Personality Rights: Interpretation And Scope

The instant case pertains to a suit filed by the veteran actor, Amitabh Bachchan seeking protection of his publicity rights against the fake Kaun Banega Crorepati (KBC) lottery scam and other frauds where his voice and photo were being used to deceive the public. In the meanwhile, the Delhi High Court has passed an ex parte ad-interim injunction restraining the defendants from infringing the actor's personality rights by misusing his name, voice, image and any other attributes for any commercial use (Amitabh Bachchan v. Rajat Nagi & Ors.).

Personality Rights

Personality rights refer to the rights of individuals over their name, image, reputation, likeness or other aspects of their identity. Such rights enable an individual to bring up a case for violation of rights if an unauthorised third party seeks to benefit commercially from his reputation or such information. The earliest forms of personality rights were seen in the form of the right to privacy. Over time, right to privacy gave birth to the right of publicity or celebrity rights.

While, after the Puttaswamy judgment[i], the right to privacy has attained the status of a fundamental right, the jurisprudence with regard to publicity rights is still in its nascent stages. Publicity rights or celebrity rights, as they are called, are not expressly recognized by any statute in India. However, under certain statutory provisions such as Trademarks Act and Copyright Act, 1957, some aspects of these rights can be claimed as intellectual property rights.

The earliest origins of the right to publicity can be founded in the case of Haelan Laboratories v. Topps Chewing Gum [202 F2d 866] where the court defined the right to publicity as "A man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made in gross i.e., without an accompanying transfer of a business or of anything else."

The Indian Law pertaining to Publicity rights is rooted in the Common Law jurisprudence. Right to publicity refers to the right of an individual to control the commercial use of his identity or persona. In the words of the Delhi High Court, "the right to publicity is a right vested in a famous personality to control where, when, how their identity is used."Thus, the right vested is not a mere right to prevent the commercialization of identity (Titan Industries Limited v. Ramkumar Jewellers). Furthermore, this right extends beyond the traditional limits of false advertisement.

When Can This Right Be Invoked?

Two crucial aspects for the invocation of the right to publicity are- Validity and Enforceability [ii]

Validity means that the person owns an enforceable right in the identity or persona of a human being. For such enforceability to arise, the person in question must be one who is well-known i.e. a celebrity. The Court while giving a broad definition of 'celebrity' states that a 'celebrity' is a famous person who many people talk or know about.

Identifiability, on the other hand, means that the unauthorised use should be in such a manner that the celebrity must be identifiable from it. In cases where the celebrity is clearly identifiable, no need for proof of falsity, confusion or deception shall arise. In such cases, the identification is unaided. In other cases, identification may be proved in the following ways:

1. Evidence of a number of elements of the defendant's use which add up to point to the plaintiff.

2. Direct or circumstantial evidence of the defendant's intent to trade upon the identity of the plaintiff from which identifiability can be presumed.

For example: In the case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House [iii], the defendants were engaged in the business of selling dolls that were cheap imitations of, and identical to the likeness of the artist Daler Mehndi. It was alleged that the importation and sale of such dolls or images, which claim to be able to sing a few lines of the artist's compositions, was a blatant infringement of the artist's right to control the commercial exploitation of his persona. Even the defendant's cash memo reflecting the bill raised listed the words, "DALER MEHNDI" under the heading "Description Of The Article Sold". The fact that Daler Mehndi was a well known person was held to be an established fact. Further, all the facts stated above and the imputations created a false impression that the products originated from the plaintiff. The Court concluded that the right of publicity of Daler Mehndi was infringed as the commercial use of the individual's identity was intended to increase sales by fusing his identity with that of the product.

Who Or What Falls Within The Scope Of This Right?

Many times the concept of publicity rights has been sought to be given a wide interpretation by the parties, wherein they have argued that the right can be extended to even an event or a dead person. However, so far, the right is enforceable only with respect to living individuals and cannot be extended to corporations, events or dead persons.

In the case of ICC Development (International) Ltd v Arvee Enterprises[iv], the Plaintiff was an organizer and marketer of the ICC World Cup and pleaded that the ICC events have acquired a 'persona' or 'identity' of their own. The Delhi High Court in the instant case held:

"The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual's personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question that made the individual famous, nor in the corporation that has brought about the organization of the event."

The Court also held that taking away the right of publicity from individuals and bestowing it upon an organizer would be a wanton violation of the rights of individuals under Articles 19 and 21 of the Constitution.

This conclusion was held to be in line with the KS Puttaswamy Judgment (supra) where the Apex Court held that the right to privacy of any individual is essentially a natural right which inheres in every human being by birth and remains with the human being till he/she breathes last. Thus, the right to publicity being a facet of this right is only applicable to individuals and that too till they are alive.[v] Such a right cannot be inherited, whether the individuals are legal heirs or not.[vi] However, image or personality rights are a form of statutory intellectual property rights that can survive even after the death of the individual.

Balancing Free Speech And Personality Rights

Celebrity rights bestow celebrities with the right to protect their identity from being commercialised without their consent. However, does it mean that anyone making caricatures, parodies or cartoons will now be barred from doing so? In a free and democratic society allowing such a right to be exercised in an unfettered manner would wreak havoc on the basic principle of free speech. Thus, the Court in the case of ICC Development (International) Ltd v. Arvee Enterprises[vii] held that such activities highlighting the individual's personality traits may not constitute an infringement of the individual's right to publicity. Allowing any other interpretation of this right would have a chilling effect on the exercise of the invaluable democratic right of free speech.

International Perspective

On the international front, different legal mechanisms exist pertaining to personality rights. In the USA, the right to publicity is generally considered to consist of two types of rights: (1)The right of publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, and; (2) The right to privacy, or the right to be left alone. Here, the right to publicity is a State law and its scope varies from State to State. In some States, however, the right is still protected as a common right. On the other hand, the Federal Statute is the Lanham Act of 1946 which governs the trademark laws. Its broad interpretation is often used by celebrities to assert personality rights due to an absence of a law pertaining to personality rights.

In the UK, on the other hand, notwithstanding the widespread practice of personality licensing, the courts have repeatedly refused to recognise personality rights, and as a result celebrities often seek alternative routes to legally protect their image and personality.

However, there are some countries such as France, Germany, Portugal, et al. where personality rights have been given statutory recognition. Such models must be studied by the common law jurisdictions to incorporate the law into their statutory framework.

Way Forward

'Personality rights' is a new and upcoming area of jurisprudence and is a great step forward in the direction of expanding the realms of the right to privacy. However, a major contention is that this right has only evolved by judicial precedents and despite several years having gone by, it has failed to take the shape of any statutory law. Another issue that has cropped up is the meaning and scope of 'celebrity'. If one were to go by the definition laid down by the Courts, a person may be known by 'many' but would that necessarily make him a celebrity to have a commercial value of his own? What is the threshold for determining this level of popularity? These questions are yet to be given concrete answers. Furthermore, equal consideration must be given to the rights of the commoners. In the times of increasing free flow of information and data, today even commoners and their information has become a source of commercial exploitation. The definition of celebrity must thus be reconsidered, especially since the culture of reels and memes has now hit the internet market and everyone has become a celebrity in one's own little world. Thus, how this right evolves in light of the fast-paced technological changes would be an interesting area worth exploring in the coming times.

The author is an Advocate , views are personal.