Identity crisis is the biggest sin of a career!
Newspaper columns were overflowing on the matter when the Demi-God of Kollywood, Rajinikanth filed a petition against Mumbai-based Varsha Production House for personality right violation. But, for those who are not acquainted with the fact, this heartthrob of Indian cinema, is also the one who inaugurated the recognition of publicity rights in India. Assertion of personality rights came in 2003, when Rajinikanth issued legal notices before the release of this movie, Baba. Those notices, issued as early as 2003, to prohibit the imitation of his screen persona, for commercial gain, are the building blocks for the development of personality rights related laws in India.
Personality rights extent to every individual but celebrities are often made the subject of parody and ridicule, since their names and images helps to create hype, both in good humor and with malicious intent.
Shivaji Rao Gaikwad vs. Varsha Productions
The exasperate Tamil superstar, Rajinikanth filed a petition in the Madas High Court seeking a stay on the release of a forthcoming Bollywood movie, directed by Faisal Saif, proposed to be named, 'Main Hoon Rajinikanth'
In the disputed movie, Aditya Menon, the protagonist, was anticipated to play the role of a CBI officer-cum-Contact Killer named Rajinikanth and was candidly reproducing the caricatured style of Rajinikanth.
The Plaintiff said that he was neither approached by the director nor the producer to seek permission, written or oral, to bring his name to use in the movie. Also, that the producer had picked emblematic scenes from some of the Plaintiff's distinguished works of art and incorporated it in the disputed movie, without the prior permission of the concerned filmmakers. Further, it was alleged that on searching for the movie, the link of a website page titled, 'Hot Kavita Radheshyam as Sex Worker for Ranjinikanth' would come up. The petitioner added that Mrs. Saroj, the producer under the banner name of Varsha Production House, wanted to bank on his popularity and his cultural identity. The Plaintiff added that he had attained boundless goodwill through determined hard work, so much so that it was a child's play to relate the name 'Rajinikanth' to that of no one but only the petitioner. A collection of all these formed the bottom line of the Plaintiff's case.
The Defendants clarified that the movie was not a biopic of the Plaintiff and the only common link was that, that the name of the protagonist happened to be the first name of the Plaintiff. Further, they tried to shield their position by declaring that the Plaintiff's image, voice or style of delivering dialogues were not put in use in the disputed movie. Disagreeing to the allegation of association of the movie with various demeaning websites, the Defendants put forth that such pages were hosted by some third party and did not have anything to do with them. To strengthen their position, the Defendants pointed out that personality rights are not recognized by any statute in India.
The Madras High Court in its decision on February 03, 2015 observed that the name of the impugned movie could undoubtedly be associated with that of the Plaintiff, owing to the spontaneous perception of the public, which was evident from torrent of comments on various websites. Though the Defendant was not held liable for the comments made on websites, this fact was linked to the impression that the general public had formed about the alliance of the movie with the Plaintiff. Assuming that the movie was not a biopic of the Plaintiff, the Court held that the name of the Plaintiff cannot be used without prior permission.
The Court observed that personality rights vest on those persons, who have attained the prestige of a celebrity and no proof of falsity, confusing or deception is required when the celebrity is identifiable. Hence, the Defendant was restrained from using the title, 'Main Hoon Rajinikanth'.
Copyright And Personality Rights: Why Different?
A thin line demarcates copyright from publicity rights. While copyright protects the holder's right in an intellectual creation, publicity rights give sanctuary to persons who may be subjects of an intellectual creation. Firstly, laws relating to copyright are extensive in use as compared to those on personality rights. Secondly, fair use of copyright is taken into considered while deciding cases on copyright infringement; however, no such aspects are dealt with in personality right violations. Thirdly, in conventional use, personality rights end on death of the person, which is not the case with copyright infringements.
Where India Stands?
As pointed out by the defendant in Shivaji Rao Gaikwad vs. Varsha Productions, India does not have any specific provision on personality rights but in principle this right is recognized. Nonetheless, the concepts of privacy and publicity are haltingly being moulded.
Though fundamental rights are enforceable only against the State, the Courts have recognized that in the private sphere, an action would lie in law of torts for breach of privacy. Defamation is well established both as a civil wrong and a criminal offence in India.
The Indian Courts have recognized the name of a celebrity having trademark significance, and have restrained third parties from misappropriating their name and image for use as domain names.
A passing off action can also be taken against infringers in case of celebrity rights infringement. However three classical elements of passing off must be proven for such action to succeed:
- Damage to Reputation.
- Resultant Irreparable Damage
The Courts have also noted that right of publicity has evolved from the right of privacy, which is again closely associated with the right to life and personal liberty. Hence, circumlocutory, personality rights are allied with Article 21 of the Constitution of India.
Further, the Code of Advertising Standards Council of India, the Code for Commercial Advertising on Television and the Standards of Practice for Radio Advertising have provisions providing that due authorization is required prior the usage of references an individual.
A quick peep into instances reveal that personality rights have been long recognized in India, be it the Sourav Ganguly promotional-advertisement dispute or the Mahatma Gandhi Limited Edition and Montblanc Case.
To conclude, it can be expressed that dimensions of personality rights range from reputation to unequivocal aspects of one's identity and also includes information connected to their image. Owing to the public appetite for gossip, it becomes important to encompass personality rights into right to privacy. With globalized mass media and powerful economic factors driving the cult of stardom, legal framework governing its commercial exploitation is bound to evolve. Though public figures surrender a part of their privacy, every celebrity's image is an asset for them in their respective trade; hence, they may have the right to control the commercial use of their image.