Open Access Research Article
FROM R. RAJAGOPALAN CASE TO ANIL KAPOOR VERDICT: EVOLUTION OF PROTECTION OF CELEBRITY RIGHTS IN INDIA
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Article Details
FROM R.
RAJAGOPALAN CASE TO ANIL KAPOOR VERDICT: EVOLUTION OF PROTECTION OF CELEBRITY
RIGHTS IN INDIA
AUTHORED BY
- PALLAVI TIWARI
1. Introduction:
Celebrity rights is one such concept that
has been evolving in India as well as across the globe with the help of
landmark judgments and legal provisions. Although India does not have a law of
its own relating to the protection of the rights of celebrities the Indian
courts have relied upon the Copyright Law[1],
Trademark Law[2], Right
to Privacy[3]
under the Indian Constitution, principles of unjust enrichment, and common law
remedies to fight against the violation of rights of celebrities. The ambit of
Celebrity rights includes the Right to Privacy, Personality rights, and Right
to Publicity. Right to Privacy as understood comes within the ambit of the
Indian Constitution under Article 21 after the famous Puttaswamy Judgement.[4] It
aims to protect the privacy of the people of the nation including celebrities
and concerning this a direct example can be the clicking of private pictures of
celebrities in the balconies (case of Anushka Sharma or Alia Bhatt[5])
when they have already requested the paparazzi to not to capture them in their
private and confidential moments or with their kids. Personality Rights are the
outcome of the theory of Personality Rights by Hegel[6]
which aims to protect the intrinsic features of celebrities, their persona,
their voice, and other physical attributes for example the way Mr. Amitabh Bachchan
says “Hain” or “Jhakas” by Mr. Anil Kapoor. The right to Publicity is an interrelationship
between personality rights and the right to privacy and commercialisation. It
means that the physical features, private moments, and personalities of
celebrities are something that they have developed over the years with a lot of
hard work and investment of time and money, and thus as per the Labour Law
theory of Locke[7] such attributes
of celebrities which have resulted after years of efforts cannot be used by
someone else commercially without the consent of celebrities.
2.
Indian Judicial Pronouncements on Celebrity Rights Protection
The judicial pronouncements in India
with respect to Celebrity Rights start with a discussion on the R. Rajagopalan
verdict also known as the “Autoshankar case”[8]
where essentially it was Justice Kaul who gave a dissenting opinion and talked
about Right to Publicity but not in commercial benefit perspective. Justice
Kaul also only focused on the Right to Privacy and that every citizen has the
right to protect his/her personal life from the public eye or any kind of
tarnishment. In this case also the subject matter or discussion on ambit of
celebrity rights was not exhaustive in nature. It was stated in this case that
“The right to privacy as an independent and distinctive concept originated
in the field of Tort law, under which a new cause of action for damages
resulting from unlawful invasion of privacy was recognised. This right has two
aspects which are but two faces of the same coin — (1) the general law of
privacy which affords a tort action for damages resulting from an unlawful
invasion of privacy and (2) the constitutional recognition given to the right
to privacy which protects personal privacy against unlawful governmental
invasion. The first aspect of this right must be said to have been violated
where, for example, a person's name or likeness is used, without his consent,
for advertising — or non-advertising — purposes or for that matter, his life
story is written — whether laudatory or otherwise — and published without his
consent as explained hereinafter. We may now summarise the broad principles
flowing from the above discussion: (1) The right to privacy is implicit in the
right to life and liberty guaranteed to the citizens of this country by Article
21. It is a “right to be let alone.”[9]
Although this judgment and the recent
judgment of using attributes of sportspersons in Online gaming platforms also discuss
that once information becomes part of the public record, it is generally
considered open to comment by the press and media, as outlined in the
statement. However, an exception is proposed for cases involving female victims
of sexual assault, kidnapping, abduction, or similar offenses. The argument
posits that in the interest of decency (Article 19(2)),[10]
these victims should be shielded from the additional indignity of having their
names and incidents publicized in the press and media taking the benefit of the
Freedom of Speech and Expression provided under the Indian Constitution. This
exception underscores the priority given to protecting the privacy and dignity
of individuals in sensitive situations, emphasizing a balance between the public’s
right to know and the need to safeguard the well-being of victims. A similar
stand was taken in the Phoolan Devi judgment and protection of Right to
Privacy.[11]
After the Autoshankar case, very
recent cases of protection of rights of celebrities have come to light. For
example, usage of PV Sindhu’s image[12]
in Paan Bahar ads without her consent was a violation of her Right to
Publicity. Another issue arose with respect to posthumous protection of Right
to Publicity or Right to Privacy of celebrities like in the case of Sushant
Singh Rajput where after his demise a movie “Nyaya”[13]
was made on his life without the consent of his legal heirs. It was thereby
observed in this case that Right to Publicity cannot be separated from Right to
privacy so no posthumous protection of right to publicity can be given. In Veerappan
case,[14] it was
observed that personality rights cannot be protected for something which is
already in public domain like SSRs life or Veerappan’s story as nothing
falls under the category of “Privacy” in such matters. But Vempati Ravi
Shankar[15]
case was contradictory to SSR case as their posthumous protection of celebrity
rights was recognised. If we cover personality rights under IP regime it should
be covered posthumously as well.
Another landmark judgment came with
the Daler Mahendi[16]
controversy, where dolls were made depicting the personality rights of famous
singer Daler Mahendi and were being commercialised which was considered a
violation of Right to Publicity of the celebrity. Titan Industries v.
Ramkumar Jewellers[17]
was one landmark judgment for protection of celebrity rights and their
interests where it was observed that right to control commercial use of your
own personality is right to publicity and there should be another factor of
likelihood of confusion as well to establish a prima facie case of infringement
of right to publicity. This test of likelihood of confusion and unauthorised
use of someone else’s identity for commercialisation is also indirectly put to
use in the recent case of Amitabh Bachchan and Anil Kapoor which the author
will address in the last part of the chapter.
“Main Hoon Rajnikanth”,[18] a
show made using the character traits and personality of famous actor
“Rajnikanth” also fell under the category of violation of celebrity rights
where the factor of “identifiability” was considered the most essential factor
and that if any depiction of any personality directly correlates to a celebrity
it is an infringement.
But as major setback with respect to
protection of celebrity rights was the Gautam Gambhir case[19]
where the famous cricketer had filed a suit when he got to know that some
eateries in Delhi were running their businesses on this name and he had no
connection or association with these eateries. The defendant stated that they
had only used it to develop their goodwill in the market. The Court here did
not take the side of the celebrity on the other hand made it clear that the
defendant had clearly stated that there was no association of the eateries with
the cricketer and even on their websites they ha used their own images and
names and not of the celebrity.
“Taking as an instance the case of Sourav
Ganguly v. Tata Tea ltd.[20]
wherein Sourav Ganguly who returned form Lords after scoring magnificent
centuries found himself extremely disturbed when he realized that Tata Tea
Ltd., in which he was employed as a manager, was promoting it’s 1 kilo tea
packet by offering the consumers a chance to congratulate Sourav through a
postcard which was there inside each packet of tea. In a way indirectly what
the company intended was to promote the sale of its tea packet in the Indian
market where Sourav had earned considerable amount of popularity. The court
ruled in favour of Sourav by accepting that his fame and popularity is his
intellectual property.”[21]
In the case of Mr. Arun Jaitley
vs. Network Solutions Private,[22]
the late prominent politician and advocate, Mr. Arun Jaitley, filed a suit in
the Delhi High Court seeking to prevent the defendants from misusing and
transferring the domain name 'www.arunjaitley.com'. The court's decision
emphasized that the popularity or fame of an individual or company holds equal
significance in the digital realm as it does in reality. Therefore, it is
crucial to safeguard the names of individuals or companies that have distinct
recognition in the market. This is to prevent such names from falling into the
hands of individuals who have no legitimate connection with them. The court
underscored the necessity of protecting these names to maintain their integrity
and prevent unauthorized usage or transfer.
The Delhi High Court, in the Anil
Kapoor v. Simply Life India & Ors.[23] case,
ruled in favor of the Bollywood actor. The court issued an ex parte injunction,
prohibiting the Defendants from using Anil Kapoor's name, likeness, image,
voice, personality, or any other aspects of his persona to create merchandise,
ringtones, ring back tones, or any other form of misuse through technological
tools such as Artificial Intelligence, Machine Learning, deep fakes, face
morphing, GIFs. This restriction applies to both monetary gains and other
purposes, preventing the creation of videos, photographs, etc., for commercial
use, as it was deemed to infringe on the personality and privacy rights of the
Plaintiff.
The Court took a very strong stand
and observed that “Fame can come with its own disadvantages. This case shows
that reputation and fame can transcend into damaging various rights of a person
including his right to livelihood, right to privacy, right to live with dignity
within a social structure, etc. There can be no doubt that free speech in
respect of a well-known person is protected in the form of right to
information, news, satire, parody that is authentic, and also genuine
criticism. However, when the same crosses a line, and results in tarnishment,
blackening or jeopardises the individual’s personality, or attributes
associated with the said individual, it would be illegal.”
Similarly in the Amitabh Bacchan
v. Rajat Negi[24]
case the Delhi HC again took a firm stand against violation of Personality
Rights of Celebrities. Amitabh Bachchan, filed a lawsuit to safeguard his
publicity rights in light of the fake Kaun Banega Crorepati (KBC) lottery scam
and various other fraudulent activities. The suit addressed instances where the
actor's name ('Amitabh Bachchan/Bachchan/BigB/AB'), image, voice, and other
personal attributes were exploited to deceive the public.
The plaintiff was displeased with the
defendant's unauthorized utilization of his celebrity status to promote their
own goods and services without obtaining his permission or authorization. The
actor alleged a violation of his 'publicity rights as a celebrity,' a concept
previously recognized in the Titan Industries Ltd. v. Ramkumar Jewellers[25]
case. In response to Amitabh Bachchan's concerns, the Single Judge Bench of
Navin Chawla, J. in the Delhi High Court granted an ad-interim ex-parte
injunction. This legal order favoured the actor by restraining the defendants
from infringing upon his personality rights.
But another setback was received with
the judgment of Digital Collectibles Pte Ltd And Ors v. Galactus Funware
Technology Private Limited and Anr. [26]
where the Court observed that anything already in public domain cannot be
protected by Right to Privacy of which the extensions are right to personality and
publicity of celebrities. It can only be applied if there is tarnishment to the
image of celebrities and if disclaimer is already given by defendants, it
absolves them of the liability of infringement. This case relied more on US, UK
judgments rather than Indian cases and used the protection of Freedom of Speech
and Expression given to the people of India and thus no one can be stopped to
use celebrity images for their own use whether be commercial in nature.
“The information used by Striker
i.e., player name and data concerning a player’s real-word match performance,
is freely available in the public domain and can be used by anyone. It is not
the plaintiffs’ case that the defendants are using any personal information
such as the height and weight of the players, which is not in the public
domain. The information which is available in public domain cannot be owned by
anybody, including the players themselves. Therefore, such publicly available
information cannot be the subject matter of an exclusive license by the player
in favour of a third party.”
3. Conclusion
The Indian Courts have had diverse
opinions on the protection of the rights of celebrities, starting from the R.
Rajagopalan Case, Phoolan Devi judgment, the case of Rajnikanth, or the recent
cases of Amitabh Bachchan, Anil Kapoor or the case of usage of sportspersons
images for Online Fantasy Sports. Due to these diverse opinions, there is still
a lack of clarity regarding the subject matter of celebrity rights or the other
core rights covered under it. The argument against the protection of such
rights is the existence of a right to privacy, copyright law, trademark law,
and in some of the judgments in India courts have relied upon the right to
privacy to deal with the issues of infringement of celebrity rights violation
and have upheld that since celebrity life is already in the public domain it falls
beyond the scope of privacy rights. Due to a lack of legislation like in the
US, Indian judges have been reluctant to look into the commercial perspective
of celebrity rights. But the Amitabh Bachchan case and Anil Kapoor case have
deviated from this norm and shown some light towards the protection of
commercial aspects of celebrity rights which will be discussed in the next leg
of the article.
[1] The Copyright Act 1957.
[2] Trade Marks Act, 1999.
[3] According to Article 21 of the
Constitution of India: “Protection of Life and Personal Liberty: No person
shall be deprived of his life or personal liberty except according to procedure
established by law.”
[4] Justice
K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors., AIR 2017
SC 4161.
[5] “Alia Bhatt invasion of privacy:
Karan Johar, Anushka Sharma say such behaviour is 'disgusting”,
https://www.cnbctv18.com/entertainment/alia-bhatt-photo-invasion-of-privacy-controversy-karan-johar-anushka-sharma-paparazzi-16000921.htm.
[6] “Intellectual Property and
Hegelian Justification”, NUJS LAW REVIEW 1 NUJS L. Rev. (2008), 359-366.
[7] “Property Rights, Lockean”
https://www.csus.edu/faculty/s/kyle.swan/docs/lockean%20property%20rights-revised.pdf.
[8] R. Rajagopal & Ors. vs. State
of Tamil Nadu & Ors., AIR 1995 SC 264.
[9] R. Rajagopal & Ors. vs. State
of Tamil Nadu & Ors., AIR 1995 SC 264.
[10] Article 19(1)(a), The Constitution
of India, “Freedom of Speech and Expression” and Article 19(2) The Constitution
of India “Exceptions”
[11] Phoolan Devi vs State Of M.P.
& Ors., AIRONLINE 1996 SC 1038.
[12] Ritesh Kumar, “PV Sindhu and
interplay of moment marketing, and IP rights”, https://www.theippress.com/2021/08/24/pv-sindhu-and-interplay-of-moment-marketing-and-ip/.
[13] Krishna
Kishore Singh v. Sarla A Saraogi, 2023 SCC OnLine Del 3997, decided on
11-7-2023.
[14] Makkal Tholai Thodarpu Kuzhumam Ltd. v. Mrs. V.
Muthulakshmi, (2007) 6 MLJ 1152.
[15]
https://www.ipthink-tank.com/post/the-kuchipudi-style-and-copyright-a-new-friendship.
[17] Titan Industries v. Ramkumar
Jewellers, 2012 (50) PTC 486 (Del).
[18] Mr. Shivaji Rao Gaikwad v. M/s.
Varsha Productions, 2015 SCC OnLine Mad 158
[19] Mr. Gautam Gambhir vs D.A.P &
Co. & Anr. on 13 December, 2017.
[20] Sourav Ganguly v. Tata Tea
Ltd.(Calcutta High Court CS.No 361 of 1997).
[21]
https://spicyip.com/2009/12/publicity-rights-sourav-ganguly-vs-tata.html
[22] Arun Jaitley v. Network Solutions
Pvt Ltd and others, cs (os) 1745/2009.
[23] Anil Kapoor v. Simply Life India
& Ors on 20 September, 2023.
[24] Amitabh Bachchan v. Rajat Negi and
Ors., CS(COMM) 819/2022.
[25] Titan Industries v. Ramkumar
Jewellers, 2012 (50) PTC 486 (Del).
[26] Digital Collectibles Pte Ltd And
Ors v. Galactus Funware Technology Private Limited and Anr., CS(COMM) 108/2023.
Article Information
FROM R. RAJAGOPALAN CASE TO ANIL KAPOOR VERDICT: EVOLUTION OF PROTECTION OF CELEBRITY RIGHTS IN INDIA
Authors: PALLAVI TIWARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/01
- Issue 7
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