Why stars are turning to courts for personality rights

The right to publicity, popularly known as personality rights, refers to an individual’s right to control the unauthorised use of their personality attributes

Not long ago, the idea that a person’s style, voice, or even a famous mannerism could need legal protection might have seemed far-fetched. But a wave of recent litigation by film figures including Amitabh Bachchan, Anil Kapoor, Jackie Shroff, Aishwarya Rai Bachchan, Abhishek Bachchan, Karan Johar and Nagarjuna reflects a significant shift in legal discourse. These celebrities have pressed the Delhi high court to acknowledge and enforce personality rights, underscoring the growing recognition of identity as a valuable legal asset in the digital age.

Aishwarya Rai Bachchan and Abhishek Bachchan filed suits for protection of their names, voices and other attributes. (Getty images)

The surge in personality rights litigation in today’s artificial intelligence (AI)-driven environment is largely attributable to the increasing misuse of celebrities’ personas by various unidentified entities, all of which can inflict significant reputational damage and unwarranted ridicule.

While most of the celebrities, including Aishwarya and Abhishek, sought protection of this right by restraining various entities from misusing their persona through unauthorised sale of merchandise, dissemination of obscene, defamatory, or manipulated content through technologies such as deepfakes, and the creation of AI-generated chatbots, Johar also requested the removal of derogatory and obscene memes, as well as social media posts containing profanity and slurs.

In Johar’s case, Meta (which operates platforms such as Instagram and Facebook) and Google opposed the takedown, arguing that some of the contested content constituted caricature, lampooning, satire, and parody. They contended that these forms of expression are recognised exceptions to the enforcement of personality rights, and that granting the relief could potentially open the floodgates to extensive litigation. Justice Manmeet Pritam Singh Arora, despite the opposition, directed these social media intermediaries to take down more than 100 URLs, concluding that unauthorised use of a celebrity’s persona for creating obscene memes, social media posts, and videos tarnishes their goodwill.

Johar’s case isn’t just a win for him, it marks a significant development in the expanding landscape of personality rights litigation in India and highlights the shifting stance adopted by social media intermediaries in such disputes. It also has free speech implications.

Personality rights and their legal protection

The right to publicity, popularly known as personality rights, refers to an individual’s right to protect and control the unauthorised use of their personality attributes, such as their name, image, voice, likeness, or other distinctive personal features, for commercial gain. These rights are two-fold and comprise the right to protect one’s image from commercial exploitation and the right to privacy, which entails one’s right to be left alone.

Though, there exists no express law and legislative enactment, rule, or policy to protect personality rights, individuals can seek its protection from the fundamental right under article 19(1)(a) and Article 21 of the Indian Constitution, which safeguards the right to freedom of expression and the right to live with dignity and the right to privacy. Additionally, intellectual property rights laws offer further safeguards for personality-related interests.

The interests of famous personalities are protectable under the Copyright Act, 1957 as an extension of moral rights. Sections 38, 38A, and 38B of the 1957 Act give performers the right to receive credit and be recognised as the authors of their performances.

Section 38, which deals with performers’ rights grants two types of rights. The first of the dual rights is the right to exclusive performance under section 38A. This provision lays down that a performer has the “exclusive right” to make a sound recording or a visual recording of their performance and to prevent others from broadcasting their live performance.

Reproduction, use of the performer’s work and communication of performance without their consent constitutes infringement.

The second of such rights is moral rights, including the right to attribution and integrity under section 38B. This section entails that performers have the right to be identified as the creators of their work and to prevent or seek damages for any distortion, mutilation, or other modification of their performance that is prejudicial to their reputation.

Trademarks Act, 1999, also accords a degree of protection to personality rights. Section 2(m) of the act, specifically includes ‘name’ in the definition of ‘mark’. Additionally, section 27 recognises the common law rights of the trade mark owner to take action against any person for passing off their goods/services as the goods of another person or as services provided to another person.

Evolving jurisprudence of personality rights in India

With the growth of the entertainment industry in India, the concept of personality rights has gained significant prominence, closely linked to the evolving recognition of the right to privacy.

The emergence of personality rights was propelled by the Supreme Court in the landmark case R Rajagopal Vs State of Tamil Nadu (1994), commonly known as the Auto Shankar case, where the court balanced an individual’s right to control the commercial use of their identity with the right to publication of records publicly available. “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent— whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages,” held the court.

In 2003, the Delhi HC in ICC Development (International) Ltd Vs Arvee Enterprises clarified the scope of personality rights by ruling that they apply exclusively to living individuals or identifiable aspects of their personality and thus exclude non-living entities.

In DM Entertainment Pvt Ltd Vs Baby Gift House & Ors (2010), the Delhi HC, while protecting the personality rights of singer Daler Mehndi, defined its ambit. The court ruled that the right of publicity protects individuals against the unauthorised use of their personality, which includes their name, image, voice, and other distinctive attributes. It also recognised that such unauthorised use can result in unfair commercial benefit for others, thereby violating the individual’s personality rights.

Thirteen years later, the Delhi HC in Anil Kapoor Vs Simply Life India and Ors (2023), while safeguarding Bollywood actors’ rights, tackled the important concerns about the possible abuse of AI and its significant aspects on image rights, privacy and commercial interests of well-known individuals. Restraining entities from using Kapoor’s persona by employing deepfake and AI, the judge observed that a celebrity’s right of endorsement acts as a major source of livelihood, and any attribution of it, without consent, is illegal.

Earlier this year, the Delhi HC, while safeguarding the personality rights of Isha Foundation founder Sadhguru Jaggi Vasudev, expressed serious concerns about the misuse of technology by rogue websites. The court noted that these platforms frequently operate under the cloak of privacy, making it exceedingly difficult for victims to identify the operators or seek removal of the offending content.

Global perspective on personality rights

While India still lacks a dedicated statutory framework for personality rights, the US has a well-structured and robust legal framework for the protection of personality rights that derives from both common law and statutory protection. Specifically, regarding the federal law, the Lanham Act offers some remedy for commercial misappropriation, especially concerning false endorsement issues.

Most states have also put into law specific statutes protecting the right of publicity. For instance, Section 3344 of California’s Civil Code states that any person who, without consent, uses another person’s name, voice, signature, photograph, or likeness for a commercial purpose is an infringement. Similarly, personality rights have been recognised under the Tennessee Code with specific rights for the protection of post-mortem personality rights.

In France, Article 9 of their Civil Code protects an individual’s right to their image, extending it to include a person’s name, voice, and other identifiable characteristics. In Germany, the concept of “general right of personality” is enshrined in the Constitution (Articles 1 & 2), encompassing control over the portrayal and commercial exploitation of one’s personality.

As more and more public figures seek legal recourse for the unauthorised use of their personal attributes, courts are increasingly stepping in to fill the legal vacuum by relying on constitutional protections of privacy and dignity, and adapting common law principles to modern threats. This evolving jurisprudence not only safeguards individual identity from commercial exploitation but also redefines the balance between personal rights, creative expression and technological innovation in a rapidly digitising world.

But as Johar’s case showed, such litigation might also have an implication for satire and comedy, and by extension, free speech. Senior advocate Vivek Sood and advocate Vaishali R Mittal, senior partner in litigation at Anand and Anand, urged a careful, balanced approach that protects identity without undermining free expression.

“In this age of social media influencers, where the individual is the profit centre, to protect personality rights is a natural extension of the traditional concept of IPR. But overprotection of this property would affect the free speech of others to traverse the same area. Hence, protection of personality rights has to be carefully curated...”Sood said.

Mittal too echoed the need for balance. “A balanced approach ensures that while a celebrity’s persona is not misused for profit, space remains for free expression and socially valuable discourse.” On why celebrities are increasingly approaching the Delhi HC to protect their personality rights, Mittal said this is due to the court’s proactive approach. “Delhi has become the venue of choice, largely because of the court’s receptiveness and track record in granting quick and effective relief in intellectual property and technology-related matters.”