With actor Salman Khan approaching the Delhi High Court for a stay on the release of Kala Hiran: The Battle for Legacy, which allegedly draws unauthorized references to the 1998 blackbuck poaching case, industry experts say the legal risks surrounding ‘fictionalized’ narratives are becoming clearer.
Courts in several countries have recognized that legal risks can arise when content leaves audiences certain that it refers to a particular celebrity, even without directly naming them. Khan has secured relief, with the High Court ordering the removal of promotional material and teaser links for the film.
The case underscores that fictionalization does not automatically shield filmmakers when a real person is clearly identifiable. Depending on the circumstances, courts can grant urgent injunctions to restrain the release or distribution of content.
Identity matters
“A person need not be expressly named for a defamation, or personality rights claim to arise. The real question is whether an ordinary viewer or reader can identify who the content is referring to. Courts have consistently looked at the overall impression created by a work rather than merely whether a name has been used,” said Dikshat Mehra, partner, Rajani Associates.
In the entertainment industry, it is not uncommon for films, web series, books or podcasts to draw inspiration from real-life personalities while changing names and certain details. However, if a character’s background, public controversies or life events are so distinctive that audiences can readily connect the portrayal to a particular celebrity, the legal risk remains.
Simply changing the name does not necessarily insulate a creator from liability if the individual remains identifiable, Mehra added.
Fictional defence
Sohil Shah, partner, Pioneer Legal, said Indian courts have seen multiple challenges to films and other works that dramatize or draw heavily from real individuals and their lives, even where the work is framed as fiction rather than an authorised biography.
A prominent example is the litigation around Bandit Queen, based on Phoolan Devi’s life. Phoolan Devi approached the Supreme Court alleging that the film sensationalized her story and violated her rights, but the Court ultimately permitted its release, with limited modifications, because it regarded the portrayal as a serious commentary on social evils rather than gratuitous exploitation.
That said, such content comes with risks. At the certification stage, the Central Board of Film Certification may be pressed to withhold or modify certification on the basis that the film presents “visuals or words involving defamation of an individual or a body of individuals” under the certification guidelines.
Legal routes
To be sure, several legal routes can run in parallel.
Sonam Chandwani, managing partner, KS Legal & Associates, said these include civil suits seeking injunctions against release or further publication, damages for defamation, claims relating to personality and publicity rights where applicable, and criminal defamation proceedings under the Bharatiya Nyaya Sanhita where the statutory requirements are satisfied.
“Increasingly, the stronger claim is breach of personality and publicity rights - the right to control commercial use of one's identity, recognised by the Delhi High Court in the Amitabh Bachchan and Anil Kapoor cases. If the content touches pending proceedings, sub judice and contempt arguments come in too,” said Neeha Nagpal, founding and managing partner at N & Company Legal.
Practically, the most effective remedy is a quick interim injunction before release, because once content is out, the harm is hard to undo, Nagpal added.
Proving harm
That said, claimants face their own challenges.
According to Aishwarya Kaushiq, partners, disputes at BTG Advaya, to obtain court orders protecting their rights, the celebrity needs to convince the court that an ordinary viewer would identify the portrayal as referring to them, even if they are not named.
The claimant must then establish that the content is defamatory, violates their personality or privacy rights, or otherwise causes irreparable harm, in reputation or monetarily.
“The plaintiff would have to prove clear identification to effectively eliminate the possibility that the portrayal points to someone else. Content producers generally rebut such arguments with free-speech protections and disclaimers. A common argument of filmmakers is also that the concerned character is a generic depiction,” said Ishan Johri, partner at Khaitan & Co.