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Analyzing The Scope Of Personality Rights Under Indian Copyright Law

With constant developments in the field of intellectual property, people are always looking to protect their new inventions, products, goods, designs and services. Additionally, a new kind of right has emerged in recent times - the right to protect one's own personality. Celebrities in the public eye have played a big role in shaping the choices people make in their daily lives. Even though the High Courts in India have identified such commercial rights as being present in public figures by virtue of their fame and established reputation, they are not given distinct recognition.

Instead, personality rights exist as the combination of two legally accepted rights, namely the right to privacy as envisaged under Article 21 of the Indian Constitution and the right to publicity.[1] The two rights may seem conflicting at first glance as celebrities and performers in the entertainment industry and outside of it thrive on publicity to earn their livelihood, but they deserve to have a line drawn between their personal and professional life to the utmost extent possible.

In order to protect these rights harmoniously, the right to publicity is construed as preventing others from exploiting one's identity and their earned goodwill, while the right to publicity includes the freedom to keep immense public attention from interfering in their lives and choices. Though the latter is common to every Indian citizen, personality rights apply only to those who have a distinct and well-known personality in order to commercially exploit it.

Personality rights currently are not currently mentioned in any statute, including the Copyright Act, 1957, but can be considered copyright-like rights, because these celebrities are often performers such as actors, dancers, singers.[2] Talent management agencies and legal counsels, often work together to protect and exploit such celebrity rights on behalf of their clients, which include one's voice, image, likeness, signature, silhouette, name and other personable attributes that the common public may associate the person with.

The author aims to analyse the ambit of personality rights within the intellectual property legislations and other allied laws currently existing in India. The author further aims to trace the pattern of judicial decisions of the higher courts in recognising these rights and touch upon two aspects of personality rights that have not been covered extensively in Indian literature -- character rights and posthumous personality rights.

Introduction
All individuals, whether famous or not, have the right to privacy though and recourse if they get violated, as it is a violation of Article 21 of the Constitution. The notion is that celebrities or public personalities/entertainers live a life which is different from the common public and that they should expect to be photographed everywhere as people like to keep tabs and constant updates on what they are doing.

Individuals have the right to promote their name and image, but others do not have the right to exploit these individuals' images without their consent or involvement. This is known as publicity rights, wherein the person's fame is used to boost the popularity, sale or promotion of a film or product. Thus, celebrities often assert and represent their identity through lucrative brand endorsements, often procured by their agency as a part of their contractual obligations.

It would not make sense for a brand to recruit an unknown person to advertise for them, because publicising them would not generate any commercial benefit. The point of such a tie-up is to lure the famous person's fanbase to buy their products in lieu of a hefty sum of money to the personality. Usage, exploitation, appropriation, clout, representation of a person who possesses established reach, popularity, commercial value and reputation without authorisation or permission would amount to a violation of personality rights, which is said to originate from the fundamental right to privacy.

Fame as per judicial interpretations does not usually refer to short-lived fame, such as being in the news for a few weeks, but this classification can arguably be said to be outdated, with the rise of quick and instant social media fame. However, it is generally agreed upon currently that it would be harder to enforce the rights of people who aren't famous or aren't famous for specific individual traits, unique signature style, photograph or brand of the persona.

For instance, Shah Rukh Khan's open arms pose or the style of acting Shammi Kapoor employs on-screen are intrinsic to them and easily identified with them, even if they have developed them later in their career. These traits should be distinct, unique and identifiable, not just vaguely similar or present in others as well and able to generate commercial benefits.

Personality Rights in Industry Practice

Personality rights can often conflict with the right to protect someone's work under the Copyright Act. For instance, Emily Ratajkowski[3], a famous American model, recently settled a landmark US copyright lawsuit with a paparazzo who sued her and other models for posting the candid pictures he took on their Instagram accounts. Her counsel had claimed that the picture was not taken with her permission, infringed upon her right to publicity and did not involve "any artistic value" as it did not require any posing or direction of rearrangement of lighting and angles.

Even not-for-profit organisations exploiting a celebrity's goodwill by putting their face on their brochure despite lack of association can be proceeding against for infringement on paper, even if they are not necessarily deriving much commercial exploitation from it. Personality rights are said to cease when the famous persona's lifetime is over or he has returned back to private life away from the spotlight, such as child actors deciding to pursue a more traditional career when they grow older.

Personality rights are usually acquired through the assignment as it is ideal for the producer to include such a carve-out to own the life rights or of the individual when making a biopic based on their personality. However, the transfer of rights via a license may be preferable to the creator of the persona or performer so that his personality rights are not exclusively granted at a time to the film producer and the personality rights are retained after the license period is over, making it essentially a one-time usage.

For instance, if a film is made on Saurav Ganguly, who is a former cricket player and the current president of the BCCI, isn't expressly covered under the purview of a "performer"[4] under the Copyright Act, but we can argue that he still has publicity rights as a performer under Section 38[5], as he has a sort of persona he puts up as a public figure, and he also makes a sort of performance as a sportsperson.

From the producer's point of view, his film will be diluted if two films are made at the same based on the same personality, as the audience would confuse the two or watch the other one. Making multiple audio-visual content with the story and character being based on or centred around someone at the same time would make the target audiences clash. Thus, exclusivity for a time period mutually agreed upon by the parties or a time-based acquisition of rights would the industry norm.

The celebrity or right-holder of his personality can even grant personality rights to some other party to make a graphic novel based on him, having a clause like such that the film producer cannot restrict him from keeping all personality rights with himself except for this cinematographic film being made on him. There are two ways the personality can look at the exploitation of his personality rights: firstly, assign the right to a party to create only one specific copyrightable work[6] based on his life story to a party (restricted right); secondly, allow one party to create multiple copyrighted works.

The first option is practically preferred by celebrities because they can maximise exploitation by earning royalties from multiple parties. Producers mostly acquire film rights even if they are making a film on a generic event which includes a reference to a popular individual's traits unless they have changed the name of the character or found another defence to infringement.

For instance, before Ranveer Singh portrayed the real-life personality Kapil Dev in the film 83, he would have ideally had to sign an actor agreement including a clause wherein he will not continue performing such a personality in isolation from within the scenes of the film or promotional events associated with the film unless he has gotten authorization from the producer who owns Kapil's personality rights.

Judicial Interpretations of Personality Rights

The test of identifying in which situations infringement of personality rights arise was laid down in Titan Industries v. Rajkumar Jewellers[7], wherein the Court stated that personality rights include the right to not intrude upon their private space or solitude, publicly disclose sensitive facts, misrepresent their image publicly or use their name to be unjustly enriched.

In this case, Titan Industries had shot an ad campaign with Amitabh and Jaya Bachchan for their brand Tanishq, but Rajkumar Jewellers had just stolen the picture and other creatives and replicated Tanishq's exact hoardings with the actors' image, but added their own trademark and trade names on it in order to promote their own jewellery line. The Court held the defendant liable, but also observed that there should be conclusive proof or clarity that a right has been violated and that personality rights fade away when commercial value is largely said to stop.

In Sakshi Malik v. Venkateshwara Creations Pvt. Ltd. & Ors., the plaintiff was a model and actress who entered into various brand partnerships. The defendant took the image which was posted by the plaintiff on her Instagram profile and used it in a still image of their film in a derogatory context. The usage of the image without authorisation from her is considered an infringement of her publicity rights, while the reframing of her image in a demeaning and illicit manner is violating her right to privacy, even if the image was pixelated or blurred.

The Court thus granted a permanent injunction against the defendant to remove such an image from the final cut of the movie and clarified that the right to publicity means that the personality is granted the discretion to exercise control and have some agency over the way in which they want to be publicised. In Shivaji Raogaikwad v. Varsha Productions[8], the famous actor Rajnikanth contended that the defendant had misused his mass hero image, style of delivering dialogues and expressions, caricature and even name by portraying it to be a tribute to the actor by including these traits, but actually have no similarity to the protagonist besides their shared name.

The producers of the film intended to appropriate the actor's loyal fanbase to unjustly derive commercial benefits from this established goodwill. The Court observed that this constituted a clear case of infringement even if the film was made in a positive light. Additionally, like the previous case, the film had many vulgar scenes, diluting the actor's image by making the audience believe that Rajinikanth was involved or consented to the making of the film in some way.

On the other hand, producers feel it is not possible to just make a film faced with government data, because it can be boring and devoid of drama, not translating well onto the screen. To balance the interests of both parties, R. Rajgopal v. State of Tamilnadu[9] classified what information the producer needs to take permission and which one he doesn't. Public domain is the broad ambit, which includes public records as well as other things, whereas public records is the narrow ambit.

Thus, the public domain includes fact-based things as well as opinions, scandals, controversies, website with factually incorrect information about the personality, rumours, fan pages, tabloids, physical and digital news articles, anything else available on the net etc., whereas public records only include factual records about the person in an official govt. database, and not dealing with his personality traits. Public records are a smaller sub-set within the vast public domain, like birth, death, marriage and residential details. Thus, the Court held in this Autoshankar case that usage of the information on which falls beyond the scope of public records needs permission

Personality rights do not need to be acquired for creating a film based on solely public records, but need to acquire necessary clearances and personality rights for film based on public records and other information available, which is wholly called public domain. It is hard for a filmmaker to make a film just based on birth details or case details of a case a person is involved in presently or in the past or pending against them, as these do not cover the entire life story of a person, the rest is filled by the personality, which he can capture by looking at the public domain, for instance, the film Sanju created a lot of sensationalism because of the producer's choice, after taking permission from Sanjay Dutt, to include his colourful life with sprinkles of rumours from news articles at the height of his fame and downfall. Phoolan Devi v. Shekhar Kapoor[10] and Jayalalitha v. Penguin Books India[11] both held that information from newspapers is part of the public domain and not public records, so still need to acquire personality rights if using the same.

Posthumous Personality Rights

Many Western countries have recognised it, especially Canada which has a specific law for it, which gives rise to a lot of exploitation and revenue generation for legal heirs, descendants or relatives of posthumous personalities, talent agencies etc. For instance, the US has held many hologram concerts held with Prince and Michael Jackson, where artists perform along with their moving images or clips recreated in a 3D form by the use of advanced technology.

Unlike normal personality rights which is at least judicially recognised, posthumous personality rights are neither statutorily nor recognised by the Court. Clarity as to such a position of whether personality rights came up in Deepa Jayakumar v. AL Vijay[12], wherein the court held that they cannot be inherited in India, whether they are legal heirs or not.

Personality rights thus cease to exist after the death of the personality. Court's rationale is based on the fact that legal heirs are not owning personality traits because those are intrinsic and personal to that personality only. For instance, even if Sridevi's children look like her, they cannot claim to inherently or possess her signature style or acting chops or hereditarily have it in-built in them.

In this case, Jayalalitha's image was utilised in a film in a non-derogatory way, but her niece Deepa still claimed that permission should have been taken, but Court stated that personality right is extinguished upon the personality's death. If negative reference or derogatory representation is made to any deceased person's reputation or their family, recourse is provided in criminal law, under Sections 499 and 500 of the Indian Penal Code, 1860 instead, which lays down, respectively, the definition and the punishment for defamation.

Character Rights

Character rights obviously applies to a fictitious person played by a real person. For instance, in pursuance of Ranveer's brand association with CoinDCX, he portrayed his usual hyperactive and cheerful traits that have long been associated with him in addition to assuming an extension of his character Murad in Gully Boy with the costume and accent.

Another example is that when any image of Prabhas dressed up in his Baahubali apparel is put on a T-shirt and sold, that can involve personality as well as character merchandising rights. The former involves personality rights, while the latter deals with character rights. Since his character is loosely based on Mumbai rappers Divine and Naezy, the producer of the film would have also acquired their life-story rights.

Character rights are usually only given to characters who are essential for the story of a book or film to even exist. In Nicholas v. Universal Pictures[13], the Court laid down the "character delineation" test, wherein it states that if there is a strong and developed embodiment of expression, the chances of the character possessing character rights will be higher.

Ancillary and tertiary characters or main characters with no distinct personality traits will usually not get character rights. In Warner Brothers v. Columbia Broadcasting[14], the Court coined the "story being told" test, wherein character being a prominent part of storytelling makes it more likely to be copyrighted.

Conclusion
Even though India has come a long way in recognising personality rights, there are still questions that arise as to what is the degree of consent required to make a film inspired by the life of a real-life person; how to balance the constitutional freedom of the producer to artistically express[15] in the way he wants to in his films and be in the profession of filmmaking[16] (cinematic liberties) and the persona's rights; what are the limits imposed upon filmmaker to not commercially hinder personality rights[17]; and whether posthumous personality rights can be granted legal recognition in India in the near future and if enforced, what is the nature and exploitation scope of such rights that can be granted to the persona's legal heirs.

In FA Picture International v. CBFC[18], the Court emphasised that even though Article 19 of the Constitution is not absolute, it cannot be undermined on the ground that a filmmaker should portray only the exact versions of the facts without adapting them to the suitability of the film.

References:
  1. India Const. art. 21
  2. Copyright Act, 1957, 2(qq), No. 14, Acts of Parliament, 1957 (India)
  3. O'Neil v. Ratajkowski, 19 Civ. 9769 (AT) (S.D.N.Y. Sep. 30, 2021)
  4. Supra note 2.
  5. Supra note 2, 38.
  6. Supra note 2, 13.
  7. Titan Industries v. Rajkumar Jewellers, CS (OS) NO. 2662/2011.
  8. Shivaji Rao Gaikwad v. Varsha Productions, 2015 (62) PTC 351 (Madras).
  9. R. Rajgopal v. State of Tamilnadu, 1994 SCC (6) 632.
  10. Phoolan Devi v. Shekhar Kapoor & Ors., 57 (1995) DLT 154.
  11. Jayalalitha v. Penguin Books India, O.A. No. 417 of 2011 and Application No. 2570 of 2011 in C.S. No. 326 of 2011
  12. Deepa Jayakumar v. AL Vijay and Ors.; C.S. No. 697 of 2019.
  13. Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2d Cir. 1930).
  14. Warner Bros. Pictures v. Columbia Broadcasting System, 102 F. Supp. 141 (S.D. Cal. 1951).
  15. Rangarajan v. Jagjivan Ram, 1989 SCR (2) 204; Ramesh Pimple v. CBFC, Bombay, 2004 (5) BomCR 214.
  16. India Const. art. 19, cl. 1 (a), (g).
  17. Supra note 10.
  18. FA Picture International v. CBFC, AIR 2005 Bom 145.

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