Privacy, Publicity and Trademarks: The Overlap in Right to Personality Cases
Introduction
The current age of digital virality, artificial intelligence, and hyper-commodification of identity has led to blurring of the boundaries between private self, public image, and the commercial exploitation of the same. In this rapidly growing influence of celebrities and digital content creators on the internet, it becomes increasingly critical to understand the confluence of individual identity and the legal framework that protects it. The notion of personality rights is rooted in the values of dignity and distinct autonomy, and over the period of its development, it has transformed into a multifaceted doctrine which includes within itself the right to privacy, the right to publicity, and the evolving interaction with intellectual property laws.
India has gone through a drastic transition in this discourse, especially with the right to privacy being held a fundamental right in the case of Justice KS Puttaswamy v Union of India. Despite this development, the recent times have seen interventions in the form of cases involving Amitabh Bachchan, Anil Kapoor, and Jackie Shroff, which have, along with numerous others, delineated the outline of personality rights and their interpretation in the Indian context. The aforementioned cases are not restricted to being understood as celebrity feuds, but rather they are presently providing insights into the milestones of a changing landscape of identity protection.
Understanding Personality Rights
Personality or publicity rights refer to the rights of persons that encompasses control over the commercial use of one’s identity, name, image, voice, unique attributes etc. An individual’s identity is not restricted to private possession, rather it includes the idea of it being a valued commodity, especially when the individual is a public figure or a celebrity. The notion of personality rights is based on this status of recognition, and is divided into two segments, the right to privacy and the right to publicity.
The right to publicity is an affirmative right, as it extends to those who have this valued status in the public eye and are able to monetize the use of their individual identity in commercial ways. It views identity as an economic asset wherein the persona of public figures is conjoined with marketing. The use of this persona, if done judiciously, brings commercial benefits, but the unauthorized use causes great reputational harm and loss of financial gains. Access to these publicity rights empowers the individual in control to authorize or repudiate the use of such. On the other hand, the right to privacy is a negatively oriented right. It aims to protect individuals’ lives from being intruded by persons without authorization. The notion of right to privacy is based on human dignity and the privilege a person has to prevent public gaze into his/her personal life. This right to privacy is critical in democratic societies, especially India, as personal space is viewed as the cornerstone of freedom. Privacy is not limited to secrecy or shutting from the public eye, instead it revolves around autonomy and choice in matters of publicity.
Both these segments are distinct, but they cannot be considered mutually exclusive. An incident of unauthorized use of the valued identity of a public figure in any sort advertisement holds the possibility of violating the privacy as well as publicity rights of the said individual. It not only exploits their personal attribute but also deprives them of financial gains. There is a delicate balance that needs to be maintained between these two intertwined rights in the legal system’s treatment of the use and exploitation of personality rights. These rights cannot be understood in silos and require the context and nature of harm to be carefully analyzed by courts to rule as either commercial exploitation or usage in public interest.
The Right to Publicity: From Dignity to Commercial Value
The right to publicity has not been explored in a great detail in the Indian jurisprudence, but it can be found to be rooted in the idea that identity also extends to an aspect of property, in extension to personhood. When we consider commercial use of a person’s identity through the usage of voice, image, or other distinct attributes, in advertisements, brand endorsements, merchandise development, or even digital copies, it is imperative that such use be in the control of the one who owns such identity, that is none other than, the person himself. This control includes the legal control of the valued commodity, particularly of persons with substantial market value.
The right to publicity covers two overlapping fragments, one being the recognition of the fame and reputation that are built over years of labor and creativity in the profession, and the second being the prevention of undue enrichment by unauthorized users. The interpretation of this right to publicity treats the valued commodity as the fruit of intellectual labor that needs to be protected both morally and economically. Countries including the United States have a well-established framework to regulate the right to publicity. One such case is the landmark case of Zacchini v Scripps-Howard Broadcasting Co, where the US Supreme Court clearly held that the protection of the individual’s right to publicity provides him the economic incentive to produce performances which interest the public, and the media that broadcasts such acts without the consent of the performer is not immunized by the Constitution as such broadcasts poses a threat to the economic value of the performance, thereby creating a proprietary interest.
The Indian jurisprudence on the right to publicity remains fragmented, at the present times as Courts have only occasionally held them through Article 19(1) and Article 21 of the Constitution. One famous case is the Titan Industries Ltd v Ramkumar Jewellers which held the right of publicity of a celebrity when his attributes are used in advertisement without his explicit consent. There still remains an inconsistency in the legal system as there is a lack of clear definitions and laws outlining the limits and extensions of this right.
The Interface between Trademark and Personality
At the heart of trademark laws is the objective of protecting the identity of a business and its products, ensuring the identification and differentiation of the goods and services by creating a set of unique logos, names or phrases that can be used to define the entirety or segments of the business. Considering the same landscape, it is evident that the identity of business and the identity of persons have a blurred distinction. Public figures, celebrities, influencers, fictional characters etc become a brand over time, and their identities are similar to the notion protected by traditional trademarks, that is the value in the marketplace.
Section 2(zb) of the Trademarks Act, 1999 defines trademarks in broad terms as inclusive of those marks capable of distinguishing goods and services. Although such definition does not explicitly state a person’s name, voice, or manner, these elements of public figures have been increasingly exploited in advertisements and media. Such widespread usage has brought with itself an opportunity as well as numerous challenges for protection and legal usage under prevailing intellectual property laws.
When a public figure’s voice, for instance, is used to advertise a particular product, through the use of AI-generated advertisements, it may cause false endorsement and cause consumer confusion. Thereby, such voice, may be trademarked or protected to prevent unlawful use and creating a safeguard for personality rights.
The interplay between trademark and personality gets further complicated in cases of digital content, especially in relation to deepfakes and AI-generated replicas of personality. These, when used in monetized environments such as advertisement platforms and NFT platforms, but the use of these is not directly covered under the traditional trademark regulations, leaving courts to creatively apply a combination of privacy, publicity and trademark principles to provide relief to the individual whose rights have been violated.
Landmark Indian Cases on Personality Rights
Amitabh Bachchan v Rajat Nagi
A case that marked one of the most defining acknowledgements of personality rights in Indian courts. Amitabh Bachchan, an iconic figure in the Indian cinema, approached the High Court of Delhi seeking a permanent injunction against multiple entities who were using his personality traits like name, image, and voice, for commercial productions without his consent. These entities were running a fake Kaun Banega Crorepati (KBC) lottery scam along with various other frauds under his personality attributes to deceive the public at large.
In the case, Justice Navin Chawla granted an ex-parte ad-interim injunction. He noted that there was misuse of the celebrity status for promotion of the defendant’s activities without permission from the celebrity, and the same caused harm to the latter’s reputation. The court held that Mr. Bachchan’s personality rights could not be breached for publicity or commercial gains.
Anil Kapoor v Simply Life India
The case involved Anil Kapoor, well known for his unique style and dialogue presentation, especially the dialogue “jhakaas,” filed suit to protect his image, likeness, persona, voice and other attributes of his personality. Through his work in 100+ movies, he has developed a market value and has used the same to endorse numerous brands. The present case was brought to protect this very market value from being exploited by the defendants who were supplying selling digital stickers of the actor’s pictures, using his name and appearance on clothing, creating fake signatures and morphing pictures using AI.
The Court stated the negative outcomes of fame that included erosion of right to privacy, as well as recognized the value of free expression. It was held that the actor’s rights should be protected and usage of his name or attributes in any form without consent is illegal, especially when the same is commercialized. The judgement becomes critical to recognize the commercial exploitation of intangibles and their value in relation to a person’s name, image, gestures and mannerisms.
Jaikishan Kakubhai Saraf v Peppy Store
In the said case, the famous actor Jackie Shroff sought protection of his personality rights. The case involved misuse of his registered trademark, “Bhidu” and his personal name by various entities to create derogatory videos, opening restaurants and selling merchandise. The same extended to creation of pornographic content using his name without consent.
The Court granted an injunction against AI chatbot platforms, entities selling wallpapers of the actor’s image and creators of videos which distorted his image, among others. It was held that without such protection the actor would face significant and irreparable harm to his right to dignity, in addition to financial losses.
Conclusion
The present landscape of personality rights in India is in flux with Courts having to creatively grant injunctions as relief to protect those whose attributes are used by unauthorized persons and entities. With the rise of AI, deepfakes and virtual influencers, there is a gap between the technological and legal change that is widening. There is a pressing need for well-framed legislative framework that defines the outline of personality rights and lays down enforcement mechanisms.
Author:–Eeshna Shukla, in case of any queries please contact/write back to us atsupport@ipandlegalfilings.com or IP & Legal Filing.
References
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- Titan Industries Ltd. v. Ramkumar Jewellers, 2012 SCC OnLine Del 2387.
- Amitabh Bachchan v. Rajat Nagi, 2022 SCC OnLine Del 4110.
- Anil Kapoor v. Simply Life India, 2023 SCC OnLine Del 6914.
- Jaikishan Kakubhai Saraf (Jackie Shroff) v. Peppy Store, 2024 SCC OnLine Del 3664.
- The Trade Marks Act, 1999 (Act No. 47 of 1999), § 2(1)(zb).
- The Constitution of India, Article 19(1)(a).
- The Constitution of India, Article 21.
- Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), United States Supreme Court, https://supreme.justia.com/cases/federal/us/433/562/.
- Jennifer E. Rothman, Navigating the Identity Thicket: Trademark’s Lost Theory of Personality, the Right of Publicity, and Preemption, 135 Harvard Law Review 1271, 2022, https://harvardlawreview.org/print/vol-135/navigating-the-identity-thicket/.
- SCC Online, Delhi High Court Grants Ex-Parte Ad-Interim Injunction to Amitabh Bachchan Protecting his Publicity Rights, November 28, 2022, https://www.scconline.com/blog/post/2022/11/28/delhi-high-court-grants-ex-parte-ad-interim-injunction-to-amitabh-bachchan-protecting-his-publicity-rights/.
- SCC Online, Delhi HC Restrains Entities from Infringing Jackie Shroff’s Publicity and Personality Rights Including his Name, Voice and Image for Commercial Gains, May 21, 2024, https://www.scconline.com/blog/post/2024/05/21/dhc-restrains-entities-infringing-jackie-shroff-publicity-personality-rights/.
- Bar & Bench, Delhi High Court Protects Anil Kapoor’s Personality Rights from AI and Digital Misuse, 2023, https://www.barandbench.com/news/delhi-high-court-anil-kapoor-personality-rights-ai-misuse.
- LiveLaw, Evolution of Personality Rights in India: From Privacy to Publicity in Celebrity Cases, 2025, https://www.livelaw.in/articles/personality-rights-india-2025.
