Personality rights protection and Celebrity rights under IPR
"A rose by any other name would smell as sweet". it is a popular reference to William Shekespeare’s play Romeo and Juliet, in which Juliet seems to argue that it does not matter that Romeo is from her family's rival house of Montague, that is, that he is named ‘Montague. The reference is often used to imply that the names of things do not affect what they really are. But in this age of globalization ‘Name’ becomes an asset if it is related to a famous personality and no one can use it without consent.
Personality rights are unique rights and they have gained importance in today's world because of the increased number of celebrity endorsements. A single image of a celebrity affects the reputation of a product he or she is endorsing and vice-versa. In India, personality rights are per se not recognised. They are generally invoked through right to privacy guaranteed by the Article 21 of the Indian Constitution or through right to publicity inferred from article 19 of the Indian Constitution. Personality rights are either protected as right to privacy or they can be protected as the property of a persona.
Privacy is a very difficult term to define; its interpretation can differ from person to person or place to place. The unclear position of privacy makes it a little difficult to ascertain the liability in cases where right to privacy is invoked. Protecting personality rights as privacy rights brings us to the same situation, wherein it is difficult to define the scope of celebrity's privacy as the fans are always keen to know about the happenings in their hero's life.
Invoking Personality rights as property rights makes sense. Celebrities build up personalities that add commercial value to their individual's persona. The personality that they create is their property and they are commercially profited by it. Few Indian celebrities like A.R. Rahman, Shahrukh Khan, and Kajol have already registered their personal name as a trademark. Others following the trend have started applying for the registration. The fact that the Trademark Registry has allowed the registration of these personal names as trademark shows that personality rights can be covered under Intellectual Property.
What are Personality Rights?
The term 'personality right' is also commonly used for 'right to publicity' and is usually relates to celebrities or famous people. In other words, "it is the right to control and profit from the commercial use of one's name, image, likeness, etc., and it prevents unauthorized appropriation of the same for commercial purposes".
Why Personality Rights?
Celebrities work hard to build an image in the society through their work. Their conscious efforts and sustained hard work brings them to a position of a celebrity. They create a personality for themselves. A single misuse of their name, image or their style might affect the personality they create; therefore it becomes necessary that they should have a right to protect their personality and to have control over its exploitation.
The celebrities register their personality and gain exclusive rights to exploit their image. Any act creating a likelihood of association with the registered image or their distinct characteristic would amount to infringement of right to personality.
Indian Judiciary on the Issue
As said above, Personality Rights per se, are not recognized as distinct legal rights in India. They are generally invoked through right to publicity and right to privacy. One of the important judgments on Right to Publicity was delivered by the Delhi High Court, in ICC Development (International) Ltd. v. Arvee Enterprises, wherein the scope of right to publicity was restricted to individuals only and was denied to corporations or companies.
Another instance is of singer Sonu Nigam winning a case against Mika Singh for defamation and infringement of personality rights, wherein the Bombay High Court imposing a heavy fine on the defendant made it clear that no third person should be commercially profited by using images of the celebrities without their consent, exploiting the personality right of the celebrities and observed that the heavy fine so imposed would act as a deterrent to people who intend to engage in such acts.
In Titan Industries Ltd. Vs M/S Ramkumar Jewellers, the Court observed "When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not 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 commercial use of human identity is the right to publicity."
Recently, Superstar Rajnikanth moved to the Madras High Court for an injunction restraining the release of a movie titled as "Main hoon Rajnikanth" invoking his personality rights. The superstar in his application stated that, "A large section of the public across India is, therefore, likely to be misled into viewing such project/film on the mere belief that the said project/film has been approved by their matinee idol. It is to prevent such widespread hysteria and undue confusion amongst the public, besides maintaining his personal integrity; he has chosen to abstain from approving or supporting any project based on his personal self/personality. In the present suit, filed by Superstar Rajnikanth, Madras High Court ordered an interim injunction and has also put stay on the release of the questioned film.
Finally, India has started to acknowledge the concept of personality rights. The increasing number of celebrity endorsements and other activities that result in commercial gain demand for stringent enforcement of personality right. Many States in USA have recognised this right to publicity as a distinct right under the head "Celebrity Rights". Its high time India should adapt a distinct legal status for personality rights and to take stringent efforts to protect the image and status of well-known personalities of the country like various other countries of the world. A clear legislation on the subject would do the needful.