“Aaj khush to bahut hoge tum? Hayein!”

We can tell that the heavy baritone voice you used while reading the phrase was not your own. But did you know that you could be in trouble with the law if, for example, you used that same heavy baritone voice in advertising without first getting the man’s permission?

All of that, for the simple reason that you have just violated Amitabh Bachchan’s Personality Rights!

Still don’t get it? Maybe this will strike a chord with you: Have you ever walked by a beauty salon and noticed the photos of actresses pinned to the window? Do you know that by using these pictures, the owner may be infringing on that particular celebrity’s personality rights? Hmm…  So you cannot use a celebrity’s voice or their images without their permission, what else can you not use? Let’s find out!

What are Personality Rights?

Personality rights are the essential legal safeguards afforded to public figures whose face, name, voice, signature, or other distinguishing qualities have commercial value and the ability to mobilize and influence large numbers of people.

The endorsement of a well-known figure increases credibility, and if you can get the celebrity’s permission to use his or her name, you’ll have a lucrative business opportunity. However, if you do not have the necessary permission, you will face legal consequences. Why? Because celebrities put in a lot of effort to cultivate their image, which is their property, their attributes also fall within their privacy rights, and it’s illegal to use someone else’s property without their consent.

Because personality rights are seen as a kind of property, the legal system in India acknowledges that individuals can license and sell their right to publicity. Because of their right to publicity, which protects all of their rights from birth until death and forever, people have control over how their name, image, likeness, or any other distinguishing features are used for commercial purposes.

How Are These Rights Enforced?

When exercising one’s right to publicity, validity and enforceability are two crucial factors.

Having a valid claim to the identity or persona of another person means that the claim may be recognized and enforced by a court of law. Celebrities meet the requirements for enforceability because of the public’s familiarity with them. The courts have adopted a broad definition of the word “celebrity,” noting that a “celebrity” is a famous person who is the subject of widespread interest and conversation.

Identifiability, on the other hand, refers to the requirement that if the celebrity’s image is unlawfully used in such a way that the celebrity can be recognized from it.

Let’s revisit Amitabh Bachchan once again.

Amitabh Bachchan V. Rajat Nagi & Ors.

Facts

The legendary actor, Amitabh Bachchan, filed a case, alleging that the defendants were violating his “publicity rights” by making money off of his name and likeness without his consent.

The actor’s likeness and other identifying qualities were allegedly utilized by the defendants’ websites and mobile applications to attract people and persuade them to download the defendants’ software.

It was also alleged that the defendants peddled fake products bearing the plaintiff’s identity on the website www.amitabhbachchan.com.

Court Order

After looking at the main facts and arguments of the plaintiff, the Hon’ble Delhi High Court issued an ad-interim ex-parte order of injunction that stopped the defendants from using the actor’s face, name, and/or voice to get people to visit their websites and mobile apps.

That was one case, but what exactly does the law say about personality rights?

What Does The Law Say?

• Article 21 of the Constitution of India comes the closest to preserving personality rights. It makes sure that people have the right to be left alone and not be looked at too closely. Personality rights are fundamental human rights.
• Personality rights are protected and regulated by the law in a way that intellectual property law did not allow before.
• The Copyright Act of 1957 is one such piece of legislation that protects the rights of authors and performers (including but not limited to writers, actors, singers, musicians, dancers, etc.) to earn money from their creations.
• When someone has a claim to their personality and image, they can decide how their voice, signature, likeness, look, silhouette, trait, face, expression, gestures, way of speaking, and unique personality are used and turned into money.
• The courts have protected the rights of famous people in a wide range of situations by using their unique understandings of the broad idea of “personality rights.”
• In Shivaji Rao Gaikwad vs. Varsha Productions, the Madras High Court noted that Indian courts have recognized “Personality Rights” even though the concept is not explicitly defined in any Indian statute.

So not only can you not use a celebrity’s voice or image, but everything that has some sort of monetizing value is off-limits. How does this affect free speech?

Finding a Balance Between Freedom of Speech and Personality Rights

By using their celebrity rights, famous people may stop others from profiting off their likeness without their consent. Does this mean that from now on no one will be able to do any kind of cartoon, parody, or caricature? In a free and democratic society, letting people use such a right without limits would be bad for the idea of free speech as a whole.

For this reason, the Supreme Court ruled in ICC Development (International) Ltd. v. Arvee Enterprises that actions that focus on the individual’s characteristics may not violate their right to publicity. The Court stated,

“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. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals, to the organiser {non-human entity} of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it.’”

In Titan Industries Ltd. vs M/S Ramkumar Jewellers, photos of Bollywood stars Jaya Bachchan and Amitabh Bachchan were released without their knowledge or consent. The High Court of Delhi said,

“when the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity.”

Any other interpretation of this right would chill the precious democratic right to free speech if allowed.

The Way Forward

• Personality rights law is a developing area of the law. It’s a giant step forward in expanding people’s privacy protections.
• It is a major point of contention, however, because this privilege has grown only as a consequence of judicial precedents and has not yet assumed the shape of statutory law despite the passing of many years.
• There has been significant discussion over what constitutes a “celebrity” and how broadly the word may be used.
• By the standards established by the courts, a person who is known by “many” may be considered a celebrity with independent economic value. When is the tipping point where something becomes this widely known? The solutions to these questions are still not completely clear.
• Equal consideration must also be given to the rights of ordinary people. In today’s world, when more and more data is freely available online, even regular people and the information they contribute may be mined for profit.
• Therefore, the concept of celebrity has to be rethought, especially now that the culture of reels and memes has lately invaded the market of the internet, making everyone a superstar in their little world. Because of this, it will be fascinating to see how this right evolves in light of the tremendous improvements in technological capabilities in the years to come.

YLCC would like to thank Pearl Narang for her valuable input to this article.