The twentieth century rock icon, Jim Morrison, reportedly once said, “The most important kind

of freedom is to be what you really are.” Although it was said in another context, Morrison’s
quote reinforces the significance of rights that persons have in protecting their individuality,
and the traits and characteristics associated with their person. This is where the notion of
‘personality rights’, as we define it in legal parlance, comes in.

Judicial interpretation
In India, the protection offered under personality rights is not particularly clear. There have
been occasional efforts to recognize ‘Personality Right’ as a right in itself, and some High
Courts have identified such rights as vesting in public figures by virtue of them having acquired
a status and a personality that adds commercial value to their individual persona. But generally,
personality rights tend not to be recognized as distinct legal rights, but are instead recognized
through the rights to privacy and publicity.

In the jurisprudence that has developed around this, the right to publicity refers to the right to
keep one’s image and likeness from being commercially exploited without permission or
contractual compensation; and the right to privacy means the right to be left alone and not have
one’s personality represented publicly without permission.

The right to publicity and the right to privacy are safeguarded through various means:

 The Supreme Court and various High Courts. These courts have, time and again,
emphasized that Article 21 of the Constitution of India (protection of life and
personal liberty) includes various other fundamental rights, such as, the right to
privacy and Publicity. The Supreme Court held that the right to privacy was implicit
in the right to life and liberty guaranteed to the citizens by Article 21 of the
Constitution of India; and that a citizen has a right to safeguard their privacy and no
one can publish anything concerning their life without their consent.
 Trademarks Act, 1999: In addition to registering the name of the trademark, the
Trademarks Act also provides for registration of sounds, signature, etc.
 Copyright Act, 1957: This law protects moral rights, and allows for some protection
of the personality of a celebrity. A claim can be brought to show that a wrongdoer
has not only infringed copyright but also violated one’s personality and publicity
right;
 Passing-off actions against the injury to a business or goodwill or the reputation of
a person caused by misrepresentation by another person also act as a guardian
protecting a person’s persona. The tort of passing off is well recognized under
Trademark Law. In the Daler Mehndi’s case ( M. Entertainment v. Baby Gift Horse
CS(OS) No. 893/2002), the court clearly expounded the publicity rights of celebrities
in India. The court held that certain gift shops were liable for violation of publicity
rights, false endorsement and also passing off. The gift shops were selling dolls that
looked like the music celebrity Daler Mehndi, moved like him and sang a few lines
of his songs.
Right to publicity
The law pertaining to the right to publicity have been clarified in a few other judgements. An
authoritative guideline was offered by the Delhi High Court in ICC Development
(International) Ltd. Vs Arvee Enterprises 2003 (26) PTC 245 where the context was the misuse
of association with sponsorship of the Cricket World Cup, by advertisers that were not
registered as official sponsors. Here, the Court held:
”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. However, that right does not inhere in the event in
question, that made the individual famous, nor in the corporation that has brought about the
organization of the event. Any effort to take away the right of publicity from the individuals, to
the organiser {non-human entity} of the event would be violative of Articles 19 and 21 of the
Constitution of India. No persona can be monopolised. The right of Publicity vests in an
individual and he alone is entitled to profit from it.’‘
Another judgement that reinforced the guidelines pertaining to the right to publicity was Titan
Industries Limited vs. M/s Ramkumar Jewellers CS(OS) No. 2662/2011. In this case,
photographs of film actors, Jaya Bachchan and Amitabh Bachchan, were used and published
without any permission and/or authorization. The Delhi High Court observed that ”when the
identity of a famous personality is used in advertising without their permission, the complaint
is not that no one should 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
commercial use of human identity is the right to publicity.”
In yet another example, the film actor Rajnikanth issued legal notices and banned the use of
his photos and caricatures before the release of his movie Baba. The same actor, in 2015, sued
Varsha Productions (Shivaji RaoGaikwad v. Varsha Productions 2015 (62) PTC 351
(Madras)) for their upcoming release ‘Mai Hoon Rajnikanth’, claiming that the film makers
had copied his inimitable style of walking and dialogue delivery. He also claimed that the
movie had some immoral visuals which could tarnish his image. Taking cognizance of
Rajnikanth’s personality rights, the Madras High Court issued stay order on release of the film.
Most recently, the issue of personality rights came up in Mr. Gautam Gambhir vs. D.A.P. &
Co. and Anr. (MANU/DE/5440/2017). The defendant, whose name was Gautam Gambhir, used
his name as part of the tagline for a host of restaurants and bars he owned. Many people,
however, mistook the name to indicate some sort of association with India’s leading cricketer
of the same name. The Court held that the defendant did not claim that his business is related
to the cricketer nor did he display any pictures of the cricketer anywhere. He prominently
displayed his own pictures everywhere to show his own identity. Also,when the logos of the
restaurants were being registered, no objection was raised by anyone. Hence, the court decided
that the defendant had not made any use of the reputation of the plaintiff’s name in his trade
and he had a bona fide right to use the name ‘Gautam Gambhir’ for his ventures, since his own
name was the same. Therefore, an interim injunction was not granted and all the pending
applications were disposed of.
Personality rights are considered as property, and hence courts in India recognize the right to
license and sell this right to publicity. The right to publicity protects all rights from birth until
death and in perpetuity of the individual, such that the individual has the power to exercise
control over the commercial use of their name, image, likeness, or other distinctive features
relatable to that individual.

Right to privacy

In stark contrast to the right to publicity, the right to privacy is the right to be left alone and not
have one’s personality being represented publicly without permission. Such a right empowers
a public figure to sue for invasion of privacy, seek damages and injunction against any person
who violates the public figure’s personality rights.

The scope and ambit of right to privacy came up for consideration, most notably and of
relevance to this note, before the Supreme Court in R Rajgopal vs. State of Tamil Naidu (1994)
6 SCC 632. In this case, the right of privacy of a condemned prisoner was in issue. Auto
Shankar wrote his autobiography while confined in jail, and handed it over to his wife for being
delivered to an advocate to ensure its publication in a certain magazine that was to be edited,
printed and published by the petitioner. This autobiography allegedly set out a close nexus
between the prisoner and several officers in the administrative and police services, some of
whom were alleged to have been his partners in crime. The publication of this autobiography
was restrained, upon which the petitioner challenged the restrictions imposed on the publication
before the Supreme Court.
Justice Jeevan Reddy, on an interpretation of the Constitution, and cases from other countries
like UK and USA, held that although the right to privacy wasnot enumerated as a fundamental
right, it could certainly be inferred from Article 21 of the Constitution.

The Court held that the right to privacy was implicit in the right to life and liberty and was a
“right to be left alone”. Citizens have a right to safeguard the privacy of their own, their family,
marriage, procreation, motherhood, child-bearing and education among other matters. No one
can publish anything concerning these matters without a person’s consent. However, this rule
is subject to the exception that any publication concerning these aspects becomes
unobjectionable if such publication is based upon public records, including court records. This
is for the reason that once a matter becomes a matter of public record, the right to privacy no
longer subsists and it becomes a legitimate subject for comment by press and media, among
others.
Conclusion
It is clear that the protection of publicity and image rights is expanding in a celebrity-obsessed
culture of India. Instances of personalities believing that their rights have been violated are
increasing. While Indian celebrities have intermittently attempted to protect their personality
rights through the judicial system, the law on this aspect is yet to mature fully. With increasing
celebrity endorsements, and with celebrities eager to prevent unauthorized exploitation of their
rights, perhaps the legislature needs to consider recognise such rights in statutory form.

Personality Rights An individual’s personality is not merely a form of trading symbol, it carries
with it elements of personal identification that cannot be exploited by others. It involves
emotional and dignitary values associated with an individual – he may be a celebrity or a
common man. A separate right protecting the personality of an individual has emerged with
the confluence of the right of privacy and right of publicity. This right is an extension of the
right of passing off. In the case of Erven Warnick vs Town end and Sons (Hull Limited),9 Lord
Dipluck laid down 5 elements to establish the tort of passing off- it is necessary to prove: (1)
misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers, (4)
which is calculated to injure the business of another trader, and (5) which causes actual damage.
Subsequent cases have extended the element of misrepresentation and courts have applied the
action of passing off to cases wherein a person misrepresents the name and likeness of an
individual more so in case of celebrities. In Henderson vs Radio Corporation Private
Limited,10 the plaintiffs, a pair of professional ballroom dancers, were able to restrain the
unauthorized use of their likeness on the cover of a musical record. Evatt C J stated that the
remedy of passing off is necessarily available only where the parties were engaged in business,
that expression would be used “in its widest sense to include professions and callings”.
Manning J, elaborated, stating that the development in advertising practices have opened up a
new field of gainful employment for many persons who by reason not only of their sporting
talent, but of their social, artistic and other activities have attracted notoriety and have found
themselves in a position to earn substantial sums of money by lending their recommendations
or VIDYA KUMARI: CELEBRITY RIGHTS AS A FORM OF MERCHANDISE 127
sponsorship to an almost infinite variety of commodities. The misrepresentation that forms the
basis of misappropriation arises in case, the defendants make the public believe that: (1) The
plaintiffs business is connected with the defendants business, (2) The plaintiff has licensed that
the goods of the defendants were of a certain kind, origin or quality, and (3) The plaintiffs have
endorsed the goods. In the case of Culloch vs Lewis A May Produce Distributors Limited, 11
the plaintiff was a well-known children’s radio broadcaster who was known as uncle Mac in
all his radio programmes. He claimed that the words used by the defendants for puffed wheat
– uncle Mac’s puffed wheat – amounted to passing off, dismissing the suit, the court held that
for an action of passing off, it is necessary to prove a common field of activity between the
plaintiff and the defendant. An action of passing off cannot be extended to all cases relating to
celebrities in the case of Lyngstand vs Anabas Products. 12 The members of the pop group
ABBA were unsuccessful in establishing a connection with the merchandise of the defendants.
In printing the names and photos of pop singers, an action of wrongful exploitation cannot be
claimed in every case involving celebrities. The court in this case decided the use of photos of
the celebrities amounted to mere catering to the public demand among teenagers for effigies of
their idols. Voice has also been an aspect of personality protected by the courts when the voice
is identifiable by the public with a celebrity as seen in the case of Waits vs Frito – Lay Inc. 13
The singer, Tom Wait’s voice was imitated in the commercial for tortilla chips. He succeeded
in an action of misappropriation of his personality for imitating his voice without his consent.
Even where a full name is not used, liability has been established if the plaintiff is identifiable
from the use of his name partially or otherwise In the case Carson vs Here’s Johny Portable
Toilets Inc14, the phrase – Here’s Johny and the world’s foremost commodian used for portable
was held to violate the right of publicity of comedian, Johny Carson. Protection of Personality
as a Right Against Unfair Competition Unfair competition as a generic term covers a wide
range of unlawful practices indulged by a competitor The Paris Convention for the Protection
of Industrial Property (1967) Article 10 bis has stated that any act of competition contrary to
honest practices in industrial or commercial matters constitutes as an act of unfair competition.
The American Law Institute has in its Third Restatement of the Law of Unfair Competition
included misappropriation of publicity rights as a form of unfair competition. The American
Law Institute is a private organization and the members are drawn from the Bar and the Bench.
Prominent Judges, academicians and Deans of Law Schools assist in formulating what is
generally known as "lawyers law”. The Restatements of Law issued by this institute are
comprehensive expositions of the law on specific subjects. A Restatement is based upon
decisions 128 J INTELLEC PROP RIGHTS, MARCH 2004 pronounced by the courts but it is
formulated like a statute. A Restatement is a collective deliberation by recognized authorities,
endeavouring to synthesize the decisions of the courts into clear, consistent and concise
language. The Institute has published Restatements on contracts, torts, property, judgments and
others. Restatement (Third) of Unfair Competition (1995) has stated that misappropriation of
publicity rights is a form of unfair competition. The Restatement provides the right to every
individual to protect their personal identity and claim the commercial value that accrues from
the use of their name, likeliness and other indica for the purpose of trade. The remedy suggested
for the violation of the right of publicity includes injunctions and monetary relief. These
Restatements are often quoted by the lawyers, academic community and the courts as well.