Recent ad interim injunctions in favour of celebrities such as Amitabh Bachchan, Abhishek Bachchan, Aishwarya Rai Bachchan, Sadhguru, Anil Kapoor, Jackie Shroff and Karan Johar have attracted significant public attention.
Although these orders are ex parte and lack precedential value, they reaffirm that “personality rights” (or the “right of publicity”) are recognised under Indian law. The scope of such protection, and the categories of “exploitation” that warrant injunctive relief, however, merit closer scrutiny.
The right of publicity, as first articulated by Professor Melville B Nimmer in 1954, rests on the economic value of a prominent person’s name, likeness, or persona in attracting audiences or endorsing products. This value, attained through personal effort, labour and skill, is seen as a protectable quasi-property interest, subject only to countervailing public policy concerns. Infringement constitutes a commercial tort, more specifically, a species of unfair competition.
Judge Jerome Frank of the US Court of Appeals first coined the phrase “right of publicity” in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (1953), recognising that the commercial exploitation of celebrity images is distinct from privacy-based claims. The harm addressed is not mere exploitation but commercial exploitation of an individual’s persona.
The first authoritative Indian decision on publicity rights is DM Entertainment Pvt Ltd v. Baby Gift House & Ors (2010), where it was held that singer Daler Mehndi’s persona constituted a quasi-property right of commercial value. The Court clarified that for a claim to succeed, (i) the plaintiff must be identifiable from the defendant’s use and (ii) the use must be substantial enough to appropriate essential attributes of the plaintiff’s identity. Importantly, the judgment cautioned against overemphasis on celebrity rights, noting that parody, caricature and satire are constitutionally protected forms of expression and cannot be chilled through expansive publicity rights.
In Titan Industries Ltd v. M/s Ramkumar Jewellers (2011), the Court articulated the dual tests of “validity” (the right must be enforceable) and “identifiability” (the plaintiff must be recognisable in the impugned use) for a publicity rights claim to succeed. While the tort of false advertising is often asserted alongside claims of infringement of the right of publicity, establishing the former requires evidence of consumer confusion as to endorsement, and not of a mere “association” with the celebrity. Although in Titan the Court omitted to explicitly include the test of “likelihood of confusion” in its assessment, the facts nevertheless satisfied the requirement.
It is critical to distinguish the right of publicity from the right to privacy. While the right to privacy protects dignity and self-esteem, publicity rights safeguard the commercial value of one’s identity. Remedies in the former depend on injury to one’s personhood and consequential mental harm, while in the latter they are measured by the fair market value of the celebrity’s persona, the infringer’s unjust enrichment from the exploitation of such persona, and/or potential damage to the licensing market. The US Supreme Court in 1977 confirmed that publicity rights are analytically distinct from privacy rights, a position echoed in the obiter by Justice SK Kaul in KS Puttaswamy v. Union of India (2017), where he affirmed that individuals must control both the portrayal of their image and the commercial use of their identity.
The Madras High Court in Shivaji Rao Gaikwad v. Varsha Productions (2015) injuncted the release of Main Hoon Rajnikanth, not because the film depicted the plaintiff, but because the title was held to be uniquely identifiable with the actor. The decision arguably expanded publicity rights to prohibit mere use of a name, irrespective of content. This broad approach contrasts sharply with the Delhi High Court’s decision denying an injunction in Gautam Gambhir v. DAP & Co (2017), where the plaintiff, a well-known cricketer, was found to have failed to prove commercial misappropriation, confusion, or harm to reputation in respect of restaurants bearing his name.
Principally, the right of publicity should only restrict commercial speech—namely, advertising or endorsement. Uses in news, satire, parody or cultural commentary, even if “identifiable,” fall outside the enforceable scope of the right. The Delhi High Court’s ruling in Digital Collectibles Pte Ltd. v. Galactus Funware Technology Pvt Ltd (2023) reflects this distinction, recognising that identifiability alone does not suffice; the use must also satisfy the threshold of commercial exploitation.
Ex parte ad interim injunctions often fail to distinguish between the inherent subsistence of a publicity right and its enforceability in specific circumstances. Courts sometimes treat the mere celebrity status of a plaintiff as sufficient to enjoin all non-consensual uses of their name or image, irrespective of whether the use qualifies as actionable commercial speech. This conflation risks granting celebrities de facto control over cultural references, parody and other constitutionally protected forms of expression.
Since Indian jurisprudence on personality rights is relatively nascent, courts have frequently drawn guidance from copyright law when addressing interim relief. This is not accidental: the kinds of defences that restrict liability for infringement of publicity rights - such as parody, caricature, satire, commentary and news reporting - substantially overlap with copyright defences of fair dealing or fair use. At the interlocutory stage, both in copyright and in publicity-rights cases, the question is not only whether a prima facie right exists, but also whether countervailing expression-based or public-interest justifications weaken the claim to urgent equitable relief. Thus, copyright precedents can serve as analogous authorities that draw attention to the standards courts should apply before granting ex parte injunctions in personality-rights disputes.
Civic Chandran v. Ammini Amma (1996), though a copyright case, evaluated fair use on a three-factor test – (i) the quantum of the subject matter used, (ii) the purpose of the use and (iii) the likelihood of competition. This analytical framework is equally instructive in the publicity-rights context. Earlier, Blackwood & Sons Ltd v. AN Parasuraman (1958) emphasised the importance of assessing “market substitutability” and evaluating “improper” use when deciding whether unauthorised use crosses into actionable exploitation. Though these decisions did not involve celebrity persona, their reasoning illustrates why non-commercial cultural references should not attract ex parte restraints in publicity-rights cases.
Memes, moment marketing and parody - whether images of Bernie Sanders and his mittens or Shah Rukh Khan’s iconic outstretched arm gesture - fail to satisfy these copyright-derived tests. They neither substitute for the underlying commercial market of the personality nor amount to monetised appropriation.
Equally problematic are takedown orders issued under the guise of enforcing publicity rights, but in reality targeting “offensive” content, profanity or reputational harm. Such orders blur the boundaries between publicity rights, privacy, defamation and disparagement.
In the case of Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store & Ors (2024), the Court directly confronted the dangers of overbroad blocking orders at the ex parte stage in personality-rights disputes. While evaluating videos representing the actor Jackie Shroff in his Thug Life avatar, the judge recognised memes as part of a “burgeoning comedic genre” that relies on cultural associations with public figures to generate humour and engagement. The Court warned that indiscriminate takedowns could “stifle freedom of expression” and chill legitimate speech by deterring the public from creating such content out of fear of liability. Ultimately, the refusal to order removal of the videos illustrates an effort to strike equilibrium: weighing the defendants’ artistic and economic interests against the plaintiff’s claims of personality, publicity and moral integrity.
The trajectory of Indian personality rights jurisprudence remains uneven. Courts have applied varying thresholds, sometimes extending protection based more on perceptions of fame than on doctrinal coherence. Unless the enforceability of the right is consistently tethered to commercial exploitation, personality rights risk transforming from a shield against unfair competition into a sword that curtails free expression.
Shwetasree Majumder is the Managing Partner of Fidus Law Chambers.