Personality rights order likely to protect celebs

The order can act as a deterrent against unauthorised use of celebrities’ name in promotional activities such as advertising. However, such instances are only a small part of infringement happening in India that may not even be noticed by celebrities.

Besides, the order excludes mimicry artistes, who are protected under the right to freedom of expression, they said.

“The term ‘personality right’ is generally used in reference to rights of a celebrity or a public figure over their voice, image or any other feature easily identified by the public, and has commercial value due to the goodwill, or association attached to it. Misusing personality rights can have wide-reaching economic and reputational impact for concerned celebrities and an order such as the injunction order passed by the Delhi High Court will control the unauthorized use of celebrity’s personality for advertising,” said Neha Naik, associate partner, Phoenix Legal. Unauthorized users will be liable to pay damages to the celebrity, as well as be punished for contempt of court.

“Though it may be a deterrent, it is extremely difficult to monitor such activities as a celebrity can only act when he or she comes to know about an instance. This may be a minuscule percentage of the actual infringements taking place in India. The exclusion of mimicry artists and other entertainers also dilutes the action one could take against use of their personality if it is not an actual reproduction but a mere copy, that is mimicry,” Naik added.

Earlier, exploitation of personality rights on digital platforms was not significant, said Ameet Naik, joint managing partner at Anand & Naik who represented Bachchan. “With the growth of the digital world, including metaverse and the introduction of NFTs, it is likely that personalities and their attributes are going to be misused. It is difficult to provide an estimate of the monetary loss, particularly with the growth of social media, which has developed as a significant source of revenue for celebrities. However, the loss can roughly be at 15-20% of a celebrity’s revenue due to unauthorised usage of their personality rights. It is most likely that this figure is going to increase,” Naik said.

An order like this could help take down requests as it operates against the public at large, said Pooja Tidke, senior partner, Parinam Law & Associates. “The challenge however lies in the actual logistics of identifying the infringers, putting them to notice, and ensuring they comply. This could prove to be a rather tedious and time-consuming task involving significant costs. It is possible that the beneficiary of such an order may decide to strategically go after the larger players rather than the insignificant ones,” Tidke said. Such infringement could more often than not, over-expose the image of a celebrity which could result in grave losses arising out of diminished brand value, Tidke added.

Given that merchandising, advertising and other means of promotion through use of celebrity images and traits are one of the most common and effective means of marketing today, it is imperative that personality rights receive their due recognition and protection, said Nishad Nadkarni, partner, Khaitan & Co. “Endorsements are also a significant source of revenues for celebrities. Orders such as these help them protect an important part of their livelihood. This will help reckless and unauthorised usage. Often the image of celebrities is used to scam people, such orders are also therefore in public interest and help in putting a speedy end to such practices,” Nadkarni said. As far as challenges go, what would constitute “likeness” could be a grey area. Nadkarni pointed out. “For example, would using a dialogue or an outfit worn by a celebrity constitute a violation of the celebrity’s rights or their likeness or would it be a violation of the rights of the script writer or designer respectively? Another grey area with respect to the scope of personality rights is whether they would survive or extinguish after the life of the celebrity,” he said.