[The post has been co-authored by Pranjali Sahni and Souradeep Mukhopadhyay. Pranjali is an Assistant Professor at CHRIST (Deemed to be University), Delhi NCR and Souradeep is an LL.M Candidate at Harvard Law School. Harvard University.]
“A decision without reasons is like grass without root.”
A recent order of the Delhi HC in Amitabh Bachchan v. Rajat Nagi & Ors. has turned the spotlight again on the right to personality, which could be broadly understood as a right of a celebrity to control how his or her name, likeness, or identity is used by third parties. The idea that an unauthorized third party should not be allowed to misappropriate the persona of a famous individual for commercial gains is intuitive. Irrespective of legal knowledge, it is likely that one would conclude that such misappropriation is unfair, and should be prevented by law. It is this intuition and idea of unfairness which has led well-meaning judges to protect personality rights. Unfortunately, however, in following intuition, courts have failed to adequately forward the legal basis for the decisions. Resultantly, Indian law on personality rights continues to be vague and unstructured, standing on the flimsy pillars of unreasoned orders and judgments.
A judicial decision must be supported by reasons in order to deliver the essence of the judgement. The obligation to render reasoned decisions act as a restraint on arbitrary exercise of judicial power, which is implicit in Article 14 of the Constitution, and is also consistent with principles of natural justice. Furthermore, it is the ratio decidendi of judicial decisions of courts of record which act as precedent for future judgments.
However, despite the Supreme Court having stressed on the importanceof furnishing reasons in the judgment, courts often fall foul of the requirement. In the interim stage, courts, understandably, do not want to pass detailed orders, given the nascent stage of proceedings. Thus, for instance, interim orders in straightforward cases of trademark infringement have almost become standardized. However, the fundamental requirement of indicating the legal basis for an order, even if stated briefly, cannot, and should not, be sacrificed at the altar of judicial expediency, especially in areas of the law which are not sufficiently developed.
Jurisprudence of Personality Rights in India and Abroad
In Amitabh Bachchan v. Rajat Nagi & Ors., the defendants were sued for, unauthorizedly using Mr. Bachchan’s name and likeness to promote their good, and were restrained by an ex parte ad interim injunction on the very first hearing. The order, however, was cursory. It simply relied on Titan Industries to state that personality rights could be protected, but did not indicate any statutory or common law basis for the protection.
But even the decision in Titan Industries simply declared that a famous personality could control where and how their identity is used— again failing to provide a basis in statutory or common law.
While some jurisdictions, such as Spain (Article 7.6 of Ley Orgánica 1/1982), and California (§3344, California Civil Code), provide statutory protection for personality/publicity rights, Indian statutes do not expressly recognize or protect personality rights. In the absence of legislative intervention, courts must base their recognition of personality rights either on common law or constitutional principles. In failing to do so, courts leave many questions unanswered. For instance, can personality rights be considered an extension of the right to privacy? In this context, it will be pertinent to look at the legal position in the US, which relies on common law to enforce personality rights (though some states have statutory recognition). The US Supreme Court in Zaccchini v. Scripps-Howard, distinguished the right of publicity from the right to privacy, by recognizing the need to monetarily compensate Zacchini for the unauthorized broadcast of his performance by the defendant under publicity rights, and by differentiating it from personal harm and mental anguish which the plaintiff suffers in usual privacy infringement cases. This judgement indicates that personality rights are not a derivation of privacy rights, because of an inherent ‘commercial’ angle involved in the former. Therefore, an extension of the right to privacy to regulate commercial exploitation of one’s celebrity status may not be appropriate. Furthermore, the public has a right to free speech and expression, and whether, and when, publicity rights can override free speech interests is another question that deserves attention. In this context, creative/editorial speech and commercial speech may be treated differently. US courts in Havilland v. FX Networks and Guglielmi v. Spelling-Goldberg Prods., have indicated that free speech in case of editorial works, or creative and expressive works in general, will take precedence over publicity rights. This general rule, however, might not apply in cases of commercial speech. Also, in the US, simply using the name or image of a celebrity for brand advertisement or promotion will not always attract liability, so long as the brand is not falsely misleading the public that the said celebrity is endorsing the concerned brand. Thus, the right to publicity in the US does not protect privacy, but prevents unfair appropriation of an individual’s celebrity for commercial gains, indicating a close association with false advertisement law.
Indian courts, on the other hand, have relied on an interplay of legal concepts to analyze the position on personality rights. In Gautam Gambhir v. D.A.P & Co. & Anr., the question was of unauthorized usage of the name ‘Gautam Gambhir’ by the defendants in their restaurant. However, the court refused to rule in the plaintiff’s favour owing to, firstly, failure to prove actual consumer confusion, secondly, failure to prove harm to reputation, and thirdly, no commercial misappropriation of plaintiff’s name by the defendant. This decision clearly depicts the ambiguous status of personality rights under Indian law. While the court in Titan Industries held that evidence of falsity, confusion or deception are not required to be put on record, the court in Gautam Gambhir stressed on the necessity of evidence to prove confusion and disrepute, thus, taking the exact opposite stance. This is possibly because the issue of personality rights in Gautam Gambhir was analyzed under the lens of trademark law. However, the requirement to prove disrepute has limited scope under trademark law (usually limited to dilution), and is more associated with defamation as a tort or a crime u/s. 499 of the Indian Penal Code, thus, suggesting a conflation of different legal bases.
In Shivaji Rao Gaikwad v. Varsha Productions, the Madras High Court stressed on the fact that defendant’s unauthorized usage of Rajnikant’s name was leading consumers to draw incorrect association with the plaintiff. This, again, like Gautam Gambhir, seems a blend of passing off (confusion), defamation (reference to the plaintiff) and privacy (non-consensual usage), but the court concludes without explicitly indicating the law under which the decision was arrived at. Recently, in DM Entertainment Pvt. Ltd. v. Baby Gift House, the Delhi High Court while ruling in favour of the plaintiff relied upon the intermix of the concepts of well-known trademarks and trademark dilution, false endorsement and passing-off, and privacy, as it held:
“The right of publicity can, in a jurisprudential sense, be located with the individual’s right and autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality……
An individual claiming false endorsement must prove that the use of the identity likely misled consumers into believing the concerned personality endorsed the product at issue……it amounts to a clear dilution of uniqueness of such personality and gives rise to a false belief that, plaintiff has either licensed or the Defendants have some connection with them…to use its exclusive right to market images of the artist.”
Quite interestingly, the court in this case brings in the concept of trademark dilution to assess personality rights infringement. However, this raises the question as to whether a person’s name, voice, likeness can be covered within the purview of trademark law. Another issue left untouched by existing Indian case law is the threshold to be met to be able to exercise personality rights, i.e., how famous must one be to be able to prevent third parties from using their likeness for commercial gains? In the age of advertisements by social media influencers and ever-expanding number of ways of gaining celebrity, it is important that personality rights be well delineated.
The existing judgements in India leave the basis and scope for protection of personality rights in ambiguity, fail to provide rationale necessary for appellate review, and provides little guidance to lower courts and future benches of the High Court who may be called to adjudicate similar issues, stunting the development of sound jurisprudence.
What is the way forward?
Given the disparities in the handful of judgments dealing with personality rights in India, the only string which seems to hold these decisions together is the lack of clarity on the rationale, and more importantly, the legal basis for protecting personality rights. Under these circumstances, it was all the more important for the court in Amitabh Bachchan to elucidate upon the legal considerations that went behind its conclusion. Since that clarity has not been offered, the question remains, what law are personality rights governed under? The courts seem united on one aspect, i.e., it is the right of a celebrity to control the commercial exploitation of their identity. Since the angle of commerce is involved, privacy holds little relevance, and so does defamation. Since the right is not statutorily recognized, such right may only be derived from common law. Passing off fails to offer the solution as it requires an element of consumer confusion. So, which law could provide the solution, that could satisfy all ingredients of a personality right infringement claim, i.e., control, identity, commercial exploitation? The jurisprudential development of the right to personality in India will remain non-demarcated and undeveloped until the courts start providing adequate reasons for their decisions and stop sacrificing judicial thoroughness and discipline. It is hoped that the Supreme Court’s precedents requiring the decision to be well-reasoned and the ratio to be accurately expounded upon is taken more seriously by the courts, not only for compliance with the principles of natural justice, but also for carving a nascent law which requires the sharp penmanship of the judicial mind.