Updated: March 3, 2021 7:02:19 pm
The Bombay High Court Tuesday directed Amazon Prime India to take down a Telugu movie until its makers delete a scene in which an actor’s photograph was allegedly used without her consent.
A single-judge bench of Justice Gautam S Patel on March 2 heard a defamation suit by model and actor Sakshi Malik against Venkateswara Creations Pvt Ltd for allegedly using her photograph without permission in their movie ‘V’, which was released on September 5, 2020, and has been available on Amazon Prime.
As per Malik’s suit, she had commissioned a photographer in 2017 for creating a portfolio. “In August 2017, she (Malik) posted some photographs from the portfolio on her Instagram account. One of these photos was used in a scene of the Telugu movie where there is a reference to a female escort or a commercial sex worker,” the plea said.
Advocates Alankar Kirpekar and Saveena Bedi for Malik said this was a ‘wholly unauthorised invasion of privacy’ and “most importantly”, the complaint is about the nature of use of the photograph. Kirpekar argued that using the image to depict a sex worker is defamatory.
“Prima facie, I believe he is correct. Indeed, I do not believe there is any other way of looking at it,” the judge noted.
The defendants submitted they had contracted a commercial agency to obtain a suitable image for the sequence, and they were assured they could legitimately use this image.
Justice Patel observed, “This seems to me less than compelling. Surely 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 would be standard procedure almost anywhere, and this would be true whether the issue is one of copyright in the photograph or of use with permission of an image of the model in question for a particular sequence.”
The judge added, “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. 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.”
The court said that the question of consent or the damage done from the failure to obtain Malik’s consent is the heart of the matter.
“The fact that the image has been illicitly used is bad enough. It only makes matters worse when used in a plainly derogatory and demeaning vein,” the HC noted.
While refraining from making observations on the tenability of the defence at this stage, the Court directed Amazon Prime to take down within 24 hours the telecast of the film in all versions, irrespective of language and subtitles, until such times as the defendants (producers) delete all images of Malik from their work.
“It is not acceptable for them to merely pixelate or blur the images. The entire sequence which has the image of the plaintiff is to be removed immediately. If the 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,” the HC noted.
The court restrained the producers from releasing their film on any platform until the deletions are carried out, and said Amazon prime cannot release any re-edited version of the film without a specific order of the court after deleting the offending portion.
While posting the next hearing on March 8, the HC asked the producers to show the altered portion to Malik before it permits Amazon Prime to re-release the film.
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