The Interplay of Personality Rights and Freedom of Expression- the Jackie Shroff’s Case’
INTRODUCTION
The Delhi High Court’s recent interim order in the case of Jaikishan Kakubhai Saraf aka Jackie Shroff v. The Peppy Store & Ors., took an interesting take concerning the personality vis-à-vis publicity rights of individuals. The plaintiff sought protection for several aspects of his identity, like his name, voice, photograph, image, likeness, distinctive dialogue delivery style, gestures, and mannerisms. Plea was sought against multiple parties, and the court restrained several parties from making unauthorized use of the actor’s name, voices and signature phase ‘Bhidu’. However, this article will discuss the reasoning of the court with respect to relief claimed by the Plaintiff against a creator of a YouTube video who compiled the interviews of the plaintiff and depicted his personality as ‘thug life’. The plaintiff contended that such videos portrayed him in a derogatory manner. The depiction of his image with sunglasses, caps, cigarettes, gold chains, or the word “Thug Life” etc., distorts his image and infringes upon his personality rights.[1] The Plaintiff also objected to the monetization through the said YouTube video, pointing out whopping 1.3 million views.
The Court reviewed the video titled “JACKIE SHROFF IS SAVAGE (*) JACKIE SHROFF THUG LIFE! and even discussed the dictionary meaning of ‘Thug Life’ as a slang term for a determined and tough mentality, especially in Black hip-hop culture. The court further opined that the said word ‘Thug Life’ is meant as a compliment and not as a derogatory word. Based upon the said interpretation, the court held that the video could be interpreted as a tribute to Mr. Shroff’s powerful demeanor. It does not include any ‘falsehoods’, but rather reinforces the public’s opinion of Mr. Shroff as a formidable and admirable character. With reference to the monetization through the YouTube video, the court stated that such humorous renditions, are not merely entertainment but also a source of livelihood for various content creators especially the youth. The court further discussed how such videos represent an artistic expression of such content creators and blocking such videos might have radical consequences on the content creating community which might further also restrict their freedom of expression.
The said interpretation of the Hon’ble court brings into question the determining balance between an individual’s right to personality and publicity and a creator’s artistic expression and economic freedom.
HOW DO INDIAN COURTS INTERPRET PERSONALITY RIGHTS?
In India, personality rights are not formally recognised. However, the twin concepts of privacy and publicity rights are gradually evolving through judicial interpretations. The right to publicity refers to the right to protect, control, and profit from one’s image, name, or likeness, and it is frequently considered as a subset of the right to privacy. The issue of safeguarding personality rights has grown in prominence because of the rising exploitation of various celebrities and renowned individuals. The personality rights in India are generally enforced in the context of Intellectual Property Laws.
The status of the right to privacy as a fundamental right was established with the Puttaswamy judgment in the year 2017[2], due to which the development of the right to publicity as an aspect of the right to privacy in India is at the nascent stage. Using someone else’s identity without their consent violates both their personality rights as well as their right to privacy.
In Arun Jaitley v. Network Solutions Private Limited and Ors Case (2011), the Hon’ble Delhi High Court noted that an individual’s online reputation or popularity is a reflection of their real life. The name falls into the category where it has developed its distinctive qualities in addition to personality.[3]
IP LAWS SAFEGUARDING PERSONALITY RIGHTS
With regards to personality rights, ‘passing off’ action can be enforced against anyone who attempts to distort the persona or reputation of a celebrity by attempting to pass off their products or services as that of the celebrity. However, as laid down in the landmark case of Reckitt & Colman Ltd V Borden Inc, a threefold test needs to be fulfilled in order to evoke passing off: damage to reputation, misrepresentation, and the resultant irreparable damage.[4] Furthermore, Indian courts have identified a celebrity’s name as having a value equivalent to Trade Mark protection and have prohibited third parties from misappropriating such names like in the cases of Rajnikant where he was granted protection in the case Shivaji Rao Gaikwad v. Varsha Productions and Anil Kapoor who secured protection in the case Anil Kapoor v. Simply Life & Ors.
The Hon’ble Delhi High Court in the case of D.M. Entertainment v. Baby Gift House was amongst one of the first cases to delve into the commercial aspect of personality rights.[5] D.M. Entertainment, a company incorporated by the famous music composer, singer and lyrist Daler Mehndi, sought a permanent injunction prohibiting infringement of his publicity rights and deceptive endorsements that could result in passing off. In the absence of a separate law safeguarding personality rights, the court granted relief by invoking passing off as governed under the Trade Marks law.
Copyright laws also provide plausible remedies for enforcing one’s right to personality. Certain sections like 2(qq) and 38, define a “performer” and specify whether a person’s personality falls under the definition of a performer, under which a performer’s right may be asserted, hence prohibiting the unapproved marketing of a performer’s work. The interests of an artist can be protectable as an extension of its Moral Rights which grants the performers the right to given credit and also claim authorship for their performance. The artist also equally has its Right of Integrity giving them a right to restraint others from causing any damage to their performance.
THE INTERPLAY OF CONSENT AND COMMERCIAL USE
In Shivaji Rao Gaikwad vs. Varsha Productions, the Hon’ble Court while dealing with the case filed by the renowned Indian actor Mr. Rajinikanth, held that while there is no definition of “Personality Right” in any Indian statutes, courts in India have recognised it in numerous rulings. The court ruled that individuals who have attained the status of celebrities are entitled to safeguard their identity. In this case, the court ruled in the favour of the plaintiff, holding that the objection to a well-known person’s identity being used for commercial purposes is not that the identity should never be commercialized, rather the well-known person should have control over where, when, and how their identity is used.[6]
In R. Rajagopal v. State of Tamil Nadu, often referred to as the Auto Shankar case, the Hon’ble Supreme Court recognised an individual’s right to regulate the commercial use of their identity. This decision represented a turning point in recognizing that individuals, especially celebrities, have a legitimate interest in limiting the exploitation of their reputation for commercial advantage.[7]
According to the ruling in Titan Industries Ltd. v. Ramkumar Jewellers, wherein it was held that an individual should be able to control the circumstances around the use of their identification.[8]
Therefore, as it can be ascertained that Hon’ble Supreme Court and various high courts in India have explicitly recognized the right to personality of celebrities and renowned individuals in various occasions along with the control over their identification.
THE CONCEPT OF FAIR USE
The doctrine of ‘fair use’ is provided under Section 30 of the Trade Marks Act, 1999, which is an affirmative defense available against a claim of infringement by the proprietor of a registered Trade Mark. The condition of fair use is laid down as:
“(a) is in accordance with honest practices in industrial or commercial matters, and (b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark”
Further, Section 30 (2) (d) of the Act defines the concept of normative fair use which generally refers to the use of a registered trade mark when necessary, without infringing the right under the act. This usually applies in cases of news, parody, commentary, non-commercial use etc.
The Hon’ble Madras High Court in the case of Consim Info Pvt. Ltd vs Google India Pvt. Ltd[9] and Delhi High court in the case of Prius Auto Industries Ltd. vs. Toyota Jidosha Kabushiki Kaisha[10] have laid down the following conditions to classify the use of registered trade marks under fair use:
- Bonafide use
- No attempt to deceive the public
- No attempt to showcase the link, sponsorship or endorsement with the proprietor
Parody as a Defense Against Personality Rights
Parody can come under the ambit of fair use under the Trade Marks Act, 1999 and is also recognised as defense under the Copyright Act 1957. Parody basically means a humorously exaggerated imitation of someone. Parody in most cases is dependent upon the content of the original creator and is most of the time used without the consent of that creator. It usually entails review, commentary, satire, comedy, criticism over the original work.
Even though Section 52 of the Copyright Act classifies any artistic work under fair use, it is imperative to note that it does not safeguard total imitation of a work. This is where it usually becomes difficult to draw a fine line between fair use and copyright infringement. So, various courts have over the time drawn a clear line in this regard.
Further in the case of Civic Chandran and Ors. v C. Ammini Amma and Ors., the Hon’ble Kerala High Court upheld these conditions and further laid down three conditions:
- (i) The amount and value of the matter copied for the purposes of comment or criticism;
- (ii) The purpose behind taking the same;
- The likelihood of competition between the works.[11]
CONCLUDING REMARKS
There has been a recent trend of exploitation of the personality rights from criminal offence of impersonation and fraud to passing off and moral right violation. The developing jurisprudence is a cross-section of the tortious principal of passing off, trademark as well as copyright infringement. However, the advent of artificial intelligence has been a major reason for debate within the legal industry and debacle for the conventional jurisprudence. The generative AI has been on the forefront of the legal actions, and alleged violations of intellectual property rights have been on the rise since the inception of generative AI.
The legal system has been called out on for the precedents to be in dockets, as the legal scrutiny is sought to clarify the bounds of what is a “derivative work” under intellectual property laws. The outcome of these cases shall hinge on the legal interpretation of the defence which has been sought i.e., fair use doctrine. The court in the case of Jaikishan Kakubhai Saraf aka Jackie Shroff v. The Peppy Store & Ors. relied on the case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House & Ors. in which the court explicitly held that the right of publicity protects individuals against the unauthorized use of their personality, which includes their name, image, voice, and other distinctive attributes.
The fair use doctrine has been an exception used widely against the intellectual property law violation. However, the ongoing lawsuits against generative AI for imitation of distinctive attributes shall mark a major precedent for developing the jurisdpridence with creativity, originality and passing-off as the center-piece for protection of the rights and exception.
Author:–Bhavya Verma Associate, Trade Marks & Copyrights Dept and Ayush Anand(Intern), in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
[1] Jaikishan Kakubhai Saraf v. Peppy Store, 2024 SCC OnLine Del 3664.
[2] K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.
[3] Arun Jaitley v. Network Solutions Private Limited, 2011 SCC OnLine Del 2660.
[4] Reckitt & Colman Ltd v Borden Inc [1990] 1 All E.R. 873.
[5] D.M. Entertainment (P) Ltd. v. Baby Gift House, 2010 SCC OnLine Del 4790.
[6] Shivaji Rao Gaikwad v. Varsha Productions, 2015 SCC OnLine Mad 158.
[7] R. Rajagopal v. State of T.N., (1994) 6 SCC 632.
[8] Titan Industries Ltd. v. M/s. Ramkumar Jewellers, 2012 (50) PTC 486 (Del).
[9] Consim Info Pvt. Ltd. v. Google India Pvt. Ltd., 2012 SCC OnLine Mad 3462.
[10] Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd., (2018) 2 SCC 1.
[11] Civic Chandran v/s C. Ammini Amma (1996) 16 PTC 329 (Ker.).
