Personality Rights – The power of influence, its misuse and its protection | Network of international lawyers

INTRODUCTION

Publicity rights play an important role in India, due to the culture of celebrity worship and the importance of the name, image and likeness of sports, television and media personalities, personalities politicians, musicians, etc. Indian intellectual property laws do not directly or explicitly permit them. recognize personality rights, but several regulations and provisions deal with these rights. In India, the right to publicity is recognized as part of the right to privacy. In the case of KS Puttaswamy v. Union of India(1)where the right to privacy has been declared a fundamental right under Article 21 of the Indian Constitution, the Supreme Court also reflected on the rights of personality and observed that:

Every individual should have the right to exercise control over their own life and image as it is presented to the world and to control the commercial use of their identity. It also means that an individual may be allowed to prevent others from using their image, name, and other aspects of their personal life and identity for commercial purposes without their consent..

On the other hand, the field of intellectual property provides indirect protection of rights of publicity under the Copyright Act of 1957 (“Copyright Act”) and the Trademark Act of 1999 (“Trademarks Act”). Under section 38 of the Copyright Act, the provision grants two types of rights to a performer: exclusive rights for the performer under section 38A and moral rights for the performer under section 38B. On the other hand, the Trademark Law, in its Section 2(m), includes “names” in the definition of “trademark”, which allows celebrities to register their names as trademarks to avoid any misuse. Many celebrities in India, like Shah Rukh Khan, Priyanka Chopra, Ajay Devgn and Amitabh Bachchan, due to their goodwill and reputation, are registered owners of their respective names.

JUDICIAL POWER OVER 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 meaning in contemporary legal discourse. The position taken by Indian courts has primarily been 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 fits seamlessly in our daily lives. In line with the principle laid down, some of the recent developments are discussed below:

In the case of Jaikishan Kakubhai Saraf v. Peppy Store(2)the Delhi High Court refused to grant a ex parte ad interim injunction in favor of the plaintiff to maintain the artistic and economic expression of the defendant. The accused had made a video compilation on YouTube showing the frankness and wit of the complainant (Jackie Shroff), which the court held to be the current public perception of the famous complainant. However, in cases where the plaintiff’s videos were superimposed with audio recordings containing extremely crude language and profanity, the court granted relief in favor of the plaintiff, saying it had the capacity to tarnish his reputation. Likewise, acts such as hosting AI chatbots allowing users to “chat” with the chatbot that impersonates the complainant or selling wallpapers of the complainants without their permission have been at first sight considered to violate the celebrity’s personality rights.

Likewise, in Manchu Vishnu Vardhan Babu Alias ​​​​Vishnu Manchu v. Arebumdum & Ors.(3)the Delhi High Court highlighted how a celebrity, through his or her 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 a person’s personality is bound to sow confusion and deception among the public as to their affiliation with or sponsorship by the celebrity concerned. In the present case, the personality of the famous plaintiff and his various aspects have been abused by the defendants in multiple ways, which has maligned his character and has been very detrimental to the goodwill and reputation of the plaintiff. Although the matter is under hearing, she issued an order restraining the defendants from creating/publishing/communicating to the public/broadcasting any content defaming the plaintiff and from using, exploiting or misappropriating the rights of the personality of the complainant using his attributes.

Moreover, in Anil Kapoor v. Simply Life India & Ors.(4)the famous actor complainant approached the Delhi High Court for protection of his personality attributes, under various laws and provisions in the absence of a single statutory provision governing his personality and publicity rights. The case in question illustrates the complex interplay between fame and the rights of individuals, particularly with regard to reputation, privacy and livelihood. While freedom of expression and the right to information allow for genuine criticism and satire of public figures, it is believed that this right has its limits. Referring to the historical case of R. Rajagopal v. State of Tamil Nadu(5)he summarized the position of the Supreme Court by recognizing that –

1. The right to privacy is intrinsically linked to the right to life and liberty guaranteed by Article 21 of the Constitution. It protects personal and family information from unauthorized publication, whether the content is positive or negative.
2. An exception exists for matters in the public domain, which can be commented on; however, sensitive matters, particularly those involving victims of crime, should be handled with discretion.
3. The proliferation of technology, particularly artificial intelligence, has made unauthorized depictions of a celebrity’s persona easier, necessitating vigilant protection of their rights.

The Court further emphasized the distinction between freedom of expression in various forms, as long as it is genuine and without hurtful intent. It also highlighted the protection of well-known people who have earned respectable reputations on which the majority of their livelihoods are based. Therefore, the plaintiff has succeeded in establishing a at first sight case by guaranteeing the delivery of a ex parte injunction against the defendants.

Furthermore, with regard to the inheritance of publicity rights from a deceased person, in the case of Deepa Jayakumar v. AL Vijay(6), the Madras High Court held that

it is clear that a private life or a reputation acquired by a person during his life is extinguished with his death. After the death of a person, the reputation acquired cannot be inherited as movable or immovable property by his legal heirs. The right to personality, reputation or privacy that a person enjoys during his or her life ends after his or her life. We are therefore of the opinion that the “posthumous right” is not an “alienable right”..

CONCLUSION

In summary, the evolving discourse on personality rights in India highlights the delicate balance between individual privacy and freedom of expression in a rapidly evolving digital landscape. As celebrities increasingly become targets for exploitation, the need for legal frameworks protecting their unique attributes is paramount. Judicial interpretations in cases such as Jaikishan Kakubhai Saraf v. Peppy Store And Anil Kapoor v. Simply Life India highlight the courts’ commitment to protecting personality rights while recognizing the complexities of artistic expression and public discourse.

Furthermore, the interaction between intellectual property rights and the constitutional right to privacy provides a basis for further development in this area. Recognition of personality rights, although still in its infancy, holds promise for curbing unauthorized commercial use and protecting the dignity of individuals in the public eye. As technology continues to blur the boundaries of personal identity, legal protections must evolve to effectively address these challenges. Ultimately, ensuring the integrity of personality rights is essential not only for the well-being of celebrities, but also for maintaining ethical standards in a society increasingly influenced by public figures.

(1) (2017) 10 SCC 1, 629.

(2) 2024 CSC online Del 3664.

(3) CS(COMM) 828/2024.

(4) CS(COMM) 652/2023.

(5) (1994) 6 SCC 632.

(6) 2021 CSC online Mad 2642.