People think that discussion and litigation over personality rights began recently with the advent of Artificial Intelligence. It is true that more celebrities are seen seeking personality rights protection from Courts (Delhi High Court is the hero for now). However, Daler Mehdni seems to be the pioneer, back in 2010.
The bigger question is, what are personality rights, how to identify them and how do Courts protect such rights? We will try to understand this by looking at the various judgments of the Courts themselves wherein personality rights were protected. Let us see what Courts said about personality or publicity rights.
What are Personality Rights?
To start with, personality can be understood as a combination of characteristics or qualities that form an individual’s distinctive character. However, Courts, through legal lens, have equated personality rights with the right to live with dignity. These are said to be protected under Articles 19 and 21 of Constitution of India. As interpreted by Courts, a well-known celebrity has exclusive control over his/her ‘personality rights’ and ‘publicity rights’. Courts have held any unauthorized use of certain characteristics for commercial purposes as infringement. It further dilutes the brand equity “painstakingly” built by such celebrities.
Personality rights in India have been recognized to include traits of a celebrity’s personality, such as name, image, likeness, voice, and other attributes are protectable elements. Further elaborated, the elements associated with his identity, including his name, voice, photograph, image, signatures, likeness, unique style of dialogue delivery, distinctive gestures, and mannerisms.
“Personality Rights of individuals, simply put, entail the right to control and protect the exploitation of one’s image, name, likeness or other attributes of the individuals’ personality, in addition to the commercial gains that can be derived from the same. Personality Rights can be located in the individuals’ autonomy to permit or deny the exploitation of the likeness of other attributes of their personality. When the identity of a famous personality is used without their consent or authorization, it may not only lead to commercial detriment to the concerned individual but also impact their right to live with dignity. In other words, the unauthorized exploitation of the attributes of an individual’s personality may have two facets – first, violation of their right to protect their personality attributes from being commercially exploited; and second, violation of their right to privacy, which in turn leads to undermining their right to live with dignity. The Courts in such cases of unauthorized exploitation of one’s Personality Rights, cannot turn a blind-eye to the same and shall protect the aggrieved parties so as to avert any harm to them resulting from the said unauthorized exploitation.” ~ Delhi High Court in Aishwarya Rai Bachchan Personality Rights Case.
“The right of publicity can, in a jurisprudential sense, be located with the individual’s right and autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality.” ~ Delhi High Court in Daler Mehndi Personality Rights Case.
Personality Rights Protection – What is Protected?
The concerned Courts in several personality rights cases have passed orders to protect exploitation of publicity rights of celebrities. Those mostly cover the following:
- No infringement of personality or public rights by commercially utilizing/exploiting/misappropriating name, voice or image without consent or authorization.
- Restraint against unscrupulous use of AI creating morphed photos and audio visuals by impersonation, cybersquatting, creating obscene memes, fake profiles, etc..
- No selling autographed pictures of celebrities without their consent or authorization.
- No infringement of utilizing/exploiting/misappropriating the real or popular names characterizing the personality;
- Restraint against availing images for download over the internet for commercial use without consent or authorization of the personality.
- Restraint against commercial use of unlicensed Al chatbot attributing public figure’s persona without consent or authorization.
- No creation of ringtones and GIF images for commercial gains.
- Restraint against distorting videos without consent or authorization, which tarnish, blacken, or jeopardise the reputation of public figures and violate their moral rights for commercial purpose.
- No selling infringing articles such as coffee mugs and T-Shirts which violate personality rights.
Claiming Personality Rights Protection
To claim personality rights in Court, the plaintiff has to prove two aspects – first is their fame or publicity which identifies them in a crowd, and violation of exclusive rights over his/her personality by an unauthorized entity. In other words, anyone encashing over the identity or personality of a celebrity has been barred by Courts by upholding personality rights in India.
“An individual claiming false endorsement must prove that the use of the identity likely misled consumers into believing the concerned personality endorsed the product at issue.” ~ Delhi High Court in Daler Mehndi Personality Rights Case.” ~ Delhi High Court in Daler Mehndi Personality Rights Case.
“The Court cannot turn a blind eye to such misuse of a personality’s name and other elements of his persona. Dilution, tarnishment, blurring are all actionable torts which the Plaintiff would have to be protected against.” ~ Delhi High Court in Anil Kapoor personality rights case.
