PERSONALITY RIGHTS AND ITS PROTECTION IN INDIA- A STATUTORY AND JUDICIAL ANALYSIS – Eshwars
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PERSONALITY RIGHTS AND ITS PROTECTION IN INDIA- A STATUTORY AND JUDICIAL ANALYSIS

Authored by Vishaka. S

Introduction:

Be it an affordable daily-use product such as an energy drink endorsed by Indian Cricketer Virat Kohli or an expensive commodity such as gold or diamonds endorsed by top Indian actors like Amitabh Bachchan or Aishwarya Rai, people in India are largely influenced by celebrity endorsed products and its consumption in daily households are nothing to be surprised of. In a country like India with people worshipping celebrities such as actors, cricketers or even politicians as “larger than life” figures, in this article we shall briefly take a look at the position and framework of laws prevalent in India that deals with the protection of rights of celebrities and famous personalities, which is also otherwise called personality rights or celebrity rights.

Personality Rights- Statutory Recognition

However, there is no separate codified law in India dealing with personality or celebrity rights (“Personality Rights”) and the position and development of such rights and laws in India is still at a nascent stage largely governed by judicial pronouncements of courts. However, the most important statutory provision governing Personality Rights is contained and governed as part of the fundamental right of Right to Life guaranteed under Article 21 of the Constitution of India. Other statutory provisions broadly governing and protecting Personality Rights can be found under the Intellectual Property law such as the Copyright Act 1957, where moral rights are attributed only to authors and performers which comprises of actors, singers, musician, dancer, etc. As per the relevant provisions of the Copyright Act, 1957, the Authors or the Performers have the right to be given credit or claim authorship of their work and have a negative right restraining others from causing any kind of damage to their work which consequently disrupts their reputation. Under the context of the Intellectual Property Law, Personality Rights are construed as property of well-known public figures which cannot be misused or misappropriated by any-one. Also, Personality Rights can be protected to some extent by relying on the provisions of Section 14 of the Indian Trademarks Act, 1999, which prohibits use of personal names. That apart Personality Rights are also protected under the common law remedy of passing off and that of Law of Torts protecting against the tort of disparagement, libel or slander.

Judicial Recognition of Publicity Rights

The common law right of publicity recognises the commercial value of a photograph or representation of a prominent person and protects his proprietary interest in the profitability of his public reputation or persona. The courts in India, by applying common law right of publicity in various instances, have been able to adjudicate upon cases wherein the Personality Rights of public figures have been in question or have been incidental to the case. Since the terms such as “Celebrity”, “famous Personality” or “publicity rights” have not been defined under any statute, the question of who is a celebrity and whether the said person in question is entitled to get his/her publicity rights enforced is subjective that depends on case to case basis. Personality Rights, being a very wide concept have been interpreted by courts in different scenarios to enforce the rights of celebrities. In Shivaji Rao Gaikwad vs. Varsha Productions, the Madras High Court dealing with a case filed by the reputed Indian Actor Mr. Rajinikanth observed that although there is no definition of “Personality Right” under any Statute in India, courts in India have recognised the same in various judgements, which are further dealt as under.

In Titan Industries Ltd. vs. Ramkumar Jewellers, the Delhi High Court in 2012 defined a celebrity as “a famous or a well-known person and is merely a person who “many” people talk about or know about” and further went on to lay down that “The right to control commercial use of human identity is the right to publicity.”  In the Instant case, the photograph of Indian actors Mr. Amitabh Bachchan and his wife Ms. Jaya Bachchan which was exclusively captured with respect to endorsement of Plaintiff’s jewellery product, was used unauthorizedly by the Defendant for his jewellery product. The Court while granting a permanent injunction against the Defendant elucidated that identity of a famous personality or celebrity can be used in advertisement for commercial purpose, but subject to the respective personality’s consent and approval regarding the time, place and nature of usage.

It is interesting to note that the said personality or publicity rights are specific and attributable only to “individuals” and not to corporate bodies irrespective of them being construed as legal person in eyes of law. In the case of ICC Development (International) Ltd. vs. Arvee Enterprises and Ors, the plaintiff contended that commercial “identity” or “persona” of ICC Events vests entirely and exclusively in the plaintiff and that they own publicity rights in all ICC Cricket events which have commercial value. The defendants were wrongfully exploiting the “persona” and “identity” created by the plaintiff and thus making unlawful gains, while stressing that the right of publicity not only protects publicity values of human beings, but also the publicity values in non-living objects that are made popular through efforts. The Delhi High Court denying the contention observed that although all forms of appropriation of a property of legal entities are protected sufficiently under laws, including Copyright Law, affording personality rights to a corporate would defeat the basic concept of “persona”. Relying on various foreign decisions wherein most of the foreign courts have refused to grant publicity rights to non-living entities, the High Court laid down the following:

“The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals, to the organiser {non-human entity} of the event would be vocative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it.”

In 2017, in the case of Gautam Gambhir vs D.A.P & Co. & Anr, the famous Indian cricketer had contended that his name which was protectable under the trademark law owing to his well-known status in the public, was used as a tag line to the chain of restaurants owned by the Defendants owing to which it was alleged that there was confusion in the minds of the public as to the Plaintiff’s association with the said chain of restaurants amounting to deception and personality rights of the Plaintiff being illegally violated. The Delhi High Court while declining the injunction sought by the cricketer, held that there was nothing on record to prove that the Defendant was trying to pass-off his restaurant as one owned by the Cricketer as there was no representation of the Cricketer to the public, be it his picture, photo or even poster, both in the defendant’s restaurant as well in its social media pages, so as to cause any confusion in the minds of the public. In-fact the Defendant has posted his own pictures to associate his “own” identity to his restaurant. Hence the High Court held that neither did the plaintiff cricketer’s name was commercialised, nor was there any loss of goodwill in his field and thus dismissed the suits and the applications. This case shows that although involving a famous personality and a widely known public figure, unless unjust enrichment on a celebrity’s Personality Rights are proven, the suit would fail to stand the test of “publicity rights”.

Personality Rights and Domain Name disputes:

Apart from the traditional cases involving the reputation of famous personalities directly in question, it is very interesting to note that the Delhi High Court in 2011 dealt with the confluence of domain name disputes and personality rights. In the Instant case of Arun Jaitley v. Network Solutions Private Limited and Ors., the famous erstwhile politician Mr. Arun Jaitley had filed a suit seeking permanent injunction against the defendants from misuse and immediate transfer of the domain name WWW.ARUNJAITLEY.COM, on the grounds that the name being personal name of the plaintiff is associated only with him and carries enormous goodwill and reputation and further that the fame and achievements of the Mr. Jaitley added value to his name which identifies the persona of the politician  and a leader world known, while the defendants were attempting to unlawfully monetise on the domain name containing the plaintiff’s name.  In addition to the protection under trademark law and regulations pertaining to domain name disputes, the High Court observed that “the name of Mr. Arun Jaitley, falls in the category wherein it besides being a personal name has attained distinctive indicia of its own. Therefore, the said name due its peculiar nature/ distinctive character coupled with the gained popularity in several fields whether being in politics, or in advocacy, or in part of emergency protest, or as leader or as debator has become well known personal name/ mark under the trade personal name/ mark under the trade mark law which enures him the benefit to refrain others from using this name unjustifiably in addition to his personal right to sue them for the misuse of his name.”[Sic.]

The High Court in the said case made a very crucial and notable observation that popularity or fame of individual will be no different on the internet than the reality. This opens up a wide possibility of enforcement of publicity rights of well-known people in the internet platforms which is the need of the hour considering the growth in commercial activity on the internet defying boundaries.

In 2015, the Delhi High Court in Tata Sons Limited & Anr vs Aniket Singh while dealing with a similar case of domain name dispute involving the famous person Mr. Cyrus Paillonji Mistry, chairman of Tata group, granting a decree in favour of the plaintiff, observed that India has finally begun to address the multi-dimensional concept of Personality Rights and held that commercialisation of personality rights by person not authorised to do so should amount to right to sue for such embezzelement.

False endorsement by Celebrities

While the celebrities are protected from commercial misuse of their name and personality, there have also been instances where the consumers are misled owing to false advertisements or endorsements by such personalities. While on one side Indian courts have considered recognition of Personality Rights, the Government has realised the imminent need to also protect the consumers in large from false and misleading advertisement of products endorsed by such personalities. As a result of same, to find a balance to the scale, the Amendment to the Consumer Protection Act of 2019 was passed to keep a check on the misleading advertisements and endorsements of consumer products by imposing penalty on the endorser as well. It will be interesting to see the fallout of this legislation in the light of the increasing endorsement deals involving famous personalities and celebrities.

Conclusion

The increase in the commercialism and consequent increase in number of high-value endorsement deals being signed by famous personalities signifies that tremendous value is attached to such endorsements. On the other hand, as rightly pointed by the Delhi High Court in the case of D.M. Entertainment Pvt. Ltd. vs. Baby Gift House and Ors. , in a free and democratic society, where every individual’s right to free speech is assured, the over emphasis on a famous person’s publicity rights can tend to chill the exercise of such invaluable democratic right. While courts need to strike a balance between protection of high valued rights of personalities and democratic right of individuals in society, it is also equally responsible to protect the interest of the consumers as well from any kind of misleading advertisements and endorsements. After all, consumer is the king!

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