Are Personality Rights only for Celebrities.

23rd October, 2024 - 9:12 am Categories: Personality rights 0 Comments

Personality rights are rights to individuals to protect their persona in commercial domain, which includes but is not limited to their name, voice, physical characteristics etc. In India, we do not have a specific law on personality rights. But through different precedents of courts in India, we can conclude, that Personality right can be broadly categorized in two forms. First is Right to Privacy and Second is Right to Publicity. The Judgement of K.S Puttaswamy v. UOI[1], has provided personality right a constitutional status in India.[2] Along with Puttaswamy, the court in R. Rajagopal v. State of TN[3], has held that Right to privacy gives people a fundamental right to protect their persona. But that is merely related to privacy and as far as Commercial aspects are concerned, right to privacy falls short to protect the personality of an individual.

In the case of T-Series (Supra Cassettes) v. Dreamline Reality[4], T-Series wanted to make a film adaptation on the book written on the life of Jaswinder Singh, a victim of Honour Killing. This was objected by Sukhwinder Singh, the Husband of the victim, as he claimed that when a movie will be made on the life of his wife, there will be often mention of him which is in violation of his personality rights. The court in this case held that only celebrities can enjoy personality right, and the judgment which was given by the court in Puttaswamy case is merely advisory and not binding. Based on which Sukhwinder was denied any relief. This judgment and many others on similar line have created a divide between right to privacy and the second category, right to publicity, out of which the latter is the one which is enjoyed by celebrities and protect the commercial aspect.

Yuvraj Singh Case

We all know that, Yuvraj Singh is a famous cricketer. Recently Singh has invoked arbitration against developer M/s Brilliant Etoile Private Limited. Singh has alleged that the developer has violated the Memorandum of Association between them signed on November 23, 2020 and misused the brand value of Yuvraj Singh. The cricketer further submitted that the developer has violated the Trademarks and Copyrights by the means of which Singh has registered his personality.[5]

In this case, Singh can secure his right to persona by means of IP laws such as trademarks and Copyrights. Under the Copyrights Act, Section 2(qq)[6] defines performer, Section 38[7], preventing unauthorized marketing of one’s Performance, are few statues which can apply to claim personality. Under Trademarks Act, it only protects a limited aspect of personality law, such as under Section 2(m)[8] “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof, but this definition does not include personality traits such as voice, image etc.

By the means of copyrights and trademark only a limited type of personality attributes can be protected on the name of personality rights. And furthermore, registering personas by means of IPs such as trademark or copyright requires certain distinctive feature hence, these rights are usually enjoyed by celebrities. So, what about the personality rights of a common person who is not a celebrity? Do they possess a right over their personality?

Common people’s right over their persona

Going back to the distinction made earlier between Right to Privacy and Right to Publicity, out of this certainly as Right to Privacy is a fundamental right it can be exercised by everyone irrespective of their status. But going by the T-Series (Supra Cassettes) v. Dreamline Reality case, right to privacy falls short to address the commercial aspect.

Even going by the widest interpretation of Right to Privacy, if courts do consider such violation of one’s persona as violation of their privacy. It is not an absolute right and, in some way, or another, it will fall short to protect the persona of an individual as people are free to comment on any aspect of it, once it is in the public domain.

On the other hand, right to Publicity, as we saw in case of Yuvraj Singh, is a right which can only be exercised by celebrities by means of copyrighting and trademarking their personality. But the common people will not always have a distinctive feature attached to their personality, so what kind of remedy do they have?

The Delhi HC in case of Krishna Kishore Singh vs Sarla A Saraogi & Ors.[9] has held that, rights over one’s personality and persona are not limited to celebrities only, and can be exercised by anyone. But this also poses certain problems as, first the judgement in Kishore Singh is contradictory to Supra Cassettes. Second even if the court says that this can be exercised by the people, how far can a precedent of court be exercised in practice by common people if it is not provided with proper functioning rules and laws.

Growing Technology and Personality Rights

In the advanced era of technology, we now use social media, internet, Artificial Intelligence, etc., which although has multiple benefits, have created an environment where people’s personality can be easily misappropriated. Acts such as identity thefts, deepfakes, etc., are some ways through which the identity of a person can be used to perform illegal acts. Here, it is not necessary if you are a celebrity or not, if you have any kind of digital footprint, that information can be used by anyone for anything without you noticing it.

Here, in performing such illegal acts, if we go by the definition of Personality right, one’s identity is certainly getting used in a manner where an s party is making use of the personality of a person to gain something wrongfully. Although we can say that there exist different IP laws which can protect the personality of the victims, but this will only apply to people whose personality is of a commercial significance before such act of identity theft, or misappropriation takes place. But common people whose persona may not hold a substantial commercial value before such misappropriation, to an extent where it can be copyrighted or trademarked, but their identity and personality is used after misappropriation to commercially gain something in a wrongful manner, these categories of people are out of any protection under the IP laws.

And as discussed earlier, Right to Privacy is more concerned with the violation of privacy, which can be used in case of misappropriation of one’s identity, but as it is a non-absolute right, a concreate remedy to commercial misappropriation will not be the result. It is a major task for the law-making authorities now, to address these lacunas because, as we move ahead with time we will inculcate more and more technology in our lives, which will in return lead to problems, one of which is mentioned above.

Guernsey legislation on personality rights

Guernsey is a country situated in Europe which has a comprehensive law protecting its citizens Personality Rights, Guernsey’s Image Rights (Bailiwick of Guernsey) Ordinance 2012[10]. It is a law designed to protect the persona of an individual, a detailed and specific law to deal with the issues related to personality right. Such legislations can act as an inspiration for the Indian legislature

Conclusion

Right to one’s persona is something that is autonomous, and controlled at the will of an individual. This persona is possessed by everyone irrespective of where they stand in the society and it is the responsibility of the state to safe-guard these rights of the people. In India, we do not possess a comprehensive set of laws to deal with the issue of personality rights violation but other IP laws such as Copyrights and Trademark are used to protect these rights, which have proved to be inefficient in protecting all aspect of personality rights. Its high time now that India recognizes personality rights and, that violation of personality rights is of grave nature. Also, it is important for courts in India to unanimously recognize that personality rights are not available just for celebrities, but can be equally enjoyed by Common people, regardless of their social standing.

Author: Soham Lambe , in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] K.S. Puttaswamy v, UOI, AIR 2017 SC 4161, https://indiankanoon.org/doc/91938676/.

[2] SpicyIP, Prashant Reddy, The Supreme Court’s Privacy Judgment Elevates Personality Rights to the Constitutional Plane, https://spicyip.com/2017/08/the-supreme-courts-privacy-judgment-elevates-personality-rights-to-the-constitutional-plane.html. (last visited, 14^th Oct. 2024, 15:09)

[3] R. Rajagopal v. State of TN, 1994 SCC (6) 632, https://indiankanoon.org/doc/501107/.

[4] T-Series (Supra Cassettes) v. Dreamline Reality, 22 Feb. 2024, https://indiankanoon.org/doc/20180197/.

[5] Livelaw, Nupur Thapliyal, Cricketer Yuvraj Singh Invokes Arbitration Against Developer Over Personality Rights Violation, Possession Of Apartment, https://www.livelaw.in/news-updates/cricketer-yuvraj-singh-invokes-arbitration-against-developer-over-personality-rights-violation-possession-of-apartment-258951#:~:text=Nupur%20Thapliyal&text=Cricketer%20Yuvraj%20Singh%20has%20invoked,The%20cricketer%20has… (last visited, 14^th Oct. 2024, 15:16)

[6] Section 2(qq), The Copyright Act, 1957.

[7] Section 38, The Copyright Act, 1957.

[8] Section 2(m), The Trade Marks Act, 1999.

[9] Krishna Kishore Singh vs Sarla A Saraogi & Ors., 11 July 2023, https://indiankanoon.org/doc/71066966/.

[10] Image Rights (Bailiwick of Guernsey) Ordinance 2012.