This piece has been authored by Isha Khurana, 4th year law student, Jindal Global Law School

Introduction

The recognition of publicity rights (alternatively, personality rights) has been on the rise for the past few decades. The rights refer to an individual’s right to control the commercial value of their persona and are invoked when one appropriates the commercial value of another person’s identity for trade, without the latter’s consent. Drawing from this definition, one can argue that they go to the core of human dignity, thereby justifying their judicial recognition.

In this paper, the rights will be studied through their relation to intellectual property rights, coupled with certain intersections from constitutional law. The paper will first delve into the theoretical justifications for the rights, along with relevant judicial decisions. It will then delve into the issue of fundamental rights, in the Indian and American context, to analyse the relation of publicity rights with the right to free speech. Then, seeing as this intersection has sparked various debates and criticism, it will propose an analogy between copyright law and publicity rights, to advocate for the adoption of the fair use doctrine and other exceptions to formulate better policies for these rights.

Legal and Theoretical Justifications for Publicity Rights

The rationale for providing such rights goes beyond statutory provisions and can be found in the theories propounded by Locke and Hegel, often cited in intellectual property jurisprudence. Locke’s labour theory propagates that since an individual has put in labour, skill, and effort to develop something, they deserve due credit. The same principles can then be applied to a celebrity or rather, a public figure who has worked to develop their persona and name in the world, thereby providing them with the right to claim protection of the same. Moving to Hegel’s theory, an individual’s work is an external manifestation of their personality, thereby giving them rights over the same. If the same has come to be an acceptable interpretation for inventions or other works, it is only logical that an individual’s persona, name, personality traits, and likeness be treated as a manifestation of their personality, entitling them to protect the same.

In India, the most recent case where the rights were recognized was that of Anil Kapoor in September 2023. The Delhi High Court passed an order restraining social media platforms and the general public from using the actor’s name, likeness, and expressions such as “Jhakaas” which are usually associated with the actor’s personality.

In ICC Development (International) v. Arvee Enterprises and Another, the Delhi High Court established that publicity rights stem from the right to privacy, which has been recognized under the umbrella right to life under Article 21 of the Constitution of India. The same being a fundamental right recognized by the Constitution places publicity rights on an extremely high pedestal. Further, the Supreme Court in Justice K. S. Puttaswamy (Retd.) v. Union of India, established that each individual must possess the rights over their image and should be able to control the commercial use of their identity. The court justified the same based on the idea that publicity rights stem from the legal obligation under Article 21 to protect individual autonomy and human dignity, making it a core issue.

The U.S., which is at the forefront of this discussion follows a similar approach. An article written by United States Supreme Court Justice Louis Brandeis, and Samuel D. Warren recognized the same to fall under the umbrella right to privacy and personality. However, an influential scholar in this field, Melville B. Nimmer, argued otherwise and stated that the right to publicity is different than the right to privacy. He stated that rather than viewing it as a violation of an individual’s privacy, one must view it as a right to control the commercial value that is associated with one’s personality. This perspective guides us to the monetary basis for publicity rights, as many scholars associate these rights with the idea of compensating the individual or advocating for the same to avoid any kind of unjust enrichment.

American jurisprudence on publicity rights also states that since there is no clear-cut definition of who a celebrity is, publicity rights should be granted to all persons. The same thought process can be justified with no difficulty, if one deems Article 21 or the right to privacy in general as the root of publicity rights, as the same is conferred upon all individuals.

The author thus believes that advocating for Article 21 or the overarching right to privacy (as was done by Brandeis and Warren) as the basis for providing publicity rights, is a stronger argument. This is due to the simple fact that these fundamental rights hold an extremely important position in any legal framework and can be relied upon by courts in a more feasible manner, to justify the development of publicity rights.

Publicity Rights through the Lens of Free Speech

Article 19 (or the First Amendment rights in America) plays an important part in this discourse. The intersection between the right to freedom of speech and expression and the right to privacy has sparked several debates regarding the extent to which can one use free speech to justify the use of another individual’s personality traits and so on, and will now be addressed.

So far, this paper has portrayed publicity rights in a fairly positive manner and we must now engage in a debate regarding the expansive scope of publicity rights, to gain a holistic view. For instance, in 2013, Lalit Bhasin filed a suit before the Ecuadorian Institute of Intellectual Property, to restrict a rice manufacturing company from using Mahatma Gandhi’s pictures and trademarking the same. The suit was ruled in Bhasin’s favour as it was believed that since Gandhi is the father of the nation, Indian sentiments are involved in this and this provides all Indians with a legitimate interest to oppose any trademark in this regard.

This case may be interpreted to mean that publicity rights have been granted an extremely wide scope and give locus standi to several parties, based on the nature of the dispute. While Mahatma Gandhi’s persona is of great significance for the country as a whole, the author argues that, hypothetically, a fanatic of any celebrity or public figure could potentially seek the right to bring a claim against the use of the public figure’s image which is quite undesirable as this right should lie only with the figure themselves.

While the approach to establish legitimate interests for all citizens was taken by the Ecuadorian board, Indian courts have rightfully chosen to adopt a more balanced approach. The Delhi High Court in numerous cases, has held that the right to publicity is not an absolute, unrestricted right. Courts have recognized that publicity rights should be granted in a manner that upholds the general practice of free speech. The argument of free speech is often used by defendants in American publicity rights cases, as they claim they have used the individual’s image for commercial purposes, in a manner that provides entertainment and is thereby protected through their First Amendment rights. The same rationale is used to protect parodies and other forms of entertainment that might otherwise be seen as infringing publicity rights.

The reason for this can be understood through the dissent in the American case of Vanna White v. Samsung Electronics America Inc., wherein Judge Kozinski observed the need to balance publicity rights with free speech and recognized the need for criticism in the form of entertainment, seeing as the same ensures cultural and economic growth and development. This approach ensures that publicity rights are not given an extremely expansive scope and are used in a way that is complimentary to other rights. More importantly, one can put forth the same arguments under personality and labour theory, for parodies (as discussed earlier in the paper), to argue that the parody-creator has used their skill and worked, thereby deserving protection over the same.

Concluding Remarks for Balancing the Publicity Rights Framework

To rectify this conundrum between free speech and publicity rights, scholars have recommended incorporating the fair use doctrine into publicity rights and drawing a parallel to the copyright framework. The fair use doctrine was developed to enable the use of copyrighted works in a justified manner that does not violate the copyright holder’s rights or monopoly over their works. Merging this doctrine with publicity rights would help courts restrict the unauthorized use of individuals personalities and simultaneously look after fulfillment of the free speech requirement. Simply put, this approach can result in the use of another’s personality traits, name, and so on, when it is believed that it is in public interest to do so, even if such public interest arises out of entertainment and development of industry, as is the case with free speech. The approach would lead to more advanced, creative work as it provides space for expression as it has been welcomed in the copyright framework.

The work of Andrew Koo provides valuable insight here, as he has designed a fair use model for publicity rights while drawing on principles from copyright law. This model would require the courts to look into the reason or purpose for which the defendant in such a scenario has made use of a public figure’s personality and whether it was merely to use the personality’s goodwill and seek unjust enrichment. A further review would then be conducted to study the monetary aspects of the issue. Here, the malicious intent behind such use would play a substantial role in the review and deciding whether the defendant has acted fairly and has not caused any harm or distress. Essentially, unjust enrichment, malicious intent, and monetary benefits go hand in hand, since publicity rights are often violated through a disclosure of personal information, with ill-intentions to make wrongful gains, which is then used by third parties to make financial benefits. So, understanding if substantial monetary benefit has been derived from using another’s publicity rights can help ascertain if malicious intent did in fact exist, and has led to unjustified gains for the wrongdoer. Another factor for establishing malicious intent, could be to prove that the wrongdoer has acted in the particular way, to create a negative image or false impressions about the public figure, in a way that may be considered akin to defamation. Since a large part of publicity rights revolves around the commercial value of a personality, courts would look into the effect of such use, on the public figure’s image and identity in society.

For another solution, one can look at the position of parodies. The dominant purpose of the same according to the Delhi High Court, is to critique or humorize an individual’s actions and cannot be termed as commercial, making parodies a fair use exception. Hence, apart from incorporating the fair use doctrine, reliance must be placed on the exceptions such as parodies that have been carved out, for an efficient balance between publicity rights and freedom of speech.