This article is written by Nwokorie Sophia Chukwudumebi of University of Benin(Nigeria) during her internship at Ledroit India
Abstract
The protection of personality rights is an emerging issue in India because the
commercial exploitation of personality has increased much more compared to the earlier period. The major problem in India is the lack of proper protection for personality rights, even though the judiciary had tried to cover the issues under the existing IP laws such as trademark, passing off, and copyright. It is high time to look further at whether the existing laws are adequate to cover the personality rights related issues in the present context. This is more so because, as the technologies developed, there has been changes in the market aspect, and this has led to an increase in the commercial exploitation of personality rights without appropriate consent.
In an era dominated by digital media and advertising, the unauthorized use of celebrity likeness has become a prevalent issue, raising questions about the boundaries of legal protection. Focusing on the concept of personality rights within IP laws, this discussion delves into the complexities surrounding the intersection of fame, commercialization, and legal frameworks. By examining relevant case studies and legal precedents, we aim to elucidate the evolving landscape of celebrity rights protection and highlight the importance of balancing creative expression with the safeguarding of individuals’ dignity and control over their own image. Therefore, this paper aims to test whether the existing intellectual property laws are apt for personality rights protection. If not, the paper addresses the question as to what will be the means to address such issues.
Keywords: Personality Rights, intellectual property, Trademark, Passing Off, Copyright, Commercial Exploitation.
Introduction
The concept of personality right encompasses the right of a person to control the unauthorized use of their personality attributes such as name, image, voice, likeness, etc. Though the right includes both commercial and non-commercial aspects, each jurisdiction views the notion of right in a different way, either as a single right that covers both commercial and non-commercial aspects or else as considering both aspects as two separate rights. Therefore, the terminology used by each jurisdiction varies; whereas in India, “personality rights” and “publicity rights” – are terms used interchangeably.
Contemporaneously, more issues have cropped up revolving around the commercial aspect of personality rights. Hence the concept of personality rights is an emerging topic most recently, especially in India. When the commercial aspect of personality got its prominence in the market, this in fact vested significance to the value aspect of persona, which further expedited to acquiring consequential attention in the realm of intellectual property rights. Also, currently, when marketing has become the primary way of doing business, which led to a rise in competition; this, in fact had impacted personality right by the increase in the possibility for commercial misappropriation of personality right. Nevertheless, Indian courts used the existing IP laws for the protection of some attributes of personality rights . For example, under trademark, name, signature were protected; under copyright, the performance of personality was protected.
In today’s media-saturated world, the rights of celebrities in controlling the commercial use of their image have become increasingly significant. With the rise of social media, advertising, and digital platforms, the exploitation of a celebrity’s persona for commercial gain has become more prevalent. This raises critical questions about the extent to which celebrities should be able to protect their likeness and personality from unauthorized use. Thus, it is clear that in India limited aspects of personality are covered under existing IP laws; yet, protection of other attributes of personality are not dealt with under any existing laws.
CELEBRITIES AND COMMERCIAL EXPLOITATION
Celebrities, by virtue of their fame and public persona, are prime targets for commercial exploitation. One of the primary ways in which celebrities’ personality rights are infringed upon is through unauthorized commercial exploitation of their image. This can include the use of a celebrity’s likeness in advertisements, merchandise, or endorsements without their permission. In some cases, individuals may even falsely endorse products or services, damaging the celebrity’s reputation and brand.
THE LEGAL FRAMEWORK FOR PERSONALITY RIGHTS
The closest law to protecting personality rights in India is Article 21 of the Indian Constitution. But as it leaves out the commercial aspect of personality rights to some extent, the Indian courts applied the provisions under copyright, as well as trademark, for granting protection of certain aspects of personality rights. According to this Constitution, celebrities possess the authority to manage their image and likeness, encompassing aspects such as their name and voice. They also retain the prerogative to determine when they consent to being photographed or recorded by the media. Numerous instances exist where celebrities have faced humiliation, harassment, or invasive breaches of their privacy.
The Article 21 of the Indian Constitution safeguards not just life but also personality rights. Further, Article 19 plays a significant role in granting individuals the freedom of speech and freedom of expression, as demonstrated in several judicial pronouncements as well. Even in some cases passing off has been used to protect personality rights. While taking some of the India cases into consideration regarding the protection of personality right under existing IP laws, it may appear as though the existing laws are adequate enough to grant protection for personality rights. However, a deeper analysis surpassing the peripheral view, points to a necessity that there are several aspects and intricacies left unaddressed which makes the existing IP laws inadequate. But the courts have ignored these facts and granted remedy. While doing so it has left out the entire subject matter of personality, such that, as stated in the introduction, only limited personality attributes are seen to be protected under the existing IP laws.
INTELLECTUAL PROPERTY LAWS
Intellectual property law is closely linked to the protection of a celebrity’s image and identity. While copyright and trademark safeguard creative works and brand identifiers, the image, name, likeness, voice, or persona of a celebrity is primarily protected through image rights (often framed as the right of publicity or passing off). These rights prevent unauthorized commercial exploitation of a celebrity’s identity, ensuring that the economic value attached to their fame is controlled by them. Thus, intellectual property laws collectively function to preserve a celebrity’s goodwill, commercial value, and personal autonomy against misuse, exploitation or misrepresentation. These includes;
4.1 Copyright: These safeguards the rights of authors and performers, encompassing celebrities, granting them authority over the reproduction, distribution, and public presentation of their creations. Section 38 of the Act delineates the entitlements of performers. In India, the term “celebrity” lacks a precise definition. Nevertheless, guidance can be drawn from the definition of a performer in Section 2(qq) of the Indian Copyright statute, which has inevitably drawn inspiration from international conventions over the years. The Berne Convention has been the cornerstone for copyright and privacy rights and entails ‘protecting the privacy of private and family life’.
4.2 Trade mark: In numerous instances, when an individual or entity registers a domain name that closely resembles or matches another party’s name, and the registrant intentionally seeks to exploit or damage the reputation of that person or entity for unjust gain, it constitutes cyber-squatting. Under Section 14 of the law, individuals who unlawfully utilize a name or misrepresent it, whether for profit or otherwise, can be held liable. Conversely, defense under Section 35 may be invoked if the actions were carried out under a genuine belief without malicious intent
4.3 Tort and Passing off: This is a common law remedy available, lacking prior statutory registration (of rights) and serves as a proactive measure to defend against instances of impersonation, unauthorized use of a business’s name and goodwill or an individual’s fame and reputation. Further, the tort of misappropriation of personality or celebrity rights can be simplified into three elements:
- Exploitation of the plaintiff’s persona for financial gain.
- The public recognition and identification of the persona being exploited.
- Indications of endorsement or usage by the plaintiff.
4.4 Information Technology Act: section 43 of the statute prohibits morphing, which constitutes a direct infringement of the law. Sections 67 and 67A of this Act impose penalties on individuals who distribute sexually explicit or obscene material over the internet in electronic format. Section 66E is in place to prevent voyeurism, prohibiting individuals from blackmailing others or sharing private images without consent. This Act not only imposes sanctions on individuals but also prevents companies engaged in electronic media distribution from violating the confidentiality of individuals, including public figures and celebrities.
4.5 The Cinematograph statute: this legislation oversees the creation, dissemination, and screening of films in India. It also includes clauses aimed at safeguarding the rights of celebrities, including the right to receive acknowledgment for their contributions and the authority to prevent the unauthorized utilization of their likeness.
4.6 The Penal Code: this statute deems certain behaviors as criminal offenses that could intrude upon an individual’s privacy, including stalking, trespassing, and defamation.
4.7 ASCI Code: self-regulatory protocols and codes (such as the ASCI Code) have been formulated by industry sector-specific organizations like the ASCI or the Advertising Standards Council of India. These protocols delineate standards for media entities regarding the treatment of celebrity images and likenesses.
Thus, whether it is through the umbrella legislation i.e. the Indian Constitution (primarily Articles 19 and 21) or through specialized intellectual property laws through trade marks and copyright and moral rights or through rules of procedure applied under the legislations in force, the Indian Courts have been reasonable and even equanimous, with respect to celebrity, personality and publicity rights.
JUDICIAL APPROACH AND LANDMARK CASE LAWS
The case of R. Raja Gopal v. State of Tamil Nadu highlighted that the right to privacy encompasses two distinct dimensions: firstly, the ability to pursue legal action for damages due to unlawful violations of privacy, and secondly, the constitutional acknowledgment of the right to privacy to ensure lawful protection of individual privacy. In Shivaji Rao Gaikwad v. Varsha Production, the Court heard a lawsuit initiated by actor popular actor Rajinikanth to safeguard inter alia his personality rights. Despite the absence of comprehensive codification in India, the courts duly acknowledged these rights in their rulings, encompassing elements such as the right to be forgotten.
In the case of Mr. Arun Jaitley v. Network Solutions Pvt. Ltd. where the plaintiff’s rights (including trade mark and domain name) were infringed, it was argued that the defendants acquired the domain name www.arunjaitley.com primarily as it contained his name. The Delhi High Court observed that individuals with well-established public personas hold superior rights compared to mere commercial interests and were also eligible for damages in addition to injunctive relief.
More so, no individual should benefit from the hard work of others. The right of publicity belongs solely to the individual, who has the exclusive right to profit from it. This principle was established in ICC Development (International) Ltd. v. Arvee Enterprises. In cases where conflicts arise between interests and morals, copyright law can intervene, as is specifically enshrined in Section 57 of the Indian Copyright statute. In Amar Nath Sehgal v. Union of IndiaJustice P. Nandrajog, emphasizes the significance of Indian law regarding copyright and artistic entitlements. The case highlighted the importance of an artist’s moral rights, specifically the right to integrity of the work and the right to prevent distortion.
In Phoolan Devi v. Shekhar Kapoor and ors. The Court intervened on her behalf when her life story was depicted in a highly distorted manner, endangering her public image. The court emphasized the serious repercussions of exposing an individual’s private life to the public without adequate scrutiny. It was underscored that meticulous consideration is essential to safeguard the image and name of any celebrity, as these rights are enshrined in the Constitution.
The Indian courts have time and again protected the personality rights of celebrities. In the case of Anil Kapoor v. Simply Life India & ors. The Delhi High Court issued a temporary injunction safeguarding the personality rights of Bollywood actor Anil Kapoor. It prohibited multiple entities from exploiting his image, name, voice, or other facets of his persona for financial purposes without his authorization. The Court added “The technological tools now available make it possible for any illegal and unauthorised user to make use of any celebrity’s persona by using such tools including AI. The celebrity also enjoys the right to privacy and doesn’t wish that his or her image, voice is portrayed in a dark manner as is being done on pornographic websites.”
Another high-profile case which highlighted the issue of celebrity rights and privacy issues is Aaradhya Bachchan and anr. v. Bollywood Time & Ors. Here, the Delhi High Court prohibited several YouTube channels from distributing, posting, or circulating videos or any fabricated material concerning the mental and physical well-being of Aaradhya Bachchan, the daughter of famous Bollywood personalities Abhishek Bachchan and Aishwarya Rai Bachchan. The complaint alleged that one of the videos falsely portrayed the demise of Aaradhya and included several manipulated images. It was argued that these videos infringed upon the minor’s privacy rights and contravened the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Most recently, the landmark case of Amitabh Bachchan v. Rajat Nagi and Ors. (“Amitabh Bachchan Case”) makes a remarkable development in the area of personality rights in India. In this case the claimant instituted an action against the defendants for the unauthorised commercial exploitation of his personality rights. The defendants used his photographs and voice to promote mobile applications, websites and products, including a fraudulent “KBC Lottery” scheme and the sale of T-shirts bearing his image. The Court found that a prima facie case had been established and that continued misuse would cause irreparable harm to the plaintiff’s reputation. Accordingly, an ad interim ex parte injunction was granted, and directions were issued to relevant authorities and service providers to remove infringing content and block related contact numbers.
A COMPARATIVE ANALYSIS OF THE PROTECTION OF IMAGE RIGHTS UNDER OTHER JURISDICTIONS
Scarlett Johansson, one of the most well- known actresses in the Marvel Cinematic Universe, is believed to have once declared, “Your face is your own, and nobody has the right to use it for profit without your permission.” The quotation from Johansson highlights the value of people’s rights in preserving their unique identities as well as the qualities and attributes that define them.
Personality rights are recognized in various forms worldwide, although the specifics and extent of protection can vary significantly from one country to another.
In the United States, for instance, personality rights are largely governed by state law rather than federal law, resulting in a patchwork of regulations. California, for example, has particularly strong privacy and publicity rights laws due to its entertainment industry.
In many jurisdictions such as the United States, Germany, France and Hungary, there is express statutory protection against the unauthorised commercial use of an individual’s image by a third party in the context of publicity or personality rights. In the US, these rights are known as the Right of Publicity. Under the Indiana Statute, for instance, persons entitled to this right of publicity are called “Personalities” (otherwise known as Celebrities).
In Robyn Rihanna Fenty v. Arcadia Group Brands Limited. The Defendant, a well-known fashion retailer, started selling a t-shirt with the Claimant’s image. The image in dispute was a photograph taken by an independent photographer. The Defendant, Topshop, had a licence from the photographer who took the Claimant’s pictures; but it did not have a licence from the Claimant. The Claimant contended that the sale of this t-shirt without her permission infringed her rights. The Court found for the Claimant when it held in the following words: “The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off. However, the sale of this image of this person on this garment by this shop in these circumstances is a different matter. I find that Topshop’s sale of this Rihanna t-shirt without her approval was an act of passing off.”
This judgment was upheld on appeal. It is worthy of note that Judge Briss in his Judgment above, had earlier clarified that this case was one of passing off and not an infringement of Personality Right stricto sensu because according to him; “…there is today in England no such thing as a free-standing general right by a famous person (or anyone else) to control the reproduction of their image”.
Thus, this shows that personality rights are not recognised under English law. Instead, such rights are protected under the law of passing off. In this case, the court held that the plaintiff had ample goodwill to succeed in a passing off action because the plaintiff was a world-famous pop star who ran very large merchandising and endorsement operations and was regarded as a style icon by many people.
CHALLENGES AND LIMITATIONS
Despite the legal mechanisms available for protecting personality rights, celebrities face several challenges in enforcing their rights against commercial exploitation.
Challenges remain in enforcing personality rights, particularly in the digital realm. The internet has made it easier than ever for individuals and companies to disseminate and exploit celebrity images without permission, making it difficult to track and regulate unauthorized use.
Furthermore, the global nature of the internet means that celebrities may face infringement from entities operating in jurisdictions with different legal standards for personality rights. This can complicate enforcement efforts and require collaboration between legal authorities in multiple countries.
PROPOSED SOLUTIONS AND RECOMMENDATIONS
To address these issues, many countries have enacted laws to protect the personality rights of celebrities. These laws often grant celebrities the exclusive right to control and profit from the commercial use of their image and likeness. In some jurisdictions, personality rights are considered a form of intellectual property, giving celebrities the ability to take legal action against unauthorized use.
For example, in the United States, celebrities can pursue legal remedies under both state law and federal trademark law. State laws vary, but generally, they provide protection against unauthorized commercial use of a celebrity’s image or likeness for advertising or trade purposes. Federal trademark law also offers protection against false endorsement or association with a product or service.
Similarly, in countries like France and Germany, personality rights are protected under civil law, allowing celebrities to seek damages for unauthorized use of their image for commercial gain. These laws recognize the economic value of a celebrity’s image and aim to prevent others from profiting at their expense.
In addition to legal protections, celebrities should take proactive steps to safeguard their personality rights. This may include registering trademarks for their name or likeness, entering into licensing agreements with companies for authorized use, or actively monitoring and enforcing their rights through litigation when necessary.
CONCLUSION.
As an estoppage, the protection of celebrities’ rights against the commercial exploitation of their image is a multifaceted issue that demands careful consideration within the realm of intellectual property laws. While advancements in technology and media have made it easier for unauthorized use of celebrity likeness, legal frameworks exist to provide recourse and protection. By recognizing and enforcing personality rights, IP laws strive to strike a balance between promoting creativity and innovation while respecting the rights and dignity of individuals in the public eye. As society continues to evolve, it is imperative for legal systems to adapt accordingly, ensuring that celebrities maintain control over their image and persona in an increasingly commercialized world.
