Alliance Center for
Intellectual Property Rights
PERSONALITY RIGHTS IN INDIA: A CRITIQUE
May 1, 2023
* Mr. Animesh Chaturvedi
** Ms. Mili Rawat
Introduction:
Personality rights refer to an individual’s legal right to safeguard their identity under the broader umbrella of the right to privacy or property. Celebrities value these rights because their names, images, and voices can be easily misappropriated by many corporations in their commercials to increase sales and commercial gain. In one of the earliest cases involving personality rights in India, South-Indian actor Rajinikanth moved to Madras High Court against the alleged infringement of his personality rights and the alleged wrong depiction of his personality by Varsha Productions in the movie ‘Main Hoon Rajinikanth’. The applicant prayed for an order of an interim injunction, and eventually a permanent restraining order against the defendants among others to stop the screening of the film in theatres. Justice R. Subbiah in this case opined that in the minds of the reasonable viewers of the movie, a clear correlation between the main protagonist and real-life actor Rajinikanth is evident. The storyline may defame or wrongly portray the image of the popular actor in the minds of the public. In addition, Rajinikanth was excluded from the process of commercialization of the film. Thus, the screening of the movie in theatres or on other platforms in its current state shall not be allowed.
Recent Developments
Recently, actor Amitabh Bachchan filed a petition before the Delhi High Court for an interim injunction for restraining the use of his personality traits by book publishers, T-shirt vendors, mobile application developers, and entities conducting lottery by depicting that they have collaborated with Kaun Banega Crorepati (hereinafter referred as KBC), among various other businesses. The petitioner also prayed for action against web domains registered in his name including www.amitabhbachchan.com and www.amitabhbachchan.in by the alleged infringers. With regards to web domains, the Delhi High Court had acknowledged that “cyber-squatting is a crime against the laws and regulations of cyber law. The registering or using a domain name with mala fide intent to make a profit belonging to someone else. The cyber squatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.”
In India, there is no legislation explicitly banning cyber-squatting. The Information Act of 2000 contains no provisions to punish cyber-squatters. However, the Indian Supreme Court in Satyam Infoway Ltd v Siffynet Solutions Ltd. had marked a clear distinction between the trademark and domain name. The court stated “distinction lies in the manner in which the two operate. A trademark is protected by the laws of a country where such a trademark may be registered. Consequently, a trademark may have multiple registrations in many countries throughout the world. On the other hand, since the internet allows for access without any geographical limitation, a domain name is potentially accessible irrespective of the geographical location of the consumers. The outcome of this potential for universal connectivity is not only that a domain name would require worldwide exclusivity but also that national laws might be inadequate to effectively protect a domain name”.
The Internet Corporation for Assigned Names and Numbers (hereinafter referred to as ICANN) is a US-based non-profit organization and a multi-stakeholder group that manages various databases related to the Internet's naming and numbering systems. Its purpose is to keep the Internet stable and secure through coordinated maintenance and procedures.
In Arun Jaitley v Network Solutions Private Ltd and Others , the Delhi High Court held that “the name Arun Jaitley is a well-known name, the use of the same without any reason by the defendants as a domain name and keeping in possession the said domain without sufficient cause is violative of the ICANN policy and can be safely held to be a bad faith registration, and ordered an injunction for further use of the domain by the defendant.”
In the present case of infringement of actor Amitabh Bachchan’s personality rights, it was contended that his personality rights have been violated in several ways, including through digital technology, instant messaging apps, physical methods, etc. Several allegedly dishonest parties have been discovered exploiting the actor’s image, his name, and the representation of the TV program KBC (which is connected to the petitioner) to deceive the audience into believing that KBC is giving away lottery prizes to viewers.
Moreover, the infringers physically advertised on billboards, posters, buildings, and even on the goods being sold by using the actor's photos and posters to fraudulently depict a commercial relationship with the plaintiff without his consent. Subsequently, the Delhi High Court issued an interim order prohibiting the use of Amitabh Bachchan's name, image, and voice. The court has restrained this unlawful use of Amitabh Bachchan’s personality rights.
Position of Law on Personality Rights
Personality rights are particularly significant for public figures, who are often targeted by corporations seeking to exploit their likeness for commercial gain. By exercising their personality rights, celebrities can prevent unauthorized use of their identity and protect their reputation and brand image. These rights are divided into two categories. First and foremost, the right to prevent one's image from being commercially exploited without one's consent. Second, the right to privacy is not having one's identity displayed in public without consent. Any act creating a likelihood of association with the celebrity without their prior consent would amount to infringement of their right to personality.
Article 21 of the Indian Constitution provides protection to personality rights under the right to privacy. There is no statutory legislation in India for the protection of personality rights.
The most significant judgment in the realm of personality rights is ICC Development (International) Ltd. v Arvee Enterprises. The court held that “the right of publicity has evolved from the right of privacy and can inhere only in an individual or any indicia of an individual's personality like his name, personality trait, signature, voice. etc. An individual may acquire the right of publicity under his association with an event, sport, movie, etc.”
In another case, Titan Industries v M/s Rajkumar Jewellers, the defendant used the same advertisement hoarding as the plaintiff, which featured the famous couple Mr. Amitabh Bachchan and Mrs. Jaya Bachchan. Furthermore, neither the plaintiff nor the couple entered into any agreements with the defendant. As a result, the defendant violated the plaintiff's personality rights. The Delhi High Court explained the right to publicity as “when the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity”.
In another case, Gautam Gambhir v DAP & Co. & Anr., the defendant was operating their lounge and restaurant under Gautam Gambhir's name. People mistook the alleged restaurant for one affiliated with the famous Indian cricketer. As a consequence, the applicant filed a lawsuit against the defendant. However, because the defendant's name was also Gautam Gambhir, an interim injunction was not given. The defendant made no claim that the restaurant was connected to Gautam Gambhir, nor did it show pictures of the cricketer. In order to demonstrate his innocence, the defendant displayed his pictures all over the place. This shows that the defendant has not used the plaintiff's name or goodwill in any way.
The Grey Areas
The law regarding personality rights in India is in its nascent stage and needs modifications and additions to it. This leaves us with some areas that do not have clear and decisive authority over them, one of them being its application over mimicry artists on television, movies, and other parts of the internet. Even though the same laws as personality rights may not be applied to the subjects in this area, there is a strong contention among jurists that they may be protected under Article 19 of the Indian Constitution and separately under the free use regime in the IPR (Intellectual Property Rights), which is right granted to individuals over the creations of their minds.
Conclusion
The majority of celebrity and notable personality rights violations happened in the print and electronic media, namely newspapers, magazines, and televisions. But with the rise of the internet and the arrival of the cyber age, the issue has brought in new challenges, and with the afflux of time leading to the augmentation of the issue, the same would need more jurisprudence and provisions of law over it.
References:
- Shivaji Rao Gaikwad v M/S Varsha Productions, 2015 SCC OnLine Mad 158.
- Amitabh Bachchan v Rajat Nagi, 2022 SCC OnLine Del 4110.
- Manish Vij v Indra Chugh, AIR 2002 Del 243.
- Satyam Infoway Ltd v Siffynet Solutions (P) Ltd, (2004) 6 SCC 145.
- Arun Jaitley v Network Solutions Private Ltd And Others, 2011 SCC OnLine Del 2660.
- ICC Development (International) Ltd. v Arvee Enterprises, 2003 SCC OnLine Del 2.
- Titan Industries v M/S Rajkumar Jewellers, 2012 SCC OnLine Del 2382.
Author:
*Animesh Chaturvedi
Bachelor of Laws
National Law Institute University
Bhopal, Madhya Pradesh
**Mili Rawat
Bachelor of Laws
National Law Institute University
Bhopal, Madhya Pradesh
Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights(ACIPR) and the Centre does not assume any responsibility or liability for the same.