Name of author: Naman Pratap Singh (3rd year B.A.LL.B.(Hons.) students at Jamia Millia Islamia, New Delhi)
Name of Co- author: Hammad Siddiqui (3rd year B.A.LL.B.(Hons.) students at Jamia Millia Islamia, New Delhi)
Introduction
In a recent decision, the Bombay High Court granted ex-parte ad-interim injunction to protect personality rights of singer Arijit Singh.[1] The court expressed concern over targeting of celebrities by unauthorized AI generated content. In today’s technological age, media expansion has raised concerns about misuse of personal images and attributes without consent. Personality rights have become more important with virtual emergence of celebrity culture and the widespread impact of deepfake content on the social media. It secures individuals with exclusive authority to licence their identities for commercial use and often shield against unapproved commercial exploitation of their name, likeness, image, performances, derivative works or other distinguishable personal characteristics by the right of publicity. This article explores the emerging developments in personality rights as a facet of intellectual property law, highlighting the legal drawbacks and ambiguities in their protection.
“Personality rights” are commonly referenced in two categories of tort-based rights: privacy and publicity. Right to privacy guarantees that people are not subjected to unwelcome interference in their private lives and publicity rights enforce protection against unapproved commercial use of their image.[2] Various jurisdictions handle such rights as a single right which encompasses both elements and some as two distinct rights, despite the fact that it contains both non-commercial and commercial aspects. In India, the terms “publicity rights” and “personality rights” are frequently used synonymously. The business side of personality rights has become a hot topic recently, especially in India, as more difficulties have surfaced.[3] Indian courts have acknowledged personality rights,[4] but insufficient legislation in India has created ambiguity in their protection.
Legislative Protection
India lacks specific laws protecting personality rights, but courts majorly derive protection from Article 19(1)(a) and Article 21. While extending safe harbour benefits to social media platforms, the Ministry of Electronics and Information Technology now requires them to control and delete deepfake content and misinformation, and holds them accountable for noncompliance.[5] In Copyright Act, protection applies to literary, artistic, musical, and dramatic works, with performers’ rights under Section 38 and moral rights added in 2012 amendment. Photographs considered artistic works under Section 2(c), are protected for photographers under Section 25 based on originality. Under the Trademark Act, names can be protected as trademarks but must pass the ‘distinctiveness’ criteria. Section 14 requires consent from living individuals or heirs to register a trademark linked to someone who died within 20 years of the application. Trademark law offers remedies for unauthorized use of an individual’s likeness through the principle of passing off, applicable to unregistered trademarks or personas with public goodwill. Proving passing off involves showing that the persona has a secondary meaning and that unauthorized use causes confusion and damage. Trademark infringement actions can be pursued if a celebrity’s name is registered and misused. The Copyright Act, 1957, considers using or altering copyrighted content to create deepfake material without permission as infringement under Section 51, allowing the copyright owner to seek civil and criminal remedies. However, publicity rights lack explicit protection. Sections 66D and 66E of the Information Technology Act of 2000 effectively handle concerns of impersonation and privacy violations with AI-generated voices. These sections provide a comprehensive account of both publicity and privacy rights, only if read together.
Past Judgements
Several assessments have been made which starting from Phoolan Devi case[6], claiming to halt the publication of “Bandit Queen,” a 1995 film that portrayed her life as the fictitious rape scene and her portrayal in the movie violated her right to privacy under Article 21 of the Constitution and Copyright Act, 1957. The court concurred relying on R. Rajagopal v. State of Tamil Nadu[7], which had upheld the right to restrict commercial use of one’s identify. Court prohibited the film’s publication acknowledging the connection between the right to private and the right to publicity. It was only 8 years later, in the 2003 case of ICC Development (International) Ltd. v. Arvee Enterprises[8], that the Delhi High Court specifically discussed publicity rights in relation to privacy rights. The Court decided that people, not organisations, own publicity rights which are derived from privacy rights and right to publicity was explicitly recognised for the first time in India.[9]
Contrary to the popular view that every being has the right to their own character and that superstars are not the only ones who possess such right as enshrined under Article 21, the Punjab High Court ruled in the Super Cassettes case[10] maintained that only celebrities may assert such rights. In consideration of the crucial role that consumers play in the marketplace, protecting them as well against deceptive advertising is as vital.[11] The court ignored circumstances in which celebrities, may be identified and have their identity utilised commercially despite not being traditional superstars by insisting that celebrity status be a need for such rights. Even if personality rights are first recognised, the court held that they expire once they are made public through the media or court records. This ruling introduced incongruities to Indian IP regime.[12]
Remedies remain Overlooked
The growth of high-priced endorsement deals emphasises the financial stakes involved, necessitating immediate legal action to preserve one’s reputation. Courts have to strike a balance between respecting democratic ideals and defending the rights of individuals. In Snow v. Eaton Centre Ltd[13], a prominent Canadian artist successfully obtained an injunction to remove ribbons added to his sculpture, claiming that they misrepresented his work and injured his reputation. Karan Johar case is another example on similar lines in the Indian jurisdiction where a movie production was equated with privacy rights. These cases highlight the difficulties in determining the extent of personality rights and effects of distortions to such ‘extensions to personality’. Personality rights protect individuals, especially celebrities, by granting them control over the commercial use of their name, image, and likeness. While not explicitly provided under law, Indian courts perceive this right as an extension of privacy that protects against unauthorised endorsements and exploitation. Titan Industries v. M/s. Ramkumar Jewellers[14] has clarified that well-known people have to have the power to determine when and how their identities are utilised for commercial purposes. Right to identity addresses the expanding legal ramifications of digital identities and online personas by shielding people against misuse, fraudulent endorsements, and identity theft. The recent landmark Anil Kapoor case[15] has expanded the scope of personality rights to include distinctive cues, catchphrases, and other features inextricably linked to an individual’s identity.
In India, the jurisprudence on remedies against violation of personality rights remains to be at its nascent stage with claims against such infringements untraversed and scattered, as no single law or provision can be claimed to the most appropriate redressal to such issues. The most obvious remedy one could seek for personality rights violation is under Article 21. However, Article 21 ignores the commercial aspects of personality rights. On the other hand, trademark remedies such as passing off takes the commercial aspect into account but is limited to the confines of trademark and cannot extend relief to physical attributes of a personality. It misses to include distinctive actions, catchphrases, and voice tones etc that emerge from personalities. Recent judgements have addressed personality rights as and, along the terms on copyrights[16], trademarks[17] and infringements under Article 21. These cases have addressed a wide range of legal spectrum in various jurisdictions, including tort law, privacy legislation, constitutional law, and intellectual property law. Celebrities are increasingly seeking defense against any infringements under various IP protections, but extending protection to natural gestures, voice and other specific personal features would not be possible under the existing laws. While no explicit statues exist, Sections 66D and 66E of the IT Act still addresses issues such as impersonation and privacy, though only providing an effective approach in the context of technology. However, to successfully address personality rights challenges, the present intellectual property framework must overcome substantial gaps between copyright, trademark, and constitutional mandates. Evidently, specific legislation in this area is required to address these issues and protect personality rights as a form of intellectual property.
Conclusion
Increase in technology and its use will only lead to more cases where aspects of personality rights and their reliefs are going to be contemplated. The technology is not merely limited to online branding and commercial endorsements but also extended to its role in assisting common people express themselves using multimedia tools for e.g, memes and graphics interchange format (GIF files). The Indian courts still have much to deliberate on the aspects of personality rights. Not only the constituents of the facets of such right and criteria for remedies on infringement of such rights, but more on the nuances involved in the remedies which could holistically address such issues. The responsibility will unquestionably transpire to the legislature to envisage better-equipped statutory measures to combat such intellectual property rights. For its is definite that personality rights will not just remain a mere facet of Indian IP law assisted with Article 21 for its interpretation but will emerge as a separate segment of IPR regime.
[1] Arijit Singh v. Codible Ventures LLP, 2024 SCC OnLine Bom 2445.
[2] Tabrez Ahmad and Satya Ranjan Swain, ‘Celebrity Rights: Protection under IP Law’, [2011] 16, JIP 7.
[3] Agnes Augustian, PROTECTION of PERSONALITY RIGHTS in INDIA: ISSUES and CHALLENGES, [2023] 1(1) IPRJMNLUN 44.
[4] ICC Development (International) v. Arvee Enterprises and Anr (2003) Delhi 405; D.M Entertainment Pvt. Ltd. v. Baby Gift House and Ors. (2010) MANU Delhi 2043.
[5] Cyber Law and Data Governance Group, Ministry of Electronic and Information Technology, Government of India, Due Diligence by Intermediaries/Platforms under the Information Technology Act, 2000 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Advisory March, eNo.2(4)/2023-CyberLaws-3, 2024) para 2(a).
[6] Phoolan Devi v. Shekhar Kapoor, 1994 SCC OnLine Del 722.
[7] R. Rajagopal and Ors. v. State of Tamil Nadu, 1994 SCC (6) 632.
[8] ICC Development (International) v. Arvee Enterprises and Anr (2003) Delhi 405.
[9] Samarth Krishnan Luthra and Vasundhara Bakhru, “Publicity Rights and the Right to Privacy in India” [2019] 31(1) NLSIR 6.
[10] T-Series (also known as Super Cassettes Industries Private Limited), New Delhi & Anr v. M/s/ Dreamline Reality Movies & Others, 2024: PHHC: 025132.
[11] Vishaka. S, “Personality Rights and its protection in India- A Statutory and Judicial analysis” (Lexology, 2020) < https://www.lexology.com/library/detail.aspx?g=0759e39a-7803-4d67-95fa-f54624e99951> accessed 10 September 2024.
[12] Akshat Agarwal and Aditya Bhargava, “Whose Personality is it Anyway?” (Indian Journal of Law and Technology, 2024) <https://www.ijlt.in/post/whose-personality-is-it-anyway> accessed 10 September 2024.
[13] Snow v. The Eaton Centre Ltd. (1982) 70 C.P.R. (2d) 105.
[14] Titan Industries v. M/s. Ramkumar Jewelers, CS(OS) No.2662/2011.
[15] Anil Kapoor v. Simply Life India & Ors., CS (COMM) 652 of 2023.
[16] In Arijit Singh v. Codible Ventures LLP, 2024 SCC OnLine Bom 2445.
[17] In Jaikishan Kakubhai Saraf Alias Jackie Shroff v. The Peppy Store & Ors. CS(COMM) 389/2024.