Abstract
The rapid proliferation of mass media platforms and the ensuing rise in both types and number of celebrities, potentially portends an increase in disputes emanating from infringement of personality rights. The increased use of AI and AI generated content can further complicate the process of adjudication in this context. The existing laws on right to privacy, the Copyright and Trademark Acts in India have served well thus far, but might prove inadequate to cope with the emerging trends. The need of the hour thus may be for a comprehensive legislation on the subject or at least suitable amendments to the existing acts.
Keywords
Personality Rights, Publicity Rights, Celebrity Rights, Right to Privacy
Introduction
All work and no play makes Jack a dull boy is an old adage that succinctly underscores the importance of free time for our overall well-being. Even Karl Marx underscores this need for free time/leisure time as essential for well rounded development of an individual.
Movies, television, sports, music and today even social media etc. form the broad gamut of avenues that satisfy this need. Most of us engage with one or more of these escape routes in our free time. Consequently, in each of these genres, certain central figures like the actors, artistes, sports figures or influencers command a following of their own making them celebrities. In today’s day and age the celebrities not only earn their livelihood by monetising on their skills but their ‘personality’ as well, that is closely intertwined with their following and earnings.
The question that arises for our consideration then is – what is personality? As per the Cambridge Dictionary, it deals with character, encapsulating the behaviour, feelings and thought processes of an individual. As per the American Psychological Association personality “refers to the enduring characteristics and behavior that comprise a person’s
unique adjustment to life, including major traits, interests, drives, values, self-concept, abilities, and emotional patterns”. So in simple words, personality is what makes us unique and sets us apart from other individuals.
Therefore, for celebrities their personality, which comprises their name, image, likeness, voice etc is so closely connected with their livelihood that it requires legal protection. This paper will precisely delve into whether personality rights have been afforded protection under Indian statutory laws and whether such protection is adequate to deal with the ever changing landscape of personality rights.
Research Methodology
This research paper is of a descriptive nature and the researcher has relied on secondary sources like journal articles, articles on legal websites, legal news platforms like BarandBench, online legal databases like Manupatra and SCC Online for research. Through these resources, the researcher has undertaken a thorough analysis of the evolving landscape of personality rights within our country.
Literature Review
In order to gain a better understanding of personality rights, which is a source of income of celebrities, the researcher examined various research papers. Some of them in defining personality rights have used this term interchangeably with publicity rights. Whereas some of them have drawn a clear cut distinction between the two terms.
Agnes Augustian1 has defined personality rights as the right to control unauthorised use of a person’s name, their voice, likeness, their image etc. This right is further bifurcated into two, covering commercial and non-commercial aspects. In some jurisdictions personality rights are treated as a sum of both commercial and non-commercial aspects. In other jurisdictions, the commercial and non-commercial aspects are treated as separate rights. Therefore, the terminology that is used will be contingent on the treatment of the commercial and non-commercial aspects, i.e. if they are being treated as separate rights or if they are being
1Agnes Augustian, Protection of Personality Rights in India:Issues and Challenges, 1 IPR Journal of Maharashtra National Law University, Nagpur, 44 (2023).
viewed in cumulation. As per the author, ‘personality rights’ and ‘publicity rights’ are used interchangeably in India.
Sakshi Mehta, Aditya Kumar Tomar and others.2 have described the bundle of rights that celebrities enjoy, like personality rights, right to privacy, merchandising rights, economic rights, moral rights, publicity rights etc. According to them, celebrity rights are exclusive property of the celebrities. Celebrities can commercially exploit their identity by way of endorsements etc. in order to make money. The authors have treated personality rights and publicity rights as one among the many privileges available to celebrities. Personality rights are a result of their hard work and are directly linked to their livelihood. The profitability from fame is the right of publicity. The regulation of commercial exploitation of one’s name is known as publicity rights. Therefore, the authors have treated personality rights and publicity rights as separate categories.
Samarth Krishan Luthra & Vasundhara Bakhru3 have studied the linkage between right to publicity and right to privacy in their paper. They have used the right to publicity and personality rights interchangeably. They defined the right to publicity as the right of profitability, control and protection of one’s image, likeness or name. Further, they deemed publicity rights to have two facets. The first deals with the right to prevent commercial exploitation of one’s name and image without consent. The remedy for which lies under the tort of passing off. The second deals with the right to privacy, outlining the “right to be left alone”
Bargavi S. and Sethulakshmi N.K.4in their paper have examined literature that treated personality rights and publicity rights interchangeably. But the authors attempted to define and examine the scope of personality rights as an independent right of its own. According to them, personality rights consist of two rights namely: (i) right to privacy and (ii) right to publicity. The authors discussed the right to privacy with reference to the landmark judgement of Justice K.S. Puttaswamy (Retd.) & Another v. Union of India & Others5,
2 Sakshi Mehta et al., Protection of Celebrity Rights under IPR Regime in India, 29 Journal of Intellectual Property Rights, 540 (2024)
3 Samarth Krishan Luthra & Vasundhara Bakhru, Publicity Rights and the Right to Privacy in India, 31 National Law School of India Review, 125 (2019)
4 Bargavi S. & Sethulakshmi N.K., An Explication Dual Facets of Personality Rights in India, 6 International Journal of Law Management & Humanities, 2295 (2023)
5 Supra note at 5.
wherein this right was enshrined as a fundamental right under Article 21 of the Constitution of India. Publicity rights have been defined as an economic right which covers the commercial exploitation of the personality, popularity and fame of a celebrity in order to make profits.
Raman Mittal 6in his paper has dealt with the term ‘personality merchandising’, which is also the commercial exploitation of the persona of a celebrity in order to promote and sell goods. Personality merchandising increases the marketability of goods and services through their association with famous persons. The author also draws a distinction between ‘personality merchandising’ and ‘character merchandising’. The former deals with the identity of true and genuine individuals whereas the latter uses fictional personalities for marketing. The other important difference between the two is that the remedy for ‘character merchandising’ will lie only in the realm of intellectual property laws, whereas the remedy for ‘personality merchandising’ in addition to intellectual property laws will also involve laws related to defamation and privacy. This commodification of a celebrity’s persona and the right of a person to control the same is known as the right to publicity.
So what emerges from the above cited papers is that perhaps the line of demarcation between personality rights and the right to publicity is quite thin. Personality rights are linked to the persona of an individual, like the characteristics which make up the identity of an individual and make them identifiable to the world at large through their name, voice, signature pose, mannerism, characteristic dress, catchphrase etc. Whereas the commercial exploitation of these traits and characteristics is classified as the right to publicity.
Having looked at a brief exposition of personality rights and publicity rights through the review of literature, this paper will now shed light on the origin and meaning of the term celebrity and celebrity rights. How personality rights have emanated from the right to privacy and what protection is afforded to the personality rights of celebrities under the Indian Law.
Definition of Celebrity
According to a layman’s understanding, a celebrity is a famous or well-known person. Somebody who is known for their achievements in various walks of life, like in the world of
6 Raman Mittal, Licensing One’s Persona: Analysing the Practice of Personality Merchandising, 52 Journal of the Indian Law Institute, 16 (2010)
sports or the music industry or he/she is a seasoned politician or is a talented actor etc. The Hon’ble Delhi High Court in the case of Titan Industries Ltd. vs M/S Ramkumar Jewellers 7 defined celebrity as: “a famous or a well-known person. A celebrity is merely a person who many people talk about or know about”.
A celebrity, by virtue of their fame/stardom, enjoys certain rights which have been discussed earlier like personality rights and the right to publicity. In order to gain a better understanding of these rights the paper will look at the history of the right of privacy and the right of publicity.
Origins of Privacy and the Right to Publicity
An article written by Louis Brandeis and Samuel D. Warren titled as ‘The Right to Privacy’ in the Harvard Law Review (1890) defined privacy as “the right to be left alone”. Further the remedy for the breach of this right was to be found in the tort of defamation.8
Melville B. Nimmer, in 1954, was the first person to introduce the ‘right of publicity’. He defined it as the right of the celebrity to “control the commercial value of their identity”.9 The Hon’ble Delhi High Court in the case of ICC Development (International) Ltd. v Arvee Enterprises10 has dealt with publicity rights in the following manner:
“The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals, to the organiser {non-human entity} of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it. For example if any entity, was to use Kapil Dev or Sachin Tendulkar’s
7 Titan Industries Ltd. v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382
8 Samarth Krishan Luthra & Vasundhara Bakhru, Publicity Rights and the Right to Privacy in India, 31 National Law School of India Review, 125, 127, (2019)
9 Bargavi S. & Sethulakshmi N.K., An Explication Dual Facets of Personality Rights in India, 6 International Journal of Law Management & Humanities, 2295, 2302 (2023)
10 ICC Development (International) Ltd. v. Arvee Enterprises, 2003 SCC OnLine Del 2
name/persona/indicia in connection with the ‘World Cup’ without their authorisation, they would have a valid and enforceable cause of action.”
Legal Framework for Protection of Celebrity Rights in India The term celebrity and their rights have not been explicitly defined under Indian laws. But these rights have been discussed in various judicial precedents. For instance, in the landmark judgement of Justice K.S. Puttaswamy (Retd.) & Another v. Union of India & Others11, Justice Sanjay Kishan Kaul, expanded the ambit of the right to privacy, by including the right to publicity within it. It was held 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 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.”
Under the Trademark Act of 1999, Section 2(1)(m)12 which has defined the term ‘mark’ includes within its ambit ‘names’, which has enabled celebrities to trademark their names like Shahrukh Khan, Amitabh Bacchan, Priyanka Chopra etc. having trademarked their names.13 Further signature poses can also be protected under Trademark Law if they are capable of being represented graphically and are distinctive. Like Usain Bolt has applied for the registration of his lightning bolt pose and Nike’s famous Jumpman trademark, illustrating Michael Jordan’s slam dunk pose that is already registered in India.14 Section 1415 of the Trademarks Act, explicitly prohibits any form of association with a deceased person, who has passed away within 20 years, in order to preserve their personality rights.16
11 Supra note at 5.
12 Trade Marks Act, No. 47 of 1999 §2(m) (Ind.)
13 Abhijeet Das & Pragya Jain, Personality Rights – The Power of Influence, Its Misuse And Protection (Nov. 12, 2024)
https://www.mondaq.com/india/trademark/1543634/personality-rights-the-power-of-influence-its-misuse-and-pr otection
14 Sakshi Mathur, Trademark protection of signature poses and voices of celebrities in India: An uncharted territory (June 08, 2023)
https://www.asialaw.com/NewsAndAnalysis/trademark-protection-of-signature-poses-and-voices-of-celebrities-i n-india-an-un/Index/1719
15 Trade Marks Act, No. 47 of 1999 §14 (Ind.)
16 IPLF, Evolution of Personality Rights in India (Aug. 26, 2024)
https://www.ipandlegalfilings.com/evolution-of-personality-rights-in-india
The Copyright Act of 1957, Section 3817, affords twofold protection to performer’s rights. First being the exclusive rights of the performer under Section 38A and second are the moral rights of the performer available under Section 38B. Section 2(qq)18 of the Act has defined a performer as: “an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance”. Therefore limited and indirect protection is granted to celebrities under the Copyright Act.
Other than the limited and indirect Constitutional and Statutory protection under the Trademark Act and the Copyright Act, common law remedies of passing off, or tort of libel or slander or disparagement are also available for the protection of celebrity rights.
Recent Judicial Decisions Safeguarding Personality Rights In the case of Rajat Sharma Vs Tamara Doc & Ors19, Justice Amit Bansal of the Hon’ble Delhi High Court protected the personality rights of India TV’s journalist Rajat Sharma by restraining the defendants from unauthorisedly using/exploiting his persona, name and likeness by any means, including the use of AI.
In the case of Manchu Bhaktavatsalam Naidu Alias Mohan Babu Vs Phanmantu & Ors20, Justice Mini Pushkarna of the Hon’ble Delhi High Court came to the rescue of Telugu actor Mohan Babu by preventing the unauthorised use of his name, image or voice by certain social media accounts, e-commerce websites and AI Chatbots. In this way the personality rights of the actor were protected.
Justice Sanjeev Narula, in the case of Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store & Ors21, passed orders in order to protect the publicity and personality rights of actor Jackie Shroff. The actor’s voice, name and image were being misused by social media accounts, e-commerce websites, AI chatbots etc. and he was also being associated with material which was porngraphic in nature.
17 The Copyright Act, No. 14 of 1957 §38 (Ind.)
18 The Copyright Act, No. 14 of 1957 §2(qq) (Ind.)
19 Rajat Sharma and Ors. vs. Tamara Doc and Ors. MANU/DEOR/135845/2024
20 Manchu Bhakthavatsalam Naidu Alias Mohan Babu vs. Phanumantu and Ors. MANU/DEOR/134855/2024 21 Jaikishan Kakubhai Saraf Alias Jackie Shroff vs. The Peppy Store and Ors. MANU/DEOR/81715/2024
In September 2023, Justice Pratibha M Singh in order to protect the personality and publicity rights of actor Anil Kapoor, passed orders restraining unauthorised platforms from commercially exploiting the name, image, likeness, persona, voice or his dialogue in any manner. Further it was ordered that his images cannot be used as GIFs for commercial gains and AI tools cannot be used to morph his image.22
Justice RI Chagla in the case of Arijit Singh v. Codible Ventures LLP and Ors23, while protecting the personality and publicity rights of the singer Arjit Singh made the following observations:
“These Defendants are attracting visitors/drawing traffic to their websites and/or AI platforms by capitalizing on the Plaintiff’s popularity and reputation, thereby subjecting the Plaintiff personality rights to potential abuse. These Defendants are emboldening internet users to create counterfeit sound recordings and videos that misuse the Plaintiff’s character and identity…Additionally, allowing the Defendants to continue using the Plaintiff’s name, voice, likeness etc. in the form of an AI content, without consent of the Plaintiff, not only risks severe economic harm to the Plaintiff’s life/career, but also leaves room for opportunities for misutilization of such tools by unscrupulous individuals for nefarious purposes.”
These among other judicial decisions establish the proactive role played by the Indian Courts thus far in protecting rights of celebrities from being infringed upon by unauthorised persons and platforms and interpreting these rights to have a direct bearing on their livelihoods which is a constitutionally protected right.
Suggestions and Conclusion
It is evident from the various judgments cited in this paper that the personality and publicity rights of famous people have been granted protection from time to time in our country. However, this has happened largely through interpretation and/or extrapolation of the existing laws and acts that predate the rise in commodification of personality. Thus it has been more of a piecemeal approach in absence of a comprehensive legislation on the subject.
22 Prashant Jha, Delhi High Court passes omnibus order to prevent use of image, voice, dialogue of Anil Kapoor on plea alleging AI misuse (Sept. 20 2023)
https://www.barandbench.com/news/delhi-high-court-order-to-prevent-misuse-image-voice-dialogue-anil-kapoo r-misuse-ai
23 Arijit Singh vs. Codible Ventures LLP and Ors. MANU/MH/4749/2024
The rapid proliferation of social media stars, social media influencers, content creators etc. over and above the hitherto recognised celebrity classifications, will result in an uptick in the number of disputes as well as the types of disputes concerning infringement of publicity and personality rights. Therefore, the need for either separate legislation on the subject or making suitable amendments in the Copyright Act or Trademark Act would be a timely step in the right direction in order to provide holistic protection to the rights of celebrities.
The challenge will be further complicated by the advent of AI and AI generated content. Such potential infringements and their determination will only increase in numbers and grow more complex in nature, demanding a close look at the intersection of personality rights and AI. With AI already being trained on user data and being used to create works which may be imitations or recreations of existing works, there are lawsuits being filed globally on such issues. Indian Jurisprudence will also have to keep up with these emerging trends and the Courts will have to be more vigilant in order to effectively adjudicate on such personality and publicity rights cases in future.
Author:
Ambica Sood
Campus Law Centre, Faculty of Law, University of Delhi