Decoding Personality Rights: Whose Right Is It Anyway?

INTRODUCTION

It is interesting to note that even though the concept of ‘Personality Rights’ can be traced back to 1890 wherein Samuel Warren and Louis Brandeis called on courts to recognize the right of individuals ‘to be left alone’ in the Harvard Law Review[1], the law around personality rights is still reforming and restructuring. Over the years, the concept of ‘Personality Rights’ has been interpreted in different ways by different courts across the world. Even though intertwined with other torts and legal rights like right to privacy and publicity, jurisprudence of personality rights has been increasing over the years.

In Tolley v JS Fry & Sons Ltd[2], the Court found the Defendants guilty of using a caricature of a well-known amateur golfer for advertising their goods without the prior consent of the individual. Even though the said case falls under the purview of defamation, it is one of the early examples wherein the notion of appropriation of personality was brought to the limelight.

WHAT ARE PERSONALITY RIGHTS: SCOPE AND IMPLICATIONS

Personality Rights are the rights of individuals to use as well as control use over their name, image, reputation, likeness, or any other indicia of their persona; and information connected with them not in public records. For instance, in a recent case[3], the Bombay High Court upheld the right of an actress to prevent the illicit and demeaning use of her photograph by the Defendant in its movie without authorization from the actress. The court granted a permanent injunction against the Defendant to remove the image of the actress from the final cut of the movie and observed that under the ambit of personality rights, the actress has the discretion to exercise control and have some agency over the use of her photograph.

It is often argued that personality rights do not need to be acquired for using information about a celebrity/famous personality in the public domain, by virtue of celebrities and their lives being inalienable from the public and them being public figures. However, there is a fine line between public domain and public records and the same is essential to the notion of personality rights of celebrities. Even though the term ‘celebrity’ has not been defined under any of the related laws like the Trade Mark Law or the Copyright Law, it has been defined in the case Titan Industries Ltd. vs. Ramkumar Jewellers[4] as a famous or a well-known person and is merely a person who “many” people talk about or know about. With the increase in the fascination of the lives of celebrities, there is more than sufficient information in the public domain about them. However, information in the public domain does not consist of verified truthful facts but instead consists of scandals, gossip, rumors, opinions etc. Whereas the public records consisting of official records comprise factual verified information only, and have a narrower ambit as compared to the public domain. While personality rights do not need to be acquired for using/depicting information based on public records, prior explicit personality rights have to be acquired for using/depicting information in the public domain.

Further, the Madras High Court in Shivaji Rao Gaikwad v. Varsha Productions[5] recognized the personality rights of the said individual. In this case, the famous actor Rajnikanth contended that the Defendant had without prior authorization and under the garb of paying a tribute to the actor, wrongly depicted his mass hero image, style of delivering dialogues, expressions and caricature in its film. Further, the actor contended that the film contained scenes of vulgarity and immorality which in turn would dilute the reputation of the actor. The aim of the producers was to target the actor's loyal fanbase in order to unjustly derive commercial benefits from his established goodwill. However, the court while ruling in favor of Rajnikanth observed that the film would amount to infiltration of the Rajnikanth’s personality right.

The landmark case of Titan Industries v. Rajkumar Jewellers3 is an interesting one. In addition to defining the term ‘celebrity’, the Court also stated that ‘the right to control the commercial use of human identity is the right to publicity’. Further, in contrast to the judgement of the Court in the ICC Development (International) Ltd. v. Arvee Enterprises [6] case, wherein the Court held that ‘non-living entities are not entitled to the protection of publicity rights’, the Court in the Titan case ruled in favor of the Plaintiff by upholding the endorsement agreements, and thereby acknowledging that a non-living entity may be the assignee of the right to publicity, and as such entitled to the protection of the same. In the Titan case, an exclusive advertisement campaign shot by Amitabh and Jaya Bachchan for Tanishq was unauthorizedly used by the Defendant for endorsement of its jewellery products without prior consent from Amitabh and Jaya Bachchan.

Further, with the rise in the ‘moment marketing’ marketing technique wherein entities try to monetize trending affairs/news or current happenings to promote their products, personality rights need to be safeguarded even more. Amul has been using the moment marketing technique effectively since a while and has perfected the same. Amul’s creative advertisements are apt and have managed to catch attention of consumers in the digital space as well. However, if caution is not exercised, moment marketing can infringe upon the personality rights of an individual. For instance, after India’s terrific performance at the Tokyo Olympics 2021, several brands under the technique of moment marketing posted congratulatory messages for Indian athletes on their social media platforms. One such instance of marketing has forced two time Olympic medal winner PV Sindhu, via her sports management agency i.e. Baseline Ventures, to take legal action against 20 brands[7] including Happydent (Perfetti Van Melle), Pan Bahar, Eureka Forbes, ICICI Bank, HDFC Bank, Vodafone Idea, MG Motor, UCO Bank, Punjab National Bank, State Bank of India, Kotak Mahindra Bank, Fino Payments Bank, Bank of Maharashtra, Indian Bank and Wipro Lighting for misusing her name and photographs to create an impression of her association/endorsement with the brands.

Even in the absence of proper codification of Personality Rights, the Court tries to be just while dealing with personality rights of celebrities versus the rights of public at large. In Mr. Gautam Gambhir vs. D.A.P. & Co. and Anr.[8] , the Defendant used his name, Gautam Gambhir, as a part of the tagline for a host of restaurants and bars he owned. However, due to the popularity of India’s leading cricketer with the same name, the were instances of public confusion. However, the case of infringement of personality rights filed by the cricketer Gautam Gambhir was dismissed on the grounds that the Defendant had taken appropriate measures to distinguish his identity from the cricketers by displaying his own pictures everywhere; and that the field of restaurants and hotels is not synonymous with the cricketer and thus, the Defendant had the bona fide right to use his own name for his own ventures. The said case is a good example of how the court is balancing the rights of celebrities vis-à-vis the public.

TWO FACETS OF PERSONALITY RIGHTS – PRIVACY AND PUBLICITY RIGHTS

Personality Rights exist as an amalgamation of two legally accepted rights, i.e. right to privacy as provided under Article 21 of the Indian Constitution and the right to publicity. The said rights are the two facets of personality rights. The general opinion that celebrities are public figures and thrive on the publicity they receive and thus, in turn have waived their privacy rights is incorrect. Celebrities too deserve a distinction between their personal and professional life and have the right to control the manner of use of their personality.

Right to Publicity

The Right to Publicity can be understood as a person’s interest in autonomous self-definition, while simultaneously preventing others from interfering and exploiting one's identity for commercial gains. The Court in the ICC Development case6observed that ‘publicity right has evolved from the right to 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.... Any effort to take away the publicity right from the individuals to the organiser of the event would be violative of article 19 and 21 of the Constitution of India. The publicity right vests in an individual and he alone is entitled to profit from it.”

In the Christian Louboutin Sas v. Nakul Bajaj[9] case, the plaintiff had filed a suit on several grounds including the infringement of the publicity rights of Mr. Louboutin. In this case, the website of the Defendant prominently featured photographs of Mr. Christian Louboutin, without prior consent as well as without any association/endorsement by him. The Court, keeping in mind the ruling in the Titan case, reiterated and acknowledged the publicity rights of the Plaintiff in use of its photos and ruled in favor of the Plaintiff.

Right to Privacy

The Right to Privacy is the right to be left alone and not have one’s personal affairs being showcased publicly without prior permission. The Right to Privacy allows celebrities to take action against the invasion of their privacy against any person who violates the celebrities personality rights.

A landmark judgement in this sense would be R Rajgopal vs. State of Tamil Naidu[10]. In this case, the Court distinguished between information that one needs to take permission for before publishing the same (public domain) and which one doesn't (public records). It further observed that an individual has a right to privacy of its own, family, motherhood, marriage etc. and no one shall be allowed to publish anything on these matters without the prior consent of the individual. Thus, as Auto Shankar’s autobiography referred to matters not verifiable as per the public records, and consisted instances of a close nexus between the him and several officers in the administrative and police services, some of whom he alleged to have been his partners in crime, the publication of the same was restrained.

INTEGRATION OF INTELLECTUAL PROPERTY RIGHTS AND PERSONALITY RIGHTS

German philosopher, G.W.F. Hegel, observed that personality is a means through which a person is identified in the society and therefore, the protection of personality in the form of a right essentially protects private property which is of the form of intellectual property.[11]

Even though there are no codified laws to protect personality rights in India, the same is protected under fundamental rights, Copyright Act, Trademark Act, and through various judicial pronouncements.

Personality Rights as a Fundamental Right: In the case of Justice K.S. Puttaswamy(Retd) vs. Union Of India[12], the right to privacy was recognized as a Fundamental Fight under Article 21[13] of the Constitution. Thus, privacy was to be seen as an extension of liberty, and included a ‘right to be let alone’. Further, any person misappropriating the identity of a person without their consent is said to have violated the fundamental right to privacy and thereby, the personality right.

Personality Rights under the Trade Mark Act, 1999: The Trade Mark Act does not provide any specific provision to protect personality rights. However, under Section 2(1)(m)[14] of the Act, the definition of ‘mark’ includes names. It is a prevalent practice amongst celebrities to trade mark their name in order to mitigate misuse. Further, a trade mark application which proposes an association with a living individual, or a man whose passing occurred inside 20 years before the date of application of the registration of the trademark, is restricted under Section 14[15] of the Act and the Registrar in cases of such an application requires the Applicant to seek consent from the living person or the legal representatives of the deceased person before proceeding with the application.

Personality Rights under the Copyright Act, 1957:

Under the Copyright Act, copyrights are not provided to identities of individuals and the copyright of an image of a person vests with the photographer and not the person. However, Section 13 defines the scope of the Act to include all original literary, dramatic, musical and artistic works; cinematographic films; and sound recordings within its ambit. In an interesting case, Bella Hadid was sued by a photographer for posting candid pictures of herself and her friends on her Instagram account, which were clicked by the photographer. However, it was argued that the said pictures were taken without any consent from the models, thereby the act in itself was infringing upon the privacy rights of models. Further, since the pictures clicked were candid, and did not involve any sort of posing or art direction, the photographer did not have any artistic rights on the same.

CONCLUSION

It is essential to note that with the explosion of the Web3 concept, there is an inherent need to identify personality rights as separate enforceable rights and formulate laws to govern the same. For example, even in a relatively new digital space i.e. the blockchain industry, personality rights are in the spotlight. In a recent case[16], Kanye West sued the owners of the cryptocurrency alt coin ‘Coinye West’ for infringement of his personality rights. The Defendants claimed to have created the coin in honor of Kanye, and the revised version of the coin depicted a portrayal of West, as a fish, inspired by a South Park parody of West. The court upheld Kanye’s personality right and permanently banned the Defendant from operating or using any website that features the "Kanye West mark" or any imitation of it.

In view of the above, it is clear that with the expansion in the digital world, the misuse and infringement upon one’s personality rights shall increase. The Kanye case throws light on a situation wherein the aggrieved decides to protect its personality rights, but in the same field, there exist cryptocurrency coins like ElonDoge[17], Johnny Depp Innu[18], etc., not launched by the said celebrities themselves, which are clearly infringing the personality rights of the said celebrities, but no action is being taken.

In the Indian context, we continue to see varied conflicting judgements given on the concept of personality rights and thus, recognize the inherent need to actively work on legally recognizing the personality rights of individuals and providing them with a recourse system in case of exploitation of the same.

[1] https://www.cs.cornell.edu/~shmat/courses/cs5436/warren-brandeis.pdf [2] https://simplestudying.com/tolley-v-j-s-fry-sons-ltd-1931-ac-333/ [3] Sakshi Malik v. Venkateshwara Creations Pvt. Ltd. & Ors https://indiankanoon.org/doc/154466209/ [4] Titan Industries v. Rajkumar Jewellers, CS (OS) NO. 2662/2011 https://indiankanoon.org/doc/181125261/ [5] Mr.Shivaji Rao Gaikwad vs M/S.Varsha Productions https://indiankanoon.org/doc/26058025/ [6] ICC Development (International) Ltd. v. Arvee Enterprises, 2003 SCC OnLine Del 2 [7] https://www.thehindubusinessline.com/news/baseline-ventures-sends-legal-notices-to-20-firms-for-unauthorised-use-of-pv-sindhus-image/article35770116.ece [8] Mr. Gautam Gambhir vs. D.A.P. & Co. and Anr. (MANU/DE/5440/2017) https://indiankanoon.org/doc/106318101/ [9] Christian Louboutin Sas v. Nakul Bajaj, (2015) 216 DLT (CN) 9 (India) [10] R Rajgopal vs. State of Tamil Naidu (1994) 6 SCC 632 [11] G.W.F. Hegel, Hegel’s Philosophy of Mind 382 (1971) [12] K.S.Puttaswamy(Retd) vs. Union Of India, WRIT PETITION (CIVIL) NO. 494 OF 2012 https://indiankanoon.org/doc/127517806/ [13] https://indiankanoon.org/doc/1199182/ [14] https://indiankanoon.org/doc/117176/ [15]https://indiankanoon.org/doc/1339240/#:~:text=%E2%80%94Where%20an%20application%20is%20made,proceeds%20with%20the%20application%2C%20require [16] https://www.coindesk.com/markets/2014/07/25/kanye-west-sues-coinye-altcoin-into-oblivion/ [17] https://coinmarketcap.com/currencies/elondoge/ [18] https://coinsniper.net/coin/31145