Personality rights generally refer to a set of rights that protect an individual's image, name, voice, likeness, and other personal characteristics from unauthorized commercial exploitation or misrepresentation. In other words, the right of publicity/ personality rights refer to an individual's right to control the commercial use of identifiable aspects of their personality. It essentially grants a person the exclusive right to profit from their own identity or personal brand.
Indian law does not have a comprehensive legal framework that specifically protects an individual's personality rights. While some aspects of personality rights are protected under various laws in India, such as trademarks, copyright, and privacy laws, there is no single law that specifically addresses all aspects of personality rights. However, it is worth noting that there have been some judicial pronouncements that recognize the importance of protecting an individual's personality rights.
In the absence of a codified law on the subject, the Indian Courts have looked at whether a false impression of a connection between the Plaintiff and Defendant impacting the goodwill and reputation of the Plaintiff is made out in the facts of individual cases[1]. In effect, while this approach is styled as a recognition of the right of publicity, it applies the same principles as the tort of passing off, since this retains its constituent elements, including the element of misrepresentation. While the Indian courts' interpretation of personality rights exhibits inherent contradictions, insofar as issues regarding its enforceability, heritability, and assignability[2] are concerned, the key criteria for successfully pursuing a tort of publicity claim can be summarized on the basis of judicial decisions. The plaintiff must prove their status as a celebrity, establishing their "identifiability." Additionally, the plaintiff needs to demonstrate that the defendant has utilized their persona without authorization, with the added requirement that the defendant has gained some form of benefit from this unauthorized use[3]. However, there is still considerable confusion on the aspect of enforceability of publicity rights as the law is evolving. The confusion is further confounded by the reliance placed by various High Courts on the publicity right granted by different jurisdictions in the United States of America.
Both India and the United States have recognized the right of publicity as an important legal principle, but the scope and extent of its protection differs slightly between the two countries. In the United States, the right of publicity is recognized under statutory laws enacted by the particular States. However, the same is subservient to the First Amendment right of free speech and expression. In the US, the First Amendment provides broad protection for speech, including commercial speech, which limits the scope of the right of publicity. US courts have held that while individuals have a right to control the commercial use of their identity, it cannot be used to unreasonably restrict the freedom of others to express themselves.[4]
Whereas the right of publicity is not explicitly recognized as a standalone right in any specific statute in India. The courts have recognized it as the right to control one's image and reputation and thus right of publicity finds protection through judicial decisions. However, similar to the US law, there is a delicate balance between protecting the right of publicity and ensuring the freedom of speech and expression. It is important to note that the right of publicity is subservient to the fundamental rights and its scope is limited by the constitutional guarantee of freedom of speech and expression.
In order to determine the contours and the scope of the right of publicity in India, it is apposite to discuss the position of law in the United Kingdom. Under English law, the concept of publicity rights granting celebrities control over the usage of their names, likeness etc. is not recognized[5]. Instead, claims related to a celebrity's image are pursued through alternative legal grounds, such as breach of contract, breach of confidence, copyright infringement, or passing off[6]. Consequently, the law prohibits the exploitation of a celebrity's name and image in a manner that generates confusion or falsely implies association, thus potentially harming the celebrity's goodwill and reputation.
Recently, Hon’ble Delhi High Court has passed a judgment in Digital Collectibles Pvt. Ltd. and Ors. v. Galactus Funware Technology Pvt. Ltd and Others[7] wherein it was held that in the absence of specific legislation, the right to publicity cannot be deemed an absolute right. After an extensive analysis of the array of foreign judgments cited by the parties on the aspect of right to publicity, the Court drew parallels with the English common law and held that even in India, the violation of right of publicity must be tested at the anvil of passing off as also weighed against the ‘right to freedom of speech and expression’ enshrined under Article 19(1)(a) of the Constitution. The decision in Digital Collectibles (Supra), has been appealed against and is pending before the Division bench of the Hon’ble Delhi High Court.
Further, Indian Courts have also observed that the publicity law is rooted in privacy law[8]. However, privacy rights, by their very nature, are to be contradistinguished from publicity rights. Privacy rights protect invasion by the State in an individual’s private sphere – it is the right to be left alone. The right to privacy does not emanate from an inherent right to monetize one’s persona. Courts in the US have recognised that the right of publicity and right to privacy are two clearly separable and distinct rights which rest on quite different legal policies: the right to privacy protects against intrusion upon an individual’s private self-esteem and dignity, while the right to publicity protects against commercial loss caused by appropriation of an individual’s personality for commercial exploitation.[9] They have declined to hold that the right to privacy is infringed by an unpermitted commercial use of one’s name/ likeness etc[10].
The Hon’ble Supreme Court in KS Puttuswamy[11] has adjudicated on the question whether right to privacy is a fundamental right. The Court, speaking through its majority judgment of 4 judges, observed that right to privacy is a fundamental right conferred by Article 21. It is also important to note that the majority judgment in KS Puttuswamy extensively analyses the United States jurisprudence on the right to privacy in paragraphs 171 to 195, but not once does the majority note that the right to publicity is a part of the right to privacy. Moreover, Hon’ble Mr. Justice Sanjay Kishan Kaul, in his concurring judgment in KS Puttaswamy, has captured the various facets of privacy around the world, however, the concurring opinion does not hold that a right of publicity exists in India.
In this background, it becomes imperative to address the absence of codified personality rights in Indian law by enacting a comprehensive personality rights law and balance this right with Constitutional freedoms and well-accepted limitations on intellectual property rights. In order to achieve a proper balance between the publicity rights and the constitutional freedom under Article 19(1)(a) and 19(1)(g), it is crucial to recognize the ingredients and defenses associated with such rights, by also considering the established defenses applicable in other jurisdictions where publicity rights have been codified.
Until then, Courts must exercise extreme caution while dealing with matters of personality rights so as to not enter into legislative domain and create rights through judicial law making, especially since enforcement of personality rights will undoubtedly have far reaching impact on Constitutionally guaranteed freedoms under Articles 19(1)(a) and 19(1)(g) and this task of balancing this right with those freedoms must be performed by the legislature. As the Division Bench of the Hon’ble High Court of Delhi has held in Akuate Internet Services Pvt. Ltd v. Star India Pvt. Ltd. & Anr.[12], “The creation of any right or indeed defining the contours of a right through judicial intervention is an exercise with implications that travel beyond the peculiar facts of the case before the Court…While pronouncing upon a principle of law, the Court must keep in mind the constitutional implications of the right sought to be created…Courts must be cautious in creating doctrines and rights that have such clear implications for constitutional rights, better leaving such matters to the law-making domain of the legislative branch, that may result in a coherent legislation that creates a framework within which any curtailment of Constitutional rights is to take place.”
In conclusion, codifying personality rights in Indian law is essential to protect an individual's privacy and dignity. A comprehensive law that recognizes these rights and provides remedies for their violation is necessary to ensure that individuals have control over the commercial use of their personal attributes while also ensuring that any restrictions on speech or expression that infringe on the right of publicity are reasonable and proportionate to the legitimate interests being protected.
