A ‘Bhidu’ Anecdote: Analysis of 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. Personality Rights are made up of two kinds of rights: the Right to publicity and the Right to privacy. The Right to Publicity which is usually attributed to celebrities or famous people is of great importance to the entertainment and media field.
Right to Publicity means the right to control commercial exploitation of one’s successful personality and prevent others from riding on the fame associated with his/her persona. This right stems from the Right to privacy and vests only in individuals who are ‘famous’ or those who might be understood by the public as having a reputation or goodwill that is capable of being commercially exploited. A person’s persona includes his/her name, photograph, signature, voice or any other mark of identity.
Statutory Recognition of Personality Rights
A celebrity acquires his celebrated status through intellectual, emotional and physical efforts. Hence, only a celebrity can authorize the manner in which his/her name, goodwill and reputation can be used and successfully exploited commercially. This exclusive right needs legal protection from being encroached upon by people willing to ride on the fame of famous persons. There is no statutory provision as such to protect and enforce the personality rights of celebrities. They can resort to passing off action under Trademark law to protect this right in case of violation. Passing off is an action under the common law of tort. Under this, nobody is allowed to misrepresent or pass off others goods or services as theirs. Three things need to be proved in order to establish a passing-off action in this case- reputation of the celebrity, misrepresentation of his/her identity, irreparable damage caused to the celebrity due to such an act amounting to passing off. This shows the evasive intent of the legislature to treat persons as chattels or commodities. The basis of this lies more on human dignity and liberty than proprietary status or commercial value. The position and development of such rights and laws in India is still at a nascent stage largely governed by judicial pronouncements of courts.
Protection under Trade Mark Law
Under the Trademarks Act, 1999 there is no specific provision to grant protection to image and publicity rights. Though, the Act under Section 2(m) providing the definition of ‘mark’ does include names. Some well-known personalities from India like Baba Ramdev, Sanjeev Kapoor, Sachin Tendulkar, Shahrukh Khan and Yuvraj Singh etc. have applied for the registration of their name as a trademark to have protection under the Act against its misuse. Section 14 of the Trade Marks Act, 1999 restricts the utilization of individual names where an application is made for the registration of the trademark, which dishonestly proposes an association with a living individual, or a man whose passing occurred inside 20 years before the date of application of the registration of the trademark. In this manner, the lawful beneficiaries of the celebrities can likewise protect the abuse of their names. The purpose of perceiving the transferability and permitting of the specific right can be constructed from the statute.
Protection under Copyright Law
There is no clarity on whether aspects of celebrity rights may be protected by the Copyright Act. Celebrities’ voices are not protected under Indian copyright rules since they do not come under the categories of literary, dramatic, or musical creation. Celebrity voices, however, are routinely misused by promoters or advertising. Under Copyright Act, the performer’s economic or commercial rights have been recognized as a separate class of performers’ rights. However, there is a difficulty in that these rights are supplied in single performances rather than in the artist’s or celebrity’s whole image. In this sense, the Copyright Act demonstrates that it is inadequate to grant celebrities personality rights.
Protection of Personality Rights under Right to Privacy
In India, while there exists no explicit legal framework specifically safeguarding personality rights, courts have derived protection for these rights from constitutional provisions such as Article 19(1)(a) guaranteeing freedom of expression and Article 21 ensuring the right to live with dignity. Moreover, Indian courts have looked into intellectual property laws to fortify the protection of personality rights.
Personality rights in the form of the right to privacy were first recognized explicitly by the Supreme Court in R. RajaGopal v. State of Tamil Nadu (1994). The court observed that:
“The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising or non-advertising purposes or for any other matter.”
Judicial pronouncement for personality rights in Bollywood
In Amitabh Bachchan v. Rajat Negi & Others, the Delhi High Court granted an injunction to Mr. Bachchan, restraining a jeweler from exploiting his celebrity status to endorse their products, thereby upholding the principles established in the Titan Industries case.
Another instance is the case of Shivaji Rao Gaikwad vs. Varsha Production, where actor Rajnikanth sought an injunction against a production house for unauthorized usage of his name and likeness in a film. The Madras High Court, emphasizing the right to live with dignity enshrined in Article 21, granted the injunction, recognizing the importance of protecting individuals from damage to their reputation and personality.
Anil Kapoor vs. Simply Life India and Ors. exemplifies the extension of personality rights into the realm of technology. The Delhi High Court restrained defendants from misusing Kapoor’s name, image, or voice through technological means like artificial intelligence. However, the court clarified that satirical writing and genuine criticism do not infringe personality rights, distinguishing between commercial exploitation and legitimate expression.
This case marked a significant milestone in acknowledging the need to protect personality rights in the context of evolving technologies like virtual reality. It underscored the importance of safeguarding individuals’ rights to their identity in the face of technological advancements.
Moreover, these cases clarified that the fundamental right to free speech does not encompass unauthorized commercialization of a person’s identity. Such exploitation not only violates personality rights but also encroaches upon the individual’s right to privacy.
Recognizing personality rights as a vital aspect of an individual’s livelihood, courts have stressed the need for comprehensive legislation explicitly acknowledging these rights as a distinct form of intellectual property. Such legislation would enable individuals to benefit economically from the use of their image and likeness while promoting responsible marketing practices and fostering public awareness and respect for these rights.
The ‘Bhidu’ Saga: Curious Case of Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Puppy Store and Ors.
In the case of Jaikishan Kakubhai Saraf Alias Jackie Shroff Vs The Peppy Store & Ors. ( Jackie Shroff v. The Peppy Store), Jackie Shroff, the plaintiff in this case, is a highly acclaimed Indian actor with a prolific career spanning over several decades. Known for his roles in more than 220 films, television shows, and web series, Shroff has built a substantial reputation and public persona. Beyond his acting career, he has endorsed a wide array of products and services, further solidifying his public image. His distinctive attributes, including his name, image, voice, and unique style, are recognized and associated with him globally. In addition to personality rights, the plaintiff also asserted his rights under trademark law.
Jackie Shroff is the registered proprietor of the trademark “BHIDU” under registration numbers 3227968 in Class 25, covering ready-made garments, hosiery, and articles of clothing, and 3227969 in Class 41, covering entertainment, education, providing of training, film production, sporting and cultural activities. Furthermore, he holds the trademark “Bhidu Ka Khopcha” under registration number 4362494 in Class 41. These trademarks are crucial as they signify Shroff’s personal brand and are associated exclusively with him. The unauthorized use of these trademarks by any entity is likely to cause confusion among consumers and dilute the distinctiveness of Shroff’s brand.
The defendants in this case were involved in a range of unauthorized activities that allegedly infringed on Jackie Shroff’s personality rights. These activities included the creation and sale of merchandise bearing Shroff’s image and name without his consent. Specifically, defendants were accused of selling various products, such as animated wall art, videos, and even AI chatbots that mimicked Shroff’s voice and likeness. Defendant No. 1 (The Peppy Store) and No. 2 (Frankly Retail Private Limited) were highlighted for their direct involvement in selling such products. These activities were conducted without seeking permission or providing any form of compensation to Shroff, leading to claims of unauthorized commercial exploitation of his personality.
In response to the allegations, Defendant No. 1’s counsel argued that the artwork in question, despite resembling Shroff, was independently created and thus should be considered fair use. They also pointed out a previous instance where Shroff appeared to have endorsed their work, suggesting implied consent or at least tolerance of their use of his likeness. On the other hand, Defendant No. 2 took a different approach by removing the disputed merchandise from their website. However, they continued to contest the case, possibly challenging the scope of Shroff’s personality rights or the applicability of the law in this context. These defences indicate a broader debate about the boundaries of personality rights and the concept of fair use in creative works.
The court found that there was a prima facie case of infringement of Jackie Shroff’s personality rights. This conclusion was based on the clear, unauthorized use of Shroff’s name, image, voice, and other distinctive attributes in various commercial products and media without his consent. The court recognized that Jackie Shroff has a significant reputation and goodwill attached to his persona, and any unauthorized use of his likeness could mislead the public and dilute his brand. The court emphasized the importance of protecting such rights to prevent the unfair exploitation of a celebrity’s established fame. The balance of convenience was found to favor the plaintiff, Jackie Shroff, because the continued unauthorized use of his personality would cause him irreparable harm, including potential damage to his reputation and loss of commercial opportunities. The court highlighted that monetary compensation alone would not suffice to remedy such harm, necessitating the need for an immediate injunction.
As a result of these findings, the court issued an ex-parte ad-interim injunction against several defendants. An ex-parte injunction means that the order was given without requiring the presence of the defendants at the hearing, highlighting the urgency and the clear nature of the infringement. The injunctions specifically restrained the defendants from using Jackie Shroff’s name, image, voice, and other distinctive attributes for any commercial purposes without his explicit consent. This included a wide range of uses such as on merchandise, in videos, and through AI chatbots designed to mimic Shroff’s persona. The court’s orders were explicit and comprehensive, covering all possible avenues of unauthorized commercial exploitation. This legal action aimed to immediately halt any ongoing infringement activities and prevent further unauthorized use of Shroff’s personality, thus protecting his rights and reputation from further harm.
In addition to granting injunctions against the defendants, the court issued directions to relevant government authorities to ensure compliance with its orders. The Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MeitY) were specifically instructed to take necessary actions to enforce the court’s injunctions. These directions likely included monitoring and regulating online and electronic platforms to ensure that the infringing materials were removed and that no further unauthorized use occurred. This involvement of governmental bodies underscored the seriousness of the infringement and the need for a coordinated effort to protect Shroff’s personality rights. The court’s directive to these authorities aimed to leverage their regulatory powers to effectively curb the misuse of Shroff’s persona across various media and digital platforms, ensuring comprehensive enforcement of the court’s order.
Conclusion
In conclusion, the court’s findings, injunctions, and directions in the Jackie Shroff v. The Peppy Store case highlight a robust legal framework for the protection of celebrity personality rights. The court’s decisive actions not only addressed the immediate infringement but also set a precedent for the protection of personality rights, emphasizing the legal and moral imperatives of respecting an individual’s commercial persona. This case underscores the judiciary’s role in upholding intellectual property rights and the necessity for prompt and effective legal remedies to prevent and address unauthorized exploitation.
It can also be concluded that only the illegal and unrightful usage of the personality rights with unjust intentions are punishable under the law. As is established by law and precedents, 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.
Courts need to not only balance the highly valued rights of celebrities and the constitutional right of freedom of speech but also protect the consumers from false and misleading endorsements. All this is evidence of the fact that Celebrity Rights have emerged as an individual class of protection hence it is high time the legislature recognised this too. While courts need to strike a balance between protection of high valued rights of personalities and democratic right of individuals in society, it is also equally responsible to protect the interest of the consumers as well from any kind of misleading advertisements and endorsements.
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