Regarding personality rights and introducing a public interest test before granting protection to celebrities, Rebecca Cardoso, in this guest post, advocates for a balanced approach prioritizing protection against genuine harm instead of trivial grievances. Rebecca is a corporate lawyer specializing in financial regulatory practice, with an interest in intellectual property rights. Views expressed here are those of the authors alone.
Navigating Personality Rights – Does Fame Have a Trade-Off?
By Rebecca Cardoso
In recent years, the right to publicity, often referred to as personality rights, has garnered increasing attention. Simply put, this enforceable right offers a mechanism for well-known individuals to protect unauthorised misuse of their personality by third parties.
But are these rights reserved only for the ultra-famous and elite? Do robust defences – such as freedom of speech, right to livelihood, and fair use – offer absolute protection against infringements? And, in an age dominated by AI-generated content, deepfakes, and viral 30-second reels spawned by content creators or Jon Does, can the Courts truly provide efficacious relief? These are critical questions to explore, particularly given that personality rights are not statutorily recognized, leaving us at the mercy of Courts to delineate the scope and limits of this right.
There is ample literature covering personality rights on this blog and elsewhere, (see here, for example), with some authors going a step beyond to question the absolute nature of the right (here) while others bring nuanced counterarguments which question the need to recognize this right in the first place (see here, here and here). This post seeks to contribute to this discourse, by emphasizing the need to examine the right through the lens of public interest. To set the stage for this analysis, a brief background is essential.
Revisiting Notable Cases
In a landmark 2015 decision by the Madras High Court in Shivaji Rao Gaikwad (Rajnikanth) vs Varsha Productions, veteran actor Rajnikanth sought an injunction to prevent the producers of the film ‘Main Hoon Rajnikanth’ from using his name, image, caricature, or style of dialogue delivery. While acknowledging that personality rights vest on people who have attained the status of a celebrity, a slightly problematic finding in the interim order was that infringement of such rights “requires no proof of falsity, confusion, or deception, as long as the celebrity is identifiable.” The Court took this from the Delhi High Court’s decision in Titan Industries Ltd. vs M/S Ramkumar Jewellers.
Undoubtedly, the core principle behind personality rights stems from an ethical standpoint – the belief that an individual holds a legitimate interest in controlling the commercial exploitation of their persona. In Rajnikanth’s case, compelling arguments, including concerns that association with a film of immoral or promiscuous nature could tarnish his reputation and damage his goodwill within the industry, likely influenced the Court’s decision to grant relief. However, by dispensing with the requirement for proof of confusion, deception, or falseness, the Court extended overly broad protection to celebrities. In doing so, it completely risks undermining the rights of third parties, particularly in instances where fair use – such as parody, research, or criticism – could legitimately apply.
In the infamous Anil Kapoor case (discussed in depth on this blog here), the actor argued that his name and persona, with their immense commercial value, should be protected from misuse and tarnishment online. The Court found that the balance of convenience favoured Kapoor’s case, recognizing that personality rights are crucial for safeguarding a person’s right to livelihood, privacy, and dignity within society.
This conclusion makes sense in cases where a clear link exists between the misuse of a celebrity’s persona for malicious purpose, such as the creation and dissemination of fake, pornographic videos featuring Anil Kapoor. However, the Court’s order in this case also extended to barring the sale of merchandise like magnets, T-shirts, mugs, stickers, and keychains bearing Kapoor’s likeness and catchphrase. While the Court was of the opinion that a celebrity’s right of endorsement could be a major source of livelihood, which should not be destroyed by permitting the dissemination and sale of unauthorised merchandise, this ruling could be seen as overreaching. After all, such harmless fan culture, while commercially opportunistic, may not even significantly dent an A-lister’s revenue stream. Does it truly warrant such harsh directions when there is no confusion, harm, or malice involved?
Further, as discussed in another article (here), one might altogether question the need to offer this level of protection to celebrities in the first place, who ironically spend their initial career trying to become famous by catching the public’s attention. Once they attain this status and if they do not get directly compensated for the fame, does it become disingenuous to claim an expectation of privacy or an exclusive right over their persona? Furthermore, could such rulings have a stifling effect on creative expression and downstream cultural production? Consider, for example, the Court’s broad remedy granted in actor Mohan Babu’s case, which appears to extend even to subscribers of the defendant’s YouTube channel (analysed here). If the implication is that even subscribers are prohibited from taking a celebrity’s name or image, the chilling effect that this could have on freedom of speech cannot be denied.
Protection of Personality Rights for Renowned Cardiac Surgeon Dr. Shetty
Moving away from cases where celebrities’ egos have been bruised, a recent order from the Delhi High Court in the case of Devi Prasad Shetty & Anr. vs Medicine Me & Ors. deserves closer attention. Dr. Shetty, a renowned cardiac surgeon, philanthropist, and chairman of Narayana Hrudayalaya Ltd., is a celebrated figure in the public healthcare space. His achievements include receiving awards for his work in healthcare, holding a US patent as the inventor of the “System and Method for Facilitating Delivery of Patient-Care,” founding a College of Nursing, heading Karnataka’s COVID task force during the third wave pandemic, and regularly delivering lectures, appearing in interviews and talk shows, and even featuring in a Netflix documentary – he is unquestionably famous in his field.
In this case, it was revealed that the defendants were operating Facebook pages and misusing Dr. Shetty’s name, likeness, photos, and videos to create and share fake and misleading content, clearly intended for illicit commercial gain.
Seeking an injunction, Dr. Shetty’s legal team argued that the content infringing on his personality rights posed a significant threat to the unsuspecting public. They pointed out that individuals might be misled into purchasing health products marketed using Dr. Shetty’s persona or worse, follow unverified health advice falsely attributed to him. In granting relief, the Court recognized that the defendants’ unauthorized use of the doctor’s celebrity status for commercial purposes not only harmed Dr. Shetty personally but also jeopardized the public’s well-being. Therefore, this case distinguishes itself by emphasizing the public interest aspect, underscoring the critical need for protection from exploitation, not only for the individual but, more importantly, for the public at large.
This raises an important question: should public interest carry greater weight when assessing infringements on personality rights? Take, for example, prominent figures in the finance world, such as ‘finfluencers’ who’ve shot to fame as thousands flock to their content in the hope of becoming financially savvy and making big returns from the stock market. A concerning consequence of this phenomenon is the rise in impersonations, with scammers creating fraudulent WhatsApp groups, websites, and schemes, posing as these finfluencers or reputable securities market intermediaries, in an effort to deceive unsuspecting investors and extract money.
In these cases, the public interest is particularly critical as there is a direct monetary risk involved. While legal recourse may be available through criminal complaints for cheating and impersonation under the Bharatiya Nyaya Sanhita, 2023, should personality rights also be extended to protect the individuals who have been impersonated? The stakes are high, both for a financial adviser’s goodwill and reputation in the market and the unsuspecting public – making the case for stronger protection, when the element of public interest comes into play, more compelling.
Need to Recognize the Public Interest Angle
This brings us to the crucial question: should the protection of personality rights be granted with certain caveats, particularly the public interest element? It has been reiterated time and again that personality rights should not be treated as absolute, as there are competing interests that must be weighed. Courts should adopt a more consistent and uniform approach in such cases and must refrain from favouring one party or passing broad protections simply based on the identity of the aggrieved. For instance, as discussed in several articles (here and here), the Court’s handling of the Jackie Shroff case stands out for its prudent decision not to grant blanket relief. In this case, the Court recognized that one of the defendants, who posted YouTube videos about the actor, uploaded content that was not derogatory and did not tarnish the actor’s reputation. The Court even acknowledged that memes, spoofs, and parodies can represent artistic expression, which, in turn, “creates employment opportunities for creators.” Moreover, it was observed that protecting a celebrity’s personality rights in such cases could unduly hinder the freedom of speech and expression of those creators. Notably, the Court tried to also safeguard third parties’ rights, instead of taking a one-sided approach.
Thus, a balanced approach is essential. It may be fair to argue that celebrities should not have an absolute right to prevent the use of their persona unless there is clear malice, foul play, or harm to the public interest. What is needed is a fair and pragmatic framework for recognizing personality rights, one that ensures legal action is pursued not over trivial grievances, but only when genuine harm to the individual and third parties is at stake.