Protection of Celebrity/Personality Rights in India

When an individual attains celebrity status, their recognition stems not from official identifiers such as a passport or social security number, but from their carefully cultivated public image or persona. The persona, when commercialised, yields profits as a direct result of his individuality, often referred to as his personality rights.[1]

The world of advertising relies on paying celebrities hefty amounts for their goodwill to increase sales and recognition of their products.[2] Personality rights protect the usage of their name, image, or personality traits without their consent.

In Haelan Lab v. Topps Chewing Gum[3], the US court stated that people who have personality rights are entitled to an exclusive privilege to use their name, personality trait, or image. Such a right would be of no advantage to any celebrity if it did not bar others from using their images and earning a profit. The right to publicity is to control the entire circumstance as to what, where, and how their identity is used, not just the commercial use of their identity.

In 2015, in Shivaji Rao Gaikwad v. Varsha Productions[4], the Madras High Court held that personality rights vest with a celebrity. Those people who have gained a status of being identifiable, the plaintiff has this right irrespective of the proof supplied by him showing falsity, confusion or deception to a third party.

Scope of Personality Rights

The courts in Anil Kapoor v. Simply Life India & Ors[5], Bette Midler v. Ford Motor Co.[6] and Vanna White v. Samsung Electronics[7] opined that elements of Personality Rights are broader than only covering the name or picture of the celebrity.

It expanded the horizon of what is covered under the ambit of personality rights by adding elements such as speaking in a particular way, style of delivery of dialogues, signatures, or even gestures that become synonymous with that particular person.

The court stated that the right of publicity, if infringed, also violates the right of livelihood by causing him monetary loss, for not receiving income that has been generated by using his personality.

Personality rights in India

In Titan Industries Ltd. v. Ramkumar Jewellers[8], the Delhi High Court said that the right to commercially use his publicity value is publicity rights, and if he is not able to profit commercially, it means that he’s deprived of his publicity rights. Reaffirming in Amitabh Bachchan v. Rajat Nagi & Ors[9], the Bombay High Court held that publicity rights infringement causes grave, irreparable harm to the goodwill by defaming a personality, especially in India, where morality grounds are high. It should also be noted that it was the first instance where a court used a blanket John Doe order in India to protect personality rights, widening the ambit of a John Doe order.

Clarifying the facets and exceptions to personality rights in Phoolan Devi v. Shekhar Kapoor[10] the Delhi High Court relied on Auto Shanker[11] case stating that right to private intimacies of life is available to all individuals irrespective of their celeb status and exception to public domain is for things which are of legitimate public interest and not unreasonable interest for the entertainment purposes.

In the judgment of K.S. Puttaswamy v. UOI[12], J. Sanjay Kishan Kaul differentiated between what the public has an interest in and what is in the public interest, separating the personal lives of people from what about them is in the public domain. It was also mentioned that a key dimension of privacy includes that each person is entitled to control how their life or their image appears or how they use it commercially. This judgment brought personality rights under the aegis of Article 21.

ICC Development (International) Ltd. v. Arvee Enterprises[13] held that the right to publicity is allowed to an individual, not to a non-living entity, and causing the right to shift from such individual to an event or organisation would be violative of the individual’s rights under Articles 19 and 21.

Personality Rights in Times of AI

With AI, it has become a cakewalk to produce a perfect clone of a celebrity or their likeness. Deepfakes are when AI uses the personality trait(s) of a person and manipulates them in the way it wants, showing that person to be doing what it wants to show. Deepfakes have made their way into our regular lives in the form of social media and phishing scams.

Deepfakes have also resulted in a large amount of non-consensual pornography, including of juveniles, increasing cyber and sexual abuse to a substantial extent.

In Anil Kapoor v. Simply Life India & Ors[14] the court said that depiction of Anil Kapoor’s face deep-faked on a porn actor using AI causes irreparable harm to him intruding his privacy and right to livelihood.

Another threat is the loss of income when the third party uses the celebrity’s persona without his permission to make monetary gains. In Arijit Singh v. Codible Ventures LLP and Ors.[15], AI cloned his voice and profited from his personality rights without his permission.

In 2024, the Beijing Internet Court recognised personality law infringement by artificial infringement by TTS AI app. It is risky to have personality rights violated by AI, as one never knows which illegal act can be traced to them.

Protection in India

There is a huge gap in legislation relating to personality rights and the development flows from other laws such as protection of data or passing off laws, unlike the US, which is why protection of these rights is limited, depending on the interpretations of respective courts on whether these laws covertly cover personality rights or not.

However, some provisions in India that are used to protect personality rights include Section 57 of the Copyright Act, 1957, which deals with the infringement of an author's moral rights, and Sections 38, 38A, and 38B, which protect the moral and exclusive rights of performers—capturing, in essence, what constitutes personality rights.

Under the Trademarks Act 1999, Section 2 (m) includes names, brand, and signatures in “mark”, hence giving way to celebrities to prohibit people from using their name without their consent by registering their names as trademark; Section 14 states that if any trademark is to be registered showing connection with a particular individual, dead or alive, his or his heir’s consent is required. IT Act 2000, Section 66C states Identity Theft, and cheating by impersonation.

Conclusion

Several countries like the US, Denmark and France have taken necessary steps to legislate on the protection of personality rights. It is especially important in times when AI is proliferating, covering all aspects of one’s personality. There is a need for our country to be proactive by making legislation rather than being reactive and depending on judicial precedents.

Courts have recognised the facets of the right of publicity, but we need a strong, separate, and independent legislation on it. It is pertinent in this digital age to protect one’s personality rights otherwise technologies like deepfake can cause menace like increasing the number of sexual abusers in the form of non-consensual pornographies, using personality trait of celebrities with AI to trap people in scams, or commercially exploiting a celebrity’s image in marketing without his consent. In a society that is galloping ahead, we cannot expect the law to crawl and lag.

References

[1] Estate of Presley v. Russen, 513 F Supp 1339 (DNJ 1981)

[2] Abramovitch, S. H. (1991), Publicity Exploitation of Celebrities: Protection of a Star's Style in Quebec Civil Law, Available Here

[3] 202 F2D 866

[4] 2015 (62) PTC 351 (Madras)

[5] CS (COMM) 652/2023

[6] 849 F.2 d 460 (1988)

[7] 971 F. 2D 1395 (1992)

[8] CS (OS) No. 2662/ 2011

[9] CS (COMM) 822 of 2022

[10] 57(1995) DLT 154

[11] 1994 SCC (6) 632

[12] (2017) 10 SCC 1

[13] 2003 (26) PTC 245

[14] CS (COMM) 652/2023

[15] COM IPR SUIT L No. 23443 of 2024