Sources of law

Right of publicity

Is the right of publicity recognised?

Yes. The right of publicity is recognised both as a tortious right and as a fundamental right guaranteed under article 21 (the right to life and personal liberty) of the Indian Constitution. The decision of a nine-judge bench of the Supreme Court in the case of Justice KS Puttuswamy (Retd) v Union of India discussed and found publicity to be an element of privacy that is protected as a fundamental right.

The right does not find any express statutory mention; however, expression of some of the intellectual property elements of publicity such as likeness of character, name, setting and event may be protected under various statutes, such as the Copyright Act 1957 and the Trade Marks Act 1999. Indian courts (at the High Court level) have explicitly recognised the right to publicity and laid down the essential components for its infringement, as discussed below.

However, the Indian legislature has made strong attempts to give statutory recognition to the right of privacy of an individual through the Right to Privacy Bill 2011, which was pending approval in parliament. The government and the legislature recognised the prime importance of protecting personal data of individuals (especially in the wake of numerous incidents of corporations (both private and government owned)) leveraging individuals’ data towards fulfilment of other agendas, be it security, revenue from personalised advertisements etc.

On 27 July 2018, an expert committee submitted the Personal Data Protection Bill 2018, which shall gain statutory effect after parliamentary assent. The Bill focuses on protection of personal data and creates a separate category termed ‘sensitive personal data’, which includes identity cards, sex life, sexual orientation, biometric and gender details, caste, religious affiliations, etc. It places primacy on obtaining legitimate consent of persons before being able to collect data, besides mandating that withdrawal of consent is required to be as easily facilitated as the communication of consent. Although the Bill seeks to create a more responsible and accountable regime insofar as collection, dissemination and storage of personal data is concerned, it shall be put into action only once it receives parliamentary approval.

It has been noted that a person’s personal data is intrinsically connected to one’s personality or image. A citizen’s right to control his or her data inadvertently deals with how a person wants to control the use of their personality. What we require is a strict law that guarantees some basic privacy rights and personality rights to consumers of digital services. Fundamental rights cannot be waived or legally be taken away by anybody on the basis of a ‘notice’ and ‘consent’. The state has a responsibility to ensure that those fundamental rights are guaranteed. As such, personal data elements that have privacy implications should necessarily be kept private and their commercial exploitation by breaching privacy should not be permitted. Notice and consent cannot legitimise commercial use of personal data compromising privacy. The concept of ‘personality right’ should be introduced and granted to all citizens along with a set of rules mandating everybody to respect the persona of the person. Any personal data use that compromises, personality rights of the citizen should be regulated. ‘Data fiduciaries’ should therefore be held strictly responsible for informing individual ‘data subjects’ in the event of leaks, misuses, and violations of instructions.

‘Associative value’ that celebrities bring to products and services can be understood and emphasised via the valuable commercial goodwill that inheres in a famous individual’s persona that, in turn, grants incidental personality rights in the form of a right of private action for breaches, especially, when the commercial exploitation of one’s identity in advertising and selling is involved. There was a need for publicity rights vis-a-vis commercial appropriation of fame: right to privacy provides insufficient protection for the commercial value of one’s identity because it focused on prevention of feelings of indignity and embarrassment that are often not present in cases involving celebrities and this new right should more appropriately be an assignable property right.

Principal legal sources

What are the principal legal sources for the right of publicity?

There is no specific legislation in India to protect publicity rights. Through various judgments, the Indian courts have read right to publicity into articles 19 and 21 of the Constitution by calling it an inherent part of right to privacy, which is an established constitutional right. The judgment in Justice KS Puttuswamy (Retd) v Union of India recognised the concept of ‘inviolate personality of an individual’ as an integral part of the right to privacy, which is now constitutionally recognised as a fundamental right and upholds the judgment in R Rajagopal v State of Tamil Nadu that recognises the right of publicity for individuals.

A celebrity’s profile can be used for the purposes of advertising or promotion only after ensuring appropriate authorisation. In a jurisprudential sense, right of publicity can be found within a person’s right and autonomy to allow or prohibit the commercial exploitation of his or her likeness or some characteristics of his or her personality. This right emanates not only from common law jurisprudence, but also finds protection under the Copyright Act 1957 in the form of adaptation rights, and under the Trade Marks Act 1999 for protection of name or likeness of individuals in the course of trade and commerce.

However, the Right to Privacy Bill 2011, which is still under consideration in the Indian parliament, makes no mention of publicity rights and gives no remedy for false endorsement or use of a person’s identity for commercial purposes.

Enforcement

How is the right enforced? Which courts have jurisdiction?

All civil courts within the territorial limits of India have the requisite jurisdiction to try cases relating to the right to publicity. The general rules and procedure pertaining to civil suits (as stated in the Code of Civil Procedure 1908) are applicable.

Other relevant rights

Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?

Yes. The Trade Marks Act 1999 provides for protection of names, pictures, images, etc, so long as they can satisfy the criteria for being considered a ‘trademark’. In brief, this statute stipulates that names, signatures, devices, labels qualify.

Furthermore, common law remedies such as tort law are widely enforced in India and provide for protection against defamation, injury to one’s reputation, goodwill, etc.

Existence of right

Protectable aspects

What aspects of a person’s identity are protectable under the right of publicity?

The aspects of a person’s identity that find protection in India depend upon various statutory provisions. For instance:

  • the constitutional recognition of the right to privacy allows individuals to assert their consent for use of any information pertaining to the individual, including home, family, marriage, procreation, parenthood, child-bearing and education, which is not available as a matter of public record;
  • information and aspects of personality that are available in public records are subject to the limitation that their reporting must not be with reckless disregard for the truth;
  • the Trade Marks Act 1999 (which also recognises common law principles) extends protection over one’s name, image, likeness, taglines, mottos, unique and exclusive characteristics, etc; and
  • the Copyright Act 1957 provides for protection for one’s artistic, literary, dramatic, photographic, musical works. If a claim can be brought to show that the wrongdoer has not only infringed copyright, but also violated one’s personality and publicity rights, then protection can be afforded to such categories as well.

Do individuals need to commercialise their identity to have a protectable right of publicity?

The right to publicity has been deemed to be an extension of the right to privacy by the Indian courts and hence non-commercialisation of the right is not a ground for its abrogation.

If certain aspects of an individual’s persona are protected under the Trade Marks Act 1999, then the provisions regarding non-use of said trademark apply.

Foreign citizens

May a foreign citizen protect a right of publicity under the law of your jurisdiction?

The Supreme Court has read right to privacy into article 21 of the Constitution. Further, the courts have stated that the right of publicity has evolved from right to privacy. Therefore, since in article 21 is also applicable to non-citizens, the right of publicity can be made available to foreign citizens.

Registration requirements

Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?

As there are no statutes governing the right of publicity in India, there are consequently no registration procedures or fee structure for registration and public notice.

Individuals may apply for the protection of their name, likeness and nicknames, among other things, with the Indian Trademarks Registry in order to obtain statutory protection against misuse. The procedures and fee structure stated in the Trade Marks Act 1999 are applicable in these circumstances.

Other rights, such as copyrights and rights in common law, do not require registration or a fee.

Protection after death

Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?

There is no specific legislation that governs right of publicity in India. Claims are initiated under varying legislations. It is unclear whether such rights extend after an individual’s death, since no precedent or case law in India has yet discussed this aspect.

However, if a dispute can be brought under the Copyright Act 1957, then one can protect and safeguard such rights after an individual’s death as well. This is because the term of copyright protection over works in India extends for a stipulated period, even after the demise of the author. Furthermore, moral rights are perpetual and do extend beyond one’s death.

It remains to be seen whether a dispute over the right of publicity can be initiated alleging strictly infringement of copyright, even after the demise of the concerned individual.