Bombay High Court: G.S. Patel, J., while addressing a matter wherein the offence of defamation has been alleged, expressed:
Simply using another’s image, and most especially a private image, without consent is prima facie impermissible, unlawful and entirely illegal. In a given case, it may also be defamatory, depending on the type of use.
Instant suit was with regard to an action for damages in defamation and for a permanent injunction.
Plaintiff is a model and an actor.
Dispute that needs to be addressed is with regard to the 1st and 2nd defendants utterly illicit use of a still image of the plaintiff in their 2020 Telugu film entitled ‘V’. The said film was is available on Amazon Prime.
Plaintiff, as a part of her professional work, commissioned a photographer to prepare a photo portfolio, 5 years ago. Photographer had shared the images with the plaintiff via a Google link or on Instagram, after which the plaintiff uploaded at least part of this photo portfolio to her Instagram account.
The grievance is that, a photograph from the above mentioned privately commissioned portfolio has been used in that portion of 1st and 2nd Defendants’ film where there is a reference to a female escort or a commercial sex worker. Further, it has been added that, What is depicted in the film is a message on a mobile screen with an image; and the image used is one of those from the Plaintiff’s portfolio, apparently lifted from her Instagram account.
Counsel for the plaintiff has hence submitted that the plaintiff’s image has been used unauthorizedly to depict her in the motion picture as an escort or commercial sex worker.
Hence the plaintiff submitted that all of the above amounts to defamation.
High Court on perusal of the above prima facie believed the above averments of plaintiff’s counsel to be correct, and added that:
“…I do not believe there is any other way of looking at it.”
Adding to the above, Bench stated that any right-thinking motion picture producer would have insisted on seeing an approval or consent by the model or person who is featured or to be featured.
“…it is not possible to use the image of any person for a commercial purpose without express written consent. If images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty.”
Bench directed defendant 3 to take down the telecast of the film in all versions, irrespective of language and sub-titles, until such time as the 1st and 2nd defendants have completely deleted all images of the Plaintiff from their work.
To merely pixelate or blur the images, won’t be acceptable. The entire sequence which has the plaintiff’s image is to be removed immediately.
Court added, If the 1st and 2nd Defendants wish to replace the deleted segments, they are free to do so but without using any of the Plaintiff’s images in any shape, fashion or form without her express written consent.
Additionally, the Bench added in its list of instructions, the 1st and 2nd Defendants are restrained from releasing their film on any media platform or through any medium or in any version until the deletions that have been indicated above are effected.
Correspondingly, the 3rd Defendant is not to release any re-edited version of the film without a specific order of this Court following the deletion of the offending portion. The 1st and 2nd Defendants will have to show Mr Kirpekar and his client the altered portion before the Court will permit the 3rd Defendant to re-release this film.
Matter to be listed on 08-03-2021. [Sakshi Malik v. Venkateshwara Creations (P) Ltd., 2021 SCC OnLine Bom 352, decided on 02-03-2021]
Advocates who appeared for the matter:
Mr Alankar Kirpekar, with Saveena T Bedi, i/b Lawhive Associates, for the Plaintiff
Mr Akash Menon, with Bency Ramakrishnan, i/b Akash Menon, for Defendants Nosf 1 and 2f
Mr Thomas George, with Nikhil Sonker, i/b Saikrishna & Associates, for Defendant Nof 3f
