Intellectual Property RightsInfringement of Personality Rights and its Protection under Intellectual Property Rights

INTRODUCTION

Personality rights are rights associated with an individual’s personality that may be protected as an individual’s right to privacy or as their property.  According to Merriam-Webster, “personality Rights are rights (as of personal security, personal liberty, and private property) appertaining to the person”.

Celebrities or public figures are frequently taken advantage of by invasions of their privacy and misuse of their names due to the introduction of numerous types of mass media and the ever-growing trend of advertisements, which makes it a necessity for celebrities to get their personalities protected through Intellectual Property Rights (hereinafter referred to as “IPR”).

INTERSECTION OF PERSONAL RIGHTS WITH OTHER CONSTITUTIONAL RIGHTS

Personality Rights

Depending on a person’s employment, social position, and other aspects of their daily lives, the general public create a distinct perception of them. These activities are viewed as an outgrowth of their personalities. An individual’s personality so embodies the emotional, dignified, human, and moral values associated with it.

Since, celebrities are considered to be influential to a huge number of people and hence numerous media outlets, traders, and manufacturers frequently infringe on the personality rights of celebrities. A few well-known examples of such infringements on celebrities’ personality rights include the use of Amitabh Bachchan’s voice to promote a tobacco product and the unlawful use of Rajnikant’s character traits.

Publicity Rights

Publicity rights have gained significant attention in the realm of IPR in the recent years. These rights, commonly referred to as celebrity rights, are those linked with an individual’s personality. They are defined as the right of an individual to control the commercial use of his or her identity.

A celebrity’s public image is extremely valuable and has monetary value attributed to it. As a result, it is critical for such a person to defend his or her rights so that no one else can abuse it or profit from it.

Privacy Rights

The media believes that it is their inherent right to capture and publish all information on celebrities about matters of “public interest” or “public concern” that derive from Article 19 of the Constitution of India’s “Freedom of the Press”.

Celebrities and public figures have objected to this since it interferes with their personal lives and their right to privacy. Every individual has the right to safeguard his or her own life and image as it is portrayed to the rest of the world. Unless with his/her consent, the power to manage the commercial use of his/her own identity should be not lie with any third party.

Personality rights as such are not explicitly included in the Constitution, but privacy was recognized as a fundamental right under Article 21 if the Constitution, in the case of Justice K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.  As an extension of liberty, privacy is a “right to be left alone” and anyone who uses someone else’s identity without their permission is considered to have infringed both their personality rights and the fundamental right to privacy.

JUDICIAL RECOGNITION

• The case of ICC Development (International) Ltd. v. Arvee Enterprises, 2003 VIIAD Delhi 405 is one of the most significant cases where personality rights were recognized. The Delhi High Court held that, “The right to publicity has developed from the right to privacy and can only be possessed by an individual or by any indication of that person’s personality, such as their name, a distinctive characteristic, their signature, their voice, etc. A person may be granted the right to publicity due to his involvement in a particular activity, such as a movie, sport, or event.”
• The Delhi High Court in the case of Titan Industries v. M/s. Ramkumar Jewelers, CS(OS) No.2662/2011 ruled that, “When a prominent person’s name is exploited in advertising without their consent, the objection isn’t that no one should commercialize them; rather, it’s that they should have the power to decide when and how their identity is utilized. The right to publicity is the ability to limit how one’s identification is used for commercial purposes.”
• Recently, in the case of Amitabh Bachchan v. Rajat Nagi & Ors., CS (COMM) 819 of 2022, the Delhi High Court passed an omnibus order or an ex parte ad interim injunction and restrained the world at large from using one of the most well-known actor Amitabh Bachchan’s name, image, voice or any of his characteristics without his permission.

In the Amitabh Bachchan case (Supra), a lawsuit was filed by the actor against the Defendants Rajat Nagi & Ors., as well as the general public for allegedly misappropriating his name, appearance, voice, and personality traits.

The actor said in his petition that he turned to the High Court as a result of the misuse of his name, picture, and voice, particularly by mobile application developers, individuals running lotteries by improperly partnering with KBC, book publishers, T-shirt dealers, and numerous other enterprises. The decision also lays the path for the country’s personality rights law to develop.

PROTECTION OF PERSONALITY RIGHTS UNDER INTELLECTUAL PROPERTY RIGHTS

The Indian Copyright Act, 1957

Original literary, dramatic, musical, and creative works, cinematograph films, and sound recordings are all protected by the Indian Copyright Act, 1957 (hereinafter referred to as “Copyright Act”). A copyright gives the author of the work the sole right to reproduce, issue, perform, modify, translate, and store the work in any format.

Various works by celebrities may be shielded by the copyright regime. All representations of a celebrity in a unique literary, dramatic, musical, or artistic work, or in a film or sound recording, are hence automatically protected by copyright laws.

If used in conjunction with a marketable product, a well-known persona, real or made up, can provide significant financial gains. Section 57 of the Copyright Act protects the author’s special rights, including the artists’ personality rights. While, the performer holds ownership rights to performances under Section 38 of the Copyright Act, and he or she has sole control over the performance’s recording and reproduction.

The moral rights of the performer are safeguarded against any alteration or mutilation of the performance that can damage his reputation, even after the performer has given his or her approval to the inclusion of the performance in other formats.

The Trade Marks Act, 1999

Trademark protection enables the celebrity to maintain control over his name, likeness, and image. The name and likeness of a celebrity can also be quickly registered and used as a trademark. The celebrity benefits from licensing and assigning it after registering the name or likeness as a trademark.

Section 2(1) of the Trade Marks Act, 1999 (hereinafter referred to as the “Trademarks Act”) allows the registration of “any sign capable of identifying one person’s products and services from those of another,” while Section 2(1)(m) widens the definition of “mark” to include names as well in its ambit.

AMLEGALS REMARKS

None of the IPR systems are sufficient to fully safeguard personality rights. The laws governing trademarks, passing off, and copyright each have specific gaps which is inconsistent with the concept of personality rights. Hence, personality rights are sui generis and cannot be properly positioned under any of the IPR laws.

With the widespread increase in popularity of celebrities or public figures and advent of privacy awareness among one and all, it is important that the laws keep up with the changing times. The recent case of well-known actor Amitabh Bachchan is one of its kind, thereby igniting the need for personality rights in India.

Moving forward, only time will tell how well-known public figures opt to safeguard their personality and characteristics in the creative ecosystem, wherein the concept of privacy is extremely fragile and can be easily penetrated upon.

– Team AMLEGALS assisted by Ms. Shreya Verma (Intern)