In a highly interesting and novel development in the IP world, recently, internationally acclaimed actor and cultural icon Rajinikanth had approached the Madras High Court to primarily stay the release and screening of the Hindi film ‘Main Hoon Rajinikanth’. This is among the few instances where a celebrity has invoked personality rights and its protection against infringement (One other such instance was Titan Industries v. Ramkumar Jewellers, where the Delhi High Court recognized the personality rights of Mr. Amitabh Bachchan and Ms. Jaya Bachchan in the context of misleading advertisements)
Personality rights are rights that individuals have over their name, image, reputation, likeness or other unequivocal aspects of their identity, as well as information connected with them. In the event that an unauthorised third party seeks to benefit commercially from such reputation or information, a case may be made for rights violation.
The concept of personality rights is based on the idea that every individual should have control over commercialising their persona. Stars invest a great deal of hard work and talent in acquiring their status and are entitled to reap the benefit of their efforts. There are two facets to this concept. One is the right to publicity – to prevent one’s name, likeness or any facet of one’s ‘image’ from being commercially exploited without authorisation or compensation, somewhat like a trademark. It is a transferable, licensable, even descendible right that outlives the celebrity and can be exploited by their heirs. The second facet of this right is the right to privacy – the right to be left alone and to prevent the representation of one’s personality without permission.
Following are some of the laws which are associated with personality rights.
Right to privacy under article 21 of the constitution
The Apex Court of India has, time and again, expanded the scope of Article 21 to include various other essential fundamental rights and the Right to Privacy has been incorporated into this list of fundamental rights by the passing of the landmark judgment in the R. Rajagopal vs. State of Tamil Nadu case.
Trademarks Act, 1999
While a trademark in a name or a corporate name is the most commonly recognised form of intellectual property, other forms emanating from a personality and duly recognised under the Indian trademark legislation have not been exploited at all. A prime example is the recognition of sound marks under Section 2(1)(zb) of the act. The voices of a host of celebrities, including actors, sportspersons, politicians and singers, are mimicked in order to promote products, services and events through various media. However, this provision is little known and so little used.
Copyright Act 1957
Rights such as moral rights and performers’ rights which have some elements of personality in them are protected by this statute. However, as applied at present, such rights are devoid of any aspect of branding that might be attached to a personality.
Common law rights against passing off
In the absence of any specific law on personality rights, one remedy is to claim passing off against any party which attempts to impersonate a right. India is increasingly recognising and extending this concept to encompass personality rights
Finally, India has started to acknowledge the concept of personality rights; however the law pertaining to personality rights is still at a nascent stage in India. Many States in USA have recognised this right to publicity as a distinct right under the head "Celebrity Rights". Its high time India should adapt a distinct legal status for personality rights and to take stringent efforts to protect the image and status of well-known personalities of the country like various other countries of the world.