This article has been written by Atharv Deotarse, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho and edited by Shashwat Kaushik. This article examines the complex area of personality rights, focusing on the intersection of the right to privacy and the right to publicity for celebrities. It explores how these rights are violated in the age of paparazzi and digital media.
It has been published by Rachit Garg.
Introduction
The article first introduces the concept of personality rights, emphasising their relationship with Article 21 of the Constitution of India. It highlights the intrusive behaviour of paparazzi that violates the privacy rights of celebrities. The purpose of the article is to analyse the scope and protection of personality rights in India. The article then explores the multifaceted nature of personality rights under copyright law. It examines instances where celebrities’ images and attributes are used for commercial gain, often without their consent. The importance of protecting these rights is evident in cases of misleading advertising and unauthorised endorsements. In short, this article navigates the complex terrain of personality rights, highlighting the delicate balance between the rights of public figures and the public’s demand for information and entertainment.
Every person, whether a celebrity or not, has a right to privacy, which is defined in Article 21 of the Indian Constitution. But we see paparazzi chase celebrities everywhere, even if they came in on the balconies of their houses. These paparazzi click their photos while they are enjoying their quality time and post them on social media for views. The paparazzi are violating their Right To Privacy. The purpose of this article is to discuss the rights of personality, the judicial interpretation of personality rights, and remedies for personality rights.
What are personality rights under copyright laws
Currently, we see advertisements on the Internet for fraudulent apps and websites, and these companies use images or videos depicting entertainers or celebrities to promote their ads in such a way that they are supposed to be promoting them. Big companies use the image,voice and different traits of celebrities for their ads to obtain commercial benefit from them. Basically, personality rights are the rights of famous personalities and celebrities whose name, voice, signature or any other personality trait has commercial value and can mobilise and influence the public at large.
But we cannot say that this is a specific definition of personality rights. We can say that personality rights are not yet fully developed at this stage and will mainly evolve from the relevant cases before the court and the court will decide on them. Recognition and protection of personal rights granted by courts. The court upheld it as a right arising out of the right to privacy, stating that “personality rights are vested in persons who have attained celebrity status”.
Only celebrities can claim such rights because they live a different life than the common man so they have the right to control when their image can or cannot be clicked. They also have the right to protect the misuse of their image,voice or personality trait for commercial exploitation. The overall personality right combines the right to privacy and the right to publicity.
Types of personality rights
Generally, there are two types: the first is the right to publicity and the second is the right to privacy.
In the right to publicity, the image, voice or any other different trait of a celebrity is not to be misused for commercial exploitation without the permission of that celebrity and without a contract with the personality. Like a trademark that provides legal protection to a brand’s services and goods, other brands cannot be used without permission, akin to the right of publicity. The right to publicity can last until the death of a personality and after the death of that individual, his personality rights are seized by the Court. After the death of his personality, his legal heir did not own his personality rights.
On the other hand, in terms of the right to privacy, celebrities live a different life than ordinary people. People or paparazzi incessantly pursue them and release their pictures, essentially infringing upon their right to privacy. The person who leaks their images without permission is also violating the person’s rights. Overall, representing one’s personality without their permission is a violation of their right to privacy.
The right to publicity is guaranteed under Article 19 of the Constitution of India, which defines freedom of speech and expression and Article 21, which defines the right to privacy.
How are personality rights protected in India
In India, we see that there is no specific law for the protection of personality rights. The Supreme Court and various high courts recognise that personality rights are emerging from the right to privacy. Article 21 includes various fundamental rights, such as the right to privacy; publicity is a closet statute to protect personality rights. Additionally, a range of laws safeguarding personality rights include the following:
Trademark Act of 1999
The personalities can register their name,voice, signature, etc. under the Trademark Act 1999. Section 14 of the Trademark Act restricts the use of personal names and representations. If somebody uses any celebrity’s name illegally or misrepresents them, then the person should be liable under this Section.
In the recent case of PV Sindhu, after achieving a bronze medal in the Tokyo Olympics, a few brands posted congratulations and greeting messages on their social media platforms. The legal action was taken against those brands by Baseline Ventures, the official representative of Olympian P.V. Sindhu. The action is not taken because congratulations messages convey news or information; it is taken because of the manner of representation. The brands post congratulations along with PV Sindhu’s image and the logo and tagline of their brands, which represent the wrong connection with PV Sindhu when there is none. Such posts infringed on P.V. Sindhu’s rights by using her images for commercial benefit without her permission.
Copyright Act of 1957
Copyright is helpful when there is a clash between interests and morals. The Copyright Act of 1957 protects moral rights. These rights are only granted to authors and performers, which means actors singers musicians dancers creators, etc. Basically, the fame of a person who is famous belongs only to that person and that person has the right to profit from it. No one can misuse his name or personality trait for gain. This act not only protects moral rights but also gives protection to personalities.
In the case of Mr. Gautam Gambhir vs. D.A.P. & Co. & Anr. (2017), Indian cricketer Gautam Gambhir filed a suit against the defendant because he found that his name was used by the defendant as a tagline for restaurants ‘by Gautam Gambhir’. The cricketer claimed that his rights were violated because his name was used in a tagline that he had no connection with.
The honourable Delhi High Court found in evidence that the defendant does not commercialise the plaintiff’s name. It was also held that no loss is incurred to the plaintiff in his field, i.e., cricket, by running the restaurant with the tagline ‘by Gautam Gambhir’.
Torts and passing off
Passing off means “no one has the right to represent his goods in the name of another person.” The Trademark law recognises the Tort of Passing off. To earn the benefit of passing off, the plaintiff has to prove misrepresentation of his personality trait and what damages have been done to him because of using personality traits. Section 27 of the Trademark Act refers to ‘passing off’.
In the recent case of Krishna Kishor Singh vs. Sarla A Saraogi & Ors. (2023), the plaintiff, who is the father of the late famous Indian actor Sushant Singh Rajput, filed a plea seeking an ex-parte interim injunction against the use of his son’s name, caricature, and lifestyle in upcoming films like “Nyay.”
The plaintiff argued that such publication and production infringed upon personality rights and the right to privacy, including the right to publicity. He stated that such usage couldn’t be undertaken without the prior approval of his legal heir and that it violated the right to a fair trial under Article 21 of the Indian Constitution.
The defendants, however, contended that they acknowledged the celebrity status of the plaintiff’s deceased son. They argued that a celebrity’s rights are affected only if they are identifiable as a part of an artistic work. They denied using Sushant’s name, image, or dialogue style.
Their second main argument was that there is already a significant amount of public information available about Sushant’s life and death. They claimed that the material had become public and that the plaintiff himself had acknowledged it. They added that since the mysterious demise of the deceased and the subsequent investigation had been extensively covered in the news and media, there couldn’t be a question of privacy over something that was already public. They also asserted that a celebrity’s right to privacy ends with their demise.
Their third contention was that the film in question was neither a biopic nor a biography of the plaintiff’s son. Instead, it was a fictional rendition with a creative dramatisation of true events generally surrounding the lives of film stars or TV celebrities who had reportedly passed away due to unnatural causes. They argued that these details were widely available in the public domain and were made with creative liberties.
The Delhi High Court, after analysing the arguments from both sides and briefly examining the works involved in the case, concluded that there is no explicit statutory recognition of publicity, personality, or celebrity rights in India. Although the rights asserted in the Copyright Act are relevant, they do not define the term “celebrity” explicitly. The court dismissed the claims related to the right to a fair trial and passing off, ultimately dismissing the petition.
Conclusion
Violations of the right to privacy and the right to publicity of famous personalities are increasing day by day. Personality Rights are correlated with both the right to privacy and the right to publicity. A few restrictions are needed to impose on the paparazzi. It is clear that if someone interferes in another’s life, he has to face the consequences. In the era of social media, courts are mostly confronted with the issue of personal rights violations on social platforms like Instagram and Twitter. The fact is that celebrities use their fame for their own benefit but sometimes it comes down to privacy matters. Several rules are to be made for paparazzi whenever they can click the images; many times they click awkward moments and post them. It comes down to ethics. Going forward, only time will tell how well-known public figures protect their personas and identities in the creative ecosystem, where privacy is extremely fragile and can be easily accessed.
References
- https://blog.ipleaders.in/protection-of-personality-rights-in-india/
- https://www.drishtiias.com/daily-updates/daily-news-analysis/personality-rights
- https://www.lexology.com/library/detail.aspx?g=0759e39a-7803-4d67-95fa-f54624e99951
- https://www.mondaq.com/india/trademark/1204760/personality-rights-yes-they-exist
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