Yashica Dutt and Made in Heaven: When moral right is not copyright

Arguably, the idea of coming out as Dalit is not the mainstay of the episode that draws on reality to explore several tropes to foreground the struggles that a Dalit woman is likely to encounter while marrying an upper-caste man in India. However, for the purposes of copyright validity, this is irrelevant. What remains determinative is whether there was appropriation of a copyright-protected part of Dutt’s work. Justice Learned Hand’s famous observation remains crucial here, “[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.” The makers of MIH cannot claim that they did not appropriate Dutt by arguing that the episode was more about the wedding ritual than about coming out as Dalit. However, the similarities between Dutt’s life and Pallavi Menke’s character are not necessarily copyrightable. As Baudh’s article and tweet show, the usage of the phrase in the context of Dalit identity is not something that Dutt can claim to have originated. In a subsequent interview, Dutt has admittedly said that her book “popularised” the term “Coming out as Dalit”.

Section 57, titled ‘Author’s Special Rights’ in the Indian Copyright Act provides for the moral right of the author to claim authorship of their work as well the right to restrain or claim damages for the distortion, mutilation, or modification of their work if such acts prejudice their reputation. Section 13 of the Act provides for the subsistence of copyright in original literary, dramatic, musical, and artistic works, among others. The Act does not define the word “original”. However, as per settled case law (Rupendra Kashyap vs Jiwan Publishing House,1996), it is said to be a work that owes its origin to the author and is created from her skill and labour independently, i.e., it is not a copy of another work. Additionally, the work created should not just be the product of mere labour or capital and requires a minimum degree of creativity. Facts about someone’s life, as ideas to draw inspiration from, are not copyrightable and the person may assert copyright only in their particular expression of those facts if it is fixed in a tangible medium with a minimum degree of creativity. Therefore, for Dutt’s copyright violation claim to withstand legal scrutiny, she would, firstly, have to show that her work was original protectable expression and not just an idea or factual detail. Secondly, that the episode did not just borrow the idea but copied that particular and original expression of the factual details and ideas.

Notably, there is no copyright for “popularising” expressions that someone else may have originated.

Pallavi Menke in the episode talks about her grandmother manually cleaning toilets, something that Dutt has also spoken about in public. Pallavi studied and taught law at Columbia University and Dutt has a degree in Arts and Culture Journalism from Columbia University. Pallavi’s book in the show is titled, Denied where she talks about reclaiming her surname from Kumar to Menke. Dutt’s book talks about her experience of “Coming Out as Dalit”. However, it is highly unlikely that these similarities signify a copyright violation. These lived experiences are aspects of a collective identity, and don’t lend themselves to appropriation as “pure objects” like physical property, in which a single individual can assert a proprietary interest. For instance, Ghaywan said in a recent interview that his direction of the episode was also inspired by his own experience of reclaiming his surname although many of his documents such as his passport continue to bear the surname “Kumar”.

Intellectual Property rights are blunt legal tools and often fail to reward, protect, or recognise the role of the silent, ubiquitous contributor — “the other” in copyrighted enterprises. Considering the author a participant in dialogue instead of a paragon of independent creation allows others to interact freely with pre-existing works, borrowing from what existed before and meant to elicit a response. Otherwise, it can lead to a permissions culture giving celebrities strong rights to editorialise content drawing on the already public details of their lives, chilling free speech and silencing downstream creators seeking to challenge dominant narratives. Art has the potential to disrupt existing meanings by making audible that which has receded into the background. This requires recycling, reusing, and reorienting already existing works.

There are other Dalit women studying at Columbia, who may pursue inter-caste relationships and publish their own stories about coming out in various mediums. The character of Pallavi Menke is not meant to be monopolised by one single person but seeks to represent the aspirations and shared struggles of persons who reclaim a collective identity and shared struggle against the oppressive caste system. The relatability of these characters stems from their rootedness in reality. And if reality is largely an artefact, Intellectual Property can provide holders exclusionary control over how that reality is viewed, perceived, and interpreted.

Dutt’s claim can also be based on the right of publicity. Publicity rights refer to an individual’s proprietary rights in their persona and the ability to monetise and prevent unauthorised third parties from exploiting it. The right of publicity in India is still at a nascent stage, enjoys no statutory protection and is messy in its doctrinal interpretations. Though Indian case law on the right of publicity is inconsistent and still evolving, violations typically require identifiability to the public at large, sufficient and substantial appropriation of someone’s unique persona without authorisation and unearned commercial gain to defendants. Dutt has claimed that she is identifiable from the portrayal by mentioning that numerous people, including her friends and acquaintances, were struck by the resemblances between her and Menke. However, the aspects of her unique identity allegedly appropriated would need to be sufficient and substantial enough to constitute a publicity rights violation. As the case law on this remains unsettled, a recent Delhi High Court judgment in Digital Collectibles v Galactus Funware (currently under appeal), noted that publicity rights do not extend beyond variants of false advertisement or passing off someone else’s work as your own, requiring proof of falsity or deception instead of mere unauthorised appropriation of persona for commercial gain.

Finally, Indian courts have also recognised that publicity rights should not impinge on the freedom of speech and expression under Article 19 of the Constitution, which includes the right to artistic freedom.

It is true that the embodied interests of real individuals are more strongly implicated when what is concerned is their own image, persona, and life story instead of any other external creative product that they may have authored (book, play, sculpture, etc.). It is also true that women and minorities in protected works are often written about from an external gaze. Their personhood, expressions and contributions are reduced to that of a passive “muse” or “inspiration”, acted upon by the author who claims sole ownership over the work to which others may have contributed substantially. While personhood is culturally created and experienced in vastly different ways, some people have fewer cultural tools to express their personhood as well as resist attacks on it. Therefore, it is crucial to celebrate and acknowledge the contributions of individuals towards collective social causes. The contributions of Dalit writers like Dutt and Baudh should not be considered terra nullius, ripe for uncompensated and uncredited exploitation.

However, in this particular instance, given the nature, substance and limited extent of borrowing involved, a call for ethical attribution is more helpful than a legal claim to intellectual property. This is better suited to challenging traditional assumptions regarding authority, voice, and value by amplifying the voices of marginalised creators and regarding them as equal participants in dialogue. It allows us to move away from norms of individual ownership and control (“it is mine/I said it first”) to aspirations of inclusion in cultural dialogue (“I hear you and am heard”).

The writer is a lawyer and Rhodes Scholar from India and is currently pursuing an MPhil in (Intellectual Property) Law at the University of Oxford