Right to Privacy and Publicity: Two Sides of the Same Coin

INTRODUCTION

Intellectual Property laws are not only confined to traditional subject matters such as trademarks, patents, copyright, and designs etc. but also include within their realm Personality Rights. The term ‘Personality Rights’ has not been defined in any statute, however, owing to judicial activism, the Courts in India have time and again recognised and protected the rights of a person in their personality. Simply put, Personality Rights are the rights that an individual has in their persona, their particular traits and characters that are immediately identifiable with them and any unauthorised use of their persona will be in violation of these personality rights.

In India, Right to Publicity and the Right to Privacy form the two aspects of Personality Rights. The former deals with the commercialization of an individual’s image or likeness while the latter deals with an individual’s right to be left alone. Further, in a country like India, where celebrities are revered as God- like figures and have such a strong influence on the general public, protection of personality rights of such well- known individuals comes to the forefront.

Right to Privacy

Right to Privacy does not find any definition in any statute, however, the Supreme Court of India has time and again held the Right to Privacy to be encompassing within Article 21 of the Constitution of India, which guarantees a citizen the right to life and liberty. One of the earliest judgments upon the subject of right to privacy was rendered in the case of R. Rajagopal vs State of Tamil Nadu[1]. This case dealt with the question of freedom of press vis-a-vis the right to privacy of the citizens. The Supreme Court in this case held that the right to privacy is included within the realm of Article 21. Pertinently, the Court in its judgement defined the right to privacy as a right to be left alone. In the instant case, the Court recognised the Petitioner’s right to publish the life story/autobiography of Auto Shankar as far as the information was in public records, even without his consent or authorisation. But if the Petitioner went beyond what was available in public records, he could be invading Auto Shankar’s right to privacy.

In a landmark judgement by the 9-judge bench of the Supreme Court of India in the case of Justice K. S. Puttaswamy (Retd.) v. Union of India[2], Right to Privacy was held to be a fundamental right under Article 21 of the Constitution. Justice Sanjay Kishan Kaul in his part of the judgement held as follows, “58. Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent.” Though Fundamental Rights can only be exercised against the state, where the violator of the right to privacy is a non-state agent, then an action for the tort of breach of privacy would lie against the perpetrator.

Right to Publicity

The Right to Publicity is the right to control the commercial usage of one’s identity. This right enables the famous personality to decide upon the extent, duration and the manner of such commercialization. An unauthorised use of a celebrity’s persona in an advertisement, would not only come within the realm of false advertising laws but will also infringe the Right to Publicity of the celebrity[3]. Further, the remedy against invasion of Publicity Rights lies in the action for the tort of passing off. Several judgments have dealt with various aspects of the law relating to publicity rights and in particular in whom do Publicity Rights lie and what do Publicity Rights encompass.

In one of the earliest judgements with regards to Publicity Rights, the Delhi High Court clarified that the Right of Publicity evolved from the Right of Privacy and such a right lies only with an individual or in any characteristics of an individual's personality like his name, personality trait, signature, voice, etc. This Right of Publicity maybe acquired due to the individual’s association with any event, movie, music, sport, etc. and the individual alone is entitled to profit from it[4]. Thus, Publicity Rights do not lie with a non- living entity but with a famous individual.

Further, the Delhi High Court in the case of Titan Industries Limited vs. M/s Ramkumar Jewellers[5] laid down the following elements comprising the liability for infringement of the Right of Publicity:

i) Validity: The aggrieved person must own an enforceable right in the identity or persona of a human being.

ii) Identifiability: The aggrieved person must be identifiable from the infringer’s unauthorized use. Infringement of the right of publicity requires no proof of falsity, confusion, or deception, especially when the aggrieved person is identifiable as a well- known personality.

Of the many instances of a celebrity asserting his personality rights is the case of the renowned actor and cultural icon Mr. Rajnikanth suing Varsha Productions for using his name, image, caricature, style of delivering dialogues in their film titled ‘Main Hoon Rajinikanth’ on the ground that it amounted to infringement of his Personality Rights[6]. In the instant case, the Defendant, amongst other defences, alleged that the case of the Plaintiff should be dismissed since Personality Rights are not defined anywhere and are not recognised in any statute in India. In this regard the Madras High Court recognised Mr. Rajnikanth’s Personality Rights and observed, “…. it is seen that if any person uses the name of a celebrity without his/her permission, the celebrity is entitled for injunction, if the said celebrity could be easily identified by the use of his name by the others.” Accordingly, a stay order was passed against the release of the film ‘Main Hoon Rajinikanth’.

A few other instances of celebrities exercising their Personality Rights have been Daler Mehendi, a popular Punjabi singer, successfully suing a toy maker for selling miniature toys of Daler Mehendi without his consent[7]. The Bombay High Court recognised Sonu Nigam’s, a popular Indian singer, Personality Rights and restrained the Defendants from using Sonu Nigam’s image in their advertisements[8] when the Defendants had put up billboards which displayed Sonu Nigam’s image without his consent.

The most recent case on the subject of Personality Rights has been Rajat Sharma v/s Ashok Venkatramani and Anr [9]. In this case, the Defendant i.e. Zee News ran an advertisement on the front page of Hindustan Times which made reference to the Plaintiff and his renowned TV show ‘Aap Ki Adaalat’. The Plaintiff aggrieved by the unauthorised use of his name and his TV show, of which he is the anchor, approached the Delhi High Court seeking an injunction directing the Defendant to take down the impugned advertisement from all media platforms. The Delhi High Court granted an injunction against the Defendant and ordered them to take down the impugned advertisement. The Court relied on the judgements delivered in Titan Industries[10] and Shivaji Rao Gaikwad[11] and found the unauthorised use of the Plaintiff’s name in the impugned advertisement to be illegal. Thus, any unauthorised commercialization of the persona or likeness of a celebrity has been duly reprimanded by the Courts in recognition of the Personality Rights of the celebrity.

However, not every allegation of infringement of Personality Rights has been decided in favour of the famous personality especially where the alleged infringer had taken steps to disassociate itself from the famous celebrity. The case in point being, the famous Indian cricketer, Gautam Gambhir’s unsuccessful attempt to obtain a restraining order in his favour when restaurants with the tagline ‘by Gautam Gambhir’ were opened by the Defendant[12]. In the instant case, the name of the Defendant was also Gautam Gambhir, but he had never displayed any image of the cricketer inside his restaurants’ premises. Instead, in all the offline and online platforms, it was the Defendant’s own image that had been displayed to associate his own identity with his restaurants’. The Delhi High Court accordingly observed that there was no commercialization of the Plaintiff’s name and accordingly the suit was dismissed.

CONCLUSION

The law relating to Personality Rights is still at a nascent stage, however the growing judicial pronouncement

s relating to this subject are a good indica of the recognition and protection of such rights. As can be seen from the number of cases being filed by the celebrities alleging the infringement of their Personality Rights, the awareness regarding the law surrounding these rights is certainly on the rise. With growing consciousness regarding brand management, the celebrities are becoming mindful of commercialization of their image and their association with a particular brand and any wrongful use of their persona can certainly land one in a soup of litigation.

[1] 1995 AIR 264

[2] Writ Petition (Civil) No. 494 of 2012

[3] Titan Industries Limited vs. M/s Ramkumar Jewellers 2012 (50) PTC 486 (Del)

[4] ICC International v Arvee Enterprises 2003 (26) PTC 245 Del

[5] Supra 3

[6] Mr.Shivaji Rao Gaikwad vs M/S.Varsha Productions [2015 (62) PTC 351 (Madras)]

[7] D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. [CS(OS) No. 893/2002]

[8] Sonu Nigam v Amrik Singh (alias Mika Singh) & Anr, [Suit No. 372/2013 (Bombay High Court)]

[9] CS(COMM) 15/2019

[10] 2 n.4

[11] 2 n.5

[12] Mr. Gautam Gambhir vs D.A.P & Co. & Anr. [CS(COMM) 395/2017]

The article was originally posted on www.lexology.com on September 16, 2020 and can be accessed here.