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This article is written by Durva Suhas Indulkar, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Dhruv Shah (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Introduction

Generally, people in India are largely influenced by the products that are endorsed by celebrities and such products are consumed on a large scale on a day to day basis in every household. Celebrities hold a different level of influencing power over consumers with respect to the brands that they endorse or market. For example, daily use products such as a washing machine detergent endorsed by Mr. Amitabh Bachchan or expensive commodities such as gold or diamond jewellery endorsed by Deepika Padukone or Priyanka Chopra. In this article, we shall take a brief look at the legal framework in India that deals with the protection of celebrity rights and famous personalities, which is also known as personality rights and how these rights are helpful for a jewellery brand ambassador to protect his personality rights as an endorser of a jewellery brand.

What are ‘personality rights’?

Personality rights are the rights of a person that are related to his or her personality. Personality rights generally consist of ‘Right to privacy’ and ‘Right to publicity’. 

  1. Right to privacy: The right to privacy is one of the fundamental rights mentioned under Article 21 of the Constitution. The right to privacy is the right of a person where his personality cannot be represented publicly without his/her permission. It is basically a broader right and you do not need to have fame to have the right to privacy.
  2. Right to publicity: Right to publicity is the right that protects against the misappropriation of a person’s name, likeness and any other personal identity for commercial benefits. It is a negative as well as a positive right. A person’s publicity right consists of his right to commercialize his fame (which also includes the name of the person). 

Therefore, we can say that personality rights is a combination of right to privacy and right to publicity.

Who can acquire personality rights?

Not all individuals are entitled to their own personality rights. Personality rights are generally acquired by people who have gained any kind of fame or the ones who have acquired the status of being celebrities. Personality rights are generally vested in people who are public figures by virtue of them having acquired a kind of status and personality which altogether adds a commercial value to their individual personality.

Why is it known as personality rights?

Personality rights are unique rights that have gained a lot of importance today because of the increase in the number of celebrity endorsements. One single image of a famous personality has a tremendous effect on the reputation of a product, which he or she is endorsing.

Every person is entitled to enjoy the result of their hard work and endless efforts. Celebrities work very hard to build an image in society through their work. Their continuous efforts and hard work bring them to a position of a celebrity. They create a personality for themselves. Single misuse of their name, image or their style might affect the personality or the reputation that they create. Therefore, it becomes necessary that they should have a right to protect their personality and to have complete control over its exploitation.

How can a jewellery ambassador protect their personality rights?

In India, there is no particular act or statute to protect personality rights. However, personality rights are recognized in the form of right to privacy and right to publicity also known as publicity rights. Even though there are no statutes or laws in India to protect personality rights, India has started recognizing personality rights through various significant judgements.

A celebrity acquires his status through intellectual, physical and emotional efforts. Therefore, the celebrity should be the only person who can authorize the manner in which his personal traits, goodwill and reputation can be used commercially. This right requires legal protection, however, in India there are no statutes to protect these rights but the legal jurisprudence of personality rights has evolved over a period of time due to various significant judgements which have contributed to recognizing and understanding the importance of personality rights of various individuals.

Protection under advertising legislation

The advertising legislation which governs all the advertisements is the Code for Self-regulation in Advertising which is also referred as “Code” and is adopted by the Advertising Standards Council of India. The Code mandates that no advertisement should contain any kind of unauthorized reference to any person, firm or institution such that the product advertised gains an unfair advantage which brings any kind of harm to the reputation of the person, firm or institute referred to. It also states that if and when required by the Advertising Standards Council of India, the advertiser or advertising agency should be ready and willing to submit the authorization granted by the person, firm or institution referred to in their advertisement. As per the Cable Television Networks Rules, 1994, no advertisement shall be carried in the cable service which violates this Code. The Standards of Practice for Radio advertising and the Code for Commercial Advertising on Television also contain similar provisions.

The framework of personality rights in India can be better answered by referring to a very famous judgement with regards to personality rights and which also specifically deals with the personality rights of a jewellery ambassador. 

Protection under the right to privacy

The right to privacy is a fundamental right mentioned under Article 21 of the Constitution of India. The rights that are included under the matrix of the right of privacy are: 1) To prevent any kind of public disclosure of private rights. 2) To prevent any form of prying into the personal affairs of a person. 3) To prevent any kind of false publicity. 4) To prevent misappropriation of a person’s name, image and likeness. 

Personality rights in the form of the right to privacy were first recognized by the Supreme Court in R RajaGopal v State of Tamil Nadu (Autoshankar case). In this case, the court observed that: “The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising or non-advertising purposes or for any other matter.”  This is a landmark judgement and there have been many such rulings since then, by various Courts citing this judgement.

Another such example, highlighting the right to privacy is Shivaji Rao Gaikwad (aka Rajnikanth) v. Varsha Productions, in this case, the Superstar Rajnikanth moved to the Madras High Court for an injunction restraining the release of a movie titled “Main hoon Rajnikanth” invoking his personality rights. The superstar in his application stated that; a large section of the public across India is, therefore, likely to be misled into viewing such project/film on the mere belief that the said project/film has been approved by him. It is to prevent such widespread confusion among the public, besides maintaining his personal integrity; he has chosen to abstain from approving or supporting any project based on his personal self/personality. Besides, such film based upon Rajinikanth’s name, image or likeness would be a violation of his privacy and would subject him to needless embarrassment as he does not have any control over the content of any unauthorized or unapproved project/film. The Madras High Court after considering the suit stayed the order on the release of ‘Main Hoon Rajnikanth’ with its current title and content.

In the case of Titan Industries Limited v. M/S. Ramkumar Jewellers, the defendant, M/S Ramkumar Jewellers used an identical advertisement hoarding to that of Plaintiffs.’ The plaintiff was the owner of a well-known brand called ‘Tanishq’, the advertisement of which featured the famous couple  Mr. Amitabh Bachchan and Mrs. Jaya Bachchan. Further, the defendant also did not seek any permission or get into any agreements with either the couple or the plaintiff before depicting the famous couple as endorsers of his jewellery products. In light of these facts, the Delhi High Court granted the permanent injunction explaining the right to publicity:

“When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity”.

In the above case, the Delhi High Court also defined a celebrity as “a famous or a well-known person and merely is a person who “many” people talk about or know about”

Referring to this judgement, we understand that a Jewelry ambassador can protect his personality rights by using the right to publicity.

Conclusion

Even though Personality rights are not recognized under any kind of specific statutes or legal regulations, the Judiciary has recognized these rights in various significant ways. Therefore, any kind of unauthorized commercial exploitation of a celebrity’s identity or personality traits is a violation of his Personality Rights especially when the identity has been earned with hard work and dedication. It is high time that the legislature recognizes these personality rights exclusively not just for protecting celebrity rights but also to protect the consumers from any kind of misleading advertisements or promotions. Therefore, considering all the above-mentioned judgements and examples, it can be concluded that a jewellery ambassador can protect his personality rights in various ways such as by invoking the right to privacy, right to publicity and the protection which is provided under the advertising legislation.


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