Right to Publicity relates to the right to control one's identity and ensure protection against any unauthorised use. These rights have been traditionally associated and have been regarded as a facet of right to privacy of an individual. However, lately, these rights have assumed significance in matters pertaining to intellectual property ("IP"). This is because public personalities have a commercial interest involved and resort to these rights to prevent against any unauthorised use of their names, personality, etc. Though the right of an individual to protect against any unauthorised use of his/her identity is recognised and protected during the lifetime of the individual, the aspect of validity of such rights post death of the person is still a nascent issue, particularly in India. This article seeks to analyse the current position on the post-mortem recognition of publicity rights in India along with certain suggestions to improve the position.

Publicity rights play a significant role in protecting the identity of a person. In India, the right to publicity is considered to be a facet of right to privacy. The right first came to the forefront with the case of R. Raja Gopal v. State of Tamil Nadu, wherein it was held that there cannot be any advertising or endorsement using a person's name or identity without his/her consent. This would go against the right to privacy of an individual. This has been further affirmed in the landmark case of Justice K. S. Puttaswmay v. Union of India which recognised right to privacy as a fundamental right under Article 21 of the Indian Constitution. It also made crucial observations on right to publicity, recognising it as an aspect of right to privacy enabling a person to "control commercial use of his/her identity".

Besides privacy, publicity rights are a significant component of IP laws to protect the identity of a person and prevent against any unauthorised commercial use. Any person can get his/her name registered as a "mark" in accordance with Section 2(m) of the Trademarks Act, 1999. This ensures that nobody can infringe this trademark, thereby, leading to greater protection for the right holder. Furthermore, the Copyright Act, 1957, under Sections 38 and 37, protect rights of "performers". These provisions, therefore, can also be used against any infringement of publicity rights.

These laws are now being increasingly used by celebrities to challenge any unauthorised use of their identity. For instance, eminent actor Rajnikanth was successful in preventing the use of his name in a movie without his consent in the case of Mr. Shivaji Rao Gaikwad v. M/s Varsha Productions. This shows that the rights are aptly protected by courts in favour of the right holders. Furthermore, in the case of ICC Development (International) v. Arvee Enterprises, the Delhi High Court expressly held that the publicity rights "vest with the individual and only that person has the right to profit from it".

Even though there is a trend in favour of publicity rights in India, there is no express law or any judicial pronouncement which protects these rights post the death of an individual. In the case of Deepa Jaykumar v. AI Vijay, the niece of former politician late Jayalalitha challenged the unauthorised use of the deceased's identity in a movie. However, the court was of the opinion that publicity rights are a facet of right to privacy which is intrinsic to a person and cannot be inherited.

Another more recent case relates to the challenge by the father of late Sushant Singh Rajput against films being made on the actor's life without consent in Krishan Kumar Singh v. Sahla A. Sarogi. The Court, in this case, as well, failed to provide any relief to the deceased's father. It observed that right to privacy, including right to publicity, extinguishes post the death of a person. The Courts, in these cases, have failed to consider the aspect of the commercial value of the identities of such personalities. It must be noted that right to publicity is not restricted to being a facet of right to privacy. It relates to economic interests of a person which must be passed on to the legal heirs post death.

The need for post-mortem recognition of publicity rights has been aptly explained by the Supreme Court of Georgia in the case of Martin Luther King Jr., Center for Social Change v. American Heritage Products. It was observed that it is essential to extend the publicity rights even after death of a person in order to ensure that the commercial value of the person's identity remains valid. Otherwise, the protection given towards commercial use of identity during the person's lifetime would be rendered futile. Thus, it was recognised that it is important to ensure that publicity rights are inheritable to ensure that the identity of the person is not misused post his/her death and the legal heirs of the person are able to prevent against the same.

Thus, IP laws should be brought into the spectrum to ensure that the legal heirs get the control over the identity of the deceased so as to prevent against any unauthorised use of the same. The International Trademark Association recognises publicity rights to be a part of IP rights which must be protected like all other IPs. Since Indian IP laws do not explicitly provide for the protection of posthumous publicity rights, there is a need to formulate laws accordingly.

There are a few States which have recognised such rights, including California, Indiana, Georgia, among others. Recently, the New York government has also enacted a law to ensure protection of post mortem publicity rights and to prevent any misappropriation of such rights which may go against economic interest of the deceased's heirs. It is high time that India also recognises these rights to keep pace with global developments as well as to secure commercial interests of a person and his/her legal heirs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.