Where does India stand on protecting the personality and publicity rights of famous people, asks Satvik Varma
In an age where the fame of celebrities is powered by online fandoms, live-streaming, videos and other social media activities, the economic value and commercial potential of personal images, names, associations and other aspects of a celebrity’s persona have increased exponentially. With it comes the misuse of the “personality” by malicious individuals out for personal gain. In order to protect personality rights and restrain offenders, the courts in several countries including India have taken concrete measures.
Recently, actor Anil Kapoor was recognised as one of Time magazine’s “100 Most Influential People in AI 2024”. The magazine notes his significant victory before Delhi High Court, which restrained 16 defendants from using inter alia his voice, likeness, image or any other aspect of his persona for monetary gain and otherwise. So, what “influence” has been caused by Kapoor’s case to merit the bestowal of this prestigious honour by Time? What repercussions does this decision have on the IP regime in India? Is the concept of personality rights inextricably linked with the right to privacy?
Commercialisation
David Ogilvy, one of the founders of renowned ad agency Ogilvy & Mather famously quipped: “If you do not have a strong idea for your advertising campaign, then the easy way out is using a celebrity.” Companies’ focus on brand management has been accompanied by a rise in celebrity endorsements, the brands gaining attention and the celebrity monetarily compensated in return.
Although celebrities are able to use their images and fame for monetary gain, this fame may also be used for nefarious means, such as when a likeness of Amitabh Bachchan’s voice was used to scam people by tying him to the popular TV show Kaun Banega Crorepati (the Indian version of Who Wants to be a Millionaire). So, how does a celebrity protect against such unauthorised use of his/her image, fame, voice and likeness?
Right to publicity
Athletes and other celebrities can now make a fortune endorsing products and services. But the unauthorised use of these personalities by individuals for illegitimate commercial gains has led to courts often being called on to interpret and protect the rights of publicity, or personality rights, of these celebrities.
The right of publicity grew out of the right of privacy and is an intellectual property right of an individual that protects the pecuniary right and interest in the commercial exploitation of their identity. In contrast, the right of privacy is a personal right ensuring one’s right to be left alone.
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The right of publicity, unlike the right to privacy, is a property right that can be bought and sold like any other property. This right has evolved over time and now several aspects of law and judicial precedents define, defend and value such rights.
In the Indian context, Delhi High Court, in the case of Anil Kapoor v Simply life India & Ors. (2023), held that the proliferation of technology, including artificial intelligence, had facilitated unauthorised representation of a celebrity’s persona, necessitating vigilant protection of their rights. Consequently, protecting the personality rights of a celebrity from unauthorised use, dilution, tarnishing, blurring, etc., is important in order to safeguard the personal as well as commercial interests of the individual, and also to prevent any misuse of their personality by any third person who could malign the individual’s character and be prejudicial to their reputation.
However, ownership of personality rights must not be confused with the ownership of the rights over a “character” played by a TV celebrity, as it is completely differentiable from the person who plays them. Robert Downey Jr, for example, may own the personality rights over his own persona, however, he does not own the personality rights over Iron Man, a character played by him, as those character rights are owned by Disney.
Characters like Iron Man are creations of artists, as it is they who use their imagination to clothe the idea of a unique character with certain specific attributes and thereby give the idea an expression, which we recognise as a certain character.
The creator/artist uses their intellect and labour to form the character and hence they are the first individuals who have interest over the commercial exploitation of the said character, apart from licensees and advertisers, and not the individuals who play these characters on screen or in theatres.
Additionally, the right to publicity is not free of exceptions. These include: “written consent”, where the party voluntarily allows the publication of media related to them; “individual must be recognisable”, where the individual who brings the claim of infringement of their personality rights by a third party must be recognisable by such impugned media; “newsworthiness”, where the law permits the use of such media that captures an individual in connection with a newsworthy event, with the term “newsworthy event” afforded a broad definition to even include matters of entertainment and amusement.
The “use of public record” has also been held to be an exception to the right of publicity in the case of Matthews v Wozencraft (1994), where the US Court of Appeals held that information concerning the activities and convictions of an individual were the subject of news reports, and thus a matter of public record, and did not infringe the right to publicity since it was a newsworthy event.
In the UK, the recognition of personality rights is not as strong as in America, especially since there is still no statutory recognition of these rights, instead being guided by common law and arising out of developments in the law of passing off, breach of confidence, trademark, data protection, defamation, etc. This has stemmed from the fact that a formal right to privacy found no recognition in the UK and, owing to the inextricable link between the two rights, the development of personality rights has been snail-paced.
However, a breakthrough came in the seminal decision of Irvine v Talksport Ltd (2003), where a picture of the petitioner (a famous F1 driver) was used in the defendant’s brochure. Although the right to use the picture was obtained, the image was later doctored to suit the needs of the defendant’s product. In this case, the court held that the celebrity had acquired a substantial amount of goodwill, and the defendants had created a false image, and were therefore liable.
In the case of Campbell v MGN Ltd (2004), photographs of supermodel Naomi Campbell were captured while she was leaving a drug clinic. The court in this case found that the photographs contained personal sensitive information about Campbell and the same would not be covered under journalistic purpose, i.e., would not be considered a newsworthy event.
English courts have since made great headway towards developing the jurisprudence of this law. Recently, in the case of Fenty v Arcadia (2015), where renowned singer Rihanna sued a clothing company for using her face on their T-shirts without authorisation, the court upheld Rihanna’s claim, while observing that in English law there is no image right or character right that allows a celebrity to control the use of his or her name or image, thus a celebrity seeking to control the use of his or her image must rely on some other cause of action such as breach of contract, breach of confidence, or infringement of copyright. What ultimately resulted in Rihanna’s victory was the court deciding on it being an action of passing off.
Personality rights in India
Similar to the UK, India does not have a formal right to publicity but has developed the same through various case laws by accepting publicity rights as a facet of intellectual property rights. Jurisprudence on publicity rights in India can be traced from the case of R Rajagopal v State of Tamil Nadu (1994), also known as the Auto Shankar case, which was centred around the issue of pre-publishing censorship of a convicted murderer’s autobiography.
The Supreme Court held that the publishers had the right to publish the autobiography, even without the prisoner’s consent, to the extent it was based on public records and the state cannot impose prior restriction on it on the likelihood of the autobiography being defamatory. While discussing the right to privacy, the Supreme Court also cautioned the publisher against invading the right to privacy of the petitioner by publishing the prisoner’s life story beyond what was available in public records.
Some years later, in the case of DM Entertainment v Baby Gift House (2010), dealing with the misuse of Punjabi singer Daler Mehndi’s trademark as well as his right of publicity, Delhi High Court held that the right of publicity strikes at the individual’s very persona and can be located with the individual’s right and autonomy to permit or not permit the commercial exploitation of their likeness or some attribute of their personality.
In India, just as in America, the right of publicity evolved from the right of privacy, as held by Delhi High Court in the case of ICC Development International Ltd v Arvee Enterprises (2003). The court in this case also opined that an individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc., and any effort to take away the right of publicity from individuals would violate articles 19 and 21 of the Indian Constitution, since the right of publicity vests in an individual alone and he/she alone is entitled to profit from it.
On the question of what elements need to be satisfied to bring a claim of infringement of the right to publicity, Delhi High Court, in Titan Industries v M/S Ramkumar Jewellers (2012), opined that to bring such a claim the plaintiff/claimant must own an enforceable right in the identity or persona of a human being, and the celebrity must be identifiable from the defendant’s unauthorised use.
In several recent cases where well-known celebrities have made claims for protection of their personality rights and right of publicity, the courts across India have granted both interim and permanent measures protecting several features of their personality and restraining unauthorised commercial use of the same.
Delhi High Court is clearly the frontrunner in upholding these rights, which is why, despite the film industry being based in Mumbai, all legal action is brought in Delhi. This includes the case of Amitabh Bachchan v Rajat Nagi & Ors (2022), where the court granted a blanket injunction against named and unnamed offenders making unauthorised commercial use of Amitabh Bachchan’s personality features including his voice and image.
In the case of Jackie Shroff v Peppy Sores & Ors (2024), Delhi High Court safeguarded the personality and publicity rights of popular actor Jackie Shroff, while along similar lines, the Bombay High Court very recently passed an ex parte, ad interim order prohibiting several third parties from using singer Arijit Singh’s name, voice, vocal style and techniques, mannerisms, or any other aspect of his personality, in any manner without consent.
There have been other instances as well, relating to celebrities like Akshay Kumar, advising users and his fans to download and allegedly earn from a certain gaming platform, and several deepfake videos of actors like Rashmika Mandanna, Alia Bhatt, Katrina Kaif and others have also surfaced.
Notably, the courts in India, in granting measures protecting the features of a celebrity’s personality, have been mindful of the rise of AI tools, chatbots and deepfake technologies and, accordingly, measures are being granted by courts against the use of such formats and mediums as well.
Posthumous personality rights
While courts in India recognise and protect the personality and publicity rights of a celebrity, unlike in America, there is no statute or precedent that directly extends these rights beyond the owner’s death and on the owner’s legal heirs.
This was tested in the case of Kirtibhai Raval & Ors v Raghuram Jaisukhram Chandrani (2010), when the Gujarat High Court, in a case concerning the depiction of the life of late spiritual guru Shri Jalaram Bapa, held that no one could make a film on the life of such an iconic figure and exploit it commercially without the consent of the individual concerned, or their legal heirs. However, the court did not directly address the discussion of posthumous publicity rights.
A decade later, posthumous publicity rights were discussed in the case of Deepa Jayakumar v AL Vijay (2021), where the niece of the late Tamil Nadu chief minister Jayalalitha brought an injunction against the producer and director of the film Thalaivi, and also against the producer of the web series Queen. The Madras High Court in this case held that, after the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs, and so such personality rights, reputation or privacy enjoyed by a person during their lifetime comes to an end after their lifetime.
As a result, the court dismissed the injunction petition opining that posthumous rights are not an alienable right, and the petitioner cannot claim injunction on the grounds that the posthumous rights of her aunt were being sullied by the producers.
Along similar lines, in the case of Krishna Kishore Singh v Sarla A Sarogi & Ors (2021), where the father of popular actor, the late Sushant Singh Rajput, sought an injunction against a movie centred around the suspicious death of the actor, Delhi High Court dismissed the said injunction petition on the grounds that the film was completely fiction-based and inspired by certain past events, which were widely discussed and available in the public domain.
The court, however, noted that whether the personality or publicity rights of a celebrity would survive or extinguish after their death required a deeper probe.
On the one hand, Indian courts have recognised the personality or publicity rights of a celebrity to be an intellectual property; and on other hand they have detached the said right from the benefits that other intangible properties under the law are afforded, which is that intangible properties are inherited by the legal heirs of the owner by the laws governing intestate and testamentary succession.
Conclusion
To sum up, in keeping with prevailing social media and technological developments, India, like other major countries, recognises personality and publicity rights of an individual, and also enforces and protects these rights from any unauthorised use by third parties, online platforms, mediums using generative AI, or deepfake technologies.
The courts in India have been liberal and displayed readiness while granting adequate protections and measures if the claimants are able to prima facie show that they own an enforceable right in their identity and that their identity is being used in an unauthorised manner.
What needs to be further explored and developed are the enforcement mechanisms of injunction orders passed against unnamed entities like websites, AI chatbots, etc., whose owners/administrators are often difficult to find.
Further recognising the posthumous nature of these personality and publicity rights is also crucial, considering the fact that other intangible rights in India are inheritable by the owner’s legal heirs as per the relevant laws of succession. Excluding personality and publicity rights from this benefit is counter-productive, in contradiction with general laws governing property rights, and does not honour the hard earned legacy of the deceased celebrity.
Satvik Varma is a senior advocate based in New Delhi. His practice focuses on corporate commercial litigation, complex shareholder disputes, domestic and international arbitrations, and intellectual property matters. Research assistance was provided by advocates Shantanu Parmar and Arindam Bharadwaj.
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