Recently, an app’s advertisement read “Speak English as fluently as Shashi Tharoor,” regarding which, the Kerala MP was forced to clarify that he is not endorsing the app and that legal action would be taken against the makers of the app for misusing his name and picture for promotion[i]. We come across many such instances in the contemporary world due to the advent of various social media platforms, and in such cases, the personality rights of a person are violated.
G.W.F. Hegel, a German philosopher, viewed property as an extension of personality[ii]. Based on this, many modern theorists argue that property rights are linked to human rights such as liberty, privacy, identity, etc. Personality is a means through which a person is identified in the society and therefore, the protection of personality in the form of a right essentially protects private property which are of the form of intellectual property. Each person has a right to control the commercial use of their name, image, or any matter that forms a part of their identity. These rights are called personality rights. In India, there are no codified laws enacted to protect personality rights, but it is protected under fundamental rights, Copyright Act, Trademark Act, and through various judicial pronouncements. An overview of the protection guaranteed under the law is presented in this article.
Common Law and Constitutional Protection of Personality Rights
One of the earliest case laws that we can find on the violation of personality rights is that of Tolley v. JS Fry & Sons Ltd[iii], although the case was about defamation under tort. The defendant’s advertised their product, ‘Fry’s Chocolate Creams’, using a caricature representing the claimant, who was a well-known amateur golfer, without his consent. The court held that the defendants are guilty of libel because they had exploited a person’s image without his consent, thereby amounting to an ‘appropriation of personality’. The offence of passing off under tort, which prevents a trader from misappropriating another trader’s goods or services, is also an example of protection guaranteed to personality rights under tort.
Personality rights as such do not find a place in the Indian Constitution but in the case of Justice K.S.Puttaswamy(Retd) vs. Union Of India[iv], privacy was recognized as a fundamental right under Article 21 of the Constitution. Privacy, as an extension of liberty, is a ‘right to be let alone’[v], and any person misappropriating the identity of a person without their consent is said to have violated the fundamental right to privacy and thereby, the personality right.
Personality Rights and The Indian Copyright Act, 1957
Section 13 (1) of the Act defines the scope of the Act and states that it is applicable to:
- original literary, dramatic, musical and artistic works;
- cinematographic films;
- sound recordings.
Further, Section 14 of the Act provides exclusive right to do or authorize reproduction of their artistic work. Copyrights are not provided to identity as such, and the copyrights of the image of a person is vested with the photographer and not the said person. Therefore, the misuse of any such image violates the copyrights of the photographer and fails to protect the personality right. However, Section 38 of the Act provides right over performances to the performer and the performer has exclusive rights over the recording and reproducing of the performance. Even after the performer has consented to the incorporation of the performance in other forms, the moral rights of the performer are protected from distortion or mutilation of the performance which could harm his reputation. Right to paternity and right to integrity is protected under Section 57 of the Act, thereby protecting the personality rights of the artists. In the case of Amar Nath Sehgal vs. Union of India[vi], Amar Nath Sehgal created a bronze mural for International Convention Hall in Delhi as per the request of the government of India in 1959, which was placed on a wall in Vigyan Bhavan. Later it was pulled down and consigned to the storeroom of the Union of India in the year 1979 without his permission. The Delhi High Court upheld the moral right of the artist, holding that the act of the government amounted to distortion of the artist’s work which is detrimental to his reputation.
Personality Rights and The Indian Trade Marks Act, 1999
Section 2(1) of the Indian Trade Marks Act, 1999, allows registration of any “sign capable of distinguishing goods and services of one person from another” and Section 2(1)(m), which provides the definition of ‘mark’ to include name as well. Section 14 of the Act states that when an application is made for registration of a mark which dishonestly suggests an association with a living person or a person whose death took place within 20 years of the date of application, the Registrar may seek consent from the living person or the legal representatives of the deceased person before granting the registration. Through Section 2 and Section 14, the Indian Trade Marks Act, 1999, protects the identity of an individual from being misused.
Judicial Recognition
One of the most important cases where personality rights were recognized, was in the case of ICC Development (International) Ltd. vs. Arvee Enterprises[vii], in which 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. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc”
In the case of TITAN Industries vs. M/s Ramkumar Jewelers[viii], the Delhi High Court granted a permanent injunction against the hoarding of the defendant’s advertisement which was similar to the plaintiff’s and featured Mr. Amitabh Bachchan and Mrs. Jaya Bachchan. The court stated that: “When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity”.
Conclusion
Shakespeare in his celebrated play, Romeo and Juliet, writes:
“What’s in a name? that which we call a rose
By any other name would smell as sweet”
Although the lines suit the context of the play, they can hardly be generalized. The identity of a person is of vital importance as there is an increase in the commercialization of the personality. Any person imitating a celebrity, even if the person’s imitation is accurate, is still not the same as a celebrity. The ‘name’ or the ‘image’ of the personality is what drives the commercialization rather than their art, which has taken the form of an intangible property over the years. The Copyright Act and Trade Marks Act protect personality rights to a certain extent, but there is a need for enacting a law that protects personality rights more effectively.
Author: Rachel Thomas
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