In today’s society, people are more interested in the lives of celebrities than in any other matter. They have a constant eye on the tabloids to get some of the other gossips. They are obsessed with the celebrity and often even worship them. We often see the pictures of such famous personalities on auto-rickshaws, on the hoardings outside local salons, or the juice corners, to attract more customers. This usage is mostly unauthorized and amounts to a violation of Personality/Publicity/Celebrity/Image Rights. These rights protect against the use of an individual’s persona for commercial gain.
This article aims to discuss the position of personality rights in India and its development through judicial precedents.
Keywords
Entails- involve (something) as a necessary or inevitable part or consequence
Jurisprudence- The theory or philosophy of law
Innumerable- too many
Counterparts- a person or thing that corresponds to or has the same function as another person or thing in a different place or situation.
Introduction
Personality Rights are generally attributable to celebrities. However, the term ‘celebrity’ is not defined anywhere. In simple terms, it is used to refer to a person who is famous and recognizable by the public. Today, actors, politicians, TV stars, sportspersons, models, musicians, singers, comedians, authors, are all referred to as celebrities.
Personality Rights or Celebrity rights stem from the common law right to property, right to privacy, and the tort of passing off. Since no legislation grants protection to Personality Rights per se, judicial activism has proved to be the main source of protection for these rights. Accordingly, these rights have been classified as-
(a) Right to Privacy: The right to privacy refers to the right to be left alone. It helps the celebrities in getting orders against such persons who invade their privacy and present their personality to the public without their permission. The right to privacy has been recognized as being implicit in the ‘Right to Life and Liberty’ guaranteed under the Constitution of India.
(b) Right of Publicity: The right to publicity refers to the right of a celebrity to control the commercial exploitation of their persona, like name, signature, voice, photograph, and the like. It also entails a right to prevent others from free-riding on the success of such persons. The right to publicity thus prevents others from cashing in on the popularity of these celebrities. They are also sometimes referred to as ‘Merchandising Rights’.
Statutory Protection
Although there is no explicit mention of ‘personality rights’ in any statute, the Courts have upheld such rights on many occasions. Protection, up to a certain extent can be granted under the copyright law, trademark law, and under the right to privacy.
Under the copyright law, an author of a work has a ‘moral right’ to have the work attributed to him and to prevent distortion, mutilation, or modification of the work which might prejudice the reputation of the author. Also, in some cases, the celebrities may have copyrights in their photographs. Thus, the unauthorized use of such pictures might attract legal action.
As regards the trademark law, no provision prevents a name from being registered as a trademark. Therefore, the name of celebrities can be registered, and they can prevent the unauthorized use of such trademarks. Moreover, sounds and signatures can also be protected as a trademark.
For example, Shah Rukh Khan applied for registration of his initials “SRK” in almost all the classes; Yoga guru Baba Ramdev, noted cardiologist Naresh Trehan and well-known chef Sanjeev Kapoor, among others, have either applied for or registered their names in various categories. However, in this regard, celebrities in India are much behind their western counterparts, who have innumerable such registrations, like Beyonce has her daughter’s name “Blue Ivy Carter”trademarked; the famous rapper “50 Cents” has a trademark on his stage name; and recently Lionel Messi, the famous footballer, won a nine-year-long battle to trademark his surname “Messi”.
The celebrities can also bring an action against the persons who encroach upon their privacy. Nobody can publish private details about the celebrities without their permission, else a claim can be brought against them. However, if such information is based on facts available in the public domain, no action lies.
Judicial Interpretation
Since there is no particular statute that protects personality rights, the jurisprudence for these rights is mostly derived from judicial precedents. Some of these include:
ICC Development (International) vs. Arvee Enterprises And Anr.[1]
In this case, the plaintiffs contended that the “ICC World Cup” had developed its own “persona” owing to the popularity of the event, and the defendants could not commercially exploit the same. However, the Hon’ble Delhi High Court rejected the contention, and held that-
”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 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 organizer {non-human entity} of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolized. The right of Publicity vests in an individual and he alone is entitled to profit from it.”
D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors.[2]
In this case, the plaintiffs alleged that there was a violation of the publicity rights of Daler Mehndi (which were assigned to them) by the defendants as they were selling dolls identical to the singer. The Court upheld the contention of the plaintiffs and granted an injunction against the defendants along with compensation.
Titan Industries Ltd. vs. M/S Ramkumar Jewellers[3]
In this case, the plaintiff sued the defendants for using their advertisement which Mr. Amitabh Bachchan and Mrs. Jaya Bachchan were promoting. While granting relief to the plaintiffs since hey had been assigned publicity rights by the celebrity couple, the Court observed that-
“When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where, and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity.”
The Court also laid down the basic elements comprising the liability for infringement of the right of publicity, as-
“Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.
Identifiability: The Celebrity must be identifiable from the defendant’s unauthorized use Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws.”
Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Production[4]
The famous Indian actor, Rajinikanth sued the defendants for infringing his right to publicity. He alleged that the defendants had copied his name/image/caricature/style of delivering dialogues in the forthcoming project/film titled ‘Main Hoon Rajinikanth’. He also argued that there were certain immoral scenes in the movie, which would cause gross damage to his vast reputation/goodwill amongst the public across the world and the Indian film industry. The Court, while upholding the plaintiff’s contentions and granting relief, held that although there are no specific statutes defining personality rights, “the Courts in India have recognized the personality right in the name, in various judgments”. It was also observed that “..it is seen that if any person uses the name of a celebrity without his/her permission, the celebrity is entitled to an injunction if the said celebrity could be easily identified by the use of his name by the others.”
Conclusion
Although there are no specific provisions governing personality rights, the Courts have played an active role in protecting these rights. Such protection plays a significant role especially during this celebrity-obsessed culture prevailing in this country. The law in this regard is still evolving with every case and looks promising.
Protection also becomes more important as the celebrities now have greater responsibility/liability in respect of the product/service that they endorse under the Consumer Protection Act 2019. So any unauthorized use of their persona with any product/service might put them in a lot of legal trouble.
References
- https://www.obhanandassociates.com/blog/personality-rights-in-india/
- https://indiankanoon.org/doc/882835/
- https://indiankanoon.org/doc/181125261/
- https://indiankanoon.org/doc/26058025/
[1] 2003 (26) PTC 245 Del
[2] CS(OS) No. 893 of 2002
[3] 2012 (50) PTC 486 (Del)
[4] 2015 (62) PTC 351 (Madras)
