Misnomer of personality rights: The need to distinguish dignitary rights from commercial exploitation

There is considerable confusion in the legal discourse regarding the concept of personality rights and publicity rights. Courts have interpreted and used personality rights and publicity rights interchangeably without laying down a concrete definition of either of them.

This article critically examines the conflation of dignity-based personality rights with the commercial exploitation attached to publicity rights.

At this juncture, it is paramount to distinguish personality rights from publicity rights and also to establish whether or not there is an overlap between the two. We analyse how judicial interpretation has shaped these rights, resulting in a skewed celebrity-centric framework and problematic exclusions for ordinary individuals. At the core of this issue lies the need to declutter the right to control the commercial use of one’s persona from the fundamental right to privacy and dignity protected under Article 21 of the Constitution of India.

Significantly, no statute in India defines either personality rights or publicity rights, leaving courts to develop these concepts through common law and existing judicial precedents. Herein lies the problem: courts are not bound to follow any statutory definition, which leads them to liberally interpret and come up with definitions based on the facts of the case before them.

Generally, personality rights include the person’s name, voice, signature, photograph, image, caricature, likeness, persona and various other attributes of his personality. Publicity rights, on the other hand, are the exclusive rights to commercially exploit one’s personality (Titan Industries Ltd v. M/s Ramkumar Jewellers). Based on this distinction, one could assert that personality rights should be understood as a subset of publicity rights which include personality rights as well as other commercial rights. One could go the extent of saying that publicity rights are a form of property rights.

The way courts have gone on to interpret personality rights reflects the protection of commodification of celebrity identities rather than the mere protection of someone’s privacy rights as was envisaged by the earlier judgments of the courts, including Justice KS Puttaswamy (Retd.) v. Union of India.

Over the course of many years, the definition and interpretation of personality rights has gone through a transformational change from its earlier conception of autonomy-based protection rooted in an individual’s fundamental right to live with dignity to its current commercialised form.

The current version of the understanding of the personality rights is characterised as publicity rights because judicial precedents have predominantly recognised personality rights only in cases involving celebrities, creating a de facto celebrity-only framework. The Delhi High Court in an order passed in the case of Aishwarya Rai Bachchan v. Aishwaryaworld.com & Ors said,

“When the identity of a famous personality is used without their consent or authorization, it may not only lead to commercial detriment to the concerned individual but also impact their right to live with dignity. In other words, the unauthorized exploitation of the attributes of an individual’s personality may have two facets – first, violation of their right to protect their personality attributes from being commercially exploited; and second, violation of their right to privacy, which in turn leads to undermining their right to live with dignity.”

From the above stated definition, we can deduce that personality rights encompass the person’s personality attributes which can be commercially exploited, as well as their right to privacy.

This definition makes personality rights virtually identical to publicity rights, which should not be an issue except for the fact that due to this interpretation, the option of enforcing or protecting one’s personality right is now available only to celebrities or famous people. However, the right to privacy is part of the right to life and liberty under Article 21. This fundamental right should be available to every person, regardless of whether they possess a monetisable celebrity persona.

A distinction needs to be drawn between personality and publicity rights simply on the basis of terminology. The Delhi High Court in DM Entertainment Pvt Ltd v. Baby Gift House explained publicity rights succinctly:

“The right of publicity protects against the unauthorized appropriation of an individual’s very persona which would result in unearned commercial gain to another.”

With the advent of AI and deepfakes, celebrities are not the only group that is vulnerable to violation of their personality rights. If an ordinary individual who has been a victim of deepfakes tries to enforce his personality rights, the current interpretation of personality rights would not allow him to do so and he will only be left with criminal remedies since he is not a public figure or a celebrity.

This dilemma could easily be resolved if a definite distinction is drawn between personality rights and publicity rights. The distinguishing factor might as well be the underlying commercial interests/rights. Personality rights, if they are a part of the right to privacy of an individual, then as a matter of principle, they should be available to each and every individual.

Another issue that arises when equating publicity rights with personality rights is that if they are one and the same and they are also a part of the right to privacy, then one simply cannot assign his personality/publicity rights (which most celebrities do during endorsements). Fundamental rights are inalienable rights which cannot be assigned or waived by individuals because they serve broader public policy objectives (Basheshar Nath v. CIT). This paradox reveals the conceptual incoherence of treating these as a single category.

This interchangeable use of terminology, without careful consideration of its consequences, risks creating a cluttered and exclusionary IP jurisprudence, one which benefits a few at the cost of many leaving them remediless.

A possible way out would be to clearly demarcate the boundaries of personality rights and publicity rights and to clarify their relation with respect to the right to privacy.

Personality rights should be reconceptualised as dignitary rights, available to all individuals as a subset of the right to privacy under Article 21, regardless of commercial value. Publicity rights, by contrast, should be treated as distinct commercial rights - akin to intellectual property - that are assignable and waivable.

Shubhang Shukla is an advocate practicing in Delhi.