Protecting personality rights

Where does India stand on protecting the personality and publicity rights of famous people, asks Satvik Varma

In an age where the fame of celebrities is powered by online fandoms, live-streaming, videos and other social media activities, the economic value and commercial potential of personal images, names, associations and other aspects of a celebrity’s persona have increased exponentially. With it comes the misuse of the “personality” by malicious individuals out for personal gain. In order to protect personality rights and restrain offenders, the courts in several countries including India have taken concrete measures.

Recently, actor Anil Kapoor was recognised as one of Time magazine’s “100 Most Influential People in AI 2024”. The magazine notes his significant victory before Delhi High Court, which restrained 16 defendants from using inter alia his voice, likeness, image or any other aspect of his persona for monetary gain and otherwise. So, what “influence” has been caused by Kapoor’s case to merit the bestowal of this prestigious honour by Time? What repercussions does this decision have on the IP regime in India? Is the concept of personality rights inextricably linked with the right to privacy?

Commercialisation

David Ogilvy, one of the founders of renowned ad agency Ogilvy & Mather famously quipped: “If you do not have a strong idea for your advertising campaign, then the easy way out is using a celebrity.” Companies’ focus on brand management has been accompanied by a rise in celebrity endorsements, the brands gaining attention and the celebrity monetarily compensated in return.

Although celebrities are able to use their images and fame for monetary gain, this fame may also be used for nefarious means, such as when a likeness of Amitabh Bachchan’s voice was used to scam people by tying him to the popular TV show Kaun Banega Crorepati (the Indian version of Who Wants to be a Millionaire). So, how does a celebrity protect against such unauthorised use of his/her image, fame, voice and likeness?

Right to publicity

Athletes and other celebrities can now make a fortune endorsing products and services. But the unauthorised use of these personalities by individuals for illegitimate commercial gains has led to courts often being called on to interpret and protect the rights of publicity, or personality rights, of these celebrities.

The right of publicity grew out of the right of privacy and is an intellectual property right of an individual that protects the pecuniary right and interest in the commercial exploitation of their identity. In contrast, the right of privacy is a personal right ensuring one’s right to be left alone.

The right of publicity, unlike the right to privacy, is a property right that can be bought and sold like any other property. This right has evolved over time and now several aspects of law and judicial precedents define, defend and value such rights.

In the Indian context, Delhi High Court, in the case of Anil Kapoor v Simply life India & Ors. (2023), held that the proliferation of technology, including artificial intelligence, had facilitated unauthorised representation of a celebrity’s persona, necessitating vigilant protection of their rights. Consequently, protecting the personality rights of a celebrity from unauthorised use, dilution, tarnishing, blurring, etc., is important in order to safeguard the personal as well as commercial interests of the individual, and also to prevent any misuse of their personality by any third person who could malign the individual’s character and be prejudicial to their reputation.

However, ownership of personality rights must not be confused with the ownership of the rights over a “character” played by a TV celebrity, as it is completely differentiable from the person who plays them. Robert Downey Jr, for example, may own the personality rights over his own persona, however, he does not own the personality rights over Iron Man, a character played by him, as those character rights are owned by Disney.

Characters like Iron Man are creations of artists, as it is they who use their imagination to clothe the idea of a unique character with certain specific attributes and thereby give the idea an expression, which we recognise as a certain character.

The creator/artist uses their intellect and labour to form the character and hence they are the first individuals who have interest over the commercial exploitation of the said character, apart from licensees and advertisers, and not the individuals who play these characters on screen or in theatres.

Additionally, the right to publicity is not free of exceptions. These include: “written consent”, where the party voluntarily allows the publication of media related to them; “individual must be recognisable”, where the individual who brings the claim of infringement of their personality rights by a third party must be recognisable by such impugned media; “newsworthiness”, where the law permits the use of such media that captures an individual in connection with a newsworthy event, with the term “newsworthy event” afforded a broad definition to even include matters of entertainment and amusement.

The “use of public record” has also been held to be an exception to the right of publicity in the case of Matthews v Wozencraft (1994), where the US Court of Appeals held that information concerning the activities and convictions of an individual were the subject of news reports, and thus a matter of public record, and did not infringe the right to publicity since it was a newsworthy event.

In the UK, the recognition of personality rights is not as strong as in America, especially since there is still no statutory recognition of these rights, instead being guided by common law and arising out of developments in the law of passing off, breach of confidence, trademark, data protection, defamation, etc. This has stemmed from the fact that a formal right to privacy found no recognition in the UK and, owing to the inextricable link between the two rights, the development of personality rights has been snail-paced.

However, a breakthrough came in the seminal decision of Irvine v Talksport Ltd (2003), where a picture of the petitioner (a famous F1 driver) was used in the defendant’s brochure. Although the right to use the picture was obtained, the image was later doctored to suit the needs of the defendant’s product. In this case, the court held that the celebrity had acquired a substantial amount of goodwill, and the defendants had created a false image, and were therefore liable.

In the case of Campbell v MGN Ltd (2004), photographs of supermodel Naomi Campbell were captured while she was leaving a drug clinic. The court in this case found that the photographs contained personal sensitive information about Campbell and the same would not be covered under journalistic purpose, i.e., would not be considered a newsworthy event.

English courts have since made great headway towards developing the jurisprudence of this law. Recently, in the case of Fenty v Arcadia (2015), where renowned singer Rihanna sued a clothing company for using her face on their T-shirts without authorisation, the court upheld Rihanna’s claim, while observing that in English law there is no image right or character right that allows a celebrity to control the use of his or her name or image, thus a celebrity seeking to control the use of his or her image must rely on some other cause of action such as breach of contract, breach of confidence, or infringement of copyright. What ultimately resulted in Rihanna’s victory was the court deciding on it being an action of passing off.