Abstract:
Personality rights means a right of person related to his or her personality. They can be protected under right to privacy or as a property of a person. This is important to mostly celebrities because people use a celebrity name or a photograph to advertise their trade and this usage influences their sales. Anyone can misuse a celebrity's name or a photograph very easily for their trade, therefore it is important for a celebrity to register a trademark of their name to save their personality rights.
Introduction
Personality rights means a right of person related to his or her personality. They can be protected under right to privacy or as a property of a person. This is important to mostly celebrities because people use a celebrity name or a photograph to advertise their trade and this usage influences their sales. Anyone can misuse a celebrity's name or a photograph very easily for their trade, therefore it is important for a celebrity to register a trademark of their name to save their personality rights.
In this article, the author explains about Personality rights, a set of rights which do not belong with you and I but with people who have attained some popularity among the general public. For instance- Shah Rukh Khan possesses personality rights and so does PewDiePie.
They cover the right of these personalities to control the commercial use of their identity. Because of these rights, anyone using a celebrity?s picture with the intention to show association with the celebrity would have to take the permission of that celebrity. Pictures are not the only things protectable under personality rights. The celebrity?s name, signature, voice etc. are some of the other elements that the celebrity has the sole authority to use.
Legal Sources of Personality Rights
Personality rights under common law have been recognized and enforced through the right to privacy and right to publicity. The sources of these rights are further discussed below:
Article 21 of the Constitution of India
The Supreme Court and various High Courts have time and again emphasized that Article 21 includes various other rights, one of them being personality rights. The Supreme Court has held that the right to privacy was implicit in the right to life and liberty guaranteed to the citizens by Article 21 of the Constitution of India, and that a citizen has a right to safeguard their privacy and no one can publish anything concerning their life without their consent.
A foreign citizen can claim protection of Personality Rights in India. Since in India, article 21 is also applicable to non - citizens, Personality Rights are available to foreign citizens.
Trade Marks Act, 1999
In India, celebrities and commercial partners can obtain some protection from trademark law but such protection may be limited in scope. The Act extends protection over one's name, image, likeness, taglines, mottos, unique and exclusive characteristics, etc. when registered as a trademark Courts in India have accorded protection to film titles, characters and names under trademark laws. In addition to registering the name of the trademark, the Act also provides for registration of sounds, signature, etc. For instance - Section 14 of the Act provides for prevention of any registration of a trademark which falsely suggests a connection with any living person.
Copyright Act, 1957
The Act provides for protection against one's artistic literary, dramatic, photographic, musical works, etc. Fictional characters, as creative pieces of work, automatically falls under Copyright protection. Moreover, Section 57 of the Act recognizes the moral right of the author and can also be used to protect the reputation of the author (Amar Nath Sehgal V. UOI).
Protection of Personality Rights
As there are no statutes governing the right of publicity in India, there are consequently no registration procedures or fee structure for registration and public notice. Individuals may apply for the protection of their name, likeness and nicknames, among other things, with the Indian Trademarks Registry in order to obtain statutory protection against misuse. The procedures and fee structure stated in the Trade Marks Act 1999 are applicable in these circumstances. Other rights, such as copyrights and rights in common law, do not require registration or a fee.
If the name, image or likeness of a person is registered, or used as a trademark or has been copyrighted then said trademark or copyright can be licensed. The reputation associated with an individual's likeness or traits is deemed as valuable consideration for the purposes of a contract and may be licensed or assigned. The transactions would be valid and enforceable under law. Such transactions are to be effected when the other party wishes to exploit these rights in an authorized manner.
The Emblems and Names (Prevention of Improper Use) Act, 1950
The Competition Act, 2002
Under the Act, any unauthorized use of an individual's name or likeness that suggests to the consumer that the individual is associated with or endorses a product is untrue or misleading and that can be restricted.
The Advertising Standards Council of India
The Advertising Standards Council of India has prescribed a code to control the contents of advertisements. The Code provides that advertisements should not contain a reference to any individual or institution, or use the image of a popular or famous individual, which may ridicule or bring disrepute to the individual or the institution without obtaining express permission from such individual or institution. The Code is not binding and adherence to it is self ? regulatory.
Case Laws
There is no specific statutory provision regarding the scope and applicability of personality rights. However, individuals need not commercialize their identity to claim the protection of Personality Rights. The individual will have to establish certain fame or popularity attributed to him or her in order to make such a claim.
Shivaji Rao Gaikwad v. M/s Varsha Productions, MANU/TN/0189/2015
The plaintiff is a famous and well - acclaimed actor known by the name "Rajnikanth 'in the Indian film industry for the past several decades. Any use / misuse of the plaintiff's name / image / caricature / style of delivering dialogues amounts to infringement of his personality right and copyright arising thereof.
Plaintiff has come across various press releases, video releases, web articles and posters about the defendant's forthcoming feature film titled "Main Hoon Rajinikanth which reveal that the Defendant has exploited the superhero image portrayed by the plaintiff in various movies, for the benefit of the defendant, by embodying the same in the defendant's forthcoming feature film, which has scenes of immoral nature.
Plaintiff had asked for a permanent injunction restraining the defendant by themselves, their Directors, principal officers, successors - in - business, assigns servants, agents distributors, advertisers or anyone claiming through them from in any manner using the Plaintiff's name / image / caricature / style of delivering dialogues in the forthcoming projects/film titled ?Main Hoon Rajnikanth? or in any of the forthcoming projects/films in any manner whatsoever amounting to ?
Further, the plaintiff had asked the Court to order the defendant to remove all references / press releases / videos / posters / advertisements / content / publicity materials containing the plaintiff's name / image / caricature / style of delivering dialogues from all websites, television channels, radio channels, newspapers and / or other modes of advertisement in any other modes of electronic and / or print media in respect of its forthcoming project / film titled 'Main Hoon Rajinikanth'.
In addition to the above mentioned, the plaintiff also asked the Court to direct the Defendant to pay the Plaintiff as compensatory and punitive damages a sum of Rs. 25,00,000 / - for unauthorized use of the plaintiff's name / image / caricature / style of delivering dialogues. The Court decided in favor of the plaintiff.
Titan Industries v. M/s Ramkumar Jewellers, MANU/DE/2902/2012
In this case, the defendant used an identical advertisement hoarding to the Plaintiffs? advertisement that featured the famous couple Mr. Amitabh Bachchan and Mrs. Jaya Bachchan. Further, the defendant also did not seek any permission or got into any agreements with either the couple or the plaintiff. Thus, the Delhi High Court granted the permanent injunction.
It was observed that "No one was free to trade on another's name or appearance and claim immunity." The Titan Industries case also laid down the effective test for determining the liability for infringement of the right of publicity:
"Validity: The plaintiff owns an enforceable right in the identity or persona of a human being Identifiability: The Celebrity must be identifiable from the defendant's unauthorized use infringement of the right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws.
Post - mortem personality rights
Recently, Deepa Jayakumar filed a suit against the director and producers of the web ? series ?Queen? and the movie "thalaivi" to protect the personality rights of the former Tamil Nadu Chief Minister Jayalalitha and to protect her privacy rights claiming that her consent shall be taken before producing a movie or web - series on Jayalalitha. The Madra High Court opined that the movie and the web series were based on books, as in, thalaivi is based on the book named "Thalaivi" having full adaptation rights and the web - series 'queen' is based on "stories inspired by true events ". The court did not issue any concerns over the production and release of the film thereby allowing the freedom of speech and expression of the respondents. No concrete conclusions were made out on the post - mortem personality rights of Jayalalitha. As of now, there is no statute in India regarding the post - mortem rights of a person which raises ambiguity related to the inheritance of these rights post - death of the person. Although the producers were ordered to give a disclaimer that it is a work of fiction and any resemblance to any person is a mere coincidence. The question as to whether the personality rights can be inherited has not yet been answered by the judiciary.
There have been some other judgments in this regard such as Makkal Tholai Thodarpu Kuzhumam Ltd. Vs. Mrs. V. Muthulakshmi wherein the personality rights of the concerned deceased person were held to have ceased to exist after the death of the person.
The case M. Raju and others v. TG Chako and others was with respect to the defamation of a deceased person and the court held that a suit for the same can only be filed by the family of such a person.
Personality rights in a photograph
Often, names and appearances of the Celebrities are used in the form of a photograph to promote trade, goods or services which further helps to escalate the sales. In India, no straight laws are protecting the publicity rights of a person. However, these rights are usually recognized through important judgments. In the Delhi High Court case of ICC Development (International) Ltd. v. Arvee Enterprises and Ors., MANU/DE/0053/2003. It was concluded by the court that the right of publicity has been evolved from the fundamental right of privacy and the same can exist only in an individual or a particular sign or a differentiating mark of the person's individuality (like their name, signature, a voice among others). An individual acquires the rights of publicity by associating with an event, sport, movie and like.
Furthermore, if the identity of a person is being used for commercialization without their consent the issue is not related to commercialization of one's identity but it is connected to the original rights and authority to control the use and application of the identity of the well - known person.
Therefore, it can be concluded that any unauthorized use of personality rights with wrongful intentions are illegal and the same is punishable. A celebrity name or Identity cannot be used for commercial purposes without their consent as they have acquired the publicity rights and created a commercial value of their identity. Therefore, any such use of their names or photographs can be applied by themselves only and no one else
Difference between Personality Rights and Character Rights
The easiest and most effective way of differentiating between personality rights and character rights is the nature of entity. Usually, if it concerns a real person then it involves Personality Rights. Instead of a real person, if it?s fictional character, then it involves Character Rights.
If a production house wants to make a biopic of athlete Hima Das, they will have to get rights to exploit Personality Rights of Hima Licensed to them for this purpose.
On the other hand, if one wants to make an animation movie on well-established imaginary characters like Harry Potter, he?ll have to get rights to exploit Character Rights from the owner.
Infringement and Redressal
Relevant Forums
All civil and commercial courts within the territorial jurisdiction of India can entertain right of publicity infringement proceedings. Proceedings are no different from those of a normal suit, which is governed by the Code of Civil Procedure 1908 and the Commercial Courts, Commercial Divisions and Commercial Appellate Divisions of High Courts Act 2015. The rules and procedures for standard civil and commercial suits mentioned therein are applicable in disputes regarding the infringement of this right.
All civil courts within the territorial limits of India have the requisite jurisdiction to try cases relating to the right to publicity. The general rules and procedures pertaining to civil suits (as stated in the Code of Civil Procedure 1908) are applicable.
Elements of Infringement of Personality Rights
According to the Indian judiciary, the following criteria constitute the elements of a violation of the right to publicity in the respective cases:
DM Entertainment Pvt. Ltd.v. Baby Gift House and Ors., MANU/DE/2043/2010
Titan Industries Limited v. M/s. Ramkumar Jewellers, MANU/DE/2902/2012
Shivaji Rao Gaikwad v. M/s. Varsha Productions, MANU/TN/0189/2015
Tata Sons Limited & Anr. v. Aniket Singh, MANU/DE/3742/2015
Note: Infringement of the right to publicity requires no proof of falsity, confusion or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws.
For statutory rights that protect the subject matter of the right to privacy such as a trademark rights, rights in tort (infringement by way of passing - off) and others, the respective criterion for infringement of each mode of protection is applicable.
Intent is not an essential component of the infringement of the right of publicity, although it is relevant for the purposes of determining the quantum of damages to be awarded to the injured party.
Remedies
Injunctions (permanent, ex parte and interlocutory) have been granted to parties in numerous cases, along with damages. The conditions of the grant of temporary (preliminary) injunctions are as follows:
Punitive damages have been awarded to injured parties where their right of publicity has been infringed. Courts tend to look at whether the accused deliberately infringed the rights of the owner to determine the nature of damages awarded to the plaintiff. Furthermore, any action against the defendants (accused) aimed at continuing the violation of one's personality rights, despite being aware of such rights accruing to an individual, is an important factor in the grant of punitive damages.
Remedies for the tort of passing - off, as prescribed in the Trade Marks Act can be granted as well.
Conclusion
From the above discussion it can concluded that, only the illegal and unrightful usage of the personality rights with unjust intentions are punishable under the law. To be more precise, it is clear by the above discussed case laws that a celebrity's name cannot be used for any commercial use without any prior consent of the concerned celebrity, as these celebrities acquire their brand value through their hard work. Therefore, any use of their name or photographs that is commercially utilized, must be exploited by the celebrities themselves and no one else.
