It is a settled principle of common law that remedies arise from the cradle of rights, that is, ‘Ubi Jus Ibi Remedium’. When an individual strives for human rights, it extends beyond just the right to existence or freedom of speech. It also entails, in its essence, the inherent right to live with dignity; a concept that shall be rendered infructuous and moot if it is not necessarily accompanied by a reasonable degree of right to privacy and protection against the blatant misuse of one’s name, style, and personality.
Celebrities, especially in an emotion-rich country such as India, are often at the receiving end of such misuse or violations of personality rights. In this article, we analyse the concept of personality rights from the Indian perspective and the global perspective. We will further analyse the contrasting law set in the recent judgment concerning the posthumous personality rights of the late actor Sushant Singh Rajput.
While no express law and legislative enactment, rule, or policy seeks to protect personality rights, Indian courts have sought to derive the same from Article 19(1)(a) and Article 21 of the Indian Constitution, which deal with the freedom of ‘expression’ and the right to live with dignity respectively, and from Indian IPR laws.
The Hon’ble Delhi High Court has defined ‘celebrity’ in Titan Industries Ltd. v. Ramkumar Jewellers (2012), wherein it held that a celebrity is “a famous or a well-known person and is merely a person who “many” people talk about or know about” while also opining that “the right to control commercial use of human identity is the right to publicity." Furthermore, the Court also stated that the said celebrity must be clearly identifiable from the infringer’s unauthorized use, in which case there is no requirement to prove any other falsity or deception. The interesting part of this case is that it concerns the publicity rights of Mr. Amitabh Bachchan as a celebrity.
In November 2022, Mr. Bachchan approached the Hon’ble Delhi High Court to protect his personality rights in a case titled as Amitabh Bachchan v. Rajat Negi & Others, wherein the Hon’ble Court granted an injunction as sought by Mr. Bachchan restraining the infringing jeweller from using his celebrity status for promoting its own goods while relying upon Mr. Bachchan’s publicity rights as a celebrity recognized by the Hon’ble Delhi High Court in Titan Industries Case.
Another interesting case of a sly yet not-so-subtle use of someone's name, or rather a violation of someone's personality rights, is perhaps Shivaji Rao Gaikwad vs. Varsha Production, wherein a renowned celebrity Mr. Shivaji Rao Gaikwad aka Rajnikanth was compelled to approach the Hon'ble Madras High Court seeking an injunction restraining a production house from using his name, caricature, style of dialogue delivering etc. in its upcoming film “Main Hoon Rajinikanth."
Interestingly, not only was the name and style of the said aggrieved celebrity used without express permission or consent, but the title of the said movie also blatantly indicated that it concerns Mr. Rajnikanth. The Hon'ble Madras High Court granted the injunction as prayed while opining that in consonance with Article 21 of the Constitution, every individual is entitled to live a life of dignity, and hence causing damage to one’s reputation and personality would be detrimental to the interest of law, and would carry adverse ramifications for the plaintiff therein.
United States of America
It is not a matter of surprise or bewilderment that the USA perhaps has the most developed concept of protection against violation of personality rights. The first commonly known reference to the concept of the right to privacy and its allied rights was given by Samuel Warren and Louis Brandeis in 1890, who published a paper titled “The Right to Privacy” in the Harvard Law Review and stressed upon the importance of the same. From the foundation built upon the right to privacy, the ensuing right to publicity and protection against violation of personality rights emanated, and was thereafter enacted in various State statutes and legislations, such as in Sections 47, 25, and 1103 of the Tennessee Code (2010) governing the State of Tennessee, and in Section 3344 of the California Civil Code (1951), both of which, inter alia, intend to protect a person’s name, voice, photograph, signature, or likeliness.
However, the first US State to recognize the protection of one’s name and likeness was the State of New York in 1903, when the State Legislature enacted what are now Sections 50 and 51 of the New York Civil Rights Act. Vide the said provisions, the use of one’s name and style without express consent was prohibited. However, the penalty for violation was limited to being treated as a misdemeanor and was perhaps insufficient to deter bold, young stand-up comics who wanted to make a mark in mimicry in the coming decades.
Thereafter, the right to publicity was first judicially recognized in in the landmark case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. 1953, wherein a distinction was drawn between the right to privacy and the right to publicity, and the Court opined that it would be unfair to prominent persons if their style, personality, or pictures would commercially benefit someone else other than themselves.
While the UK does not specifically have a right to publicity, there are certain protections in a bunch of pigeonholes that may serve the purpose, such as, inter alia, (i) Copyright protection of photos or videos or films taken of oneself vide the Copyright, Designs, and Patents Act, 1988, (ii) Civil actions for passing off brought about by celebrities and public figures who claim damages against the false representation of their endorsements and name, which is further aided through the Human Rights Act, 1998 (implementing the ECHR), (iii) Protection as a trademark of one’s name, style, voice, slogan, nickname, and/or likeliness vide the Trade Marks Act, 1994 and associated EU directives, and (iv) Protection of one’s personal data and its purported misuse with the help of GDPR. Famous celebrities like star English footballers David Beckham and Alan Shearer sought protection of their name and image, and legendary Scottish Football Manager Sir Alex Ferguson, CBE had sought protection in respect of posters, albeit the same wasn’t granted.
European Union Nations
The extent of variation of protection of personality rights in the European Court of Human Rights (ECtHR) and in various European Nations differ greatly, and cannot perhaps be summed up in one paltry article. However, it can be briefly stated that while the ECHR does not expressly discuss this issue, it did grant protection to the daughter of Late Prince Rainier III of Monaco and her husband vide the famous case of Von Hannover v. Germany (2012), while famously opining that the refusal by the German courts to grant an injunction against any further publication of their photos violated their rights to lead their private life with dignity and respect.
This development and recognition took its own sweet time and had to face various hurdles. For example, the famous musical group ABBA failed to get protection in the case of Lyngstad v. Anabas, and their claim that their name was being misused on memorabilia without consent fell into a dark abyss. However, roughly 3 decades later, in Irvine v. Talksport, Ltd. (2003), a famous Formula 1 racer’s claim for protection of his name and style succeeded when his name was used in advertisement material for a radio station.
The case discussing the posthumous personality rights of Sushant Singh Rajput:
While in various cases, Indian Courts have been proactive in protecting the personality rights of aggrieved celebrities, the law laid down on personality rights in the recent Krishna Kishore Singh’s case (supra) has narrowed down the extent of protection and ambit of such rights.
In Krishna Kishore Singh’s case, the father of late actor Sushant Singh Rajput approached the High Court of Delhi seeking an injunction against the streaming of the movie ‘Nyay: The Justice’ which was based on the life of the late actor and the subsequent police investigation and trial that followed. As per the later actor’s father, the said movie was released without permission from him or the legal representatives of the deceased. The suit sought a decree of permanent injunction, restraining the defendants and all others from using Sushant Singh Rajput’s name, caricature or lifestyle in any projects or films without his prior permission, alleging that any such effort would infringe the personality rights of Sushant Singh Rajput and also, cause deception in the minds of the public.
Interestingly, the Hon’ble Court held that the reliefs sought in the plaint were entirely with respect to Sushant Singh Rajput. The rights that the prayers in the suit seek to protect and the rights of privacy, publicity and personality which vested in Sushant Singh Rajput. It was held that no relief, on any right which vested in him, finds a place in the plaint. The Court further opined that the rights ventilated in the plaint, that is, the right to privacy, the right to publicity and the personality rights which vested in Sushant Singh Rajput, were not heritable. They died with his death. The said rights, therefore, did not survive for espousal by Mr. Kishore.
The Court also opined that the information contained, and shown, in the impugned film, was entirely derived from items that featured in the media and, therefore, constituted publicly available information. In making a film on the basis thereof, it could not, therefore, be said that the filmmakers had violated any right of Sushant Singh Rajput, much less of his father, especially as the said information had not been questioned or challenged when it appeared in the media, either by Sushant Singh Rajput or by his father.
This opinion of the Court is in line with the judgment of the Madras High Court in Deepa Jayakumar vs A.L. Vijay which held that the personality, publicity and privacy rights of an individual come to an end after their lifetime.
The global perspective regarding the enforceability of publicity rights after a person’s death is different in different jurisdictions. For instance, in California and New York, the rights are held to be not heritable and unenforceable after the death of the person but Washington and Indiana jurisdictions hold that publicity rights survive the individual’s death.
Recently, in Anil Kapoor vs. Simply Life India and Ors., the Hon’ble Delhi High Court undertook an expansive approach and restrained the defendants from “utilising his name, image, voice, likeliness or personality to make any merchandise, ringtones, or in any manner misuse the plaintiff's name, voice and other elements by using technological tools such as artificial intelligence, face morphing, GIFs, either for monetary gains or for creating any videos for commercial purpose so as to result in violation of plaintiff's rights.”
The Hon’ble Delhi High Court directed that adequate charges are to be paid to Anil Kapoor for the usage of his name, voice, and likeliness. The Court however maintained that satirical writing and genuine criticism would be protected and would not be held to violate personality rights. The key distinguishing factor is the scope and extent of commercialisation of the personality rights without any charges being paid to the celebrity.
The Anil Kapoor case conclusively identifies the protection of personality rights in the technological space of virtual reality. This is a watershed moment, and in alignment with the requirement to protect IP rights in line with the evolution of technology, such as Artificial Intelligence and Machine Learning and Virtual Reality.
The protection of personality rights granted in the Anil Kapoor case also settled the contentious issue of the exercise of the fundamental right to free speech and expression under Article 19(1) (a) towards the usage of celebrities’ names and images etc. It is now understood that free speech would not include actions of commercialization of the personality of the individual and the non-consensual usage of such personality’s name, image, and likeliness would be in gross violation of their right to privacy as well.
The personality rights are equivalent to the source of livelihood of the individual. Hence, unauthorized and illegal usage of any celebrity’s persona is a direct attack on their livelihood. It has been observed that, “Using a person's names, voice, dialogue, image in illegal manner that too for commercial purposes cannot be permitted. The celebrities’ rights of endorsement could be a major source of livelihood for the celebrity which can't be completely destroyed by way of selling merchandise etc.”
It is the need of the hour that a clear and comprehensive legislation is developed, to explicitly recognize personality rights as a form of distinctive intellectual property, and allow for commercial licensing to enable the person concerned to benefit economically from the use of their image and likeness, while also promoting innovation and responsible marketing practices. Such a legislative approach would also promote public awareness and education regarding personality rights and their significance, fostering respect for these rights and the people they protect.
About the authors: Vikrant Rana is the Managing Partner of S S Rana & Co. Nihit Nagpal is an Associate Partner and Akif Abidi is a Senior Associate at the firm.