Right To Personality And Its Emergence In India

Judicial Recognition Of Publicity Rights

A notable person's ownership interest in the financial success of his public reputation or image is protected by the common law right of publicity, which acknowledges the commercial value of a photograph or representation of him^[1]. The courts in India have been able to decide on matters where the personality rights of famous personalities have been in the dispute or have been related to the case by utilizing the common law right of publicity in numerous instances. Since there is no legal definition for terms like "Celebrity," "famous Personality," or "publicity rights," it is up to the individual judge to determine who qualifies as a celebrity and whether or not they have a right to have their publicity rights enforced. As a very broad term, personality rights have been interpreted by courts in a variety of contexts to uphold celebrities' rights. In the case of Shivaji Gaikwad v. Varsha Production^[2], the Madras High court was dealing with a case that was filed by the reputed Indian actor Mr. Rajinikanth and it was observed that ‘although "Personality Rights" is not defined in any Indian statute.’ However, Indian courts have recognized it in a few rulings.In Titan Industries Ltd. v. Ramkumar Jewelers^[3], the Delhi High Court in 2012 defined a ‘celebrity’. The law observed that ‘The right to control the commercial use of human identity is the right to publicity" and defined a “famous or well-known person” as, ‘a person who is famous or a well-known person and is merely a person that many people talk about or are aware of.’ In the present case, Defendant unlawfully exploited the photograph of Indian actor Mr. Amitabh Bachchan and his wife, Ms. Jaya Bachchan, taken specifically for use in endorsing Plaintiff's jewelry product for his own jewelry product. When granting a permanent injunction against the defendant, the court observed that ‘a renowned person's name can be used in advertisements for business purposes, but only with that person's consent and approval about the occasion, setting, and substance of the advertisement.’

Interestingly, despite corporate bodies being viewed as legal persons by the legal system, the personality or publicity rights are specific to and applicable solely to "individuals" and not to corporate organizations. In the case of ICC Development (International) Ltd. v. Arvee Enterprises and Ors^[4], the plaintiff argued that they are the sole and exclusive owners of the commercial "identity" or "persona" of ICC Events, as well as the publicity rights to all ICC Cricket events with a profit motive. The plaintiff created a "persona" and "identity" that the defendants were illegally using for their own financial gain. The defendants emphasized that the right to publicity protects not only the publicity values of people but also the publicity values of non-living objects that are made popular through efforts. In rejecting the argument, the Delhi High Court pointed out that while though all forms of appropriation of the property of legal entities are adequately protected by legislation, including the Copyright Law, giving a corporation personality right would go against the fundamental idea of "persona." The High Court established the following based on a few foreign cases, the majority of which showed that foreign courts did not extend publicity rights to non-living entities:

“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, which made the individual famous, nor in the corporation that brought about the event’s organization. Any effort to take away the right of publicity from the individuals to the organizer {non-human entity} of the event would be vocative of Articles 19 and 21 of the Constitution of India. No persona can be monopolized. The right of Publicity vests in an individual and he alone is entitled to profit from it.^[5]”

In 2017, in the case of Gautam Gambhir v. D.A.P & Co. & Anr^[6], The well-known Indian cricketer claimed that the use of his name as a tagline for the chain of eateries owned by the Defendants violated his personality rights and violated his right to trademark protection because of his widespread fame. This, he claimed, led the public to believe that he was affiliated with the restaurants, which was misleading and constituted deception. The Delhi High Court denied the cricketer's request for an injunction, ruling that there was no evidence to support the claim that the defendant was attempting to misrepresent his restaurant as being run by the cricketer because neither the restaurant nor the defendant's social media pages featured any public representations of the cricketer that might have confused customers. Defendant submitted his images to link his eatery to his "own" name. The High Court ruled that there was no commercialization of the plaintiff cricketer's name and no loss of goodwill in his industry as a result, and it dismissed the lawsuits. This case demonstrates that, while involving a well-known public figure and a famous personality, the lawsuit would fall short under the standard of "publicity rights" unless unfair enrichment of a celebrity's personality rights is established.

Increased commercialism and the ensuing rise in the number of high-value endorsement contracts signed by well-known individuals show how highly valued such endorsements are. However, in a free and democratic society where everyone's right to free speech is guaranteed, as the Delhi High Court correctly noted in the case of D.M. Entertainment Pvt. Ltd. vs. Baby Gift House and Ors^[7]., an excessive emphasis on a celebrity's publicity rights can tend to restrain the exercise of such a priceless democratic right. While courts must strike a balance between the defence of highly prized personality rights and the democratic rights of persons in society, they also must defend consumers' interests as well from any deceptive advertising and endorsements, at least.

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