This post is co-authored with Dr. Aakanksha Kumar. Dr. Aakanksha Kumar (She/Her) is an independent researcher and academic who also consults with content creators and advises Chhattisgarhi music artists on copyright-related matters. Previously, she served as Associate Professor, Associate Dean, and Associate Director of the Centre for Post Graduate Legal Studies (CPGLS) at Jindal Global Law School (JGLS). Since 2019, she has designed and taught a self-created elective course across law schools titled Comparative Celebrity Laws: Personality, Publicity and Free Speech
Introduction:
In another not-so-surprising development, the Delhi High Court (DHC) has demonstrated a faulty understanding of personality rights jurisprudence in a recent interim injunction order. The dispute arose between Toprankers and LawPrepTutorial (LPT), two major players in the CLAT Coaching market, over competing claims to the success of AIR 1 in CLAT 2026. According to Toprankers (P1), the student (P3) was their active and diligent student, whereas she had only enrolled in a distance learning program with LPT. Following the declaration of results, Toprankers uploaded her reaction video on YouTube, which gained traction. LPT allegedly approached her to portray her exclusively as their student, including through monetary offers which were refused. Despite this, LPT continued to post promotional content claiming her success, including morphed and AI-generated materials. This escalated into the student posting a video attributing her success to Toprankers, followed by the creation and dissemination of alleged defamatory content by LPT against Toprankers and implicating the student. An FIR followed (against the plaintiffs), and the plaintiffs approached the DHC seeking relief against both the defamatory material and the unauthorised as well as morphed, AI-generated content- including use of the persona of P3 without consent – which led to an additional personality rights claim.
The Court found the impugned content to be prima facie disparaging and held that attributing the student’s success to LPT was unjustified. Interestingly, it was also observed that the student seemed to have been caught in a turf war between two market rivals and was being unfortunately used as a pawn. However, the Court’s reasoning takes a particularly creative turn at para 39 of the order – that, regrettably, departs from settled doctrinal principles and adds to the already-existing confusion over personality rights. It states that all observations made with respect to the student are not based on her “alleged personality rights”, reasoning that not every achievement can be elevated to that level, lest every high-ranking student in the country begin asserting such claims. It acknowledges (with some welcome self-awareness) that personality rights remain doctrinally under-defined by courts in India, but cautions that any expansion must stop short of absurdity, adding that the threshold cannot be reduced to isolated events. Para 40 then invokes Daler Mehndi to support this position, though the extracted passages do not quite do the work they are called upon to perform (as we will discuss shortly)
There’s a lot to unpack here, but we’re going to keep this focused on what personality rights actually are, how and why the right of publicity (RoPub) sits within that umbrella, and how a RoPub claim is actually supposed to be tested.
First Things First:
First, we wish to clarify what is actually absurd about all of this: Courts are still using the term “personality rights” as if it were one unified, singular cause of action. It’s not! Personality rights are better understood as an umbrella construct [or a ‘salad platter’, as I(Aakanksha) use this term in my PhD] that encompasses distinct doctrines and causes of action. These include:
Copyright (and related rights),
Trademark,
Passing off (misrepresentation tort),
privacy (dignity/autonomy based – RtoPriv),
reputational harm claims (defamation, malicious falsehood etc.)
and the right of publicity (RoPub -misappropriation tort – stemming from the commercial interest in persona with RtoPriv origins).
Each one of them is unique in its constitutive parts. It’s genuinely perplexing as to why Courts have still not engaged adequately with this basic point. Collapsing them into a single category of “personality” produces analytical imprecision at every stage – identification of harm, structuring of liability, and articulation of remedy. What the Court seems to be enunciating in para 39 is actually a RoPub claim. It neither identifies it as such nor applies its elements.
The Court’s reasoning in Toprankers, rests on a deeper conceptual error: the conflation of personality with popularity. At this point, it is useful to briefly note how the fact pattern is structurally reminiscent of Haelan Laboratories, often cited (incorrectly) as the origin story of RoPub in the US. In that case, a baseball player had granted an exclusive right to use his image to a gum manufacturer, and a competing manufacturer used the same baseball player’s photos in breach of that arrangement. The court recognised a proprietary interest in the commercial use of identity, de-moored from privacy, interpreting the existing New York state statute. The relevance of Haelan here is not the presence or absence of contractual exclusivity, but the structure: identity, competing commercial actors, and unauthorised use to capture market value. Whether the identity in question belongs to a “high performing individual” is immaterial. Identity misappropriation is just that – the legal wrong triggering an action. “Personality” in “personality rights” does not denote fame, recognition, or success. Yet DHC has shown a tendency (see past posts on this blog here) where it treats persona as something that can be “owned” because of success/fame. The same logic has been applied here to the CLAT topper by claiming that her achievement hasn’t propelled her position to that level. What this does is that it links entitlement to claim to achievement-based personality formation. We argue that this is doctrinally untenable, and goes against RoPub’s conceptual foundations.
Back to the Basics: No, RoPub Does Not Need You to be a Celebrity
RoPub (NOT personality rights) is a misappropriation tort that prevents unauthorised commercial use of an individual’s marketable persona. It protects the economic associative value of persona (EAV-commercial value generated when a person’s identity is used to create, enhance, or signal economic worth in commodities/services). McCarthy, in his seminal treatise, is explicit that the right inheres in all individuals, irrespective of their market status. It is a pre-market right that seeks to protect the proprietary interest in one’s persona; persona is not property simpliciter that you come to own by virtue of your fame/success. McCarthy further asserts, (Section 4.5 of the treatise) that commercial value can arise at the moment of misappropriation itself. Accepting this assertion, we further argue that, the very act of unauthorised association with identity in a commercial context generates value. This implies that identity itself is protectable, without requiring prior monetisation. The predominance, therefore, of celebrity plaintiffs in reported cases [For example – Amitabh Bachchan, Anil Kapoor, Jackie Shroff, Vishnu Manchu, Karan Johar, Rajinikanth, Shilpa Shetty, Sunil Shetty, Gautam Gambhir etc.] is a function of litigation economics, not a limitation on the existence of the right.
The Court, however, implicitly adopts an inverted doctrinal logic: competitive exam success leads to visibility, visibility produces value, and value justifies recognition of a personality right – but, according to the Court, in the facts, it is not enough of a “value” for the right to exist, let alone be asserted by and on behalf of the student (P3). are:
Reading Daler Mehndi (para 13) with Titan (para 15), we argue, in fact lays out the clear sequential order of elements in an RoPub claim:
(i) identity (inherent) gives rise to control over commercial use;
(ii) unauthorised commercial use of such identity;
(iii) the plaintiff is identifiable in such use – triggering RoPub infringement liability.
(This is further backed by a reading of Prof David Tan’s monograph (paywalled), as explained, albeit in a different context, by Aakanksha here)
Thus, “value” is incidental, not constitutive of the right. Fame may affect the quantum of damages, but it does not determine entitlement. Indian jurisprudence, beginning with cases like Titan and Rajinikanth, has repeatedly framed RoPub in terms of “famous personalities,” thereby introducing a status-based threshold. This has, and will arguably continue to lead Courts to subjective determinations of who is sufficiently “important” to merit protection, instead of applying the elements of the tort. The Court’s invocation of Daler Mehndi doesn’t help its case. Nowhere in the paragraphs extracted does the order say that it is limited only to celebrities. In fact, para 14 of Daler Mehndi situates it more broadly in an “individual’s right and autonomy to permit or not permit the commercial exploitation of his likeness”. The same paragraph does caution that overexpansion of RoPub will have repercussions for democratic ethos and free speech.
See above: para 14 of Daler Mehndi
But that caution operates at the level of balancing competing interests, not at the level of denying the existence of the right based on status/fame/success as the Court here suggests. In fact, this case is, on its facts taken on a prima facie basis, a textbook RoPub violation.
(a) P3’s identity indicia were admittedly held by Toprankers, (b) unauthorised commercial use of said indicia was made by LPT, from which P3 is clearly identifiable, and (c) LPT derived commercial advantage from the same. All three elements of the claim are adequately satisfied for the plaintiffs. The burden of proof would then shift to LPT to defend such use.
A short additional concern then stems from how the Court artificially links unauthorised commercial use as automatically giving rise to reputational harm. It is necessary to maintain clarity between the two co-existing interests in identity: dignitary and proprietary. The dignitary interest (paywalled) concerns autonomy, reputation, and control over self-representation. The proprietary interest is RoPub, the right against misappropriation of EAV. These claims may arise from the same cause of action, but they are analytically distinct. Proprietary harm does not necessarily produce dignitary harm. A purely commercial misappropriation may not affect reputation; conversely, reputational harm may arise without any commercial use. The Court, however, does not engage with this distinction. It identifies commercial misuse and also notes the presence of disparaging content, but instead of analysing RoPub and defamation as separate claims, it collapses both into an undefined category of “misuse of personality.” This produces doctrinal ambiguity. Is the misuse of personality equivalent to defamation? Or does misuse of personality lead to defamation? The judgment does not clarify. It also does not articulate whether liability arises from the commercial appropriation of identity or from the reputational injury caused by the content, or both. The absence of this demarcation affects not only conceptual clarity but also the structure of remedies.
A final structural concern arises from the nature of interim orders. We accept that expecting doctrinal precision at the interim stage is unrealistic. However, DHC interim orders are typically detailed, doctrinally expressive, and frequently cited. Thus, when such orders employ imprecise terminology, club distinct causes of action, and fail to articulate basic elements and tests, that imprecision does not remain confined to the case. It gets relied on and influences jurisprudence. The error in Toprankers is therefore not merely one of misapplication, but of misidentification. Until a correct shift is made, the law will continue to oscillate between over-expansion in rhetoric and under-definition in doctrine. In the personality rights domain, with all that has been going on, this order doesn’t come as an encouraging sign.
