What are celebrity, personality and publicity rights?
'Celebrity' or 'celebrity status' are viewed as a forms of recognition or accolades for achievement. Politicians may earn celebrity status through votes, while for heirs to royal families, it is created naturally through birth or marriage. Athletes and artists gain such status through their talents, while entrepreneurs, actors and performers may attain it through their intelligence, humor and wit. Others might become celebrities by chance involvement in noteworthy occurrences.
Essentially, personality rights entail safeguarding the privacy of an individual's personal life to the maximum extent possible. Breaches occur when an individual's private life becomes public before consent, and remedies should be promptly available if due consideration is not provided. Notably, there are clear aspects involved when a celebrity seeks to safeguard their personality rights: a) the entitlement to shield their image from unauthorized commercial use, often referred to as publicity rights, falling predominantly under the domain of intellectual property law; b) the right to privacy, which significantly encompasses the right to be free from unwanted intrusion.
Statutory outline
The Constitution of India1: celebrities possess the authority to manage their image and likeness, encompassing aspects such as their name and voice. They also retain the prerogative to determine when they consent to being photographed or recorded by the media. Numerous instances exist where celebrities have faced humiliation, harassment, or invasive breaches of their privacy. The Article 21 of the Indian Constitution safeguards not just life but also personality rights. Further, Article 19 plays a significant role in granting individuals the freedom of speech and freedom of expression, as demonstrated in several judicial pronouncements as well.
Copyright: safeguards the rights of authors and performers, encompassing celebrities, granting them authority over the reproduction, distribution, and public presentation of their creations. Section 38 of the Act2 delineates the entitlements of performers. In India, the term "celebrity" lacks a precise definition. Nevertheless, guidance can be drawn from the definition of a performer in Section 2(qq) of the Indian Copyright statute, which has inevitably drawn inspiration from international conventions over the years. The Berne Convention3 has been the cornerstone for copyright and privacy rights and entails 'protecting the privacy of private and family life'.
Trade mark: in numerous instances, when an individual or entity registers a domain name that closely resembles or matches another party's name, and the registrant intentionally seeks to exploit or damage the reputation of that person or entity for unjust gain, it constitutes cyber-squatting. Under Section 14 of the law4, individuals who unlawfully utilize a name or misrepresent it, whether for profit or otherwise, can be held liable. Conversely, defense under Section 35 may be invoked if the actions were carried out under a genuine belief without malicious intent
Tort and Passing off: a common law remedy available sans prior statutory registration (of rights) and serves as a proactive measure to defend against instances of impersonation, unauthorized use of a business's name and goodwill or an individual's fame and reputation. Further, the tort of misappropriation of personality or celebrity rights can be simplified into three elements:
- Exploitation of the plaintiff's persona for financial gain.
- The public recognition and identification of the persona being exploited.
- Indications of endorsement or usage by the plaintiff.
Information Technology Act: section 43 of the statute5 prohibits morphing, which constitutes a direct infringement of the law. Sections 67 and 67A of this Act impose penalties on individuals who distribute sexually explicit or obscene material over the internet in electronic format. Section 66E is in place to prevent voyeurism, prohibiting individuals from blackmailing others or sharing private images without consent. This Act not only imposes sanctions on individuals but also prevents companies engaged in electronic media distribution from violating the confidentiality of individuals, including public figures and celebrities.
The Cinematograph statute6: this legislation oversees the creation, dissemination, and screening of films in India. It also includes clauses aimed at safeguarding the rights of celebrities, including the right to receive acknowledgment for their contributions and the authority to prevent the unauthorized utilization of their likeness.
The Penal Code7: this statute deems certain behaviors as criminal offenses that could intrude upon an individual's privacy, including stalking, trespassing, and defamation.
ASCI Code: self-regulatory protocols and codes (such as the ASCI Code) have been formulated by industry sector-specific organizations like the ASCI or the Advertising Standards Council of India8. These protocols inter alia delineate standards for media entities regarding the treatment of celebrity images and likenesses.
Whether it is through the umbrella legislation i.e. the Indian Constitution (primarily Articles 19 and 21) or through specialized intellectual property laws through trade marks and copyright and moral rights or through rules of procedure applied under the legislations in force, the Indian Courts have been reasonable and even equanimous, with respect to celebrity, personality and publicity rights.
Judicial approach
The case of R. Raja Gopal v. State of Tamil Nadu9 highlighted that the right to privacy encompasses two distinct dimensions: firstly, the ability to pursue legal action for damages due to unlawful violations of privacy, and secondly, the constitutional acknowledgment of the right to privacy to ensure lawful protection of individual privacy. In Shivaji Rao Gaikwad v. Varsha Production10, the Court heard a lawsuit initiated by actor popular actor Rajinikanth to safeguard inter alia his personality rights. Despite the absence of comprehensive codification in India, the courts duly acknowledged these rights in their rulings, encompassing elements such as the right to be forgotten.
In the case of Mr. Arun Jaitley v. Network Solutions Pvt. Ltd.11 where the plaintiff's rights (including trade mark and domain name) were infringed, it was argued that the defendants acquired the domain name www.arunjaitley.com primarily as it contained his name. The Delhi High Court observed that individuals with well-established public personas hold superior rights compared to mere commercial interests and were also eligible for damages in addition to injunctive relief.
No individual should benefit from the hard work of others. The right of publicity belongs solely to the individual, who has the exclusive right to profit from it. This principle was established in ICC Development (International) Ltd. v. Arvee Enterprises12. In cases where conflicts arise between interests and morals, copyright law can intervene, as is specifically enshrined in Section 57 of the Indian Copyright statute.13 In Amar Nath Sehgal v. Union of India14 Justice P. Nandrajog, emphasizes the significance of Indian law regarding copyright and artistic entitlements. The case highlighted the importance of an artist's moral rights, specifically the right to integrity of the work and the right to prevent distortion.
In the case of Phoolan Devi v. Shekhar Kapoor and ors.15 the Court intervened on her behalf when her life story was depicted in a highly distorted manner, endangering her public image. The court emphasized the serious repercussions of exposing an individual's private life to the public without adequate scrutiny. It was underscored that meticulous consideration is essential to safeguard the image and name of any celebrity, as these rights are enshrined in the Constitution.
The Indian courts have time and again protected the personality rights of celebrities. In the case of Anil Kapoor v. Simply Life India & ors.16 the Delhi High Court issued a temporary injunction safeguarding the personality rights of Bollywood actor Anil Kapoor. It prohibited multiple entities from exploiting his image, name, voice, or other facets of his persona for financial purposes without his authorization. The Court added "The technological tools now available make it possible for any illegal and unauthorised user to make use of any celebrity's persona by using such tools including AI. The celebrity also enjoys right to privacy and doesn't wish that his or her image, voice is portrayed in a dark manner as is being done on pornographic websites."17
Another high-profile case which highlighted the issue of celebrity rights and privacy issues is Aaradhya Bachchan and anr. v. Bollywood Time & Ors.18 Wherein the Delhi High Court prohibited several YouTube channels from distributing, posting, or circulating videos or any fabricated material concerning the mental and physical well-being of Aaradhya Bachchan, the daughter of famous Bollywood personalities Abhishek Bachchan and Aishwarya Rai Bachchan. The complaint alleged that one of the videos falsely portrayed the demise of Aaradhya and included several manipulated images. It was argued that these videos infringed upon the minor's privacy rights and contravened the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Most recently, in Karan Johar v. India Pride Advisory Private Ltd. & Ors.19 Justice R.I. Chagla has delivered another judgment in favour of personality rights. The Bombay High Court order of 07 March 2025 makes the previously granted interim injunction granted in favour of Karan Johar absolute, with respect to title of a cinematographic film: Shaadi Ke Director Karan Aur Johar / Shaadi Ke Director Karan Johar. Popular filmmaker Karan Johar had initiated legal action to protect his identity, by filing a lawsuit before the Bombay High Court, claiming infringement of his personality rights and alleged that the film's title unlawfully associated him with the project, misleading the public and infringing upon his personality rights. Through this suit, a permanent injunction was successfully granted, thereby restraining the defendants from using his name and persona without authorization.
Corollary
In today's digital age, where information and misinformation spread like wildfire, the intersection of publicity and privacy rights presents a multifaceted and intricate legal landscape. In addition, social media platforms and artificial intelligence enabled software and applications offer up a smorgasbord of novel and dynamic challenges which cannot be viewed from the sole perspective and analyzed within the exclusive purview of legislations.
As a distinct legal concept, personality rights cannot be adequately accommodated within existing intellectual property laws. It is a natural sequitur that legislations and regulations need to adapt to the current era, trends and technological advancements such as generative AI, growing prominence of public figures through social media outreach and heightened awareness of privacy. In the creative realm, intruders and celebrities are akin to ants and sugar, and intrusion of privacy is axiomatically atypical. The approach that well-known personalities adopt to safeguard their identity and attributes would continue to be riveting.
A special mention/credit for intern and UPES law student, Ambreen Imam for the research done for these articles.
Footnotes
1. As adopted on 26 November 1949 and enforced on 26 January 1950
2. Indian Copyright Act, 1957
3. Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended on 28 September 1979)
4. Trade Marks Act, 1999
5. Information Technology Act, 2000
6. Cinematograph Act, 1952
7. Indian Penal Code, 1860
8. ASCI was established in 1985 as a voluntary self-regulatory organization for the Indian advertising industry
9. 1995 AIR 264
10. Civil Suit No. 598 of 2014 Mad High Court
11. CS(OS) 1745/2009 Del High Court
12. 2003 (26) PTC 245 (DEL)
13. Copyright Act, 1957 in line with Article 6bis of the Berne Convention 1886
14. 2005 (30) PTC 253 Del
15. 57 (1995) DLT 154, 1995 (32) DRJ 142
16. CS (COMM) 652/2023
18. 2023 LiveLaw (Del) 328
19. Karan Johar v. India Pride Advisory Pvt. Ltd., Interim Application (L) No.17865 Of 2024 in Com IPR Suit (L) No.17863 of 2024 before Bom High Court
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