SCC OnLine Bom 6096.
[3] Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd, [1964] A.C. 234.
[4] Salman Salim Khan v. State of Maharashtra, 2015 SCC OnLine Bom 6096.
[5] Tabrez Ahmad & Satya Ranjan Swain, Celebrity Rights: Protection under IP Laws, 16 J. of Intellectual Property Rights 2 (2011).
[6] Souvanik Mullick & Swati Narnaulia, Protecting Celebrity Rights through Intellectual Property Conceptions, 4(1) NUJS L. REV. 615 (2008).
[7] Garima Budhiraja, Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime, 6 NSLR 85 (2011).
[8] Phoolan Devi v. Shekhar Kapoor and others, (1995) 15 PTC 46.
[9] Samarth Krishan Luthra & Vasundhara Bakhru, Publicity Rights and the Right to Privacy in India, 31(1) National Law School of India Review 125 (2019).
[10] Phoolan Devi, (1995) 15 PTC 46.
[11] Bruce R Keller, Condemned to Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, 11 HARV. J.L. & TECH. 401 (1998).
[12] Souvanik Mullick, supra note 6 at p. 618.
[13] John Locke, Two Treatises of Government (Neill H. Alford, Jr. et al, ed., 1994) (1698).
[14] Hirsch v SC Johnson & Son, Inc., 280 N.W.2d 129 (Wis. 1979).
[15] Shivaji Rao Gaikwad v. Varsha Productions, 2015 1 LW 701, Civil Suit No. 598 of 2014.
[16] DM Entertainment Pvt. Ltd. v. Hemant Kumar, 2002 SCC OnLine WIPO 928.
[17] Sonu Nigam v. Amrik Singh and Ors., MANU/MH/0517/2014.
This article has been authored by Palak Kapoor, Senior Editor, and S. Lavanya, Associate Editor at RSRR. This blog is a part of the RSRR Editor’s Column Series.
Comentarios