By — Srisoniya

Abstract

Personality rights safeguard an individual’s identity against unauthorised commercial use. Personality rights attach to an individual, particularly someone well-known in the public eye, such as a celebrity, whose identifiable traits may be misused for monetary gain. This article explores the scope of personality rights through perusing the existing statutory framework and precedents in India. It further makes relevant comparisons to the American system, where applicable, while incorporating the societal viewpoint to justify the arguments.

Introduction

What one has, many can have, but who one is, none other can be. An individual’s personality is his alone. He is entitled to preserve and to protect it; others may desire to imitate it, but it still can never truly belong to them. It is believed that attributes about personality rights, which are commonly identified by the public as markers of a celebrity’s personality, are the sole possession of the owner or creator of these distinct features, and it is at their disposal to derive commercial benefits from them as they see fit. This raises the question of whether personality rights are reserved exclusively for individuals regarded as celebrities.  If so, does that not disrupt the equation of equality in society? The right to personality and the right to publicity are used synonymously quite frequently, for this right prevents unauthorised commercial use of an individual’s name, likeness, baritone, or other recognisable aspects of one’s persona. The concept of personality rights is rather new, as far as India is concerned, and consequently, there is an abundance of uncertainty and vagueness around this subject. There remain numerous gaps in legal clarity and significant divergence in legal and scholarly opinion. This article aims to delve into this topic to highlight the existing legal framework while understanding the debates that surround it in modern times.

Judicial and Statutory Recognition of Personality Rights in India

There is no express law or legislative enactment, rule, or policy that protects personality rights in India. But precedents allow us to believe that the Indian courts have been legally backing these rights by considering them as extensions of Article 19(1)(a) and Article 21 of the Indian Constitution, which concern freedom of expression and the right to live with dignity. But these articles do not address the commercial aspect of the rights, thereby rendering them incapable of fully solving the issue. The IPR laws of India, especially the Trademarks Act, 1999, and the Copyrights Act, 1957, have also been used to a certain extent to validate the personality rights. While the copyright act protects limited personality attributes under its scope, trademark law regulates the unauthorized use of those attributes through passing off or false endorsement, thereby collectively protecting personality rights to an extent. The few commonly used provisions under copyright are, section 2(qq) – which defines a performer if we consider the performer aspect of the personality, section 38 – where performer rights can be claimed which prevents unauthorised marketing of one’s performance, section 17(b) – which provides ownership of the visual entity to those present in it (for instance, if an advertisement is put up with an actor starring in it, such an actor shall be the first owner of the said advertisement), section 57 is also applied at times which protects the grounds of moral right. On the other hand, there are a few requirements that need to be fulfilled for the violation of personality rights in a particular instance to be remedied through trademark protection. First, there should be an infringement of a mark, i.e., a distinctive attribute; Second, the person in question should be well-known; Third, there should be establishment of claims of connection with the well-known person, thereby amounting to false endorsement.

In Titan Industries Ltd. v. Ramkumar Jewellers (2012), the Delhi High Court defined the term ‘celebrity’ as “a famous or a well-known person, and is merely a person who may’ people talk about or know about”, while also opining that “the right to control commercial use of human identity is the right to publicity.” This decision served as a catalyst for a surge in lawsuits concerning personality rights violations in India.  One such famous case is the Shivaji Rao Gaikwad v. Varsha Productions, wherein a renowned celebrity, Mr. Shivaji Rao a.k.a. Rajnikanth, approached the Madras High Court to seek an injunction against the said production house for employing his name, caricature, style of dialogue delivery, etc. in its upcoming film ‘Main Hoon Rajnikanth’, thereby falsely promoting connection with the individual. Similar lawsuits were filed by Amitabh Bachchan, Anil Kapoor, and Jackie Shroff, among others. The courts in all these cases maintained that such violations caused damage to one’s reputation and personality, and by illegally commercialising such attributes of the celebrity, one was violating their rights of endorsement, which could be a major source of livelihood for the celebrity. While the Indian jurisprudence evolves primarily through caselaws, a comparative study of the U.S system underscores the advantages of codification.

Comparative Legal Framework

Though the U.S. Constitution does not hold anything relevant, in Ohio, the right of publicity is governed by statute O. R. C § 2741 which states that a person shall not use any aspect of an individual’s persona for a commercial purpose (1) During the individual’s lifetime; (2) For a period of sixty years after the date of the individual’s death; or (3) For a period of ten years after the death of a deceased member of the Ohio national guard or the armed forces of the United States. Such legislation is crucial for the proper establishment of personality rights in the legal sphere, and India should work towards creating such a framework of its own. It is indicative of a stark contrast between US and Indian functioning, with India primarily relying on precedents and judicial activity, while the US explicitly codifies posthumous rights.

Reflection of the Society

The idea of personality rights has stirred up many questions, including that of its exclusive nature despite being a right derived from Article 21 of the Constitution, which is bestowed upon all citizens. One might argue that such an exclusivity is inherent since the right cannot be provided to everyone with a distinctive trait without the ‘well-known’ clause, since everyone is different in their own way. And this will result in tons of lawsuits devoid of any substantial basis, thereby adding to the already huge pile of backlogs in the court system. Furthermore, a celebrity’s personality is his/her lifetime’s work, therefore it should not be taken away from them. However, there is no doubt that free speech about a person in the form of satire, criticism, and imitation for all purposes other than monetary shall be protected. But again, what about shows such as the Kapil Sharma Show, which monetise such acts of mimicry? There are several unresolved issues regarding how personality rights and associated obligations should be codified. But a definite thing is its dire need in today’s time. The advent of artificial intelligence has raised concerns about the diminishing value of human talent and creativity in certain contexts. If AI is harnessed to create a movie where it substitutes actors, the costs of filmmaking would drastically fall. This would negatively impact all the artists by exploiting their personas without their permission and affecting their means of livelihood by taking over their jobs. Therefore, protection of personality rights in the realm of AI and deepfakes is crucial. The online world is unsafe and does not have any boundaries; it exploits modern technology to make money while jeopardizing people’s reputations. Recently, celebrities have taken the lead by taking such exploitations to court, but vigilance should be exercised to pre-empt damages.

Conclusion

One’s name, voice, image, likeness, manner of speaking, gestures, and even catchphrases at times belong to them alone. Protecting one’s personality rights is essential to preserving the authenticity and respect associated with their work. It further prevents the citizens from being misled through misappropriation. In today’s time, every field in society is being threatened by artificial intelligence and its capabilities. Therefore, there is an urgent need for updated legislation or legal interpretations to address these emerging issues and provide stronger protections for celebrities’ personas in the digital age, which could materialise through the establishment of a codified right of publicity that aligns with data protection and intellectual property law. Enforcement mechanisms should also be strengthened to effectively combat the misuse of AI-generated content. As technology increasingly obscures identity and authorship, the protection of personality should transition from a privilege associated with fame to a fundamental right grounded in dignity and autonomy.

About the Author

Srisoniya is a third-year B.A. L.L.B. (Hons.) student at Jindal Global Law School (JGLS).

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