PROTECTING PERSONALITY RIGHTS OF CELEBRITIES
By- Aryaman Singh, Senior Associate, Seth Associates
Keywords: Intellectual property, Personality rights, publicity right, cyberlaw, data privacy, privacy rights, Data Protection Act, Artificial intelligence
In their 1890 article, The Right to Privacy, Samuel Warren and Louis Brandeis articulated the concept of the right to privacy as an inherent common law right, protecting each individual’s ‘inviolate personality’. They argued that when information about an individual’s private life is made available to the public, it can significantly influence and even harm the core of an individual’s personality. In 1954, Melville B. Nimmer authored an article, The Right of Publicity, where he highlighted that a celebrity has the right to control the commercial value of their identity.
Rights related to a celebrity’s personality are a form of protection of intellectual property meant to secure financial benefits associated with the use of such property.
In a landmark ruling in the US Court of Appeals for the Second Circuit, New York City, the case of Haelan Laboratories v. Topps Chewing Gum, Inc. 202 F 2d 866 (2nd Cir.) (1953) delved into the ambit of the right of publicity. The plaintiff, a chewing gum manufacturer, had an exclusive contract with well-known baseball players to use their photographs in connection with the sale of its products. The defendant, a rival manufacturer, induced the baseball players to sign a competing contract who were still under a contract with the plaintiff. The court held as follows–
“a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made “in gross,” i.e., without an accompanying transfer of a business or of anything else. This right might be called a “right of publicity.”…many prominent persons (especially actors and ball-players) would be sorely deprived if they no longer received money from authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways.”
“…plaintiff, in its capacity as exclusive grantee of a player’s “right of publicity,” has a valid claim against defendant if defendant used that player’s photograph during the term of plaintiff’s grant and with knowledge of it.”
A discussion of privacy rights of famous celebrities followed in Michaels v. Internet Entertainment Group Inc. [5 F Supp 2d 823 (DC Cal 1998)], where singer Bret Michaels and actress Pamela Anderson Lee sought an injunction against the defendants from disseminating a tape on the internet depicting the plaintiffs engaging in sexual intercourse. The Court held that private facts depicted on the tape were not public by virtue of Pamela Anderson’s nude appearances in magazines, movies etc. The Court observed –
“where the publicity is so offensive as to constitute a morbid and sensational prying into private lives for its own sake, it serves no legitimate public interest and is not deserving of protection.”
Moreover, the US Supreme Court explored the relationship between privacy and personality rights in Zachini v. Scripps-Howard Broadcasting Co. [1977 SCC Online US SC 153] wherein the respondent – a broadcasting company, videotaped a 15-second performance of a human-cannonball act performed by the petitioner and broadcasted it on live television. The court relied on Housh v. Peth, [165 Ohio St. 35, 133 N.E.2d 340, 341 (1956)] which held –
“an actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”
The Court accordingly held –
“The rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will.”
The Court also categorically held that while right to privacy is a personal right, the right of publicity was a commercial right that had a wider ambit to cover performer’s rights.
In the case of Irvine Tidswell Ltd. v. Talksport Ltd. [2002 EWHC 367 (Ch)], the claimant was a prominent Formula 1 racing driver. The defendant was a radio station that entered into several contracts for live coverage of high-profile sporting events including the F1 Grand Prix World Championship (1999) in which the claimant participated. It engaged the services of a marketing and communications agency to produce advertisement boxes which contained a brochure portraying the claimant holding a radio with the defendant’s brand name; manipulated from an original photograph showing the claimant holding a mobile telephone. The claimant sued the defendant for false endorsement and the court ruled –
“Manufacturers and retailers recognize the realities of the marketplace when they pay for well-known personalities to endorse their goods. The law of passing off should do likewise. There appears to be no good reason why the law of passing off in its modern form and in modern trade circumstances should not apply to cases of false endorsement.” (para 43)
The Court also laid down that the claimant must prove two unrelated facts to succeed in an action for passing off –
- At the time of the act committed, the claimant had a significant reputation or goodwill.
- Actions of the defendant gave rise to a false message which would be understood by a not so insignificant section of the public that the goods have been endorsed by the claimant.
Furthermore, in Douglas v. Hello! Ltd. [2006 QB 125], the claimants, Catherine Zeta-Jones and Michael Douglas who are famous actors, had signed an exclusive contract with OK! Magazine granting them sole rights to publish photos of their wedding. When Hello! Magazine obtained some photos without any exclusive contract or license to use the same, the claimants brought an action for breach of privacy and sought damages from Hello! Magazine. The Court had to decide if the claimants had foregone their right of privacy by already signing a contract with OK! Magazine. The Court decided –
“Where an individual (‘the owner’) has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner.”
“…confidential information or private information, which is capable of commercial exploitation but which is only protected by the law of confidence, does not fall to be treated as property that can be owned or transferred”
PROTECTION OF RIGHT TO PUBLICITY IN INDIA
In India, the right of publicity is associated with the right to privacy. The development of the right of publicity began in 2003 in the case of ICC Development (International) Ltd. v. Arvee Enterprises [2003 SCC OnLine Del 2], wherein the Delhi High Court dealt with publicity rights being a facet of the right to privacy in the context of artificial juridical persons and under an action of the tort of passing off. The Court held –
“The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice. etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc… Any effort to take away the right of publicity from the individuals, to the organizer /non-human entity of the event would be violative of Articles 19 and 2l of the Constitution of India – No persona can be monopolized. The right of publicity vests in an individual and he alone is entitled to profit from it”.
The right of publicity encompasses an individual’s control over the commercial use of their persona, including their name, personality traits, signature, voice, etc. It has evolved from and yet emanates from the right of privacy; vested solely in the individual. In this regard, the right to commercially exploit one’s own name vests with the person who has worked to create the fame and who may lawfully restrict any third party from using the same. It serves as a safeguard for celebrities against bad actors; for unauthorized exploitation of their personalities for wrongful commercial gain. In D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. [MANU/DE/2043/2010], the Delhi High Court affirmed that the right of publicity derives from an individual’s autonomy to permit or prohibit, the commercial utilization of their likeness and other aspects of their personality.
In enforcing or seeking rights in intellectual property; the individual/celebrity may get varying degrees of protection depending on the type of right being enforced or sought. In accordance with the Copyright Act of 1957, Section 2 (qq) provides the definition of a performer and Section 38 prohibits the unauthorized marketing of a performance. Section 58 allows the performer, ownership rights to their performance. Notably, the terms ‘personality’ and ‘celebrity’ are not explicitly delineated within the Act as the legislation primarily centres on the rights of performers. Thus, should a personality or a celebrity meet the criteria of a performer as outlined in Section 2 (qq), they may invoke performer’s rights under the Copyright Act. In Titan Industries Ltd. v. Ramkumar Jewellers [MANU/DE/2902/2012], the defendant had set up billboards showing Amitabh and Jaya Bachchan endorsing the defendant’s jewellery shop. The plaintiff claimed infringement of personality rights based upon the contract through which Amitabh and Jaya Bachchan assigned their personality rights to the plaintiff and seeking damages for passing off against the defendant. The Court considered Amitabh Bachchan as a performer under the purview of the Copyright Act and ruled that, as per Section 17 (b) of the Act, the plaintiff is the first owner of the copyright in the advertisement created by the defendant. According to the endorsement contracts which lay down the ownership of the copyright with the plaintiff, Amitabh and Jaya Bachchan granted an exclusive license to the plaintiff for the use of their personalities.
In the context of trademark protection, the Trademarks Act of 1999 does not contain a specific provision for the registration of names. However, celebrities can trademark their names if their names have gained secondary meaning. This can be demonstrated through factors such as survey evidence, consumer testimony, exclusivity, manner of use, and duration of use. In Mr. Arun Jaitley v. Network Solutions Private Limited and Ors. [2011 SCC OnLine Del 2660], the plaintiff was a prominent leader of the Bhartiya Janta Party which is currently the largest opposition party in India and is the leader of opposition in the Rajya Sabha. The plaintiff had held various prominent administrative positions in the Indian Government and has been in the public eye for over 35 years and therefore, gained immense goodwill and the public associates the name with that of the plaintiff. The plaintiff requested the defendant to book the domain www.arunjaitley.com, however, due to the defendant’s dilatory tactics, the plaintiff could not secure the domain. The court looked into the protection of domain name and stated –
“giving names to the addresses of the website… performs dual functions, firstly, the domain name does not merely remain as an address but rather performs the function of a trademark as the prospective customers or other known persons visit webpage and…identify the same with the particular company or individual.”
Further, the Court decided that domain names are protected under the law of passing off and held –
“…the name of Mr. Arun Jaitley falls in the category wherein it besides being a personal name has attained distinctive indica of its own. The said name…has become well known personal name/ mark under the trademark law which ensures him the benefit to refrain others from using the name unjustifiably in addition to his personal right to sue them for the misuse of his name.”
The word ‘celebrity’ unequivocally signifies popularity amongst the general public. The Delhi High Court in Titan Industries Ltd. v. Ramkumar Jewellers [MANU/DE/2902/2012], defined ‘celebrity’ as –
“a famous or a well known person. A ‘celebrity’ is merely a person who ‘many’ people talk about or know about.”
A person who has attained the status of a ‘celebrity’ can claim an enforceable right to protect their identity or persona. Indian Courts have recognized personality rights in various judgments under the moniker of ‘right of publicity’. The Delhi High Court also in Titan Industries Ltd. v. Ramkumar Jewellers [MANU/DE/2902/2012], explained the scope of the right of publicity –
“When the identity of a famous personality is used in advertising without their permission, the complaint is not that no should not commercialize their identity but that right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity.”
Accordingly, infringement of the right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. In Kirtibhai Raval and Ors. v. Raghuram Jaisukhram Chandrani [MANU/GJ/1781/2010], the plaintiff sought an injunction against the publication of any film or artistic work depicting the life of his ancestor, Jalaram Bapa. The Gujarat High Court, accordingly, ruled –
“No one can exploit the personality of late Jalaram Bapa without the consent of the legal heirs. Such right of publicity is akin to a property and the same is both, transferable and heritable.”
In Shivaji Rao Gaikwad v. M/s. Varsha Productions, Mumbai [2015 SCC OnLine Mad 158], the defendant had used the persona created by the plaintiff throughout his career in the Indian Film Industry for their upcoming film ‘Main Hoon Rajnikanth’. According to the plaintiff, the defendant never approached nor obtained the plaintiff’s consent for the use of his name/ caricature/ image/ style of delivering dialogues in the defendant’s film. The Madras High Court, accordingly, held –
“…since the name found in the title of the impugned movie is identifiable only with the plaintiff, who happens to be a celebrity and not with any other person, the defendant is not entitled to use the said name without the permission of the plaintiff/celebrity…”
Significantly, it has also been held that personality rights enjoyed by a person during their lifetime comes to an end once they die. This was also held in Deepa Jayakumar v. A.L. Vijay and Ors. [AIR 2021 Mad 167] by the Madras High Court –
“…After the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality right, reputation or privacy enjoyed by a person during his life time comes to an end after his or her life time. Therefore, we are of the opinion that “posthumous right” is not an “alienable right” and the appellant/plaintiff is not entitled for an injunction on the ground that the “posthumous right” of her aunt is sought to be sullied by the respondents/defendants”
The term ‘celebrity right’ was brought up in Krishna Kishore Singh v. Sarla A. Saraogi and Ors. [MANU/DE/1056/2021] wherein J. Sanjeev Narula cited the cases mentioned above and noted that celebrity rights are a compendium of other rights accrued by a person upon attaining the status of a ‘celebrity’, which include certain intellectual property rights as well as publicity, personality and privacy rights.
Moreover, in Amitabh Bachchan v. Rajat Nagi and Ors. [CS (COMM) 819/2022], the Delhi High Court granted the plaintiff an ad-interim ex parte injunction against the defendants for using the plaintiff’s celebrity status to dupe people into fake lottery scams based on the show KBC –‘Kaun Banega Crorepati’ hosted by the plaintiff. The plaintiff stated in his petition that as a result of the misuse of his name, picture, and voice, particularly by mobile app developers, individuals running lotteries by improperly partnering with KBC, book publishers, T-shirt dealers, innocent people were being duped and associated the plaintiff with such activities. Likewise, in Anil Kapoor v. Simply Life India and Ors., the plaintiff filed a suit seeking protection of his name, image, likeness, persona, voice and other attributes of his personality against the defendants for misusing his personality for collecting monies, fee etc. by selling merchandize with the plaintiff’s image, likeness and other attributes of his personality. The Delhi High Court ruled –
“The celebrity’s right of endorsement would in fact be a major source of livelihood for the celebrity, which cannot be destroyed completely by permitting unlawful dissemination and sale of merchandise….”
“The present case shows how elements of intellectual property that protect the attributes of an individual, in fact have other dimensions including rights protected by the Constitution of India.”
This case highlights that a celebrity enjoys the right of privacy, and therefore, any use of their personality which would infringe on their privacy and cause damage to their status as a celebrity will constitute a violation of fundamental rights protected by the Constitution of India.
Similarly, in Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store & Ors. [CS (COMM) 389/2024], the Delhi High Court held that the activities of the defendants seeking commercial benefits on the use of the plaintiff’s name, image, voice, likeness and other personality attributes by use of deepfake infringed the publicity rights of the plaintiff who is an established and well-known celebrity.
The advent of deepfake technology presents significant challenges in determining the authenticity of digital content, which can impact individuals’ reputations and public perception. As deepfakes become more prevalent, there is a growing need to raise awareness and establish legislation to address the potential consequences on privacy and identity. Additionally, while deepfake technology offers anonymity, it raises concerns about the authenticity of one’s identity and its impact on communication and perception.
There are various provisions under the extant Information Technology Act, 2000 (“IT Act”) to address deepfake issues such as –
- Section 66E prescribes punishment for the violation of privacy of an individual through publishing or transmitting images of private areas in electronic form without their consent
- Sections 67, 67A and 67B prohibit the transmission or publishing of obscene material in electronic form that is sexually explicit in nature
In the international landscape of deepfake regulations, the enactment of the EU AI Act on March 13, 2024, represented a significant acknowledgement of the potential adverse effects of ‘synthetic content’. Article 3 defines ‘deep fake’ as –
“AI-generated or manipulated image, audio or video content that resembles existing persons, objects, places, entities or events and would falsely appear to a person to be authentic or truthful”
Notably, Article 52 of the Act mandates that providers of AI systems generating synthetic audio, image, video, or text must ensure that the outputs are labelled in a machine-readable format and identifiable as AI-generated. Furthermore, Article 52(3) requires deployers of AI systems producing manipulated content constituting a deep fake to disclose the artificial generation or manipulation of such content. However, the Act lacks proactive measures to prohibit deepfakes, as it does not contain concrete enforcement mechanisms for non-compliance. The UK hosted the first global AI security summit in London, where 28 major countries agreed to The Bletchley Declaration, committing to proactively managing risks associated with advanced AI technologies to identify shared AI safety risks, build a collaborative scientific understanding, and develop risk-based policies across nations.
In India, the Digital Personal Data Protection Act, 2023 published on 11th August, 2023 by the Ministry of Law and Justice lays down a more concrete framework for proactively addressing deepfake incidents. The Act gives a wide definition to ‘personal data breach’ bringing ‘alteration’ under its ambit which may include within its meaning altering data to create deepfake content under Section 2 (u) – “any unauthorised processing of personal data or accidental disclosure, acquisition, sharing, use, alteration, destruction or loss of access to personal data, that compromises the confidentiality, integrity or availability of personal data;”. Section 8 (5) of the Act imposes an obligation on the Data Fiduciary to safeguard all personal data from breach, including alteration of data for creating deepfake content and under Section 8 (6) of the Act informing the Data Principal as soon as the breach is detected. If these provisions are given a wider meaning, then Data Fiduciaries are mandated to ensure that fake-AI-generated content should not persist on their platforms and install mechanisms for detecting deepfakes. Furthermore, if a Data Principle encounters that their personal data is being used to create a deepfake then they may make a complaint to the Data Protection Board which as per Section 27 may take cognizance of such complaint as part of its powers and functions under the Act.
Furthermore, the Ministry of Electronics and Information Technology issued an advisory on 15th March, 2024 titled Due Dilligence by Intermediaries/Platforms under the Information Technology Act, 2000 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 for negligent intermediaries failing to take due diligence obligations under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) in respect of the use of AI to create deepfake or AI-generated content. The guidelines were as follows –
- Intermediaries must ensure that the use of AI model(s), software or algorithms through their computer resource should not allow users on their platforms to host, publish or share unlawful content as outlined in Rule 3 (1) (b) of the IT Rules or violate any provision of the Information Technology Act.
- Intermediaries must ensure that their computer resource by itself or through the use of AI does not promote discrimination or threaten the integrity of the electoral process.
- Unreliable/untested AI must be labelled for its unreliability or inherent fallibility and must be disclosed to users through a “consent popup” before it is made available for use.
- Intermediaries should inform their users about the consequences of dealing with unlawful information, suspension or termination of access or usage rights through terms of service and user agreements.
Additionally, any intermediary which permits or facilitates through its computer resource or AI for synthetic creation or generation of modified text, audio or visual information which may be used as misinformation or deepfake; must label or embed a permanent unique metadata identifier in such content. The proposed Digital India Act is also expected to deal with issues of fake news and deep fakes and regulate issues that lie at the intersection of AI/deepfake and violation of Right to Publicity. In the GenAI times, laws will need to efficiently adapt and evolve to adequately protect and enforce intellectual property rights of celebrities.