With constant developments in the field of intellectual property, people are
always looking to protect their new inventions, products, goods, designs and
services. Additionally, a new kind of right has emerged in recent times - the
right to protect one's own personality. Celebrities in the public eye have
played a big role in shaping the choices people make in their daily lives. Even
though the High Courts in India have identified such commercial rights as being
present in public figures by virtue of their fame and established reputation,
they are not given distinct recognition.
Instead, personality rights exist as
the combination of two legally accepted rights, namely the right to privacy as
envisaged under Article 21 of the Indian Constitution and the right to
publicity. The two rights may seem conflicting at first glance as celebrities
and performers in the entertainment industry and outside of it thrive on
publicity to earn their livelihood, but they deserve to have a line drawn
between their personal and professional life to the utmost extent possible.
order to protect these rights harmoniously, the right to publicity is construed
as preventing others from exploiting one's identity and their earned goodwill,
while the right to publicity includes the freedom to keep immense public
attention from interfering in their lives and choices. Though the latter is
common to every Indian citizen, personality rights apply only to those who have
a distinct and well-known personality in order to commercially exploit it.
Personality rights currently are not currently mentioned in any statute,
including the Copyright Act, 1957, but can be considered copyright-like rights,
because these celebrities are often performers such as actors, dancers,
singers. Talent management agencies and legal counsels, often work together
to protect and exploit such celebrity rights on behalf of their clients, which
include one's voice, image, likeness, signature, silhouette, name and other
personable attributes that the common public may associate the person with.
author aims to analyse the ambit of personality rights within the intellectual
property legislations and other allied laws currently existing in India. The
author further aims to trace the pattern of judicial decisions of the higher
courts in recognising these rights and touch upon two aspects of personality
rights that have not been covered extensively in Indian literature -- character
rights and posthumous personality rights.
All individuals, whether famous or not, have the right to privacy though and
recourse if they get violated, as it is a violation of Article 21 of the
Constitution. The notion is that celebrities or public
personalities/entertainers live a life which is different from the common public
and that they should expect to be photographed everywhere as people like to keep
tabs and constant updates on what they are doing.
Individuals have the right to
promote their name and image, but others do not have the right to exploit these
individuals' images without their consent or involvement. This is known as
publicity rights, wherein the person's fame is used to boost the popularity,
sale or promotion of a film or product. Thus, celebrities often assert and
represent their identity through lucrative brand endorsements, often procured by
their agency as a part of their contractual obligations.
It would not make sense
for a brand to recruit an unknown person to advertise for them, because publicising them would not generate any commercial benefit. The point of such a
tie-up is to lure the famous person's fanbase to buy their products in lieu of a
hefty sum of money to the personality. Usage, exploitation, appropriation,
clout, representation of a person who possesses established reach, popularity,
commercial value and reputation without authorisation or permission would amount
to a violation of personality rights, which is said to originate from the
fundamental right to privacy.
Fame as per judicial interpretations does not
usually refer to short-lived fame, such as being in the news for a few weeks,
but this classification can arguably be said to be outdated, with the rise of
quick and instant social media fame. However, it is generally agreed upon
currently that it would be harder to enforce the rights of people who aren't
famous or aren't famous for specific individual traits, unique signature style,
photograph or brand of the persona.
For instance, Shah Rukh Khan's open arms
pose or the style of acting Shammi Kapoor employs on-screen are intrinsic to
them and easily identified with them, even if they have developed them later in
their career. These traits should be distinct, unique and identifiable, not just
vaguely similar or present in others as well and able to generate commercial
Personality Rights in Industry Practice
Personality rights can often conflict with the right to protect someone's work
under the Copyright Act. For instance, Emily Ratajkowski, a famous American
model, recently settled a landmark US copyright lawsuit with a paparazzo who
sued her and other models for posting the candid pictures he took on their
Instagram accounts. Her counsel had claimed that the picture was not taken with
her permission, infringed upon her right to publicity and did not involve "any
artistic value" as it did not require any posing or direction of rearrangement
of lighting and angles.
Even not-for-profit organisations exploiting a
celebrity's goodwill by putting their face on their brochure despite lack of
association can be proceeding against for infringement on paper, even if they
are not necessarily deriving much commercial exploitation from it. Personality
rights are said to cease when the famous persona's lifetime is over or he has
returned back to private life away from the spotlight, such as child actors
deciding to pursue a more traditional career when they grow older.
rights are usually acquired through the assignment as it is ideal for the
producer to include such a carve-out to own the life rights or of the individual
when making a biopic based on their personality. However, the transfer of rights
via a license may be preferable to the creator of the persona or performer so
that his personality rights are not exclusively granted at a time to the film
producer and the personality rights are retained after the license period is
over, making it essentially a one-time usage.
For instance, if a film is made on Saurav Ganguly, who is a former cricket player and the current president of the
BCCI, isn't expressly covered under the purview of a "performer" under the
Copyright Act, but we can argue that he still has publicity rights as a
performer under Section 38, as he has a sort of persona he puts up as a
public figure, and he also makes a sort of performance as a sportsperson.
the producer's point of view, his film will be diluted if two films are made at
the same based on the same personality, as the audience would confuse the two or
watch the other one. Making multiple audio-visual content with the story and
character being based on or centred around someone at the same time would make
the target audiences clash. Thus, exclusivity for a time period mutually agreed
upon by the parties or a time-based acquisition of rights would the industry
The celebrity or right-holder of his personality can even grant
personality rights to some other party to make a graphic novel based on him,
having a clause like such that the film producer cannot restrict him from
keeping all personality rights with himself except for this cinematographic film
being made on him. There are two ways the personality can look at the
exploitation of his personality rights: firstly, assign the right to a party to
create only one specific copyrightable work based on his life story to a
party (restricted right); secondly, allow one party to create multiple
The first option is practically preferred by celebrities
because they can maximise exploitation by earning royalties from multiple
parties. Producers mostly acquire film rights even if they are making a film on
a generic event which includes a reference to a popular individual's traits
unless they have changed the name of the character or found another defence to
For instance, before Ranveer Singh portrayed the real-life
personality Kapil Dev in the film 83, he would have ideally had to sign an actor
agreement including a clause wherein he will not continue performing such a
personality in isolation from within the scenes of the film or promotional
events associated with the film unless he has gotten authorization from the
producer who owns Kapil's personality rights.
Judicial Interpretations of Personality Rights
The test of identifying in which situations infringement of personality rights
arise was laid down in Titan Industries v. Rajkumar Jewellers, wherein the
Court stated that personality rights include the right to not intrude upon their
private space or solitude, publicly disclose sensitive facts, misrepresent their
image publicly or use their name to be unjustly enriched.
In this case, Titan
Industries had shot an ad campaign with Amitabh and Jaya Bachchan for their
brand Tanishq, but Rajkumar Jewellers had just stolen the picture and other
creatives and replicated Tanishq's exact hoardings with the actors' image, but
added their own trademark and trade names on it in order to promote their own
jewellery line. The Court held the defendant liable, but also observed
that there should be conclusive proof or clarity that a right has been violated
and that personality rights fade away when commercial value is largely said to
In Sakshi Malik v. Venkateshwara Creations Pvt. Ltd. & Ors.
, the plaintiff
was a model and actress who entered into various brand partnerships. The
defendant took the image which was posted by the plaintiff on her Instagram
profile and used it in a still image of their film in a derogatory context. The
usage of the image without authorisation from her is considered an infringement
of her publicity rights, while the reframing of her image in a demeaning and
illicit manner is violating her right to privacy, even if the image was
pixelated or blurred.
The Court thus granted a permanent injunction against the
defendant to remove such an image from the final cut of the movie and clarified
that the right to publicity means that the personality is granted the discretion
to exercise control and have some agency over the way in which they want to be publicised. In
Shivaji Raogaikwad v. Varsha Productions
, the famous actor Rajnikanth contended that the defendant had misused his mass hero image, style
of delivering dialogues and expressions, caricature and even name by portraying
it to be a tribute to the actor by including these traits, but actually have no
similarity to the protagonist besides their shared name.
The producers of the
film intended to appropriate the actor's loyal fanbase to unjustly derive
commercial benefits from this established goodwill. The Court observed that this
constituted a clear case of infringement even if the film was made in a positive
light. Additionally, like the previous case, the film had many vulgar scenes,
diluting the actor's image by making the audience believe that Rajinikanth was
involved or consented to the making of the film in some way.
On the other hand,
producers feel it is not possible to just make a film faced with government
data, because it can be boring and devoid of drama, not translating well onto
the screen. To balance the interests of both parties, R. Rajgopal v. State of
 classified what information the producer needs to take permission
and which one he doesn't. Public domain is the broad ambit, which includes
public records as well as other things, whereas public records is the narrow
Thus, the public domain includes fact-based things as well as opinions,
scandals, controversies, website with factually incorrect information about the
personality, rumours, fan pages, tabloids, physical and digital news articles,
anything else available on the net etc., whereas public records only include
factual records about the person in an official govt. database, and not dealing
with his personality traits. Public records are a smaller sub-set within the
vast public domain, like birth, death, marriage and residential details. Thus,
the Court held in this Autoshankar case that usage of the information on which
falls beyond the scope of public records needs permission
Personality rights do
not need to be acquired for creating a film based on solely public records, but
need to acquire necessary clearances and personality rights for film based on
public records and other information available, which is wholly called public
domain. It is hard for a filmmaker to make a film just based on birth details or
case details of a case a person is involved in presently or in the past or
pending against them, as these do not cover the entire life story of a person,
the rest is filled by the personality, which he can capture by looking at the
public domain, for instance, the film Sanju created a lot of sensationalism
because of the producer's choice, after taking permission from Sanjay Dutt, to
include his colourful life with sprinkles of rumours from news articles at the
height of his fame and downfall. Phoolan Devi v. Shekhar Kapoor
Jayalalitha v. Penguin Books India
 both held that information from
newspapers is part of the public domain and not public records, so still need to
acquire personality rights if using the same.
Posthumous Personality Rights
Many Western countries have recognised it, especially Canada which has a
specific law for it, which gives rise to a lot of exploitation and revenue
generation for legal heirs, descendants or relatives of posthumous
personalities, talent agencies etc. For instance, the US has held many hologram
concerts held with Prince and Michael Jackson, where artists perform along with
their moving images or clips recreated in a 3D form by the use of advanced
Unlike normal personality rights which is at least judicially recognised, posthumous personality rights are neither statutorily nor recognised
by the Court. Clarity as to such a position of whether personality rights came
up in Deepa Jayakumar v. AL Vijay
, wherein the court held that they cannot
be inherited in India, whether they are legal heirs or not.
thus cease to exist after the death of the personality. Court's rationale is
based on the fact that legal heirs are not owning personality traits because
those are intrinsic and personal to that personality only. For instance, even if Sridevi's children look like her, they cannot claim to inherently or possess her
signature style or acting chops or hereditarily have it in-built in them.
this case, Jayalalitha's image was utilised in a film in a non-derogatory way,
but her niece Deepa still claimed that permission should have been taken, but
Court stated that personality right is extinguished upon the personality's
death. If negative reference or derogatory representation is made to any
deceased person's reputation or their family, recourse is provided in criminal
law, under Sections 499 and 500 of the Indian Penal Code, 1860 instead, which
lays down, respectively, the definition and the punishment for defamation.
Character rights obviously applies to a fictitious person played by a real
person. For instance, in pursuance of Ranveer's brand association with CoinDCX,
he portrayed his usual hyperactive and cheerful traits that have long been
associated with him in addition to assuming an extension of his character Murad
in Gully Boy with the costume and accent.
Another example is that when any image
of Prabhas dressed up in his Baahubali apparel is put on a T-shirt and sold,
that can involve personality as well as character merchandising rights. The
former involves personality rights, while the latter deals with character
rights. Since his character is loosely based on Mumbai rappers Divine and Naezy,
the producer of the film would have also acquired their life-story rights.
Character rights are usually only given to characters who are essential for the
story of a book or film to even exist. In Nicholas v. Universal Pictures,
the Court laid down the "character delineation" test, wherein it states that if
there is a strong and developed embodiment of expression, the chances of the
character possessing character rights will be higher.
Ancillary and tertiary
characters or main characters with no distinct personality traits will usually
not get character rights. In Warner Brothers v. Columbia Broadcasting, the
Court coined the "story being told" test, wherein character being a prominent
part of storytelling makes it more likely to be copyrighted.
Even though India has come a long way in recognising personality rights, there
are still questions that arise as to what is the degree of consent required to
make a film inspired by the life of a real-life person; how to balance the
constitutional freedom of the producer to artistically express in the way he
wants to in his films and be in the profession of filmmaking (cinematic
liberties) and the persona's rights; what are the limits imposed upon filmmaker
to not commercially hinder personality rights; and whether posthumous
personality rights can be granted legal recognition in India in the near future
and if enforced, what is the nature and exploitation scope of such rights that
can be granted to the persona's legal heirs.
In FA Picture International v. CBFC, the Court emphasised that even though
Article 19 of the Constitution is not absolute, it cannot be undermined on the
ground that a filmmaker should portray only the exact versions of the facts
without adapting them to the suitability of the film.
- India Const. art. 21
- Copyright Act, 1957, � 2(qq), No. 14, Acts of Parliament, 1957 (India)
- O'Neil v. Ratajkowski, 19 Civ. 9769 (AT) (S.D.N.Y. Sep. 30, 2021)
- Supra note 2.
- Supra note 2, � 38.
- Supra note 2, � 13.
- Titan Industries v. Rajkumar Jewellers, CS (OS) NO. 2662/2011.
- Shivaji Rao Gaikwad v. Varsha Productions, 2015 (62) PTC 351 (Madras).
- R. Rajgopal v. State of Tamilnadu, 1994 SCC (6) 632.
- Phoolan Devi v. Shekhar Kapoor & Ors., 57 (1995) DLT 154.
- Jayalalitha v. Penguin Books India, O.A. No. 417 of 2011 and Application
No. 2570 of 2011 in C.S. No. 326 of 2011
- Deepa Jayakumar v. AL Vijay and Ors.; C.S. No. 697 of 2019.
- Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2d Cir. 1930).
- Warner Bros. Pictures v. Columbia Broadcasting System, 102 F. Supp. 141
(S.D. Cal. 1951).
- Rangarajan v. Jagjivan Ram, 1989 SCR (2) 204; Ramesh Pimple v. CBFC,
Bombay, 2004 (5) BomCR 214.
- India Const. art. 19, cl. 1 (a), (g).
- Supra note 10.
- FA Picture International v. CBFC, AIR 2005 Bom 145.