Building on Part I’s critique of the DHC’s doctrinal conflation in the Allu Arjun case, Part II of the post turns to a related concern: the Court’s failure to distinguish between vastly different forms of unauthorised use. In this post, Dr. Aakanksha Kumar explains how collapsing fan practices, commercial merchandise, and AI-driven misuse into a single category produces an overbroad and structurally flawed approach to personality rights. 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.
Part II: Flower Nahi, Fire: Delhi HC Waters the Wrong Rights (Again!)
By Dr. Aakanksha Kumar
Part I discussed the Delhi High Court’s arguably erroneous conflation of copyright eligibility with personality indicia, and its sub-conscious expansion of the Right of Publicity (RoPub) beyond its economic and contractual foundations in Allu Arjun. It also explained how that can lead to furthering a doctrinally unstable framework. In this backdrop, Part II examines and turns to a related, but distinct concern: that of the Court’s inability to distinguish different categories of “use without consent” and situates this within a broader pattern of similarly structurally deficient interim orders.
Fandom, Fan Practices, and the Production and Circulation of Celebrity
In the Allu Arjun case, the alleged infringements span multiple categories. These include merchandise such as T-shirts and coffee mugs bearing the plaintiff’s likeness. They also include AI-based uses such as voice cloning tools, chatbot simulations, and morphed or obscene videos. I would like to argue that it is especially the claims by stars like Allu Arjun, that need to be situated in the cultural context of the particular industry. “Celebrity” here is not produced by the individual alone. It is co-produced through audience participation, repetition, and circulation, as well as the visibility industry backend cultural producers (PR, Legal, Make-up, Grooming, Dialect coaching, Film Industry etc.), alongside the celebrity individual’s efforts themselves i.e. Prof David Tan’s “celebrity trinity” (paywalled). Allu Arjun, in fact, repeatedly acknowledges [also see here and here] the role of his fandom in his elevation to super stardom.
Therefore, celebrification is predicated on the fandom quite necessarily. The persona circulates through the audience. It acquires scale through decentralised participation. I argue that then, overtly asserting RoPub creates a tension. The value of personality indicia (incidental to assertion of RoPub claim) is generated through circulation, but enforcement seeks to restrict that circulation. The attempt to monopolise identity sits uneasily with the processes that produce it. Further, seeking to restrain arguably non-egregious categories of unauthorised “taking” i.e. fan merchandise, occupies a fairly complex legal space. It is admitted that where indicia are affixed to goods and introduced into commerce, the risk of confusion may arise. However, this depends on context. Informal or stylised merchandise may not function as a “source identifier” that necessarily causes harm to the celebrity. The analysis must therefore be specific. It cannot be assumed as the Court here so easily did.
The plaintiff’s own pleadings illustrate the problem. Alongside AI-based uses and morphed videos, the defendants include sellers of coffee mugs and T-shirts bearing the plaintiff’s image. It’s perplexing how these are being presented as comparable forms of harm. A coffee mug reproduces an existing image of the actor. The harm to the actor specifically, if any, is limited to commercial appropriation and may be misrepresentative only when assessed through market impact. AI-based uses are different. A chatbot or voice clone recreates a persona without consent. It generates content that may be attributed to the plaintiff, leading to false association. The risk of commercial misappropriation, alongside misrepresentation and reputational harm, is significantly higher. Morphed or obscene videos go further. They implicate dignity and privacy additionally. When a favourable order makes observations that suggest having treated all these uses as similarly egregious, it collapses distinct categories and leads to a uniform lens of remedies (injunction) applied to non-uniform harms.
It is here that I present to you a further argument. – that even where a threshold of misappropriation is met, the question remains whether a claim should be brought. Fan practices often operate within informal economies. They are not always profit-driven [Refer Prof. Marc Greenberg’s work on Fandom and the Law]. They rarely substitute the original market. Enforcement in such contexts carries costs. It risks alienating the audience that proliferates and sustains the celebrified persona. It may generate reputational backlash. It may also undermine the processes through which celebrity value is produced. The argument thus is that the existence of a right does not require its assertion in every instance. The decision to enforce must be calibrated. A quick parallel to note here is the English Court of Appeal’s decision in Fenty, where, in the absence of a stand-alone RoPub tort, the Court was careful not to recognise any free-standing “image right” or “character right,” and held Rihanna’s claim to succeed only on the highly specific facts and the peculiar timing of the “taking”. At the same time, the Court’s caution that the public is not invariably misled by celebrity merchandise leaves room for what I call the “fandom defence”, namely, that in many cases consumers buy such goods because they are fans and not because they believe the celebrity authorised them, making blanket restraints on fan merchandise both doctrinally unsound and culturally overbroad.
Final Thoughts on the Structure of Personality Rights Interim Orders
The Allun Arjun order, like several others [discussed on this blog regularly] before it, has page after page, devoted to a detailed recounting of the plaintiff’s fame, achievements, IP portfolio, cultural impact etc. This material is then used to support interim relief, however, the movement from fame to balance of convenience is often automatic. I argue that this is difficult to justify doctrinally. In a passing off claim, the plaintiff’s celebrity status is relevant to establishing goodwill/reputation. In a RoPub claim, the focus is on misappropriation, and fame is immaterial. What interim injunctions require is a ‘triple test’ – a prima facie case, a balance of convenience, and irreparable harm. These are distinct enquiries. Celebrity status does not discharge this burden, presumptively, automatically – as it seems to be happening in most cases. These orders in question, replicate the plaintiff’s submissions, and often do not then use such submissions to conduct the “is there goodwill/reputation” part of the passing off claim – which would be necessary to establish the prima facie case; let alone use such details to establish the RoPub elements [use of identity + identifiability from such use + use for commercial gain of the defendant]. The problem is further compounded by the fact that many such orders are ex parte for several of the defendants listed and often against “Ashok Kumar” un-identified defendants. Most defendants are thus not heard, and the analysis, if any, remains one-sided. There is also an internal inconsistency. As explained earlier, the Court relies on widespread recognition to justify protection, but ignores the role of the audience in producing that recognition. The audience disappears from the legal analysis even as it remains central to cultural reality.
Thus, the Allu Arjun order, though somewhat compartmentalised in the final directions portion, still reflects a failure to distinguish. It does not separate copyright from RoPub and passing off, expressive uses from commercial exploitation, or fan practices from technological misuse. Unfortunately, this order continues the judicial trend towards consolidating control over identity while disregarding the processes that sustain it.
