Personality Rights And Copyright Infringement In India - A Legal Exploration
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PERSONALITY RIGHTS AND COPYRIGHT
INFRINGEMENT IN INDIA: A LEGAL EXPLORATION
Janak Sejpal, SVKM Pravin Gandhi College of Law
ABSTRACT
Personality rights protect the persona of a person against unauthorised commercial use, but most often overlap with copyright law where the creative expressions of individuals are concerned. This paper attempts to trace the inter-play between personality rights and copyright infringement in India against the legislative framework, judicial interpretations, and challenges of modern technology. Personality rights lack clear codification in Indian law, with precedent and interpretation largely being under the judicial umbrella. The study highlights the necessity for full legislation to balance these intersecting legal realms. Introduction Personality rights, sometimes referred to as the "right of publicity," are inherent rights to protect the persona of a person, his or her name, image, voice, or other distinctive characteristics.
Copyright law, instead, assures the intellectual rights of authors over their literary, artistic, and other intellectual works. This trend is where the commercial use of a personality is interlinked with a copyrightable work, such as a movie advertisement or literary creation. In India, because there are no specific legislative provisions under which personality rights would exist, it has only been possible to refer to the principles of common law and judicial decisions. The following paper discusses personality rights, overlapping them with copyright infringement and their treatment in Indian law. It also discusses key case laws and recommends a way to harmonise the two legal frameworks. To understanding Personality Rights in India, it needs to be encompass into two broad categories:
1. Right to Privacy : The right to restrain unlawful usage of any individual's persona.
2. Right to Publicity : The right to sell their persona.
Personality rights vary in scope between jurisdictions. In the United States and most OECD countries, personality rights are codified into laws which in turn govern the rights; however, in India, no statutory enactments exist. Instead, personality rights receive protection through Constitutional and Common Law. Copyright Law in India - Legislative Framework Copyright protection in India is governed by the Indian Copyright Act of 1957 through exclusive rights granted over and above their works to authors and creators. The act applies to literary, artistic, dramatic, and musical works, cinematographic films, and sound recordings. The rationale of copyright law is to safeguard the economic and moral rights of creators. However, the act overlaps with personality rights. The confluence occurs where copyright works depict a person's personality.
Illustrative examples include: Laughable biopics, celebrities photos that happen either in an artistic or commercial setting. Digital postproduction, such as deep fakes. The following paragraphs argue this point of contention and try to untie this gordian legal knot. Indian Jurisprudence of Personality Rights Personality rights in India are an area of evolving law, with major development being judicial rather than through codified statutes. These rights are based on constitutional provisions and common law principles relating to an individual's right to privacy and commercial interests connected with his personality. It delves deeper into the jurisprudential development in India relating to the personality rights, bringing out major cases, principles, and their legal fabric.
● Constitutional Base of Personality Rights : Personality rights in India fall within the broader spectrum of the right to privacy under Article
21 of the Constitution of India. The right to privacy, which also includes protection to one's
name, likeness, and reputation, forms the bed upon which personality rights can be evolved. Yet, this right was neither defined nor developed within Indian jurisprudence until the landmark case of K.S. Puttaswamy v. Union of India in 2017. This judgement pronounced by the supreme court recognized the right to privacy as a fundamental right under Article 21. Though personality rights were not directly related to this judgement, it paved the way to entrench them since sanctity for personal autonomy cannot remain ignored. So the judgement of K.S.
Puttuswamy became the bedrock for enforcement of personality rights in India. So if earlier judgement laid on the principle of passing off in copyright law, Puttuswamy gave a fillip to this reasoning by wedding the idea of personality right as one enshrined into Fundamental Rights and hence became sacrosanct for court to guard it. However, these did not mean that courts placed earlier decisions relating to personality ground on a slippery slope since the right to privacy was not explicitly recognized. In R. Rajagopal v. State of Tamil Nadu (1994) commonly referred to as the "Auto Shankar case," the court emphasised on the idea of autonomy of an individual against unauthorised commercial use of an individual's persona. The Court held that unauthorised publication of private facts violates rights of privacy, thereby indirectly supporting the notion of personality rights.
This shows that much before the right to privacy was illustrated by courts as the iron soul of the Constitution, personality rights were welded to the sanctity of the individual. ● Common Law Origins : The common law principles of England have been the main bases for the laws in India. Personality rights are ancillary to the common law torts, which include misappropriation of identity and its several heads, defamation, and passing off. The principles emanate from Indian courts as a mechanism to deal with issues relating to the misuse of someone's persona. The judiciary has always concluded that any unauthorised use of a person's name, image, or likeness for trade purposes comes within the ambit of misappropriation.
It highlighted the nature of such use so as to determine the user's intentions to gain advantage from the personality of the individual without his consent hence misappropriating. Likewise, if the respondent made use of the image or any other tool which could be directly ascribed to the petitioner and which resulted in violation of the reputation of the petitioner, then the court has not shied away from invoking such works within the legal terms of defamation. Similarly, the principle of 'Passing Off ' is also invoked by the court so that an individual's personality rights are protected.
This principle safeguards the identities of people, more so celebrities, from being falsely attributed to goods and service wherein the respondents attempts to use the image and clout of the petitioner to pass off his goods as having consent and imprimatur of the petitioner so as to gain pecuniary gains without the consent.
● Development by Case Laws : On the basis of above provisions and principles, the Courts have seen extensive litigation on the matter. Though, In absence of any statute the Court has held an often differing view, with growing instances and rulings by the court, the law of personality rights is slowly taking shape by some landmark judgement. Some of the most relevant cases are: a. ICC Development (International) Ltd. v. Arvee Enterprises (2003) : This was the case regarding unlicensed use of cricket player's images during promotional events. The Delhi High Court recognized personality rights of the cricketers, where their image and name are considered an important piece of commercial property. It also concluded that such rights are very much independent of copyright and trademark doctrines. Writing in para 14, J S. K.
Aggarwala observed, " The right of publicity has evolved from the right of privacy and can be inhere only in an individual or in any indicia of an individual's personality like his name, personality trait, signature, voice, etc. Any effort to take away the right of publicity from the individuals would be violative of Articles 19 and 21 of the Constitution of India. Publicity right vests in a person and he alone is permitted to reap the benefits from it. Principle: The court held that personality rights related not only to glamour stars but to individuals with specific attributes which are of commercial value. b. DM Entertainment Pvt. Ltd. v. Baby Gift House (2010) : In this case, there was where a company was manufacturing toys that resembled Daler Mehndi, the Punjabi pop singer, without his permission.
The Delhi High Court ruled in favour of the singer and held that his likeness, name, and image constitute personality rights, which the singer cannot utilise or misuse without consent. The court noted that To invoke the right against the infringement of right to publicity, the plaintiff should be "recognizable" from defendant's unauthorised use. In discussing this, the court also relied on foreign judgements like Ali v. Playgirl Inc. and Onassis v. Christian Dior. Principle: Personality rights encompass more than just privacy; it also comprises commercial exploitation of the identity of a person. .
c. Titan Industries Ltd. v. M/s. Ramkumar Jewellers (2012): In this case, the unauthorised use of the images of the celebrity Amitabh Bachchan and Jaya Bachchan had been done for an advertisement. Delhi High Court granted a temporary injunction and held that the right of controlling commercial use over one's persona was an exclusive right vested in celebrities. Key Principle: A celebrity's persona has commercial value, and unlawful use is an act of misappropriation. d. Phoolan Devi v. Shekhar Kapur : Challenges to the movie 'Bandit Queen' depicting the life of Phoolan Devi without her consent. Although not strictly a privacy case, it put the spotlight on consent regarding the representation of a person's life for the purposes of commercial interests. Principle involved: Unauthorised biographical representation is a violation of privacy and personality rights. e. Arun Jaitley v.
Network Solutions Pvt. Ltd. (2011) : This was a case of cybersquatting wherein a person has wrongfully registered a domain name using the name of the politician Arun Jaitley. Though it was a matter of protection of domain names, it highlighted the protection of names under personality rights. Key Concept: Personality rights include online identity and reputation in cyberspace. Publicity Rights vs. Privacy Rights Indian jurisprudence has, under the broad umbrella of personality rights, made a distinction in the courts of law between privacy rights and publicity rights: While Privacy Rights protects the right of a person to his or her solitude and freedom from public interference. For example, an infringement of the unauthorised publication of private facts.
Publicity Rights are concerned with the commercial integrity of a personality's identity and restrain non-consensual exploitation for valuable consideration. The courts in DM Entertainment Pvt. Ltd. and Titan Industries Ltd. ( supra ) have distinguished
by holding that while privacy rights vest dignity, publicity rights enable people to continue maintaining control over their persona's use for commercial purposes. Problems persisting in Indian Jurisprudence Personality rights in India still face several difficulties despite great judicial contribution: a. Lack of Statutory Recognition : While personality rights in the United States are defined and protected by statute, in India, it has solely relied on judicial pronouncements. This leads to an unpredictable scope and application of personality rights. b. Conflict with Freedom of Speech : Personality rights are often balanced against artistic and journalistic freedoms. Biopics and documentaries represent a tightrope between creative freedom and infringement of personality rights. c.
Technical Complications in Digital Era : The increasing development in artificial intelligence and digital media has highly intensified the tension between personality rights and copyrights. Some specific examples are: Deep Fakes: AI-generated videos that misrepresent people for entertainment or malice. Social media: The unlicensed use of celebrities' images on memes or advertorial posting. NFTs: Digital art with celebrity personas without licences. Among them are Cross-Border Jurisdictions - Enforcing Personality Rights remains complex and complicated in an increasingly globalised world. Comparative Analysis and Global Trends
1. Personality Rights in the United States
The U.S. has a much more matured framework of personality rights, often referred to as the right of publicity. Given the federal nature of US polity, these are rights recognized at the state
level, with significant divergence in their scope and enforcement across states. American personality rights are devised primarily to protect an individual's identity in commercial contexts and allow individuals to govern and reap benefits from the use of their name, image, voice, and other distinctive traits. The idea of personality rights in the US gained ground as an offshoot of privacy rights. As far back as 1890, Samuel Warren and Louis Brandeis had published their seminal article "The Right to Privacy," which became the basis for establishing individual rights against unauthorised intrusions. It was in the middle half of the 20th century that publicity rights began to be recognized, chiefly due to celebrities' growing demand for protection against the commercial exploitation of their personas.
In response to that various states started enacting statutes those include: - California Civil Code § 3344 : Provides protection for commercial uses of a person's name, voice, signature, photograph, or likeness. - Indiana Code § 32-36-1: Offers some of the most broad publicity rights, covering features such as movements and expressions. - New York Civil Rights Law §§ 50-51 : Limits coverage to name, portrait or picture and does not permit posthumous publicity rights. - States like Georgia and Wisconsin confer publicity rights only through judicial interpretations rather than by codification. Also, There are approximately 20 states that provide such posthumous rights of publicity, including California, Florida, and Tennessee, which gives heirs control over the use of a deceased person's persona. The length of time for these rights varies between 20 to 100 years, depending on the state.
One of the great tensions in U. S. law exists between the right of publicity and the First Amendment as it relates to the protection of freedom of speech and expression. Courts have used tests such as: In Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001), the court opined that the First Amendment protects transformative works. The U. S. has some of the broadest publicity rights in the world, including transferable
and posthumous recognition in many states. The system of personality right protection has been developed with strength: State laws and judicial decisions are the pillars of such a system. Such a framework ensures a balance between commercial and personal interests
2. Personality rights in the European Union :
Personality rights in the European Union are not codified uniformly across member states but are recognized and protected through a variety of privacy laws, intellectual property rights, as well as individual national laws. The personality rights in the EU primarily continue to focus on the protection of dignity, reputation, and privacy of individuals, which is often drawn from the human rights frameworks. Unlike the United States, the EU does not explain personality rights separately into privacy and publicity rights but addresses these issues in more sweeping legal categories such as European Convention on Human Rights (ECHR) - Article 8 i. e.
Right to Respect for Private and Family Life and Article 10: Freedom of Expression, General Data Protection Regulation (GDPR) and under various National Laws for instance -Germany: Personality rights are recognized under constitutional law as it relates to general protection, supported by Article 2 and Article 1 of the Basic Law; offers robust protection against unauthorised exploitation -France: Provides protection for personality rights under laws of privacy and prohibition of the use without authorization of a person's likeness or name for trade purposes under Civil Code Article 9. - United Kingdom (pre-Brexit): Personality rights were dealt with under the common law principles of passing off and through data protection law. a. Right to Privacy vs.
Freedom of Expression : In the EU, courts tend to balance the right to privacy with freedom of expression, mainly where journalism, artistic works, or matters of public interest are concerned. - Von Hannover v. Germany (2004 & 2012): Here, the European Court of Human Rights found the balance between Princess Caroline of Monaco's right to privacy and the freedom of the press to publish her photos. The court focused on the fact that private lives and public positions of public figures are different.
b. Image Rights : Image rights form a significant part of personality rights in the EU. They give individuals rights over their use of images commercially. - Reklos and Davourlis v. Greece, 2009: The ECHR held that taking and detaining photographs of individuals with or without their consent infringed their right to privacy based on Article 8 of the ECHR c. Posthumous Rights The posthumous protection of personality rights is different from one country to another in the EU.
Post-mortem Personality rights are also protected in Germany as part of personal dignity (supra). - In France, heirs of a person may exercise personality rights even after one's death particularly for example defamation and unauthorised commercial exploitation. Personality rights in the EU are, thus deeply-rooted within privacy, dignity, and human rights. Such robust frameworks like ECHR and GDPR provide the greatest bit of protection yet show gaps about uniformity and an adaptation to modern challenges. It balances the protection of personality rights with freedom of expression, such that the guarantees of privacy and publicity rights do not unduly hinder journalistic and creative freedoms. Recommendations
1. Legislation on Personality Rights:
There should be explicit legislation in India, which describes and protects personality rights. It should elucidate the extent of personality rights; this should differentiate between rights concerning privacy and publicity rights that offer remedies for unauthorised use in physical and digital mediums. A clearer statute will remove ambiguity from the cases at present and will bring uniformity in the case laws delivered till date. It will also bring certainty for the future and will help in reducing backlogs in the dockets of the court.
2. Harmonisation of Copyright Law:
Biopic as well as artistic depictions cases need clear measures as the current equilibrium restricts the scope of it. Cases lodge for the impugned violation of the personality rights takes years to resolve resulting in many injunctions - though temporary or interim till the time the suit is disposed of. This restricts creators as litigation results in a chilling effect. In the current avatar, the Copyright Act is clearly being inadequate to solve this problem. Necessary reforms should be made to safeguard the rights of persons for their artistic and creative work.
3. Technological Controls :
Digital appropriation of one's likeness by means of AI-generated content will also likely need regulations related to infringement. Since technology keeps advancing, more weapons need to be added to the arsenal. Policymakers need to take this into cognisance-that technology has the ability to reach a wider audience in less time. Hence, even if we have a strong framework balancing Copyright Act and Personality Rights, technology will make it redundant as much damage will be done before the matter reaches conclusion.
4. Awareness and Education:
Provide an awareness initiative towards the creator, producer, and public about the nature and extent of personality rights. Clearer law would help creators not to cross the red line on the canvas while exploring their liberty to make contribution to their respective art.
5. Cue from Global Jurisprudence :
India would do well to study International best practices before evolving its own jurisprudence relating to personality rights. It could learn from the experience and evolution of laws in other countries. Lessons could also be taken on problems and challenges which may arise out of a non-uniform framework like in the US or from a constitutionally guaranteed right as underlined in Germany. Conclusion Personality rights and copyright infringement form a highly complex and always-evolving area of the law in India. Judicial decisions construed considerable clarity at some instances, yet no
such provisions were evolved through statutes to clarify such ambiguity. Clearly, an understanding of the overlaps would thus be essential to frame a proper legal jurisprudence to protect the rights of individuals and creators in their stride towards increasingly digital lives. Personality rights harmonised with copyright laws would ensure that both personal dignity and creative freedom abound. This jurisprudence on personality rights in India has emerged through proactive judicial interventions but leaves much to be desired in the absence of statutory clarity, all the more so with the unfolding of new technological facets. Courts have uniformly held that protection of an individual's persona from unauthorised commercial exploitation is necessary because it has inherent as well as economic value.
An effective legal framework also is required as personality rights in India are by no means comprehensively guarded in the modern era. The imperatives of promoting economic activities demand full proof and robust legal framework balancing the imperatives of artistic freedom on one hand and its obligation to protect the personality rights of individuals on the other hand.
References
1. The Indian Copyright Act, 1957
2. Constitution of India, Article 21
3. K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161 4. R. Rajagopal v. State of
Tamil Nadu, AIR 1994 SC 264.
4. D.M. Entertainment Pvt. Ltd. v. Baby Gift House
and Others,
MANU/DE/2043/2010
5. Ali v. Playgirl Inc. 447 F Supp 723
6. Onassis v. Christian Dior - New York Inc. 472 NYS 2d 261.
7. Titan Industries Ltd. v. M/s. Ramkumar Jewellers, 2012 (50) PTC 486 (Del).
8. Phoolan Devi v. Shekhar Kapoor 1995 (32) DRJ (142)
10.Arun Jaitley v. Network Solutions Private Limited MANU/DE/2483/2011
11. Samuel Warren and Louis Brandeis, “Right to Privacy” 4 Harvard Law Review 193
(1890). 12.California Civil Code
13. ICC Development (International) Ltd. vs. Arvee Enterprises and Ors. (DELHC) :
MANU/DE/0053/
14.California Civil Code 3344 15.Indiana Civil Code 32-36-1 16.New York Civil Rights Law 50-51 17.Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal. 4th 387 ( Cal. 2001)
18. European Convention on Human Rights article 8 and 10
19. Germany Basic Law article 1 and 2.
20. France _ Civil Code article 9
21. Von Hannover v. Germany 24 June 2004 (no. 59320/00, ECHR 2004‐VI)
22. Reklos v Greece (1234/05) [2009] E.M.L.R. 16 (15 January 2009)