Introduction
Personality rights, a cornerstone of individual autonomy and integrity, encompass a broad spectrum of legal entitlements safeguarding personal attributes such as one’s name, image, reputation, likeness, and other facets of identity. These rights empower individuals to take legal action against unauthorized third parties seeking to exploit their reputation or personal information for commercial gain. Rooted in the concept of the right to privacy, personality rights have naturally evolved into what we now recognize as the right of publicity or celebrity rights.
In our increasingly digitized world, where social media and the internet hold pervasive influence, the significance of personality rights has grown exponentially. Public figures, celebrities, and everyday individuals alike must shield their personal brand and reputation from misuse, whether it is through unauthorized endorsements, false representations, or invasive intrusions into their private lives.
Yet, the scope and strength of personality rights vary from one jurisdiction to another, with some nations offering more robust protection than others. In certain cases, individuals must proactively assert and defend these rights, while in other instances, the law automatically acknowledges and safeguards them.
As society continues its evolution, so do the complexities and opportunities associated with personality rights. Emerging technologies like deepfakes and online impersonation have raised intricate legal and ethical dilemmas that demand ongoing consideration. Consequently, the concept of personality rights stands as a dynamic and evolving area of law, aspiring to strike a delicate balance between individual liberties and the demands of a modern, interconnected world.
In essence, personality rights constitute the fundamental and inherent protections that uphold the core aspects of a person’s identity, spanning privacy, image, voice, and moral integrity. These rights extend not only to individuals but also to legal entities, ensuring the safeguarding of their organizational identity, especially through the right to privacy and corporate name protection.
Within the realm of personality rights, a critical focus lies on preserving an individual’s dignity and physical well-being, encompassing principles such as the free disposal of one’s body and the prohibition of inhuman and degrading treatment. From an international standpoint, various legal mechanisms exist in relation to personality rights. In the United States, the right to publicity is generally regarded as encompassing two distinct rights: the right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, and the right to privacy, the right to be left alone. Here, the right to publicity is a State law, and its scope varies from State to State. Notably, the right to publicity is governed by state laws in the USA, and its scope varies from state to state. In some states, it remains protected as a common right. Conversely, at the federal level, the Lanham Act of 1946, primarily governing trademark laws, is often invoked by celebrities to assert personality rights due to the absence of specific legislation addressing personality rights. In contrast, in the United Kingdom, despite the widespread practice of personality licensing, the courts have consistently declined to recognize personality rights. Consequently, celebrities often explore alternative legal avenues to safeguard their image and personality. Nonetheless, several countries, such as France, Germany, Portugal, and others, have established statutory recognition for personality rights. These models could serve as valuable case studies for common law jurisdictions, offering insights into the incorporation of personality rights into their statutory frameworks.
Nevertheless, the challenge persists in maintaining a delicate equilibrium between the right to respect for private life and other freedoms, including freedom of expression, media freedom, and the right to access information. The rapid advancement of technology, exemplified by video surveillance and online publication, poses substantial threats to personality rights.
In response to these challenges, the law equips individuals with a range of tools to address personality rights violations. Legal remedies abound, allowing for swift action through summary proceedings when circumstances warrant it.
The complexity of personality rights violations demands a holistic approach to their defense. This involves identifying the harm, choosing the most suitable legal course of action for each unique case, and scrutinizing relevant legal precedents. While the concept of the right to personality or right to publicity hasn’t been extensively developed in the Sri Lankan context. But India, as a South Asian nation, has taken significant strides to safeguard these rights.
This article will delve into India’s proactive measures for protecting the right to personality, delving into their legal principles and the strategies they employ to preserve these vital rights in an era characterized by rapid digital evolution.
Preserving the Right to Personality: India’s Approach
- Constitutional Protection of the right to personality and publicity
In the realm of India’s legal landscape, the foundation for upholding personality rights lies within the contours of Article 21 of the Indian Constitution. This article, encapsulating the right to life and dignity, inherently encompasses the rights to privacy and publicity. Its essence serves as the bedrock for shielding individuals from unwarranted encroachments into their personal identities, ensuring their right to life with dignity and autonomy, devoid of unauthorized exploitation or intrusion. Article 19 guarantees the fundamental right to freedom of speech and expression, encompassing the publicity rights of celebrities.
Two pivotal legislations, the Trade Marks Act, 1999, and the Copyright Act, 1957, play a crucial role in providing statutory guidance on the matter. The Trade Marks Act, 1999, governs trademark law in India, addressing the registration, protection, and enforcement of trademarks. Section 14 of this Act stipulates that when filing for the registration of a trademark, the consent of the living person must be obtained, preventing false or fraudulent acquisition. If the registration involves the name of a deceased person within twenty years of their demise, consent from legal heirs becomes imperative. The Act’s definition clause in Section 2(1)(m) acknowledges that a ‘name’ can be a ‘mark,’ implying that if an individual’s name is widely identifiable, it can be trademarked. Section 9(2)(a) further specifies that a deceptive trademark causing customer confusion is ineligible for registration.
Concurrently, the Copyright Act, 1957, governs copyright law in India, offering protection to various creative works. Section 38 of this Act grants special rights to performers for their performances, safeguarding them against unauthorized usage. Section 57 bestows the right of authorship to creators, conferring exclusive usage rights.
The Competition Act, 2002, complements these protections by imposing restrictions on false, deceptive, and unauthorized usage of a person’s name or similar characteristics, particularly when connected to consumer-related activities.
In amalgamation, these legal provisions create a comprehensive framework of rights aimed at protecting an individual’s publicity rights.
- Judicial Recognition of the right to personality and publicity
The courts in India have frequently adjudicated cases involving disputes related to the personality rights of renowned public figures, often invoking the common law right of publicity. Notably, terms such as “Celebrity,” “famous Personality,” or “publicity rights” lack explicit legal definitions, leaving the discretion of determining celebrity status and the enforceability of publicity rights to individual judges. The concept of personality rights, being broadly defined, has been subject to diverse interpretations by the judiciary, all aimed at safeguarding the rights of celebrities.
A significant case that exemplifies this legal stance is Shivaji Gaikwad v. Varsha Production, wherein the Madras High Court deliberated on a lawsuit brought forth by the esteemed Indian actor Mr. Rajinikanth. It was explicitly acknowledged that “Personality Rights” remained undefined in any Indian statute. Nevertheless, Indian courts have acknowledged its existence and significance in certain precedents.
In a subsequent case, Titan Industries Ltd. v. Ramkumar Jewelers, the Delhi High Court, in 2012, took the initiative to define the term “celebrity.” The court astutely observed that the “right to control the commercial use of human identity is the right to publicity.” Furthermore, it expounded upon the notion of a “famous or well-known person” as someone who has achieved a level of prominence such that they are a topic of discussion or widely recognized by the public.
While corporate bodies are recognized as legal persons within the legal system, the rights pertaining to personality or publicity are expressly confined to “individuals” and do not extend to corporate entities. The legal position in this regard was elucidated in the case of ICC Development (International) Ltd. v. Arvee Enterprises and Ors, where the plaintiff contended that they exclusively owned the commercial “identity” or “persona” of ICC Events, along with the publicity rights associated with all profit-driven ICC Cricket events. The plaintiff alleged the unauthorized use of the created “persona” and “identity” by the defendants for financial gain.
In response, the defendants argued that the right to publicity safeguards not only the publicity values of individuals but also extends to non-living objects that gain popularity through concerted efforts. Dismissing this argument, the Delhi High Court emphasized that while legislation adequately protects all forms of property appropriation by legal entities, including under Copyright Law, conferring personality rights upon corporations contradicts the fundamental concept of “persona.” Relying on foreign cases, the High Court underscored that the majority of foreign courts did not extend publicity rights to non-living entities.
The Delhi High Court articulated the following stance, drawing from foreign precedents, which consistently held that publicity rights are inherent in individuals or indicia of an individual’s personality, such as name, personality traits, signature, or voice. While an individual may acquire the right of publicity through association with an event, sport, movie, etc., this right does not vest in the event itself or the organizing corporation. Any attempt to transfer the right of publicity from individuals to non-human entities organizing events would contravene Articles 19 and 21 of the Constitution of India. The court affirmed that no persona can be monopolized, and the right of publicity exclusively belongs to the individual, who is entitled to profit from it.
In 2017, in the legal matter of Gautam Gambhir v. D.A.P & Co. & Anr, the renowned Indian cricketer asserted that the utilization of his name as a tagline for the chain of eateries owned by the Defendants infringed upon his personality rights and violated his entitlement to trademark protection due to his widespread fame. He contended that this usage led the public to mistakenly believe that he had an affiliation with the restaurants, thereby creating a misleading and deceptive impression.
However, the Delhi High Court declined the cricketer’s plea for an injunction, reasoning that there was a lack of substantiated evidence to support the claim that the defendant sought to present his eatery as being operated by the cricketer. Notably, neither the restaurant nor the defendant’s social media platforms featured any public representations of the cricketer that could have potentially confused customers. The defendant submitted his images to link his eatery to his “own” name.
The High Court concluded that there was no exploitation of the plaintiff cricketer’s name for commercial gain, and there was no discernible harm to the goodwill in his industry as a result of this situation. Consequently, the lawsuits were dismissed. This case underscores that even when involving a prominent public figure and a widely recognized personality, a lawsuit pertaining to “publicity rights” may not prevail unless it establishes unfair enrichment stemming from the misuse of a celebrity’s personality rights. Based on this, it can be concluded that the Indian jurisdiction places considerable emphasis on the growth and recognition of the right to personality and publicity rights.
The cases of Amitabh Bachchan V. Rajat Nagi & Ors. and Anil Kapoor v. Simply Life India & Ors. stand out as two prominent and consequential decisions recently rendered by Indian courts on the matter of the right to personality.
- Amitabh Bachchan Rajat Nagi & Ors.
Amitabh Bachchan, as the plaintiff in this case, initiated legal action against nine known defendants, in addition to unidentified infringers. The lawsuit was centered on the violation of his personality rights as a renowned celebrity. The plaintiff alleged that the defendants were extensively appropriating various elements of his persona, including photographs and voice, with the intention of enticing the public to utilize or download their mobile apps, websites, and products. To illustrate, one defendant was found to be exploiting the plaintiff’s celebrity status to perpetrate a KBC Lotteries scam, while another was selling t-shirts featuring the plaintiff’s photograph on their website.
The court’s observation concluded that a prima facie case had indeed been established in favor of the actor and against the defendants, comprising various individuals and entities accused of infringing upon Bachchan’s personality rights.
Justice Navin Chawla stated, “In my opinion, the plaintiff has successfully presented a prima facie case in his favor. Additionally, the balance of convenience aligns with the plaintiff and against the defendants.”
The court noted that the defendants seemed to be leveraging the actor’s celebrity status without his explicit authorization or consent. Furthermore, the court opined that the activities in question were tarnishing the actor’s reputation.
Consequently, the court issued an ex parte ad-interim injunction, which restrained the defendants from violating Bachchan’s publicity or personality rights. This injunction specifically prohibited the misuse of his name, including variations such as “Amitabh Bachchan/ Bachchan/ BigB / AB,” his voice, image, and any other distinctive attributes exclusively associated with him, for either commercial or personal gain.
In addition to this, the court directed the Department of Telecommunication (DoT) and the Ministry of Electronics and Information Technology (MeitY) to compel the relevant Internet Service Providers to take down all links or websites as detailed in the plaintiff’s complaint. Furthermore, the court ordered Telecom Service Providers to block access to all phone numbers employed by the defendants for disseminating messages on messaging apps like WhatsApp, actions that amounted to infringement of Bachchan’s rights.
- Anil Kapoor Simply Life India & Ors.
The plaintiff, Mr. Anil Kapoor, a renowned Indian actor, has initiated a legal suit to protect various aspects of his personal identity, including his name, image, likeness, persona, voice, and other attributes, from being misused across the internet. The rights asserted by the plaintiff in this lawsuit encompass personality rights, specifically the right to publicity, copyright protection for his dialogue, image, and related works, as well as common law rights that shield him against passing off, dilution, and unfair competition.
The plaintiff alleges that all the defendants are involved in various ways in the improper utilization of different facets of his persona, engaging in malicious activities. These activities include distributing electronic stickers featuring the plaintiff’s image and profiting from them, employing his name and photographs in posters, marketing suits under the plaintiff’s name and image, producing counterfeit autographs and photos of the plaintiff, creating manipulated images and videos, using Artificial Intelligence to create derogatory content not only targeting the plaintiff but also involving other actresses such as Katrina Kaif, Madhuri Dixit, and the late Sridevi, whose faces are morphed with the plaintiff’s in pictures or videos wearing the clothing of these actresses.
Furthermore, the defendants are generating cartoon character depictions of the plaintiff through Artificial Intelligence, circulating GIF images of the plaintiff on various social media platforms, unlawfully occupying domain names like www.anilkapoor.in, www.anilkapoor.net , and www.anilkapoor.com Moreover, they are fabricating, publishing, and disseminating fake pornographic videos featuring the plaintiff along with other actresses.
The Plaintiff has drawn upon several rulings from both foreign and Indian courts to support the contention that various aspects of a personality, including but not limited to name, image, likeness, voice, and other distinctive attributes, qualify as protectable elements. In bolstering this argument, the Plaintiff cited the precedent of notable cases such as Bette Midler v. Ford Motor Company and Vanna White v. Samsung Electronics America.
Anil Kapoor has put forth a compelling argument asserting that his name, voice, image, and other facets of his persona have acquired a distinctive and unique character over the course of his illustrious career, which spans appearances in over 100 films, television shows, web series, and advertisements. He further contends that any third party found exploiting his personality rights is highly likely to create confusion and deception among the general public regarding its association with the renowned actor.
The court made a noteworthy observation that while fame can bring advantages, it can also carry its own disadvantages. In this particular case, it became evident that one’s reputation and fame can potentially lead to harm.
The court affirmed the fundamental principle that freedom of speech, including forms such as satire and legitimate criticism, is indeed protected. However, it emphasized that there is a boundary beyond which such expression transforms into a detriment to an individual’s personality and the associated elements linked to that individual. In such instances, the court deemed such actions to be unlawful.
The court further underscored that utilizing a person’s name, voice, dialogue, or image in an unauthorized and commercial manner is impermissible. It acknowledged that a celebrity’s rights of endorsement represent a significant source of livelihood, and this cannot be entirely compromised by activities like selling merchandise.
Highlighting the prevalence of advanced technological tools, the court noted that these tools enable unauthorized users, including those employing Artificial Intelligence (AI), to exploit a celebrity’s persona. In this context, the court emphasized that celebrities also possess a right to privacy and should not be subjected to having their image or voice portrayed in a negative or offensive manner, as often occurs on pornographic websites.
Moreover, the court took note of the fact that the actor’s image being manipulated with other actresses not only offends him but also affects other third-party actresses. Justice Singh stressed that the court cannot ignore such misuse and that tarnishing an individual’s image is a legally actionable wrong for which Kapoor deserves protection.
The court concluded that the plaintiff’s name, voice, persona, and related aspects merit safeguarding, not only for his own sake but also for the well-being of his friends and family who would understandably prefer to shield his name from misuse and negative exploitation.
In response to Anil Kapoor’s legal action aimed at safeguarding his personality rights, the Delhi High Court issued an interim injunction order. This suit’s primary objective is to prevent multiple entities, including unidentified parties, from infringing upon Kapoor’s personality rights. Specifically, the injunction seeks to prohibit the unauthorized use of his name, acronym ‘AK,’ nicknames such as ‘Lakhan,’ ‘Mr. India,’ ‘Majnu Bhai,’ and the phrase ‘Jhakaas,’ as well as his voice and images for commercial purposes, without his explicit permission.
Justice Prathiba M Singh additionally imposed restrictions on “other unknown persons” from disseminating various videos, the links to which are provided in the order. The court directed all internet service providers to promptly remove these videos in accordance with the injunction.
Conclusion
In the context of Sri Lanka, the establishment of the Right to Personality has not progressed as comprehensively as it has in India, its South Asian neighbor. India has successfully solidified the Right to Personality and the Right to Publicity, marking significant strides in expanding the boundaries of the Right to Privacy. Nevertheless, it’s worth noting that ‘Personality rights’ in India have primarily evolved through judicial precedents and haven’t materialized into a distinct statutory law despite many years having passed.
One of the primary concerns surrounding this right pertains to the definition and scope of a ‘celebrity.’ The Courts have offered guidance on this matter, but the criteria for achieving celebrity status and commercial value remain somewhat ambiguous. What precisely constitutes the threshold for determining an individual’s level of popularity deserving of protection under this right remains an unanswered question.
Furthermore, as we delve into the era of abundant information flow and data proliferation, even common individuals and their personal information have become subjects of commercial exploitation. It is imperative to reconsider the definition of a celebrity, especially in light of the burgeoning culture of reels and memes in the online domain, where virtually everyone can attain a semblance of celebrity status within their own digital sphere.
The evolution of this right in response to the rapid technological advancements of our times presents a captivating and pertinent area for future exploration. As technology continues to reshape the way we engage with information and media, the manner in which this right adapts and safeguards both celebrities and everyday individuals will be a subject of keen interest in the years to come.
Dulmini Sarashika Ekanayake
(Dulmini Sarashika Ekanayake is a proficient independent multi-disciplinary researcher based in Colombo. She completed Bachelor of Laws (LLB) from The Open University of Sri Lanka and a Bachelor of Arts (Hons.) Degree in Business Statistics from the University of Sri Jayewardenepura. Her research prowess is primarily focused on areas related to Law, Justice, Geopolitics, and Data Science.)
References
The Constitution of India, 1950
Trade Marks Act, 1999
Copyright Act, 1957
2017 SCC OnLine Del 12167
ICC Development (International) Ltd. v. Arvee Enterprises and Ors, 2003 SCC OnLine Del 2
2003 SCC OnLine Del 2
2012 SCC OnLine Del 2382
2015 SCC OnLine Mad 158
CS(COMM) 819/2022
CS(COMM) 652/2023 and I.A. 18237/2023-18243/202
https://www.drishtiias.com/daily-updates/daily-news-analysis/personality-rights
