Summary: In India, personality rights allow individuals, especially celebrities, to control the commercial use of their name, image, likeness, and identity, blending privacy and intellectual property protections. These rights gained prominence over the past two decades, with judicial recognition evolving from privacy rights under Article 21 of the Indian Constitution. The Trademark Act and the Copyright Act have been key in providing legal protection for personal identities, allowing their commercialization through trademarks and copyright, while common law has addressed false endorsements. Landmark cases such as ICC Development v. Arvee Enterprises (2003) and D.M. Entertainment v. Baby Gift House (2010) expanded personality rights to include unauthorized use of celebrity images and endorsements. However, challenges persist, including the lack of specific legislation and inconsistent judicial interpretations across courts. The digital age, with issues like cybersquatting and deepfakes, further complicates the enforcement of personality rights. Looking ahead, India may benefit from comprehensive legislation that addresses these issues, especially as technology continues to impact personal identity protections, potentially reshaping the intellectual property landscape and celebrity culture.
I. INTRODUCTION
A. Definition of the personality rights in Indian context
Personality rights in India encompass individual’s right to control commercial use of the their identity. These rights protect person’s name, image, likeness, and other identifying characteristics1. concept has evolved significantly in recent years, gaining recognition as distinct form of the intellectual property2.
Personality rights serve to safeguard both economic and dignitary interests of the individuals. They provide legal recourse against unauthorized exploitation of the one’s persona for commercial gain3. In Indian context, these rights have emerged as hybrid of the privacy rights and intellectual property protection4.
B. Emergence of the personality rights as distinct intellectual property right
Over past two decades, personality rights have gained considerable prominence in India’s legal landscape. judiciary has played pivotal role in shaping and defining these rights5. Indian courts have increasingly recognized economic value inherent in person’s identity, particularly for public figures and celebrities6.
This emergence reflects growing awareness of the commercial potential of the personal identities in digital age. As media and advertising industries have expanded, so too has need for legal protection against unauthorized use of the individuals’ personas7.
II. HISTORICAL DEVELOPMENT AND LEGAL FRAMEWORK
A. Origins in right to privacy under Article 21 of the Indian Constitution.
Personality rights in India find their roots in fundamental right to privacy. Article 21 of the Indian Constitution, which guarantees right to life and personal liberty, has been interpreted by courts to include right to privacy8. This broad interpretation has provided constitutional basis for personality rights9.
The evolution of the privacy rights in India has been gradual but significant. Landmark judgments have expanded scope of the Article 21, recognizing various facets of the personal liberty, including right to control one’s public image10.
B. Expansion through judicial interpretation
The Supreme Court’s landmark judgment in R. Rajagopal v. State of the Tamil Nadu (1994) marked significant expansion in scope of the privacy rights11. Court held that right to privacy is implicit in right to life and liberty guaranteed under Article 2112. This decision laid foundation for recognizing personality rights as distinct legal concept. It acknowledged that individuals have right to safeguard privacy of the their own, their family, marriage, procreation, motherhood, child-bearing, and education, among other matters13.
C. Intersection with existing intellectual property laws
1. Trademark Act, 1999
The Trademark Act, 1999 has been instrumental in offering protection to personal names and images as trademarks. This has provided legal framework for safeguarding celebrity identities from unauthorized commercial exploitation under Section 2 (m) of the Act which states ““mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”14., the term “includes” grants a very wide ambit to this definition and thus covers “personality marks” as well within its purview. Also, under the Section 18 of this Act, individuals can register their names or images as trademarks, granting them exclusive rights to their use in commerce15.
2. Copyright Act, 1957
The Copyright Act, 1957 protects original artistic works, including photographs and performances. This legislation has been applied to protect certain aspects of the personality rights, particularly in cases involving unauthorized use of the celebrity images or performances which is protected under under Section 2(c) of the Act16. Act’s provisions on moral rights have also been invoked in personality rights cases17.
3. Law of the passing off
The common law doctrine of the passing off has been effectively applied to prevent unauthorized use of the person’s identity. This has been particularly useful in cases involving celebrity endorsements and false associations18. Courts have recognized that misuse of the person’s identity can lead to confusion in marketplace, key element of the passing off19.
III. LANDMARK JUDICIAL PRECEDENTS
A. ICC Development v. Arvee Enterprises (2003)
This case marked first explicit recognition of the publicity rights in India. Delhi High Court distinguished between right to privacy and right to publicity20. dispute arose when defendant used ICC Cricket World Cup logo without authorization. court held that right of the publicity has evolved from right of the privacy and can inhere only in individual or in any indicia of the individual’s personality. The court emphasized that right of the publicity has commercial overtones and aspects of the privacy, making it unique intellectual property right. This judgment laid foundation for subsequent cases dealing with personality rights in India21.
B. D.M. Entertainment v. Baby Gift House (2010)
The Delhi High Court extended trademark protection to celebrity’s persona in this case. It involved unauthorized use of the singer Daler Mehndi’s likeness on dolls22. court recognized false endorsement as form of the passing off, providing remedy against unauthorized commercial exploitation of the celebrity identities. The court held that use of the Daler Mehndi’s persona on dolls without permission amounted to infringement of the his publicity rights. This judgment significantly expanded scope of the personality rights protection in India.
C. Titan Industries Ltd. v. Ramkumar Jewellers (2012)
This case involved unauthorized use of the celebrity images in advertisements. Delhi High Court applied copyright law to protect personality rights23. dispute arose when defendant used images of the Amitabh Bachchan and Jaya Bachchan in their jewellery advertisements without permission. The court emphasized need to balance commercial interests of the celebrities with right to artistic expression. It held that unauthorized use of the celebrity images in advertisements amounted to infringement of the their personality rights24.
D. Shivaji Rao Gaikwad v. Varsha Productions (2015)
This case expanded personality rights to fictional characters. Madras High Court dealt with unauthorized use of the actor Rajinikanth’s name and style in film title25. court emphasized commercial value of the celebrity’s persona and need to protect it from unauthorized exploitation. The judgment recognized that even fictional characters associated with actor can be protected under personality rights. This decision broadened scope of the personality rights to include elements of the celebrity’s on-screen persona.
E. Arun Jaitley v. Network Solutions Private Ltd. (2011)
This case extended personality rights to domain names. Delhi High Court dealt with cybersquatting issues related to unauthorized registration of the domain names containing Arun Jaitley’s name26. court held that registering domain names in bad faith to profit from someone else’s reputation is violation of the their personality rights27.
This judgment highlighted intersection of the personality rights with digital technologies. It established that personality rights extend to online realm, including protection against cybersquatting28.
IV. CURRENT CHALLENGES AND LIMITATIONS
A. Lack of the specific statutory recognition
Despite judicial recognition, absence of the specific legislation on personality rights in India poses challenges. This lack of the statutory framework leads to inconsistencies in interpretation and application of the these rights29.
B. Inconsistent application across different courts
The lack of the uniform guidelines results in varying interpretations of the personality rights across different courts. This inconsistency creates uncertainty for both rights holders and potential users of the celebrity identities30.
C. Balancing personality rights with freedom of the expression
Courts face challenge of the striking balance between protecting personality rights and ensuring freedom of the expression. This is particularly complex in cases involving parody, satire, or news reporting31.
D. Protection for non-celebrities
While most cases involve celebrities, extent of the personality rights protection for non-celebrities remains unclear. This raises questions about scope and applicability of the these rights to ordinary individuals32.
E. Digital age complexities
The rise of the social media, deep fakes, and other digital technologies presents new challenges in protecting personality rights. ease of the manipulating and disseminating images and information online complicates enforcement efforts33.
V. FUTURE OUTLOOK AND RECOMMENDATIONS
A. Need for comprehensive legislation on personality rights especially in light of the emerging AI Deepfake Concerns
The rapid evolution of the personality rights in India necessitates comprehensive legislation. Such legislation would provide clarity and consistency in application of the these rights. It should address unique aspects of the personality rights, distinguishing them from other forms of the intellectual property34. Emerging technologies, particularly AI and deepfakes, pose new challenges to personality rights. Legislation must anticipate and address these issues. It should provide mechanisms for swift action against unauthorized use of the personal identities in digital media35. statutory framework would also help in standardizing remedies and damages for infringement of the personality rights. This would provide greater certainty for both rights holders and potential users of the celebrity identities36.
B. Potential impact on intellectual property landscape in India
The recognition of the personality rights as distinct form of the intellectual property could significantly reshape India’s IP landscape. It may lead to development of the new licensing and monetization strategies for personal identities37. This evolution could also influence other areas of the intellectual property law. For instance, it might necessitate amendments to existing trademark and copyright laws to better accommodate personality rights38. growth of the personality rights could also impact advertising and entertainment industries. It may lead to more formalized processes for obtaining permissions and licenses for using celebrity identities39.
VI. CONCLUSION.
The emergence of the personality rights as intellectual property right in India represents significant legal development. Despite lack of the specific legislation, Indian courts have shown progressive approach in recognizing and protecting these rights40. evolution of the personality rights reflects changing nature of the personal identity in digital age. It acknowledges commercial value of the individual personas and need to protect them from unauthorized exploitation41.
However, challenges remain in terms of the consistent application and balancing with other rights. lack of the statutory framework leaves room for interpretation and potential conflicts42. Looking ahead, development of the comprehensive legislation on personality rights seems inevitable. Such legislation would need to address complexities of the digital age while maintaining balance with freedom of the expression43. As India continues to grapple with these issues, jurisprudence on personality rights is likely to evolve further. This evolution will undoubtedly have far-reaching implications for intellectual property law, celebrity culture, and individual rights in country44.
Notes:
1 ICC Development (International) Ltd v Arvee Enterprises [2003] VIIAD Delhi 405
2 Titan Industries Ltd v Ramkumar Jewellers [2012] 50 PTC 486 (Del)
3 DM Entertainment Pvt Ltd v Baby Gift House [2010] MANU/DE/2043/2010
4 Arun Jaitley v Network Solutions Private Ltd [2011] 181 DLT 716
5 Shivaji Rao Gaikwad v Varsha Productions [2015] (62) PTC 351 (Madras)
6 Sourav Ganguly v Tata Tea Ltd [2008] 1 CS 361
7 Kajal Aggarwal v Managing Director [2011] CS No 635 of the 2011
8 R Rajagopal v State of the Tamil Nadu [1994] 6 SCC 632
9 ibid
10 Justice KS Puttaswamy v Union of the India [2017] 10 SCC 1
11 R Rajagopal v State of the Tamil Nadu [1994] 6 SCC 632
12 ibid
13 ibid
14 The Trade Marks Act 1999, s 2(m)
16 The Copyright Act 1957, s 2(c)
17 ibid, s 57
18 Sourav Ganguly v Tata Tea Ltd [2008] 1 CS 361
19 Titan Industries Ltd v Ramkumar Jewellers [2012] 50 PTC 486 (Del)
20 ICC Development (International) Ltd v Arvee Enterprises [2003] VIIAD Delhi 405
21 ibid
22 DM Entertainment Pvt Ltd v Baby Gift House [2010] MANU/DE/2043/2010
23 Titan Industries Ltd v Ramkumar Jewellers [2012] 50 PTC 486 (Del)
24 ibid
25 Shivaji Rao Gaikwad v Varsha Productions [2015] (62) PTC 351 (Madras)
26 Arun Jaitley v Network Solutions Private Ltd [2011] 181 DLT 716
27 ibid
28 ibid
29 Justice KS Puttaswamy v Union of the India [2017] 10 SCC 1
30 Christian Louboutin SAS v Nakul Bajaj & Ors [2018] Civil Suit No 2995 of the 2014
31 Deepa Jayakumar v AL Vijay and Others [2019] OA No 1102 of the 2019 in CS No 697 of the 2019
32 Krishna Kishore Singh v Sarla Saraogi & Ors [2021] CS(COMM) 187/2021
33 Amitabh Bachchan v Rajat Nagi & Ors [2022] CS(COMM) 819/2022
34 Tabrez Ahmad and Satya Ranjan Swain, ‘Celebrity Rights: Protection under IP Laws’ (2011) 16 Journal of the Intellectual Property Rights 7
35 Alix C Heugas, ‘Protecting image rights in face of the digitalization: United States and European analysis’ (2021) 24 Journal of the World Intellectual Property 344
36 Barbara Bruni, ‘The Right of the Publicity as Market Regulator in Age of the Social Media’ (2020) 41 Cardozo Law Review 2203
37 Kusum Joshi and Vaidehi Pareek, ‘Character Merchandising: Right of the Publicity and its Relation with Trademark Laws’ (2022) 1 Specialusis Ugdymas / Special Education 43
38 Stacey L Dogan and Mark Lemley, ‘What Right of the Publicity Can Learn from Trademark Law’ (2006) 58 Stanford Law Review 1161
39 Sarah M Konsky, ‘Publicity Dilution: Proposal for Protecting Publicity Rights’ (2004) 21 Santa Clara High Tech LJ 347
40 Justice KS Puttaswamy v Union of the India [2017] 10 SCC 1
41 Titan Industries Ltd v Ramkumar Jewellers [2012] 50 PTC 486 (Del)
42 Christian Louboutin SAS v Nakul Bajaj & Ors [2018] Civil Suit No 2995 of the 2014
43 Amitabh Bachchan v Rajat Nagi & Ors [2022] CS(COMM) 819/2022
44 Krishna Kishore Singh v Sarla Saraogi & Ors [2021] CS(COMM) 187/2021
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