Blurred Lines on the Silver Screen: Redefining Legal Boundaries for Biopics.

Name of author: Tarun B Sankar (3rd Year Law Student, The National University of Advanced Legal Studies, Kochi)

A drought of creativity and original content has coincided with the rise of a particular genre in cinema- the biopic. In the last few years alone, a significant portion of the major releases in Bollywood have been films based on true events or of biographical nature.[1] While these films can oft be a source of inspiration and a call for action from the audience, it is pertinent to note that the crux of a large number of these films bank upon the presentation of the private aspects of the lives of the people portrayed and severe dramatization of the same.[2] This, in turn, has led to grave misinformation being spread about the muses of such projects. With the rise of infringement of privacy of individuals with respect to cinematic renditions of their lives, the call for explicit consent of portrayal is paramount.

This article explores the need for redefining the legal boundaries applicable to biopics. Firstly, it examines the current legal landscape relating to biopics. Secondly, the issue of the definition of public records being too broad is discussed. Thirdly, the article calls for an upheaval relating to publicity rights of the dead.

Fact vs. Fiction: Legal Boundaries in Biopic Making

The tussle between the right to privacy and free creative expression has been an ongoing battle in the Indian judiciary. In the famous Auto Shankar Case[3], certain guidelines were laid down with respect to the potential exploitation of the right to privacy. The Supreme Court held that “a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and that none can publish anything concerning the above matters without her / his consent, unless such person herself / himself raises or put themselves in controversy”[4]. Moreover, any publication made concerning these aspects would not violate the right to privacy if it is based on “public records”. A plethora of decisions that followed this judgement have also adopted a similar stance, re-emphasising on the fact that any derivative work would be legally permissible as long as the sources relied on are of public record.[5]

As far as biopics are concerned, there has been a lack of consistency regarding the issue of balance of the right to privacy and the creative freedom of a film artist. While certain judgements have held that only works that derive from public information can be made without explicit consent, the Delhi High Court has held recently that anyone is entitled to make art out of any historical or biographical fact, further broadening the scope of public records and adding to the confusion.[6]

Public Records: Too Broad a Brush for Filmmakers?

The freedom provided to filmmakers and other creatives to rely on public records in the absence of explicit consent of the muse is a major slippery slope. As per common law, public records as defined as under the Public Records Act, 1993[7] and Section 74 of the Indian Evidence Act, 1872 [8]. These definitions, having a wide scope, include any image, document or record kept by any government agency or statutory body. Such a definition enables filmmakers to use any sort of record within the public ambit. Although it has been held in Phoolan Devi v. Shekhar Kapoor[9] as well as Selvi J Jayalalithaa v. Penguin Books India[10] that news articles, tabloids and the like would not be considered as public records, there is no clarity pertaining to other sources that may very well come under the ambit of the statutory definition and yet would be questionable founts of information. For example, would records and footage maintained by a government entity like Doordarshan be considered as public records? Would articles and presentations made by such government entities also fall under this broad definition? The lack of clarity regarding this has not been addressed by an Indian court as of now and can lead to complications.

Narrowing down the scope of this definition when it comes to its application in matters relating to privacy and creative freedom would be a step in the right direction. There should be clear guidelines as to what all sources can be considered as public information to prevent gross violations of privacy as well as ambiguity and doubt within the film fraternity.

The Rights of the Dead: Ambiguity in Post-mortem Publicity

Another issue that is to be acknowledged are the complications that may arise from the stance that common law has taken concerning post-mortem publicity rights in India. It has been held in the case of Deepa Jayakumar v. A.L. Vijay & Ors.[11]that “such personality right, reputation or privacy enjoyed by a person during his life time comes to an end after his or her life time. Therefore, we are of the opinion that ‘post-mortem rights’ is not an ‘alienable right’ and the appellant / plaintiff is not entitled to an injunction on the ground that the “post-mortem right” of her aunt is sought to be sullied…”. This would however inevitably be against the principles of the right to publicity laid down in the cases of R. Rajagopal v. State of T.N.[12], Selvi J. Jayalalithaa v. Penguin Books India[13], Phoolan Devi v. Shekhar Kapoor[14], and Justice Sanjay Kishan Kaul in K.S. Puttaswamy v. Union of India[15]. The right to privacy should be upheld even after the death of the person because public image and reputation far outlives human mortality. Furthermore, making this right inalienable would rob the legal heirs of the public figure of the right to question demeaning and inaccurate portrayals of such persons on film.[16] Given the danger it poses to the fundamental idea of privacy, these two legal positions should also be reversed and set aside.

Conclusion and Recommendations

In light of the growing popularity of biopics and the ongoing tension between privacy rights and creative freedom, it is imperative that the legal framework governing biographical portrayals be redefined. Current inconsistencies in the interpretation of public records and the ambiguous stance on post-mortem publicity rights highlight the need for clearer guidelines. By narrowing the definition of public records and recognizing the publicity rights of the deceased, the legal landscape can better protect individual privacy while still allowing artistic expression.

To address these issues, it is recommended that the definition of public records be further detailed and narrowed, specifically in the context of biographical works. Additionally, posthumous rights of individuals should be uniformly recognized as an inalienable right, extending beyond their lifetime and over to their respective legal heirs, to protect their legacy and reputation. Furthermore, a standardized consent framework should be established for living subjects of biopics, ensuring their privacy is respected while allowing for meaningful artistic expression.

Ultimately, these changes will foster a more balanced approach, ensuring that the personal stories depicted on screen are both respectful and legally sound.

Endnotes

R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632.
Phoolan Devi v. Shekhar Kapoor, (1995) 15 PTC 46.
Krishna Kishore Singh v. Sarla A. Sarogi & Ors., CS (COMM) 187 of 2021.
The Public Records Act, 1993, No.69, Acts of Parliament, 1993.
The Indian Evidence Act,1873, No.1, Acts of Parliament, 1873.
Selvi J Jayalalithaa v. Penguin Books India, O.A.No .417 of 2011 and Application No.2570 of 2011 in C.S.No.326 of 2011.
Deepa Jayakumar v. A.L. Vijay & Ors., O.S.A No 75 of 2020 and C.M.P Nos. 2945, 2946 and 9240 of 2020.
Justice K.S. Puttaswamy and Ors. Vs. Respondent: Union of India (UOI) and Ors, (2017) INSC 801.

[1] Murtaza Ali Khan, Why Biopics have suddenly become a rage in Bollywood, THE DAILY GUARDIAN, (August 18, 2020), https://thedailyguardian.com/why-biopics-have-suddenly-become-a-rage-in-bollywood/.

[2] Mary DeCarlo, The Inherent Exploitative Nature of Biopics, 27^th February, 2024, available at https://dailycollegian.com/2024/02/the-inherent-exploitative-nature-of-biopics/, (last visited on July 28^th, 2024).

[3] R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632.

[4] Id.

[5] Phoolan Devi v. Shekhar Kapoor, (1995) 15 PTC 46.

[6] Krishna Kishore Singh v. Sarla A. Sarogi & Ors., CS (COMM) 187 of 2021.

[7] The Public Records Act, 1993, No.69, Acts of Parliament, 1993.

[8] The Indian Evidence Act,1873, No.1, Acts of Parliament, 1873.

[9] Supra note 5.

[10] Selvi J Jayalalithaa v. Penguin Books India, O.A.No .417 of 2011 and Application No.2570 of 2011 in C.S.No.326 of 2011.

[11] Deepa Jayakumar v. A.L. Vijay & Ors., O.S.A No 75 of 2020 and C.M.P Nos. 2945, 2946 and 9240 of 2020.

[12] Supra note 3.

[13] Supra note 10.

[14] Supra note 5.