Evolution of celebrity rights and the way forward

Celebrity culture is ever-growing – increased accessibility to celebrities with the growth and popularity of new modes of communication and digital media has made it easier for people to use a public figure’s personal attributes for their own use. It was only a matter of time till this led to unauthorized commercial exploitation of a celebrity’s personality rights. From Gautam Gambhir suing a restaurant, to dolls resembling Daler Mehndi being sold in the market, to taxi drivers embellishing their vehicles with posters of Bollywood actors; the violation of personality rights can be witnessed on different scales and platforms simultaneously.

Prior to delving into the future of celebrity rights, it is first important to understand what it is. The understanding of personality rights in India can find its roots in the development of common laws or classic natural law that established personality rights as an inalienable right. It refers to a bundle of rights largely comprising of the right to publicity, the right to keep one's image and likeness from being commercially exploited without permission or contractual compensation, and the right to privacy, the right to be left alone and not have one's personality represented publicly without permission. These rights flow from Article 19 and 21 of the Constitution of India.

Elements from copyright law, trademark law, and advertising laws are also applicable. The Indian Copyright Act, 1957 codifies ‘Performers’ Rights’, and the Trademark Act, 1999 includes ‘name’ in its definition of a ‘mark’. The Advertising Standards Council of India (ASCI) in its Code of Self-Regulation has also recognised the likelihood of misappropriation and exploitation of well-known personalities in advertisements. It would be simple to understand personality rights as the rights of individuals to have control over the usage and commercialization of their persona in the form of their voice, signature, catchphrases, likeness, appearance, silhouette, feature, face, expression, gesture, mannerism, distinctive character, and any other facet of their personality.

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Although there is no specific legislation concerning personality rights in India, courts have taken cognizance of personality rights in several judgements. In Shivaji Rao Gaikwad v. Varsha Productions, the court made an attempt to open the facets for the litigating parties aggrieved from the violation of personality right, and accordingly granted an injunction in favor of Rajinikanth for unauthorised use of his image. Several other public figures have successfully initiated action before courts for unlawful use of their image, likeness or other personality attributes, including Daler Mehndi, Barkha Dutt, Gautam Gambhir, amongst others.

However, the recent order passed by the Delhi High Court in favour of Amitabh Bachchan significantly propels the protection of personality rights in India forward. For the first time, Indian courts have passed an order protecting unauthorised exploitation of a celebrity’s personality from known and unknown defendants, i.e. a John Doe order. The scope of the order is extremely wide, operating against the world at large, thereby making it easier for celebrities to enforce their rights against any third party. This is especially useful against the unorganised sector, which has seen considerable growth in the past few years and where infringement runs rampant.

The order brings about a new dimension in the Indian intellectual property right regime, particularly in respect of personality rights. While it is not possible decode the total impact of the order, the development of the case must be closely monitored as it may set a new precedent and establish a cohesive legal framework for enforcement of celebrity rights.

In the last few years, there have been more problems with people's personality rights being violated. A majority of the cases that have been brought before the courts include allegations of violations of personality rights committed by print and digital media, such as newspapers, magazines, TVs, and radio programs. Despite this, the advent of the digital age, the spread of technology, and the usage of social media platforms have further exacerbated the problem of protecting individual personality rights and made them more susceptible to abuse.

The nature of the action initiated by Amitabh Bachchan before the Delhi High Court, would be ideal for a celebrity to enforce their rights against unknown infringing parties. Such orders not only have a deterrent effect, but can also be punitive in nature, where actual costs, consequences and peril may lay against non-compliant parties. Notably, non-compliance would amount to contempt of court, which is an offence, and can result in civil and criminal liability.

Obtaining a John Doe order would only be beneficial for any celebrity keen on protecting their personality right, and preventing dilution of their image, reputation and goodwill that they have painstakingly built over several years.

(Disclaimer: The views of the writer do not represent the views of WION or ZMCL. Nor does WION or ZMCL endorse the views of the writer.)

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