Context
Delhi High Court has protected the personality and publicity rights of actor Jackie Shroff while restraining various entities like e-commerce stores, AI chatbots, social media accounts etc. from misusing the actor’s name, image, voice, and likeness without his consent
Delhi High Court Passes Order Protecting Jackie Shroff’s Personality Rights
- Background: Actor Jackie Shroff petitioned the court against the unauthorized use of his name and persona, seeking protection against various individuals and entities utilizing and misusing his identity without permission.
- High Court’s Order:
- Defendant Entities: The defendant entities included e-commerce stores selling merchandise such as posters, mugs and T-shirts using the actor’s image, AI chatbots etc.
- Refusal to take down video: The court refused to direct a take down of a video titled Jackie Shroff is Savage, Jackie Shroff Thug Life posted on a YouTube channel. The video had artistic expression and “more critically, it could set a precedent that stifles freedom of expression.
- Notice to restaurant: The court issued notice to a restaurant named ‘Bhidu’ and others alleged to be infringing on Shroff’s personality rights and misusing his persona. term ‘Bhidu’ — of which the actor has a registered trademark
- AI-Generated Deep Fake Concerns: The court also noted that the proliferation of AI-generated deep fake videos has exacerbated concerns for celebrities.
- The case marks the first instance of a court restraining an unlicensed Chatbot.
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About Injunctions:
- An injunction is a legal remedy issued by a court that orders a person or entity to either perform a specific action or refrain from doing a particular act. An injunction is a court order that restrains or prevents the unauthorized use of these rights.
- Although an injunction acts as a deterrent, it is not easy for a celebrity to track all misuse and take action.
- The celebrity has to then issue a takedown order to an online intermediary like Google to have them removed.
- Criteria for Granting Injunctions: In the Titan case, the HC, in its order, listed out the basic elements comprising the liability for infringement of the right of publicity.
- Validity of the Right: The plaintiff must possess an enforceable right in their identity or persona.
- Identifiability of the Celebrity: The defendant’s unauthorized use must make the celebrity easily identifiable.
- Intent to trade upon the celebrity’s identity: Evidence of the defendant’s intent to profit from the celebrity’s identity is crucial.
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About Personality Rights
Personality rights, pertains to the rights associated with the personality of a well-known individual, primarily applicable to celebrities whose names, images or voices are prone to misuse for profit.
- Principle behind Personality Rights: The underlying concept is that only the owner or creator of the unique attributes of the personality, has the right to derive monetary benefits from them.
- Unique personal attributes that can be protected include name, nickname, stage name, picture, likeness, image and any identifiable personal property, such as a distinctive race car.
- Registration of Names: It is necessary for renowned personalities/celebrities to register their names to save their personality rights, because their personality traits could be used for misleading advertisements.
- Registered Trademarks: Many celebrities even register some aspects as a trademark to use them commercially.
- For example, Usain Bolt’s “bolting” or lightning pose is a registered trademark.
Difference Between Personality and Publicity Rights
Here is a table describing the differences between Personality and Publicity Rights;
| Aspect |
Personality Rights |
Publicity Rights |
| Definition |
These are rights associated with a well-known individual’s personality. |
These are rights to control the commercial use of one’s image and likeness |
| Types |
1. Right of Publicity (similar to trademark use): Right to keep one’s image and likeness from being commercially exploited without permission.
2. Right to Privacy: Right to not have one’s personality represented publicly without permission |
It includes rights under the ‘tort of passing off’, where someone intentionally or unintentionally passes off their goods or services as those belonging to another party.
They are governed by Trade Marks Act 1999 and the Copyright Act 1957 |
| Legal Basis |
Based on the right to privacy and control of one’s identity |
Based on preventing misrepresentation and protecting goodwill |
Judicial Precedents Relating to Personality Rights in India
- Amitabh Bachchan Case (2012 & 2022):
- HC Injunction: The Delhi High Court issued an injunction to prevent the unauthorized use of Amitabh Bachchan’s personality rights, including variations of his name like “Big B” and his unique expressions such as “Computer ji” and “lock kiya jaye.”
- Precedent of 2012 High Court Order: The HC based its decision on a 2012 order involving Bachchan, where Titan Industries sued a jewelry store for using his images from a Tanishq ad.
- Rajnikanth’s Case (2015):
- Celebrity Personality Rights Established: The Madras HC, in a case involving actor Rajnikanth, stated that personality rights are vested in celebrities. This was during Rajnikanth’s lawsuit against the producers of “Main Hoon Rajnikanth” for using his name, image, and dialogue style.
- “Rajnikanth” Not a Common Name: The court noted that the movie title would lead the public to associate it solely with the actor, and the producers, having acknowledged his high reputation, couldn’t claim “Rajnikanth” as a common name.
- Anil Kapoor’s Case (2023)
- Ex-Parte Omnibus Injunction: Delhi HC granted an ex-parte, omnibus injunction restraining 16 entities from using Kapoor’s name, likeness, image, using technological tools like Artificial Intelligence, face morphing and even GIFs for monetary gain or commercial purpose.
- Ex-parte injunction is when relief is granted to a party without hearing the other side.
- Omnibus injunction refers to an injunction granted against any unauthorized use- even those that are not mentioned in the plea.
- Use of Personality Traits for Commercial Gain: Kapoor had petitioned the court, stating that several parties were using aspects of his personality, including popular terms from his dialogues, without his permission to make profit.
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Legal Provisions for Personality Rights in India
- Fundamental Rights: Laws regarding personality rights are still evolving, with courts deriving principles from Article 19(1)(a) (freedom of speech and expression) and Article 21 (protection of life and personal liberty).
- Statutory Provisions: Other statutory provisions protecting personality rights include the Copyright Act, 1957.
- The Act grants moral rights to authors and performers, including actors, singers, musicians, and dancers. These rights include receiving credit for their work and preventing others from damaging it.
- Trade Marks Act, 1999: This act also protects personal rights under Section 14, which restricts the use of personal names and representations.
- Judicial Pronouncements:
- Auto Shankar case: In 1995, the Supreme Court recognised a person’s right to control the commercial use of one’s identity in the R Rajagopal vs. State of Tamil Nadu case, commonly known as the Auto Shankar case.
John Doe Orders: Originating from the UK, these are court injunctions issued against unknown defendants and the general public.
- These orders are typically sought in intellectual property right cases where it is impractical to identify all infringing parties.
- They allow affected parties to obtain blanket injunctions to prevent widespread violations of their rights..
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- Personality Rights on Internet: Delhi HC in its judgment in Arun Jaitley vs Network Solutions Private Limited and Ors Case (2011) observed that the popularity or fame of an individual will be no different on the internet than in reality.
- The court had also stated that the name also falls in the category wherein besides it being a personal name it has also attained distinctive indicia of its own.
- ICC Development (International) Ltd. Case: The right of publicity has evolved from the right of privacy and any effort to take away this right from the individuals would be violative of Articles 19 and 21 of the Constitution of India.
- K.S Puttaswamy judgment on Privacy: The 2017 judgment in Justice K. S. Puttaswamy (Retd.) v. Union of India elevated personality rights to constitutional status, recognizing the right to privacy as a fundamental right under Article 21 of the Indian Constitution.
- The ruling allows individuals to prevent others from using their image, name, and personal identity for commercial purposes without consent.
Global Perspective on Personality Rights:
- United States: The concept of personality rights in the USA began with the right to privacy. Legislations like Tennessee Code and California Civil Code (Section 3344) protect a person’s name, voice, photograph, signature, or likeness.
- Judicial Precedent: The right to publicity was distinguished from the right to privacy in 1953 recognizing the commercial value of a person’s identity.
- United Kingdom: The UK lacks a specific right to publicity but offers indirect protection through Copyright laws, Civil actions for passing off, Trademark protections Act, Data protection laws (GDPR).
- European Union Nations: The European Court of Human Rights (ECtHR) has upheld privacy rights of individuals in various cases and the protection varies across different nations.
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Reasons for moving to Court to protect Personality Rights
- Unfair Commercial Gain: The court was also informed that third parties were unfairly benefiting commercially from the sale of merchandise featuring his pictures and voice for ringtones.
- Defamation: Most alarming was the online circulation of fake pornographic images and videos of the actor with other actresses.
- Protection of Public Image and Reputation: Misuse of a celebrity’s persona can harm their public image and reputation.
- Setting Legal Precedents: Legal actions have set precedents for personality rights in India. Cases against unauthorized use of his persona for lotteries and advertisements have reinforced the need for legal safeguards to protect celebrity rights.
- Creating Deterrence: The move to courts and consequent judicial pronouncements create deterrence towards unauthorized usage of Personality rights to make commercial gains.
Way Forward
- Legislative Reforms: There is an urgent need to update existing legislation or create new laws specifically addressing personality rights in the digital age.
- Enhanced Enforcement Mechanisms: Strengthening enforcement mechanisms is crucial to combat the misuse of celebrities’ personas effectively.
- International Cooperation: Given the global nature of digital content, international cooperation and agreements could help standardize protections and enforcement measures across jurisdictions, making it harder for infringers to exploit legal loopholes in different countries.
- Technological Solutions: Leveraging technology, such as digital watermarking and advanced AI detection tools, can help identify and prevent unauthorized use of personal attributes more efficiently.
- Public Awareness and Education: Increasing public awareness about the importance of personality rights and the legal repercussions of violating them can deter potential infringers and promote respect for these rights.
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May 21, 2024
