Protection of Personality Rights under Intellectual Protection Rights
Contributor: Sonalika Gupta
Personality rights also known as publicity rights represent an individual’s authority to restrict the use of their personality for commercial purposes; these include name, image, likeness and other unique attributes. These rights ensure that person, particulary celebrities, can prevent any unauthorized third party from exploiting for commercially gain.
Personality rights are rooted in the concept of “persona,” including numerous features that make an individual uniquely identifiable. But to be legally recognized as such, the persona must have some commercial value. Hence, ordinary individuals might lack actionable personality rights unlike public figures like celebrities or sports stars who derive substantial commercial value from their personas.
The Need for Personality Rights
Personality rights emerged in response to the desire to prevent the illegal commercial use of an individual’s character. Third parties frequently utilize celebrities’ pictures or likenesses without their permission, resulting in unfair enrichment of personalities at the expense of the people whose persona was being exploited. This stressed the creation of a legal framework to prohibit such exploitation and to ensure that the true owner has control over and benefits from the commercial use of their persona.
Legal Tests for Personality Rights
There are various legal tests that a person must pass to have personality rights.
- Identifiability: The person has to be able to prove that an image or likeness used actually belongs to him.
- Commercial Purpose: The appropriation of the individual’s person ought to be for commercial gain. In the case of Michael Jordan v. Qiaodan Sports Company and Bairen Trading Company, the Shanghai Second Intermediate Court held that the basketball star Michael Jordan enjoyed considerable reputation and thus had to protect the personality rights along with the related property rights of overseas celebrities. The Court held that Qiaodan Sports, upon knowing the use of “Jordan” for trademark registration without any authorization and the registration of related trademarks, including Michael Jordan’s former jersey number “23” and his sons’ names, were sufficient to create confusion among the public and therefore constituted an infringement of Michael Jordan’s name right. On these grounds, the court injuncted and granted damage to pay Michael Jordan for mental injury and legal expenses, thus recognizing the need to protect celebrity name rights in China.
- Secondary Meaning: The persona is necessary to have acquired a secondary meaning; that is, a portion of the public connects or identifies the persona with the person in question.
Personality Rights in Different Jurisdictions
United States: In the U.S., personality rights are state-specific, with about 25 states out of 50 recognizing these rights. They are treated as property rights and have been developed primarily through case law. Genies of personality right go back to US only because of the case of Haelan Labs vs. Topps Chewing Gum. In this case Harman labs had specific contracts with various important and famous basketball players in the U.S to endorse chewing gum so now these basketball players being so famous they will also have an agency who will also issue licenses to everybody. So there was a general license also issued for other things General things so another company called TOPS who was also into chewing gum they took a license from tops from the agent and then started endorsing a showing as though those basketball players are endorsing top chewing up the court said no you cannot do this because you are basically doing something which is known as false endorsement. Therefore injuncted and imposed damages.
United Kingdom: The UK does not have a specific statutory framework for publicity right or personality rights. However, courts have used mechanisms such as passing off and false endorsement to protect individuals’ personas. For example in the case of Robyn Rihanna fenty v Arcadia Group Brands Ltd which which pertain to Rihanna again is a very famous western singer she had file the suit against the company who had printed various t-shirts with her image on the T-shirt. Plaintiff contended that they are trying to gain appropriate my image or my personality. As the UK is concerned we do not recognize personality right or publicity right but yet proceeded to protect her and impose damages and injunction based on two things one is the concept of passing off which is there under trademark and also is a false endorsement.
India: India, following the UK model, lacks a distinct statute governing personality rights. However, the notion has been validated by case law and key articles of the Copyright Act. The Copyright Act’s 2012 amendment, Section 38B, grants artists moral rights that might extend to protecting parts of their identity.
Judicial Approach to Personality right in India
The personality rights were formally recognized in R. Raja Gopal vs. State of Tamil Nadu (1994); this landmark case laid the foundation for recognizing the right to privacy and personality rights in India. The Supreme Court has held that although the right to privacy is an implied aspect of the right to life and liberty of a citizen under Article 21 of the Constitution. Again, this decision was not directly related to personality rights, but it brought home the need to protect personal autonomy from unauthorized exploitation.
Further in DM Entertainment vs. Baby Gift House (2010), the Delhi High Court granted an injunction in favour of singer Daler Mehndi, whose persona was being used without consent in toys, recognizing his commercial rights over his image and name.
In 2014, the Madras High Court ruled in favour of Rajinikanth, who claimed that a movie titled “Main Hoon Rajinikanth” infringed on his personality rights by exploiting his name and persona without authorization. Further, in Justice K.S. Puttaswamy (Retd.) vs. Union of India, the court went ahead to entrench the right to privacy, implicitly QR securing the notion of persona as being exercisable by means of control over the use of it by individuals.
The Delhi High Court, recently, in Amitabh Bachchan vs. Rajat Nagi and ors. Emphasized the emerging approach to protection of personality rights in India, particularly a celebrity’s right to regulate the commercial exploitation of his persona. It was sought wherein the famous Bollywood actor Amitabh Bachchan obtained an ad-interim injunction from the Delhi High Court against defendants using his name, image, voice, and persona attributes for a fake Kaun Banega Crorepati lottery scam. The court protected Amitabh Bachchan from possible harm to his reputation and goodwill by recognizing that his celebrity status was used without authorization, and granted the injunction to prevent further infringement of his publicity right and to protect his interests.
The latest judgment of Delhi High Court in Anil Kapoor v. Simply Life India and Ors. Case has passed an injunction restraining the infringing use of the word “Jhakaas” as was used by Anil Kapoor in the film YUDDH, with his persona associated and likely to cause confusion in the minds of the public.
This evolving case law indicates that courts are starting to accept these rights; it also brings out the statutory intervention required to iron out ambiguities and uniformity in law enforcement. In fact, with every case that has come up within this domain, the realization of the need for comprehensive legislation to clearly stipulate areas of personality rights, including duration, transferability, and protection mechanisms, is increasingly realized.
Conclusion: Your Persona—Your Right
Personality rights in intellectual property law represent an important means through which individuals—very often celebrities—can prevent unauthorized commercial use of their persona. Their legal formulation is very different from one country to another, but the spirit remains uniform: creations of the mind and body particular to a human are not free to be used commercially by any other person except by permission of that human. It would thus follow that infringement suggests a person’s persona is unfairly traded on, with erosion of the integrity and commercial value attached to the image or likeness occurring.
While, therefore, on the whole, personality rights are getting recognized in India through judicial decisions, yet the lack of a legislative measure makes many things undecided. The jurisprudence that is developing in this branch of law is heading toward a more definite consolidation of these rights, though much improvement on the legal and legislative front is yet desired.
