LEGAL PROTECTION OF PERSONALITY AND PUBLICITY RIGHTS: RECENT TRENDS
As per the convention, protection under the Trademark is sought for the words, logo, device etc. acting as an identifier for a particular business. Further, under copyright protection is sought for the works created by the author be it literary, dramatic, artistic etc. Moreover, another aspect of copyright law, which provides protection to the performers for their performance in public. But what about if person wants to seek protection for his personal trait? These laws can be extended to seek protection of a personality of an individual applying various sections but these have certain limitations. Therefore, Personality rights were developed which means providing protection to personal traits of an individual like his image, voice, name etc. or other aspects. Thereby, any commercial utilization of person identity and persona would amount to infringement of person personality rights.
INTRODUCTION TO PERSONALITY RIGHTS
Personality rights were developed as an extension of privacy rights. Privacy of an individual covers various aspects like names, address, number, financial details, sexual orientation etc. that enable the identification of that individual. Therefore, privacy rights which was recognized as fundamental rights under Puttoswamy case, also serve as mechanism for protection of identity of person.
The concept of publicity rights developed alongside privacy rights but gained distinct recognition later. Initially, individuals had limited recourse against unauthorized use of their names or images, except in cases of libel or trademark infringement. The landmark case of Haelan Laboratories Inc v. Topps Chewing Gum Inc in (1953), marked a significant milestone in the recognition of publicity rights. This case involved competing chewing gum companies using baseball players’ images on trading cards. Although Haelan failed to recover under New York’s privacy law, the court acknowledged a new common law right—the “right of publicity.” This right granted individuals economic control over their persona, allowing for damages and injunctive relief. In the United Kingdom, the case of Irvine v Talksport (2003) further solidified the recognition of publicity rights. Eddie Irvine, a Formula 1 driver, objected to the unauthorized use of his image in an advertisement. The court upheld Irvine’s property right in the goodwill associated with his image, awarding him compensation based on a reasonable endorsement fee. This case underscored the evolving legal framework around personality rights in the UK.
PERSONALITY RIGHTS GRANTED PROTECTION UNDER INTELLECTUAL PROPERTY LAWS
Personality rights is an emerging concept. The rights have not been codified under any statute. Therefore, courts in their judicial precedents interpret the provisions of the statues of Copyright Act, Trademark etc. for protection of personality rights.
Trademark Act ,1999 relevant provisions:
1. Section 11(6)-11(9) – It deals with extent and protection for well-known trademarks.
2. Section 28 - It gives exclusive rights to registered proprietor for use of goods and services.
3. Section 27(2): It talks about remedy of passing off protecting goodwill and reputation of unregistered trademark. This provision can be utilized for protection of goodwill of personalities related with their personal traits
In one of the recent cases Karan Johar v India Pride Advisory (2024), a film was being released with name ‘Shaadi ke Director Karan Johar.’ The court passed injunction order stating that, Karana Johar has acquired valid goodwill and reputation in Bollywood industry attached to his name and any endorsement without his permission would amount to violation of his personality rights.
In one of the cases named D.M. Entertainment Pvt. Ltd. v. Baby Gift House (2010), when personality rights were not developed in India, then protection was sought under the trademark law. In this particular clay case, India’s popular singer named Daler mehendi obtain a registration for his name Daler mehendi acronym as “DM” for his business D.M. Entertainment Pvt. Ltd. Another company named Baby gift house, started selling dolls resembling the Daler mehendi. Further, these dolls also sung many popular songs Sung by Daler mehendi on. Therefore, there was clear unauthorized of his personal traits like his image, voice etc. Now, the association of his name and persona without his consent amounted to misuse. Public would likely to pursue that product manufactured by Baby gift house has been endorsed by Daler Mehni himself and thereby causing deception and confusion in minds of people. The court applied the principle of passing off which prevents any sort of misrepresentation of goods and services as of another. Thus, trademark law was utilized for protection of persona, image, voice and other personal traits which come under the ambit of personality rights.
Copyright Act Relevant Provisions:
Certain relevant provision sunder which protection can be given to personality rights. These are:
Section 13 of Copyright Act: It provides classes of work in which copyright subsists like literary, dramatic, musical, art etc. For example, a photographer takes photo of a particular star actor. Someone makes unauthorized use of this photo. Apart from the photographer rights in that work, the star actor can also claim personality rights for the unauthorized use.
Section 17 of Copyright Act: It talks about who shall have ownership in the copyrighted work and lays down when authors of the work are different from owners of work.
Section 38 of Copyright Act: It talks about Performer’s right and when person engages in performance, he shall have special right known as performance right.
Section 57 of Copyright Act: In case of any distortion with morals rights in work with respect to works authors can claim these rights. For example, a person writes autobiography of famous person say MS Dhoni. Now someone makes paraody of this character, MS Dhoni can claim personality rights apart from moral rights.
In one particular case named Titan Industries Ltd. v. Ramkumar Jewellers(2012), in which Amitabh Bachchan has endorsed in an adversitment on the behalf of Titan industry. The ownership rights in that particular adversitment under section17 (b) rest with Titan industry for commercial utilization of that work. Rajkumar Jewellers did was, it without obtaining permission from Triton industry reproduced that advertisement for marketing of their jewellery products. This created a false endorsement and association with the artist ‘Amitabh Bachan’.
In this particular case, section 17(b) of the copyright act 1957 was utilised by the court to provide protection and against the commercial exploitation of the name and persona of the artist. The court held that since the ownership of the copyright and advertisement featuring Amitabh Bachchan lies with Titan industries and it has only got the right to commercially use his name and persona for his advertisements and therefore for any unauthorised use and misrepresentation in advertising by Rajkumar Jewellers would amount not be allowed.
CONCLUSION AND ANALYSIS
Examination of issues in light of recent trends
(1) Balance between freedom of speech and Expression of author of work v Personality rights
Article 19 of the Constitution gives an individual right of freedom of speech and expression. This is utilized by a creator of the work to express himself to the fullest. It enables a person to articulate its artistic creativity in true form. On the other hand, Article 21 of the constitution protects right of privacy of an individual. In Jaikishan Kakubhai Alias Jackie Shroff v. The Peppy Store (2024), in this, a YouTube channel was making derogatory videos of Shroff videos and thereby Shroff seek injunction for violation of his personality rights, yet court did not pass any order against one of the defendants having YouTube channel and gave priority to the artistic expression of the YouTube creator under Article 19 of the Constitution.
(2) Commercial Exploitation of the Personality rights in work
In this scenario, if the attributes of a person personality like his voice, image, name or any other thing representing identity of the person is commercially exploited for economic gains like usage in form merchandise, digital mediums like in advertisement’s, ringtones etc without authorization would deem to be violation. In Anil Kapoor v Simply Life India (2023), where his nick names were used like ‘Lakhan,’ ‘Mr India,’ ‘Manju Bhai’ and his popular phrase ‘Jhakaas’ and use of any image, voice without his permission for commercial gains was considered to be personality rights. However, in my view restricting the scope of these words like ‘Jhakaas,’ Mr India would considerably restrict artistic freedom as these words are part of public domain and everyone should have right to utilize it.
(3) Ambit of the word ‘Celebrity” and Codification
Personality rights are generally claimed by well know celebrities who have considerable goodwill in the market. But recently there is considerable rise in number of social media influencers. For example, a rising Instagram Influence who has many followers and now if someone violates or depicts his voice, image etc. Will he be allowed to claim Personality rights.? This can be linked to problem of non-codification of such rights in statute books as ambit of such terms ‘celebrity’ is not clear. and therefor there is dire need for codification.
