What’s in a name? Personality rights in India

By Vidya Bhushan Mehrish and Zoya Nafis, LexOrbis
0
1050

Celebrities enjoy publicity rights, privacy rights, reproduction rights and other personality rights. With all these rights having their own significance, personality rights are popular these days because of the increase in celebrity endorsements and other commercial activities by celebrities.

Means of protection

In India, personality rights per se are not recognized. They are generally invoked through the right to privacy guaranteed by article 21 of India’s constitution or through the right to publicity inferred from article 19 of the constitution.

Vidya Bhushan Mehrish
Vidya Bhushan Mehrish

The right to publicity ensures that individuals have an exclusive right to publicize themselves and to restrain others from doing so without consent. Privacy is hard to define. Its interpretation can differ from person to person, which makes it a difficult to ascertain liability in cases where privacy rights are invoked. Similarly, when protecting personality rights as privacy rights it is difficult to define the scope of a celebrity’s privacy as fans are always keen to know about the happenings in their hero’s life.

However personality rights can be well protected as a person’s private property. Everyone is entitled to enjoy the fruits of their labour. Celebrities through their sustained efforts build a distinct personality which adds commercial value to their individual persona. This personality is their property and only they should commercially profit from it. A single misuse of their name, image or style may affect the personality they create, so they should have a right to protect their personality and to have control over its exploitation.

The protection of celebrity rights as intellectual property is a significant development but the question remains whether India’s IP laws adequately protect celebrities.

Case law

Indian courts have always recognized aspects of personality rights. In ICC Development (International) Ltd v Arvee Enterprises (2003), Delhi High Court held that the right to publicity was restricted to individuals only and was denied to corporate entities.

In 2013, Bombay High Court imposed a heavy fine on Mika Singh for defamation and infringement of the personality rights of singer Sonu Nigam, making it clear that no third person should commercially profit by using images of celebrities without their consent.

In Titan Industries Ltd v M/S Ramkumar Jewellers (2012), Delhi High Court observed that a famous personality should have the right to control when, where and how their identity is used. The right to control the commercial use of human identity is the right to publicity. This case involved use of the voice of Bollywood legend Amitabh Bachchan in a commercial without his consent. After this lawsuit, Bachchan sought to register his voice as a sound mark so as to deter infringers.

Zoya Nafis
Zoya Nafis

Recently, superstar Rajnikanth applied to Madras High Court for an injunction restraining the release of a movie titled “Main hoon Rajnikanth”, invoking his personality rights. His application stated that “A large section of the public across India is likely to be misled into viewing such project/film on the mere belief that said project/film has been approved by their matinee idol. It is to prevent such widespread hysteria and undue confusion amongst the public, besides maintaining personal integrity.” The court granted an interim injunction and also stayed the release of the film.

Following this, Bollywood actress Sridevi served legal notice to producer Ram Gopal Varma over his Telugu movie titled “Sridevi”. The actress maintained that if the film was released with this title, damage would be caused to her reputation and goodwill.

Resolving the problems

Indian courts have repeatedly taken a positive view of personality rights, however it is time for the legislature to statutorily recognize all aspects related to personality rights. The increase in celebrity endorsements and other activities which result in commercial gain call for stringent enforcement of personality rights.

In the absence of clear legislation, celebrities resort to the existing IP laws for their protection. However, the scope of personality rights is so wide that the existing trademark and copyright laws fail to extend adequate protection. The trademark law may protect a name or a particular image but it does have any provision to check unauthorized use that affects the “reputation of an individual”. Likewise, the copyright law may protect a photograph or drawing as an artistic work but fails to protect the “image of the individual”.

It is clear that the existing legal standards have failed to protect personality rights in a proper manner. Today we see celebrities waking up to their rights and now it is the responsibility of the legislature to protect India’s stars like various other countries have done. Many US states have recognized distinct “celebrity rights”. India should also grant a distinct legal status for personality rights, adopt clearer legal standards and make stringent efforts to protect the image and status of the country’s well-known personalities.

Vidya Bhushan Mehrish is a partner at LexOrbis, where Zoya Nafis is an associate.

LexOrbis

709/710 Tolstoy House, 15-17 Tolstoy Marg

New Delhi – 110 001

India

Tel: +91 11 2371 6565

Fax: +91 11 2371 6556

Email: mail@lexorbis.com

www.lexorbis.com