One of the most celebrated Marvel Cinematic universe actress Scarlett Johansson reportedly once said that ‘Your face is your own, and nobody has the right to use it for profit without your permission.’ Johansson’s quote reinforces the significance of rights that persons have in protecting their individuality, and the traits and characteristics associated with the person.
Personality Rights
The word ‘celebrity’ is perceived by a large chunk of population as an honour and a reward for success. Sportspersons and artists earn it by skill, businessman and TV personalities earn it by wit, politicians earn it by votes and for some it is spontaneous like in the case of princes and princesses, who acquire it by birth or by marriage. Certain others may acquire it by their chance involvement in newsworthy events.
Pertinently, there are two discernible facets when a celebrity wants to protect their personality rights: first, the right to protect one’s image from being commercially exploited without permission by treating it as a tort of passing off; mainly termed as publicity rights which comes under the ambit of IP Law and second, the right to privacy which entails one’s right to be left alone[1].
Jurisprudential development in US and UK
The roots of recognition of individuality and protection from intrusion can be traced from the advent of the principle of ‘right to be left alone’ which gave the basis to right to publicity as a subset.
In the United States, the emergence of publicity rights for celebrities intertwined with privacy rights and has evolved through a combination of legal precedents and cultural shifts. The right of publicity, which grants individuals control over the commercial use of their name, likeness, and other personal attributes, began to gain recognition in the early 20th century. Notably, the case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.[2] set a foundational precedent for publicity rights. Pertinently, Haelan Laboratories and Topps Chewing Gum were rival manufacturers in chewing gum business. Further, in an effort to increase sales, Haelan Laboratories put together a set of cards which had faces of baseball players which was covered under exclusivity contract for set particular term period wherein the players were not allowed to grant any other gum manufacturer a similar right during the term of contract with the Plaintiff. However, the rival company Topps Chewing Gum Inc. induced the athletes via its agents to use players photographs to sell its own branded chewing gum during the same time of the existence of the above-mentioned contract. In view of the same, the US court of appeal ruled that the defendants acted in breach of the contract. The defendant’s contention that ‘a man has no legal interest in the publication of his picture other than his right of privacy’ fell flat on the face of legal principles and the court held ‘a man has a right in the publicity value of his photograph, and that such a grant may validly be made without an accompanying transfer of a business or of anything else’. Thus, the right of publicity was recognized as an important right.
In the United Kingdom, the emergence of publicity rights for celebrities is a relatively recent legal development. Historically, English law primarily focused on protecting reputation through defamation laws, with limited consideration for privacy.
The pivotal shift came in the early 21st century with the case of Douglas v. Hello! Ltd[3] which involved unauthorized publication of photographs from a celebrity wedding. This case marked a turning point, affirming the importance of safeguarding an individual’s privacy against intrusive media practices. It emphasized that celebrities, like any individual, possess a reasonable expectation of privacy in certain aspects of their personal lives.
Subsequently, the Human Rights Act, 1998, which incorporated the European Convention on Human Rights into the UK law, played a crucial role. The Article 8 of the Convention became a cornerstone for privacy rights which provides that ‘protecting the privacy of the private and family life’ as an important statute.
Jurisprudence in India
In India with the rise of the entertainment industry, the concept of personality rights gained prominence along with the right to privacy. In 1995, the emergence of personality rights was catalysed by one notable case R. Rajagopal v. State of Tamil Nadu[4] famously known as the Auto Shankar case, where the Supreme Court recognized a person’s right to control the commercial use of their identity. This case marked a pivotal shift, acknowledging that individuals, including celebrities, possess a legitimate interest in controlling the exploitation of their persona for commercial gains. The Court explained that the ‘freedom of the press flows from the freedom of speech and was subject to reasonable restrictions provided in Article 19(2), and that it was important to strike a balance between the freedom of press and the right to privacy’. The Court held privacy to be a ‘right to be let alone’ and that no one could publish anything referring to an individual’s private affairs without the consent of the concerned person unless it was based upon public records.
As the concept developed further, another question came before the Hon’ble Delhi High Court regarding whether the personality rights shall vest with a corporation or not, in the landmark case of ICC Development (International) Ltd. v. Arvee Enterprises[5], wherein the Delhi High Court stated that the right to publicity emerged from the right to privacy and only pertains to a specific person or any indication of their personality. Therefore, non-living creatures are not covered by the right of publicity. By involvement with an event, a person may obtain the Right of Publicity; however, neither the event in question nor the event's organizer are covered by this right. Any attempt to transfer a person’s right to publicity to the event’s organizer (a non-human entity) would be a violation of Articles 19 and 21 of the Indian Constitution.
In 2011, the Delhi High Court went ahead to define the concept of ‘Publicity
Right’ of a celebrity in Titan Industries Ltd. v. Ramkumar Jewellers[6] as ‘The right to control commercial use of human identity is the right to publicity’. The Court in this case further provided guidelines regarding the liability for infringement of the right of publicity.
In 2015, the Madras High Court in Shivaji Rao Gaikwad, (also known as Mr. Rajinikanth) v. Varsha Productions[7], while relying on the above two judgements opined that the personality right vests on those persons, who have attained the status of celebrity. It further added that ‘Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable’ and adjudicated that prime facie the plaintiff is liable to receive order in its favour.
In the order passed in the case of Anil Kapoor v. Simply Life India & Ors.[8] the Delhi High Court tried to cater to also those areas which were earlier not addressed. That is personality rights associated with an individual’s persona such as their name, voice, photograph/image/likeness, manner of speaking and dialogue delivery, gestures, and signatures etc. While pronouncing the judgement in the favour of the Plaintiff the court stated ‘reputation and fame can transcend into damaging various rights of a person including his right to livelihood, right to privacy, right to live with dignity within a social structure, etc. There can be no doubt that free speech in respect of a well-known person is protected in the form of right to information, news, satire, parody that is authentic, and also genuine criticism. However, when the same crosses a line, and results in tarnishment, blackening or jeopardises the individual’s personality, or attributes associated with the said individual, it would be illegal’. The court further stated that the ‘Plaintiff’s name, likeness, image, persona, etc., deserves to be protected, not only for Plaintiff’s own sake but also for the sake of his family and friends who would not like to see his image, name and other elements being misused, especially for such tarnishing and negative use’.
It is pertinent to mention that this judgement shows how elements of intellectual property that protects the attribute of an individual, in fact have other dimensions including rights protected by the Constitution of India.
Conclusion
Today, in the era of digital media and widespread information dissemination, this interplay between publicity and privacy rights remains a dynamic and complex area of law. Balancing the interests of public figures in controlling their image with their right to personal privacy continues to be a challenge in this evolving legal landscape.
[Both the authors are Senior Associates in IPR practice at Lakshmikumaran & Sridharan Attorneys]
[1] Tabrez Ahmad and Satya Ranjan Swain, ‘Celebrity Rights: Protection under IP Law’, Vol 16, January 2011, pp 7-16 , Journal of Intellectual Property
[2] (1953) 202 F.2d.866 (2d cir).
[3] 2001 2 WLR 992
[4] (1994) 6 SCC 632
[5] 2003 (26) PTC 245
[6] (2012) 50 PTC 486
[7] 2015 (62) PTC 351 (Madras)
[8] CS(COMM) 652/2023 AND I.A. 18327/2013- 18243/2023
