Continuing the discussion on an almost unending spate of personality rights filings (first part and second part), in the third part of the post, Aakanksha turns to fandom, fan merchandise, and fan participation in celebrification – and to some hopes for free speech uses of celebrity personality. Dr. Aakanksha Kumar (She/Her) is an independent researcher and academic. Since 2019, she has designed and taught a self-created elective course across law schools titled Comparative Celebrity Laws: Personality, Publicity and Free Speech – currently being administered at NLSIU, Bengaluru.
[Part III] The Road Not Taken (Down): Delhi HC Starts Sorting the Personality Rights “Salad Platter”
By Dr. Aakanksha Kumar
Fan Pages versus unauthorised fan merchandise
As I discussed on the blog here, informal or stylised fan merchandise may not function as a source identifier, so whether it causes harm is a context-specific question rather than one that follows from affixation of the personality indicia to goods. Assuming the answer to be an affirmative in all cases collapses the distance between fan pages, a mug, a voice clone and an obscene morph, and applies a single remedy to these unlike harms in an economy that is often non-commercial and rarely substitutes the original market.
- Fan Pages Are Not Source Identifiers: Interest Mistaken for Belief
Justice Bhambhani’s remarks from the bench in Janhvi Kapoor went to circulation and expression: that fan pages differ greatly from one another, some celebrating performances and others offering criticism; while some others may be archiving, updating, supplying additional information on looks and apparel etc.. A fan page thus, is not a trade in unauthorised “merchandise” for a predominantly commercial purpose. Where it comments, criticises, celebrates or archives, it is “expressive speech”, and the appropriate test is the one D M Entertainment already supplies and which para 15 in Alakh Pandey restates – personality rights must not extinguish a genre of expression that involves no commercial exploitation of persona. Nonetheless, the order still goes ahead to include all “unauthorised merchandise” which would arguably cover fan merchandise also.
In stark contrast, in the Khushi Kapoor order, the injunction covering a Facebook page [Defendant No. 7] is concerning. On the plaintiff’s case, deception followed from size alone: 567,000 followers, roughly 28% of her verified Instagram following, was said to demonstrate that a substantial section of the public had been deceived into thinking the page was hers. Yet a follower count measures interest in the subject, not belief about the source. A page called “Khushi Kapoor” that announces it exists to provide updates about Khushi Kapoor is, on its face, telling you it’s about her rather than by/from her which is how fan and aggregator pages have always worked. There is also a misspelling in the description which reads “we will provide you kushi Kapoor latest update with fashion update [sic]” – which is a genuine source-distinguishing signal. Furthermore, this is a page with its last post in 2023 which is clearly an update about Khushi Kapoor – I ask – how then can it become the vehicle by which, in the plaintiff’s words, each additional follower, post, comment and interaction deepens the deception?
This page was injuncted – and as has been the trend, reported reasoning accepts that the plaintiff have prima facie established that her attributes have acquired unique distinctiveness and are instantly associated with her by the public, and moves from there to restraint. That is the valuable goodwill limb of a passing off enquiry. The misrepresentation limb and the damage limb do not appear at all, and the restraint looks like the beginning of a passing-off reasoning, but ends abruptly like a presumptive misappropriation claim being granted [Para 45(a)]. Right of publicity sure does not require the showing of falsity or confusion, however, there still must be the showing of commercial misappropriation, i.e. use for the commercial benefit of the defendant, for the claim to succeed. Unfortunately, the “commercial benefit to defendant” limb of the elements of a Right of Publicity claim, has been glossed over and left unanswered.
- Fan Merchandise: The “Persona is Property” Assumption and the Fandom It Targets
Merchandising, on the other hand, involves the use of celebrity image, not merely as a device to draw attention to a standalone product, but as an integral part of the product itself. Artists depict celebrities in posters, t-shirts, mugs, etc., and consumers buy them, not because they think the celebrity endorsed the product, but because they admire the celebrity and seek to associate themselves with her. [Dogan and Lemley]. While I must acknowledge that in some situations the context of the sale and the nature of the product may cause consumers to believe the celebrity endorsed it, however, in most argued cases, endorsement is neither established nor asked about. It is assumed, and then rendered irrelevant in the blanket injunction. This assumption mostly rests on understanding of merchandising within a trademark framework – “trademark as property” theory under which the mark itself becomes the product rather than an indicator of source, and then the same is consciously asserted, subconsciously entertained as a “persona is monopoly property” in Indian courts. Arguably, a trademark is “consumer facing”, it works to prevent consumer confusion, and there is no inherent right to be the only one to make money by trading on the value of a mark. By extension, arguably what these overbroad injunctions that cover “unauthorised merchandise” are then doing, is to allow control the sale of the plaintiff’s image itself. The argument I make instead, is that unauthorised fan merch performs an essential gap-filling economic function that allows multi-generational, low-income fandom to participate in celebrity consumption culture, when they’ve also contributed to the ‘celebrification’ of their chosen star. To the extent the right of publicity protects against appropriation of the associative value of a persona, meaning the enhanced value conferred on another product or service, it should not be considered violated by the sale of an image itself. That distinction “associative value lent to a separate product”, as against “sale of the image as the product” is what continues to remain missing. In fact, the practice is counter-intuitive, such that when a celebrity brings an action targeting eventually their fans, they contribute to eroding vital goodwill that fuels their stardom.
Hope for Free Speech – all ‘unauthorised’ use is not “unfair” use
I close on a hopeful note. As I continue to follow these developments, the producer of Kala Hiran: The Battle for Legacy has approached the Supreme Court [Diary No. – 50682/2026 AMIT JANI vs. SALMAN KHAN; status “Pending” as on September 8, 2026] against the interim order that pulled down his teaser. The Supreme Court is finally being asked to rule on a personality rights matter directly. The two amici appointed in the DHC also signal a direction – both are public law advocates with considerable constitutional law work behind them, both in practice and scholarship. Their public opinions and writing lean one way, and the bench appointing them will have known that. Especially in a commercial IP suit with over 6,884 URLs identified to be taken down initially, that is a choice about what the Court thinks is actually at stake. What all of this concedes is simple. Unauthorised use and actionable, unfair use are not the same thing. Satire, criticism, fan pages, fan merchandise, biography, reporting, memes, caricatures – all are unauthorised, every one of them. However, they become actionable only if something more is shown, and that something has to be pleaded and proved, not assumed from fame. Frost had his two roads in a yellow wood, unable to see too far down either of them. The Delhi High Court has stood at that fork for a few years now and, until August 2026, took the well-worn one every time. It is finally taking the one less travelled by, and I for one, am eagerly waiting to see it make all the difference. Dylan’s poetic wheel has not stopped turning, the times, it seems, are changing.
[This post owes a good deal to my elective classroom at NLSIU this on-going trimester. My students have spent the semester asking the right, often wild, questions, and have encouraged me to think and then to think again. My thanks. The errors that survive are mine.]
