Abhijeet Das, Partner and Pragya Jain, Associate have co-authored an article titled ‘Personality Rights – The Power of Influence, its Misuse and Protection’ which is published by International Lawyer’s Network in their Asia Pacific, Copyright, Privacy Compliance, Trademarks section. LexCounsel regularly advises on issues pertaining to intellectual property rights in India. The below article can be accessed at https://www.ilnipinsider.com/2024/10/personality-rights-the-power-of-influence-its-misuse-and-protection/

INTRODUCTION

 Publicity rights play an important role in India based on the culture of celebrity worship and the importance of the name, image, and likeness of sports, television and media personalities, political figures, musicians, etc. Indian intellectual property laws do not directly or explicitly recognize personality rights, but several regulations and provisions address the same. In India, the right to publicity is recognised as a part of the right to privacy. In the case of K.S. Puttaswamy v. Union of India¹, where the right to privacy was declared a fundamental right under Article 21 of the Constitution of India, the Supreme Court also reflected upon personality rights and observed that “Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control the commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name, and other aspects of his/her personal life and identity for commercial purposes without his/her consent”.

On the other hand, the field of intellectual property provides indirect protection of publicity rights under Copyright Act, 1957 (“Copyright Act”) and Trade Marks Act, 1999 (“Trade Marks Act”). Under Section 38 of the Copyright Act, the provision grants two kinds of rights to a performer which are exclusive rights to the performer under Section 38A and moral rights to the performer under Section 38B. On the other hand, the Trade Marks Act , in its section 2(m) includes ‘names’ under the definition of ‘trademark’, which allows the celebrities to register their names as trademarks to avoid misuse. There have been numerous celebrities in India, like Shah Rukh Khan, Priyanka Chopra, Ajay Devgn, and Amitabh Bachchan, on account of their goodwill and reputation, are registered proprietors of their respective names.

THE JUDICIARY ON PERSONALITY RIGHTS

 The concept of ‘personality rights’, although lacking a robust statutory framework in India, has emerged through a series of judicial interpretations to acquire a nuanced significance in the contemporary legal discourse. The stance taken by the Courts of India has been primarily to bridge the gap and maintain a balance between the right to freedom of expression and personality rights, especially in a digital world where Artificial Intelligence proficiently integrates into our daily lives. On the lines of the set premise, some of the recent developments are discussed below –

In the case of Jaikishan Kakubhai Saraf v. Peppy Store² , the High Court of Delhi refused to grant an ex-parte ad-interim injunction in favour of the plaintiff with a view to uphold the artistic and economic expression of the defendant. The defendants had made a compilation video on YouTube showcasing the plaintiff’s (Jackie Shroff) forthrightness and wit, which the court held to be as the existing public perception of the celebrity plaintiff. However, on instances where the plaintiff’s videos were overlayed on audios containing extremely profane words and abuses, the court granted a relief in favour of the plaintiff stating that it held the capacity to tarnish the reputation of the plaintiff. Similarly, for acts such as hosting AI chatbots where users could ‘chat’ with the chatbot which imitated the plaintiff or for selling wallpapers of the plaintiffs without his permission, were prima facie held to be violative of the personality rights of the celebrity.

Similarly, in Manchu Vishnu Vardhan Babu Alias Vishnu Manchu v. Arebumdum & Ors.³, the Delhi High Court highlighted how a celebrity through their work acquires a unique distinctiveness. This in turn adds immense commercial value to their characteristic attributes due to their inimitable nature. Thus, a third party using such elements of one’s personality is bound to cause confusion and deception amongst the public as to their affiliation with/sponsorship by the celebrity concerned. In the present case, the renowned celebrity plaintiff’s personality and its various aspects were misused by the defendants in multiple ways which maligned his character and were highly prejudicial to the plaintiff’s goodwill and reputation. While the case remains pending for further hearing, it has passed an order restraining the defendants from creating/publishing/communicating to the public/disseminating any content, which defames the plaintiff and from using or exploiting or misappropriating the personality rights of the plaintiff by using his attributes.

Further, in Anil Kapoor v. Simply Life India & Ors^4, the famous actor plaintiff approached the High Court of Delhi to protect his personality attributes, under various laws and provisions in absence of a single statutory provision governing his personality and publicity rights. The case at hand illustrated the complex interplay between fame and the rights of individuals, particularly regarding reputation, privacy, and livelihood. While the freedom of speech and the right to information allow for genuine critique and satire concerning public figures, it believed that this right has its limits. Making a reference to the landmark case of R. Rajagopal v. State of Tamil Nadu^5, it summarised the stance of the Supreme Court by recognising that –

i.       The right to privacy is inherently linked to the right to life and liberty under Article 21 of the Constitution. It safeguards personal and familial matters from unauthorized publication, irrespective of whether the content is positive or negative.

ii.      An exception exists for matters of public record, which can be commented upon; however, sensitive issues, particularly those involving victims of crimes, should be handled with discretion.

iii.     The proliferation of technology, including artificial intelligence, has facilitated unauthorized representations of a celebrity’s persona, necessitating vigilant protection of their rights.

The Court further highlighted the distinction between freedom of speech in various forms as long as it is genuine and without hurtful intent. It also threw light on the protection of well-known persons who have acquired respectable reputation on which a majority of their livelihood exists. Consequently, the Plaintiff successfully established a prima facie case by warranting the issuance of an ex parte injunction against the defendants.

Further, as regards the aspect of inheritance of publicity rights of a deceased person, in the case of Deepa Jayakumar v. A.L. Vijay⁶, the Madras High Court held that “it is clear that a privacy or reputation earned by a person during his or her life time, extinguishes with his or her death. After the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality right, reputation or privacy enjoyed by a person during his life time comes to an end after his or her life time. Therefore, we are of the opinion that “posthumous right” is not an “alienable right”.

CONCLUSION

 To summarise, the evolving discourse on personality rights in India highlights the delicate balance between individual privacy and freedom of expression in a rapidly changing digital landscape. As celebrities increasingly become targets for exploitation, the need for legal frameworks that protect their unique attributes is paramount. The judicial interpretations in cases such as Jaikishan Kakubhai Saraf v. Peppy Store and Anil Kapoor v. Simply Life India underscore the courts’ commitment to safeguarding personality rights while acknowledging the complexities of artistic expression and public discourse.

Moreover, the interplay between intellectual property rights and the constitutional right to privacy provides a foundation for further development in this area. The recognition of personality rights, while still in its nascent stages, holds promise for curbing unauthorized commercial use and protecting the dignity of individuals in the public eye. As technology continues to blur the lines of personal identity, legal protections must evolve to address these challenges effectively. Ultimately, ensuring the integrity of personality rights is essential not only for the welfare of the celebrities but also for maintaining ethical standards in a society that is increasingly influenced by public figures.

Endnotes

^[1] (2017) 10 SCC 1, 629.

² 2024 SCC OnLine Del 3664.

³ CS(COMM) 828/2024.

⁴ CS(COMM) 652/2023.

⁵ (1994) 6 SCC 632.

⁶ 2021 SCC OnLine Mad 2642.

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