PERSONALITY RIGHTS: SIGNIFICANCE AND ROLE IN PRESENT WORLD
Author: Aryant Pal, III year of B.A.,LL.B.(Hons.) from Banaras Hindu University
People in India are heavily influenced by advertisements that feature celebrities. It is not limited only to costly items like diamonds and jewelleries endorsed by Amitabh Bachchan but also to small things of daily use such as energy drinks endorsed by ViratKohli. In such a case the image of that celebrity is linked to a particular product and the product is identified by his name. So it becomes very crucial for the celebrity to choose the right product for endorsement. In such a situation, it would be very disastrous for a celebrity, if someone uses his name or image or any of his characteristics, without his permission. Apart from the loss of fame the celebrity may also suffer economic loss. Hence it becomes important to understand what are personality rights and their related aspects.
What are personality rights?
Personality rights are the unique characteristics of an individual with which he is identified and upon which he has certain rights. These may be his voice, his photograph, his way of singing, or any particular way of orating a line or dialogue. In simple words, personality rights can be defined as the personality traits of a celebrity that cannot be misused by others. It is a right in rem i.e. it can be claimed against the world at large.
Why in News?
Recently, the famous actor and celebrity Mr. Amitabh Bachchan filed a civil suit in the Supreme Court for registering his personality rights. To be specific he wanted to register his unique style of referring to the computer as “Computer Ji” and selecting an option as “computer ji, is option prtalalagayajaaye”.
From where does this right gets validity?
Eminent philosopher GWF Hegel has defined property as an extension of the personality. Thus, it is made similar to the rights that a person gets for his property. It is not defined specifically in the constitution or any statute but the courts have construed it as emerging from the Right to privacy defined under article 21 of the Constitution of India. The courts are of the view that a particular characteristic of a celebrity is a thing personal to him and the infringement of this privacy would come under article 21. In the case of ICC Development (International) Ltd. vs. Arvee Enterprises[i], the Delhi High Court held that: “The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice. etc.”
The personality rights to some extent also derive their validity from the Indian Copyright Act, 1957 and the Indian Trademarks Act, 1990. The civil courts also have the power under section 151 of CPC to prosecute a person for infringement of the personality rights of a celebrity. Section 151 of CPC reads “Nothing in this code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” The procedural aspect of this section is mentioned under order-39, rule-1 and rule-2. Under these sections also a person is liable to pay damages to a celebrity for the infringement of his personality rights.
To whom such rights are available?
Personality rights are not available to each and every citizen like the Right to Freedom of Speech and Expression or the rights which are available to every person under article 21. The courts have held that “personality rights vests on those who have attained the status of celebrity.” Now the question arises who can be called a celebrity? There is no objective or direct answer to this question. It depends on the facts and circumstances of each case. According to the Collins Dictionary[ii], a celebrity can be defined as “someone who is famous, especially in areas of entertainment such as films, music, writing or sport.” In the case of TITAN Industries v. Ramkumar Jewellers[iii], the Delhi HC has defined the word celebrity as “a famous or well-known person who many people talk about or know about.”
Types of rights under its ambit
Personality rights consist of two types of rights:
1. Right to Publicity: This refers to the right of a celebrity to protect his personality from being commercially exploited without his consent or agreement.
2. Right to privacy: This includes the right of a person to forbid public exhibition of his traits or personality.
Why are Personality Rights required to be protected?
India is a country where celebrity worship is done blindly.When the image of a product is linked to a particular celebrity, people tend to prefer that product over other similar products in the market. This phenomenon is exploited by businessmen who have agreements with the celebrities endorsing their products but in many cases, it has happened that, many businessmen use the personality traits of a celebrity for their product, without their permission, to deceive their customers. This has many-a-times resulted in cases lodged against that celebrity and sometimes they are even made to pay fines. It is for this very reason, personality rights need to be protected so that no person can use them without the consent of that celebrity.
Another reason is that these personality characteristics might be used to spread fake news. People tend to believe such voices or morphed videos because they are similar to renowned celebrities. Such means have many times been resorted to in the past by the powerful for their selfish purposes.
How can Personality Rights be protected?
For the protection of personality rights,Ashok Kumar orders can be passed by the courts at the request of the plaintiff. These are similar to the John Doe Orders followed by the courts in England. If a person has an apprehension that his personality rights are being infringed, then he can approach the courts for the passing of Ashok Kumar orders against the unidentified infringer. An Ashok Kumar order is a kind of injunction, accorded by the courts, where the state of affairs is such that an anonymous person is violating the IP rights of the IP rights owner and cannot be discerned at the time of filing the suit.[iv] Once these orders are passed the plaintiff gets a right to look for infringement and collect evidence if any and then complain against the infringer. Ashok Kumar orders are awarded ex-parte owing to the fact that the defendant is unidentifiable, and the time span is fleeting.[v]
What are the remedies available to the plaintiff in case of infringement of this right?
Since this right emanates from the right to life and personal liberty guaranteed under Article 21 of the constitution of India, a person always has the remedy to approach the court under this section to claim damages for the infringement of his right.
Another way the court can prosecute the accused is by initiating Contempt of Court proceedings against the accused. Now a question arises as to how infringement of personality rights is connected to contempt of court. Ashok Kumar order is basically an order issued by the court prohibiting the use of the personality traits of a celebrity without the permission of such personality. So, an infringement of such a right is a clear violation of court orders. Hence, the court has the right to prosecute a person under the relevant sections of contempt of court.
Another way a court can take cognizance against the infringer is under The Copyright Act, 1957. Section 13 of the act provides that this act extends to original literary, dramatic, musical, and artistic works; cinematograph films; and sound recording, and Section 14 authorises the owner of such artistic works to allow reproduction of their work. But the issue here is that, copyright is not provided to the artistic work but is provided to its creator. In this way, if someone misuses a photograph of a celebrity, infringement can only be claimed by the photographer and not the celebrity himself. A solution to this problem can be found under Section 38 of the act which provides a right to the performer over his performance.
Another way a court can take cognizance against the infringer is under the Trademarks Act, 1999. Section 2(1) allows a person to register a sign capable of being distinguishing goods and services of that person from others. So, through the medium of this section, a celebrity can claim infringement of his rights.
Case Laws in this regard
ShivajiRaoGaikwad v. Varsha Productions[vi]
In this case, there was a movie by the name “Main HoonRajnikant” which was actually the biography of Superstar Rajnikant. Neither the lead actor was Rajnikant and nor did they obtain permission from Rajnikant. So,Rajnikant filed a suit in the court seeking an injunction against the violation of his personality rights. The court in this case stayed the release of the movie and damages were also awarded to the plaintiff(Rajnikant).
Arun Jaitley v. Network Solutions Pvt. Ltd.[vii]
In this case, a suit was filed by famous politician ArunJaitley against a website registered by the name www.arunjaitley.com. Although,Mr.Jaitley lost the suit as the defendant’s name was also ArunJaitley and he was able to prove that he kept the website's name on his name but the court made a very crucial observation. It stated that “Popularity or fame of an individual will be no different on the internet than in reality.”Thus the court widened the boundary of personality right by including the internet under its ambit.
TATA Sons Ltd. &Anr v. Aniket Singh[viii]
This case is similar to the ArunJaitley case. In this case, a website was registered by the domain name www.cyrusmistry.com by the defendants and the plaintiff’s name was also CryusMistry who was CEO of TATA Group of Industries. The Plaintiff claimed that his name is being used to derive profits by the defendant thus violating his personality rights. The court in this case ruled in favour of Plaintiff i.e Cyrus Mistry.
TITAN Industries v. RamkumarJwellers[ix]
In this case, an advertisement of some jwellers featured an image of famous celebrity Amitabh Bachchan and his wife Jaya Bachchan. The celebrities claimed that it was featured without their permission and hence is a violation of their personality rights. The courts in this case claimed in favour of the plaintiff.
GautamGambhir v. DAP Co. &Anr.[x]
This is the latest case in this regard. This suit was filed by the famous cricketer GautamGambhir who claimed that the defendants ran a restaurant named after him thus using his image without his permission. The court in this case ruled in favour of the defendants by stating that since the defendant's name was also GautamGambhir and by the use of his name there was no loss to the plaintiff in his game. So the defendants had not infringed any personality rights of the plaintiff and are not liable to pay any damages.
“What’s in a name? that which we call a rose, By any other name would smell as sweet” These are the lines from Shakespeare's play Romeo and Juliet which translates as by changing the name, the characteristic doesn’t change. But this doesn’t seem to be prevalent in the present times. In the present times, a person through his hardwork earns name and fame and any act of a person which tarnishes such name should be prohibited. It is because of this very reason that the Consumer Protection act made legislation to protect consumers from false advertisements portraying the name or image of famous celebrities with which they have no nexus.
[i]http://www.scconline.com/DocumentLink/b2eiE79d [ii]https://www.collinsdictionary.com/dictionary/english/celebrity [iii]http://www.scconline.com/DocumentLink/18iSl1vi [iv]https://sarinpartners.com/ashok-kumar-order-the-indian-version-of-john-doe-orders [v]https://sarinpartners.com/ashok-kumar-order-the-indian-version-of-john-doe-orders [vi]http://www.scconline.com/DocumentLink/784BNZRL [vii]http://www.scconline.com/DocumentLink/4EDJ8f0V [viii]https://indiankanoon.org/doc/136326853/ [ix]http://www.scconline.com/DocumentLink/18iSl1vi [x]https://indiankanoon.org/doc/106318101/?type=print