This article is written by Parul Kannauje, a 4th-year B.A.LL.B. student at Gitam School of Law, Visakhapatnam, during her internship at LeDroit India.
Scope of the Article
This article will be going to analyse the commercial exploitation that has been faced by celebrities in India related to their name, image, likeness, and other personality attributes used for their identification through merchandising. The article will also cover the recent developments that have happened in personality and publicity rights in India, and what are the roles that are played by the Copyright Act, 1957, the Trade Marks Act, 1999, and the judicial and constitutional frameworks that have been adopted by the Indian Courts.
This article will also analyse what the recent landmark judgements that are given by the courts like D.M. Entertainment Pvt. Ltd. v. Baby Gift House, Anil Kapoor v. Simply Life India, etc. This article will specifically focus on the involvement of unauthorised celebrity merchandise, artificial intelligence, deepfakes, and false endorsement. This article will also discuss the tensions related to the protection of fundamental rights and freedom of speech.
Abstract
The term celebrity merchandising means that when a person has become famous, their voice, face, and name can make a lot of money. Companies for the promotion of their brands purposely want to use the pictures of famous heroes or sportspersons to increase the sales of the company.
A legal way to do this is that companies can approach the person to use their identity and can get proper permission before using the identity for promotional purposes. After approaching them, if they say yes, then the company can use that person’s identity, but they have to share some amount of profit for using their identity for promotion. But nowadays, a few people are using the identities of celebrities without taking proper permission from them.
This is mostly done by companies to attract customers or consumers to them. In India their no such laws that protect the personality or the publicity rights of the celebrity. But if celebrities are going to court for the protection of their personality rights, then the judges are making the rules for protecting their rights. Under this, a person can protect their identities which is being used without permission. Recently, the courts in India also asked people not to use Artificial Intelligence to generate fake copies of celebrities’ identities.
The judges who all are making these kinds of rules need to balance and protect personality rights and their freedom of speech. This article is going to analyse how the concept of celebrity merchandise and personality rights have evolved with various judicial decisions given by the courts in India.
Keywords: Celebrity merchandising, personality rights, publicity rights, artificial intelligence, deepfakes.
Introduction
The identity of a celebrity is no longer a professional asset restricted only to their work or public appearance; now, in today’s world, the identity of a celebrity can have important commercial value. The identities or other attributes of the celebrities can be used for campaigning, advertising, content creation, posters, and other forms of merchandise. The identities of celebrities can be used lawfully when the company or any brand has a license and other arrangements for using their identity. If the identity is being used without their permission, then the company or brand that has used the identity can face legal consequences. To what extent can a celebrity protect and control their personality rights?
In recent times, celebrity merchandising is one of the most significant issues because it can interact with many areas of the law. A celebrity whose identity is being used without permission, then the celebrity can seek protection not because the personality has copyrighted or trademarked it, but because their identity is being used for an unauthorised purpose for which the celebrity has never given their permission;
under these circumstances, celebrities can also seek protection. The issue is serious because sometimes the general public may believe that the celebrity is actually promoting or sponsoring the product. Due to this situation occurred the unauthorised person who is using the identity without proper permission may obtain commercial benefits from the reputation of the celebrities.
In India, the courts are observing the increase in the developing jurisprudence of the celebrities’ personal rights and public rights. In the case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House, the Delhi High Court observed that the unauthorised use of singer Daler Mehndi has given high commercial benefit to the unauthorised person. There are other cases like Anil Kapoor v. Simply Life India and Jaikishan Kakubhai Saraf v. The Peppy Store that have given the power to the judiciary to provide protection against unauthorised commercial benefits.
In the contemporary world, the major problem is that online third-party sellers and most e-commerce websites are using the identities of various celebrities, and with the help of artificial intelligence, these e-commerce websites are now creating the voices, images, and videos of the celebrities without their permission and using them for advertising their products. In the case of Abhishek Sharma v. Ashok Kumar and Ors., the Delhi High Court has observed that the unauthorised use of celebrity merchandise and AI-generated representations has manipulated consumers and made them believe that the cricketer is actually promoting and advertising the product.
In today’s world, this matter has raised serious concerns related to celebrity merchandising, which also includes how the personality rights of the celebrity are preserved. Till now in India, we do not have any specific law that protects the personality and public rights of an individual. But if the issues are being raised before the judiciary, then the courts are balancing the Constitution, laws related to intellectual property for protecting the rights of the celebrity, and also the fundamental rights of the person who is using the identity of a celebrity for advertising purposes. This article will be going to deal with the developments that are taking place in protecting these kinds of personality and publicity rights of a celebrity.
Understanding Celebrity Merchandising and Personality Rights
Celebrity merchandising means using the celebrity’s identity for advertising or promoting the product, goods, or services. Through celebrity merchandising, various companies or brands can use the personality attributes or identity of the celebrity, like their name, photographs, likeness, voice, signature, or other characteristics, to increase the sales of their brands. Merchandising is divided into two types: authorised and unauthorised merchandising.
Authorised merchandising means that if a company or brand is using the identity of a celebrity with proper consent and has obtained the necessary licence permits for using the identity, then it will be authorised merchandising. Whereas, unauthorised merchandising is when the identity of the celebrity is being used without proper permission from them; it will be considered unauthorised merchandising, where a third party is exploiting the personality rights for commercial benefits.
The commercial benefit can be gained from the goodwill and the reputation that these celebrities have built throughout their career and from their professional life. Celebrity merchandising is mostly used to attract customers or consumers to buy the products. But the issue is not that the photograph or the name of the celebrity has been used; the main problem is whether it is being used in a proper manner and with the consent of the celebrity or not.
In the case of Titan Industries v. M/s Ramkumar Jewellers, the Delhi High Court stated that the right of publicity gives the person the power to control the use of their identity; if it is used in an unauthorised manner for commercial gain, then it is infringing the personality rights of the celebrity.
Meaning of Personality Rights- The term personality rights refers to the legal interest of the person, which the individual can protect from the identifiable aspects of his or her personality from the unauthorised exploitation of his or her identity. In the case of celebrities, their identity can be exploited by using their name, image, likeness, voice, signature, and other characteristics through which anyone can identify that the person is a celebrity.
Personality rights and public rights are both closely connected with each other but cannot be treated as the same. Personality rights are related to the protection of the individual’s identity and personal attributes from unauthorised use. Whereas, in publicity rights, the individual can control the commercial exploitation of their personal attributes and identity.
In the case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House, it is one of the most important cases for the foundation of celebrity merchandising jurisprudence. The Delhi High Court recognised that the use of personality attributes and identity of the celebrity for unauthorised commercial use can be controlled by the celebrity.
Name, Image and Likeness as Commercial Assets- The name of the celebrity can also be used for advertising and promotional purposes; their name is also one of the important assets and can be substantially used to gain commercial benefits. The name of the celebrity can also function as an identifiable personality attribute to recognize the person by their name. In a similar manner, their photographs, signature, or likeness can also be used to make customers or the consumer believes that the celebrity is advertising or promoting the product.
Recently, the Delhi High Court stated that these personality attributes of celebrities are increasingly treated as valuable elements for gaining commercial benefits. In the case of Nandamuri Taraka Rama Rao v. Ashok Kumar/ John Doe, the court stated that prima facie, the unauthorised use of celebrities’ identity and personal attributes like their name, images or likeness, which is being used for selling merchandise, can be held justified as injunctive relief.
Therefore, nowadays the celebrity’s commercial value is not only restricted to their physical appearance, but it is also extending to the other attributes through the use of which the public can easily believe and identify the celebrity.
Authorised and Unauthorised Merchandising- The term merchandising is categorised into two types, that is, authorised and unauthorised merchandising.
In authorised merchandising, the celebrity themselves enters into a contract or agreement with a brand or company, and they permit the company or brand with license permit to use specific personality attributes for selling a particular product and for a specified time period. Under authorised merchandising, the celebrities have the right to monetise their identity or personal attributes under the contractual agreement that they have made with the company or brand.
In the case of Titan Industries Ltd. v. M/s Ramkumar Jewellers, the Delhi High Court has stated that the unauthorised use of the personality rights of the celebrity for selling the jewellery by the defendant is misappropriate and ultimately it restricted the defendant from using the personality rights of the celebrity misappropriately.
The unauthorised merchandising is completely different from the authorised merchandising. In unauthorised merchandising, the third-party seller tries to use the personality rights of the celebrity to sell or promote their products without taking permission from the celebrity. The issue related to unauthorised merchandising became serious when the advertising of the third-party sellers started giving the impression to the customers or consumers that the celebrity has sponsored or advertised the products.
In the case of Gautam Gambhir v. Ashok Kumar/John Doe, the Delhi High Court observed that the cricketer’s image was being sold by the third-party seller through platforms including Amazon and Flipkart in a manner that did not exist. The court also stated that the image is AI-generated, manipulated content.
The development is important because e-commerce platforms and online marketplaces have allowed unauthorised merchandising, and sellers are using it without taking proper permission from the celebrities.
Personality Rights and the Problem of AI-Generated Merchandising: Due to technological developments and the emergence of artificial intelligence, the concept of celebrity merchandising has expanded its scope into another dispute. With the use of artificial intelligence, the celebrity’s identity or personal attributes can be reproduced without using the celebrity’s original photograph of the celebrity or a voice recording. With the help of just one prompt, AI can generate an exact image that clearly resembles a celebrity, which can fabricate the situation. The use of AI has created legal difficulties, and the personality rights of celebrities are also being exploited for commercial gain.
In the case of Abhishek Sharma v. Ashok Kumar and Ors., the Delhi High Court has stated that the celebrity has the right to protect their name, likeness, and other personal attributes and also observed that the unauthorised commercial use of the celebrity image can create fake believes in the minds of consumers that the celebrity has sponsored the product.
Similarly, in the case of Yuvraj Singh v. Ashok Kumar and Ors., the Delhi High Court stated that using an AI-generated image or the personal attributes for selling or advertising is unauthorised, and using their personal attributes without taking their permission has exploited their personality rights.
Personality Rights are not Absolute – The acknowledgment of the rights of individuals does not suggest that every use of a celebrity’s likeness or name would be against the law. The legal framework that protects the rights of celebrities completely may hinder the freedom of expression and speech, satire, parody, criticism, and other forms of expression.
Thus, the key difference in celebrity merchandising is becoming one of commercialization versus legitimate free expression. For instance, a T-shirt created for profit from a celebrity’s image raises a different issue than a news article about that celebrity or a satire about that celebrity.
Legal Frameworks Governing Celebrity Merchandising in India
In today’s world, India does not have a specific statute that can govern celebrity merchandising or protect their personality rights. But personality rights can be protected from unauthorised commercial benefits through constitutional, trademark, and copyright laws, privacy, etc. Let’s look into the matter separately:
Constitutional Protection – Under the Constitution of India, the personality rights of the celebrity can be protected. The right to protect Individual’s right to life and personal liberty can be guaranteed by the Indian Constitution under Article 21, and if we interpret more Article 21 also deals with the right to privacy, which has gained its foundational jurisprudence by the Supreme Court of India in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India, this case has given the constitutional foundation for the right to privacy.
This principle can be helpful in deciding and protecting the personality rights of celebrities. However, in the case of celebrity merchandising, the main concern is not only related to their privacy, but also to their personal attributes like name, voice, signature, and other characteristics that have been used by the unauthorised third-party seller. Thus, Article 21 provides the power to the celebrity where they can control their personality rights.
Trade Mark Law – The Trade Marks Act of 1999 can also protect the celebrity’s name, voice, signature, logo, or other identities. Through this Act, the celebrity can protect their identity or personal attributes by registering them as a trademark, and if any brand or company wants to use their identity, then they have to obtain proper permission from the celebrity before using their identity; the celebrity can claim the commercial benefit that has been earned by the company from using the celebrity’s identity.
Passing off and Commercial Misrepresentation – The doctrine of passing off, which is a common law doctrine, can also be used for the protection of personality rights of the celebrity. The doctrine can be relevantly used when the unauthorised merchandising by a third party creates a misrepresentation that the celebrity has actually sponsored or advertised the product. The case of Titan Industries Ltd. v. Ramkumar Jewellers is the best example of the doctrine of passing off; the case highlights how a third party can exploit the personality rights of the celebrity.
Judicial Evolution of Celebrity Personality and Publicity Rights
D.M. Entertainment Pvt. Ltd. v. Baby Gift House – This is one of the earliest decisions that has been given by the High Court of Delhi for the protection of the personality rights of the singer Daler Mehndi. In this case, the Delhi High Court observed that the defendant was using the attributes of the singer in an unauthorised manner for commercial benefit, which exploited the singer’s personality rights. The court treated the act of the defendant as the exploitation of the commercial value and reputation of the singer.
Titan Industries Ltd. v. Ramkumar Jewellers – In this case, the dispute involved the jewellery shop owner who was unauthorisedly using the image of Amitabh Bachchan and Jaya Bachchan for selling the jewellery with false advertisement. The Delhi High Court stated that the celebrity has the right to control the use of their personality attributes. In this case, the main dispute was not related to the use of the identity in an unauthorised manner but instead to the use of the reputation or the commercial value of the celebrity.
Anil Kapoor v. Simply Life India – In this case, the Delhi High Court has granted protection to Anil Kapoor’s personal attributes, which include his name, image, likeness, and voice, which were exploited by the third party in an unauthorised manner. In this case, the court also observed that the personality of an individual is not only his/her photograph, but it also includes their name, voice, signature, likeness, etc.
Balancing Personality Rights and Freedom of Expression
Celebrities cannot totally control the use of their personality attributes or identity. The protection of personality rights, which is provided by the judiciary to many celebrities are not absolute and the judiciary is trying to balance the right to protect the celebrities’ personal rights with right to freedom of speech and expression which is provided by the constitution of India under Article 19(1)(a).
One of the most important distinctions that has been made between Legitimate expression and commercial exploitation is in the case of Karan Johar v. Ashok Kumar/John Doe and Ors. The Delhi High Court stated that satire or lampooning that has been used in an unauthorised manner can also receive protection when it involves using the celebrity’s likeness without taking their proper consent, and that can also create a false impression.
The main purpose or objective of the court should be to protect the personality rights of the celebrity whose likeness has been used in an unauthorised manner, and it should balance the protection of personality rights with the fundamental right provided under Article 19(1)(a) of the Indian Constitution, which talks about the right of freedom of speech and expression.
Conclusion
Celebrity merchandising has turned a celebrity’s name, likeness and voice into real commercial treats. Indian courts have increasingly protected these. There have been cases with names like D.M. Entertainment, Titan Industries, Anil Kapoor and Jackie Shroff.
However, the progress of social media, e-commerce and AI-created content has challenged them. Deep-fakes, voice cloning and digital impersonation are among some of the issues. Personality rights must be preserved while allowing for freedom of expression, especially when it comes to news, comment, and satire.
This requires India to come up with a proper legal framework outlining the application of personality rights to modern technology.
