With the constant evolution of Intellectual Property Rights the world over, a diverse nature of rights have emerged such as right to command and control the commercial exploitation of one’s identity and persona including one’s name, image, likeness or other unequivocal aspects of person’s distinctiveness such as voice, signature, style, gestures, recognizable attire. The afore-said rights have come to be known as ‘Personality’, ‘Publicity’ or ‘Image’ Rights.
Although there is no specific codified law governing the subject, an individual may take recourse to the common law in India and provisions of various statutes such as the Trade Marks Act, 1999 and the Copyright Act, 1957 to protect various indicia of personality of image.
In Trademark law, individuals may apply for the protection of their name, likeness and nicknames, among other things with the Trademarks Registry in order to obtain statutory protection against its misuse. In the absence of statutory protection, an individual may also resort to an action for passing off in order to protect his/her publicity and image rights. However, an action for passing off requires proof of the reputation of an individual; some form of misrepresentation; and irreparable damage to the individual. In DM Entertainment v. Jhaveri, the Delhi High Court restrained the defendant from using the trademark “DalerMahendi”, thus recognizing the fact that an entertainer’s name may have trademark significance.
In Copyright law, a specific image may be protected in the form of a photograph; painting or other derivative works and the owner may sue for infringement in case of unauthorized usage of any such work. However, complications arising out of the issue of ownership of a specific image make it difficult for individuals to protect their likeness, name or image under copyright law. Normally, when a celebrity permits his photograph to be taken or painting to be drawn, the permitted usage of such photograph/painting is specified and is subject matter of agreement executed between the celebrity and the person at whose instance the photograph is taken or painting is drawn.
The Advertising Standards Council of India Code which is a self-regulatory code for advertisements also provides against the reference of any person in an advertisement without his permission which confers an unjustified advantage on the product advertised or tends to the bring the person into ridicule or disrepute. Further, when any attribute of a person’s identity or persona is used without his consent for the purpose of promoting the sale, use or supply of any goods or services have inter alia sponsorship, affiliation or approval of such person, such an act may constitute an unfair trade practice. An individual may also initiate a passing off action against a person who misappropriates attributes of his identity or personality and makes false and misleading claims of endorsement by using such attributes of individual in respect of his goods or services.
In an age where brand equity of celebrities is sometimes equal to or even more than that of corporate houses and corporate brands, there is bound to be a significant surge in actions taken by celebrities to protect various indicia of their personality or image. There has been a growing awareness of their rights in India in recent times where instances of actions taken by celebrities or well known personalities against diverse kinds of acts of misappropriation at different forums have been witnessed.
In a recent instance, the Chairman of the Tata Group of companies, Mr. Cyrus Mistry initiated legal proceedings against an individual for using his personal name as a part of domain names www.cyrusmistry.co.uk and www.cyrusmistry.co without Mr. Mistry’s authorization. The Delhi High Court recognized the name ‘Cyrus Mistry’ as being well known and held that websites were created by the Defendant to ‘blatantly and illegally’ capitalize on the well known name of corporate honcho. The nature, tone and tenor of the correspondence between the Defendant and the Plaintiff including Defendant’s attempt to sell the domains to the Plaintiff were also considered for arriving at the decision. Considering the various facts and evidence placed before it, the Court held that the Defendant was liable for passing off and violation of publicity rights of the Plaintiff. The Court passed an order of permanent injunction against the Defendant and awarded punitive damages to the tune of Rs. Five lakhs in favour of the Plaintiff.
Actions taken by well-known personalities and decisions of the court such as above are reflective of the growing awareness of such rights and an evolving jurisprudence in the area of personality rights.