In my screenplay for a TV series, I want my character to hold a conspiracy theory that Zeenat Aman and Parveen Babi are the same person. This is a riff on the findings of my lifelong survey that 50% of Indians, including north Indians surprisingly, cannot tell the difference between the two film stars, especially from still photographs. But I know that the lawyers of any Indian production house would raise a red flag. They would say I cannot even mention the names of the two stars without their permission. They would be wrong, but that doesn’t matter. A writer’s legal argument is no match for a lawyer’s ‘red flag.’

My riff would be considered legally risky because those who represent the actors may claim that I was trying to exploit the actors’ stardom even if I was only mentioning their names in one scene. This is part of a larger problem that has resulted in Indian cinema and TV failing to capture the essence of the society and its popular culture. If you notice, Indian cinema is a world where there is almost no mention of film stars, films, singers, any other public figure or real-life events. If, say, my screenplay wants to capture the India of 1975 through the film poster of Sholay or the name of any of its iconic songs, or a mention of Amitabh Bachchan, there would be ‘red flags.’ It’s another issue that no one knows who exactly can issue such permissions.

In a conversation with me the lawyer Richa Roy pointed to a recent source of the overcaution. In 2023, the Delhi high court ruled in favour of Anil Kapoor, who claimed that his name and mannerisms, among a host of other things, were entirely owned by him and could not be used by anyone else without his consent. The court granted that his persona extended beyond his physical person, thereby expanding the scope of personality rights in India. The order covered not only his name, the abbreviation of his name, and ‘Mr India,’ but also distinctive traits like the way he utters his trademark catchphrase “jhakaas.” While the court was protecting him from AI deepfakes and abstract forms of commercial exploitation, it did specifically recognize satire, parody and free speech as constitutionally protected. But the damage was done.

Lawyers, especially in the film business, tend to err on the side of caution—as if they are paid to raise red flags rather than green ones.

There is another complication. Unlike copyright or trademark law, personality rights in India are not codified in a specific statute, but have evolved through judicial interpretation and a patchwork of legal principles. So it is hard to predict what exactly is protected. It is probable that I would be able to defend my position in court by saying that I was not trying to commercially exploit the personas of Zeenat Aman or Parveen Babi (who, I reluctantly admit, are indeed two different people), but few lawyers would think the riff is worth the risk.

This is an unnecessary barrier to artistic expression in a country that is already hostile even to simple depictions of reality. Those who are offended by just about anything have long had the ear of courts. So we have a situation where the typical Indian film is too afraid to openly deal with even innocuous mentions of caste, religion, politics or history.

Most of popular music, too, is out of bounds because they are expensive to procure. For a long time, a rumour prevailed—that a creative work could use 10 seconds of any music without copyright permission. Some films actually took this seriously and featured music whose copyright they didn’t possess. Maybe they didn’t have the money to hire lawyers who carry red flags in their briefcases. Surely, many fringe films got away with this because few people watched them.

Literature is not so strictly bound. This is because of the sad presumption that few people read novels, so the risks are small. As a result, an Indian novel is able to represent popular culture more vividly than a movie. But books are still affected by the fiendish copyrights that protect cinema and music.

For instance, in my latest book, I wanted to make an argument that the dirge against inequality is often the beautiful voice of the rich, and that, for instance, Leonard Cohen was already a millionaire when he sang, beautifully: Everybody knows the fight was fixed; The poor stay poor, the rich get rich; That’s how it goes; Everybody knows.

But I couldn’t use his lyrics because there was concern that I might need permission. It is easier to cite a poem with proper attribution than to quote one that has become a song. The moment anything leaps off a page into audio or visual form, it becomes legally complicated. As a result, a good Indian book is already unique—it can say things nothing else can say.
But even books, publishers tell me, face all kinds of legal hardships. The source of this trauma, however, is the government and not public figures or corporations. Indian journalism, too, is somewhat bolder than Indian cinema, but even there, caution is the background hum.

Because of cinema’s lame-duck existence, a lot of enjoyable stuff has moved underground, despite being legal. For instance, stand-up comedy for live gatherings. Many of these shows do not break a single Indian law, yet they exist underground because  above-ground there are too many red-flag-wielding lawyers. I remember watching an immensely enjoyable show by Gursimran Khamba, in which he rebuked the ever-punning Amul girl, whom he found sanctimonious in comparison with the Nirma girl, who had no messages. Such jokes are protected by the law, but no mainstream platform would consider them worth the risk of litigation.

So, we have an odd situation where real Indian mass culture is consumed not via mass media, but in small private rooms.