'What Protection Exists For A Person Whose Likeness Is Misused But Whose Name Has No Market Value?': Justice V. Mohana

The food for thought came up when the judge on Saturday (September 12) delivered the keynote address at the inaugural ceremony of the Seminar on 'Music, Cinema and Law: Exploring the Intersections of Art, Culture and Law' jointly organized by the Kerala Judicial Academy and the National University of Advanced Legal Studies, Kochi at Bolgatty.

The speech focused on the confluence of music, cinema and law – comparisons between music performances and the practice of law, cinema's influence in educating society about legal concepts, how law protects art and artists through interpretation, the need for law to keep up dynamic technological changes, among other interesting insights.

In her address, Justice Mohana touched upon the topic of litigations for protection of personality rights, where courts had granted reliefs to celebrities like Amitabh Bachchan, Anil Kapoor, Arjit Singh, etc. when their likeness was commercially exploited using the advancements in technology. She then pointed out:

“Two features of this development deserve to be placed before a seminar such as this. The first, that it is almost entirely crafted with the interpretation of the existing statute by the judiciary and the courts have proceeded with such novel issues that come up before then. Second is that the protection presently available leans heavily upon commercial recognition and served best to those already are well-known. The question that remains to be answered is what protection exists for a person whose likeness is misused but whose name carries no market value at all? The legislature has now begun to move alongside the courts and the amendments in IT Rules are the first substantial step.”

The judge also spoke about how Courts also face the issue of incorrect reporting, much similar to songs written in another context are juxtaposed to images, leading to a result never even intended by writers:

“A song written in one situation is set against images from another and acquires a meaning its composer never intended and would very likely dissent. That is not a marginal phenomenon that we may note and pass over. For a very large number of our citizens, it is now the principal channel through which cultural material arrive and with it, a considerable amount of information law. The Courts have also been grappling with the problem of improper reporting where small parts of court exchange is described with a different light, which in turn, gives a different context to a viewer reading the article who is not present in the courtroom. Reach upon this scale has created a problem of protection for which there is no real precedent.”

She added how technology moves faster than law, which is always trying to keep up with a solution.

“Technology moves at a pace faster than law. By the time law has come up with a solution, the problem would have changed. The answer is a fresh legislation and that is also not the end of difficulty but the beginning of another.”

In her speech, Justice Mohana quoted Justice Felix Frankfurter, who connected legislation and music composition, as well as composer Bruce Adolphe, who compared an orchestra with a trial. The judge added to this by comparing court and lawyers with performers:

“A court also sits before an audience, one that now watches proceedings as they happen and that forms its own view. That scrutiny is not a burden to be rescinded. It is the condition of legitimacy in an open system and it is what obliges the Bench and the Bar to be at their best in public…. There is one further resemblance and it concerns the ensemble…A court sits in the same way - the Bench sets the tempo and the bar responds”

She drew a between how musical skills and court craft are built and developed with repetitive readings, and invisible hours spent practicing:

“Lawyer's mastery is built no differently – it is heard, not in the courtroom alone, but in the repetition of reading judgments, and drafting and re-drafting, of returning to the same text again and again. The advocate who commands a courtroom with apparent case has in truth spent decades in an equally invisible hours in the library. Before performance, the musician spent invisible hours turning the instruments in silence. The lawyer's equivalent is the quite reading of the brief on the night before and the judges, in the private reading of the paperbook… The great judges and advocates carry the same humility, returning to a familiar provision reading it as if they had never read it before.”

The speech referred to legislator Swathithirunal Ramavarma and the book 'Kambanil Sattamum Neethiyum' authored by NHRC Chairperson and former Supreme Court Justice V. Ramasubramanian to drive home the point that music, law and cinema are not unconnected disciplines.

Justice Mohana also pointed out examples where judges have drawn upon poetry, music and film and have quoted Mirza Ghalib's couplet, and referred to the film Munnabhai MBBS in their judgments.

The judge spoke in-depth about the lessons taught by movies like Pink, Vidhi, Neethipathi, Chhapaak, Thappad, Jolly LLB, Erin Brokovich, Few Good Men, Jai Bhim, Haq, Vaashi and Nna Thaan Case Kodu without a single classroom:

“Though the law makes an attempt to change conduct by introducing rules and structure, ultimately, it is art and culture that hold the power to change the way people think and see. A lasting social change require both… A judgment reaches the parties before the Court. In time, through reporting, it reaches the lawyers, students and scholars. It reaches the general public, if at all, through the re-telling. Legal concepts are complex when they are stated in the abstract…However, a cinema can carry the same idea inside a storyline which the viewer recognizes and they understand it without effort and with clarity.”

Bringing together all the points, the judge summarized:

“music, cinema and law are three ways of addressing the same values – righteousness, morality, conscience and upholding the virtue of truth and justice. The composer does this in a phrase, the filmmaker in a story, a judge in a reasoned order enforced by the power of State – that is the confluence that brought us together here.”

The speech was concluded on a note of advice to the audience – to engage in the arts while also learning the law:

“To the academicians, the scholars and particularly the students in the audience, what I would advise is to read the statute and also read the poem, learn the procedure and at the same time, listen to music to soothe the mind, expand your horizon to reach beyond what is written in the books. The first will make you competent; the second will make you an insightful person to listen to.”

Today's event was preceded by an inaugural ceremony on Friday evening, which was attended by Chief Minister V.D. Satheesan, Chief Justice Soumen Sen, Minister of Higher Education Roji M. John, High Court judges, judicial officers, lawyers and artists. The night also had performances by members of the Kerala Kalamandalam, Kerala Sangeetha Nataka Academy & Chalachithra Academy and ITC Sangeet Research Academy.