By Vikrant Rana, Nihit Nagpal and Akif Abidi
Introduction
It is a settled principle of common law that remedies arise from the cradle of rights i.e., ‘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 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 of violations of personality rights. In this Article, we analyse the concept of personality rights qua 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.
Indian Perspective qua Personality Rights
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 freedom of ‘expression’ and 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)1, 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 case titled as Amitabh Bachchan v. Rajat Negi & Others2, wherein the Hon’ble Court granted injunction as sought for by the 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 (Supra).
Another interesting case of sly yet not-so-subtle use of someone’s name, or rather violation of someone’s personality rights, is perhaps Shivaji Rao Gaikwad vs. Varsha Production3, wherein a renowned celebrity Mr. Shivaji Rao Gaikwad aka Rajnikanth was compelled to approach the Hon’ble Madras High Court seeking injunction restraining the 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 in the interest of law, and would carry adverse ramifications for the Plaintiff therein.
Global Perspective qua Personality Rights:
a. United States of America
It is not a matter of surprise or bewilderment that USA perhaps has the most developed concept of protection against violation of personality rights. The first commonly known reference to the concept of 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 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 on 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 ones’ 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, protection was granted for use of one’s name and style, without express consent. However, the penalty for violation was limited to misdemeanour, 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. 19533 , wherein distinction was drawn between right to privacy and 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.
b. United Kingdom
While the UK does not specifically have a right to publicity, there are certain protections in a bunch of pigeon holes that may serve the purpose, such as, inter alia, (i) Protection as a copyright of photos or videos/films taken of oneself vide Copyright, Designs, and Patents Act, 1988, (ii) Civil actions for passing off brought about by celebrities and public figures who claim damages against false representation of their endorsements and name, 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.
c. 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 ECtHR doesn’t 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 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 name and style succeeded when his name was used in advertisement material for a radio station.
Indian Perspective qua Posthumous Personality Rights
The case discussing the posthumous personality rights of Sushant Singh Rajput:
With the passing of the recent judgment in Krishna Kishore Singh Vs. Sarla A Saraogi & Ors.5, the ambit of personality rights, more specifically ‘posthumous’ personality rights has been narrowed down.
While in the afore said decided cases, the Indian Courts have been proactive in protecting the personality rights of the aggrieved celebrities, the law pertaining to the personality rights as laid down 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 injunction against the streaming of the movie ‘Nyay: The Justice’ which was based on 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 taking permission from him or 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, qua any right which vested in him, finds 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.
This opinion of Court is in line with the judgment of Madras High Court in Deepa Jayakumar vs A.L. Vijay6 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 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.
Conclusion
Recently, in Anil Kapoor vs. Simply Life India and Ors.7 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 to be paid to Anil Kapoor, regarding the usage of his name, voice, and likeliness. The Court however maintained a distinction that the satirical writing and genuine criticism shall be protected and would not be held to violate the 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 protection to the personality rights in the technological space of virtual reality. This is a watershed moment, and in alignment to the requirement to pace up protection of IP rights 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 settle the contentious issue of the exercise of fundamental right to free speech and expression under Article 19(1) (a) towards 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 time that clear and comprehensive legislation is developed and explicitly recognize personality rights as a form of distinctive intellectual property, allow for commercial licensing which shall enable the person concerned to benefit economically for 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 it protects.
Zahra Naqvi, Former Associate at S.S. Rana has assisted in the research of this Article.
1 CS (OS) No. 2662/2011
2 CS(COMM) 819/2022
3 CS No. 598 of 2014
4 202 F.2d 866 (2d Cir. 1953)
5 CS (COMM) 187/2021
6 OSA No.75 of 2020 and CMP Nos.2945, 2946 and 9240 of 2020
7 CS(COMM) 652 / 2023