From 'Jhakaas' And 'Bhidu' To Sadhguru: The Celebrity Scramble For Personality Rights

India, that is Bharat, is a profoundly diverse and heterogenous union of states marked by its sublime contradictions. Apart from being a millennia-old civilisation racing through a digital revolution, two disruptive forces now define the modern Indian experience: celebrity worship—from Bollywood to spiritual gurus—and the breakneck speed of its digital landscape, pioneered by cheap internet access and now complicated by the spectre of AI-generated deepfakes.

At the volatile intersection of these forces, a fascinating, if messy, legal conundrum is unfolding: the protection of personality rights.

What are personality rights? Think of a local barbershop displaying a celebrity's unauthorized image to advertise a haircut. That shop is commercially exploiting the celebrity's fame, implying endorsement. In simple terms, personality rights' violations involve unauthorized use of the rights of an individual to control and profit from the publicity of their identity. This includes their name, image, likeness, voice, signature, and other unique characteristics.

Unsurprisingly, celebrities are rushing to the courts (mainly the Delhi HC) to protect their rights. From the venerable Bachchan family and the legendary singer Asha Bhosle, to the spiritual heft of Jaggi Vasudev (Sadhguru) and Sri Sri Ravi Shankar, celebrities are seeking injunctions (or John Doe orders) against unauthorized commercial misappropriation.

Indian courts have been amenable to this claim, often grounding these protections in the fundamental right to privacy under Article 21 of the Constitution. Intuitively, this feels correct: what is more personal than one's own identity? Yet, this judicial route, while offering immediate relief, is fraught with philosophical and practical perils.

The Case for Legislative Clarity

It's trite to say that defining new 'rights' must be left to the people's elected representatives, who sit in the legislatures and not the courts. But more interestingly, what happens when courts provide piece-meal injunctive orders restraining commercial misappropriation of personalities? The difference in forum is not mere academic nitpicking, rather it goes to the heart of good governance and robust democratic lawmaking.

One, courts are constrained in what they can / cannot do in terms of properly defining ambits of rights. The adversarial process of the courts is structurally limited. A judge can only rule on the pleadings before them, resulting in piece-meal injunctive orders. In contra-distinction, the Legislature is much better equipped to conduct public consultations, solicit expert briefs, study comparative jurisprudence, and formulate a holistically informed protection with well-defined ambits.

Two, and more critically, the judicial route risks creating a chilling effect on free expression. Ad-hoc injunctions, especially those granted ex parte (without the other party being heard), are susceptible to being overbroad. This risk is further compounded by the reliance on John Doe orders which are sweeping injunctions issued against unknown or unnamed parties, often the case in personality rights litigation. These broad orders may not just restrain blatant commercial misuse but inadvertently sweep up legitimate satire, parody, criticism, or essential news reporting by entities that were never heard in court. When the rules are made by reactive rulings instead of proactive legislation, consistency suffers, and responsible journalism and artistic commentary inevitably become cautious, even when this may be fair use.

Three, in the absence of a single codified law, courts are forced to rely on a patchwork of doctrines—primarily privacy, and only fleetingly on intellectual property principles as the Indian experience suggests. This inevitably breeds the inconsistency that plagues this area of law. For instance, one court might emphasize the commercial harm ('publicity' right), while another might focus on the emotional distress or dignity ('privacy' right).

Property vs Privacy Frameworks

The central philosophical confusion lies in the choice of legal framework for protection: Property versus Privacy.

While the privacy framework is invaluable for tackling non-commercial, nefarious harms like Deepfakes created to defame and attack a person's dignity, it is woefully inadequate for addressing the economic injury of commercial exploitation. The property paradigm recognizes that a person's identity, especially that of a public figure, has commercial value. The primary injury in unauthorized commercial use is not a violation of personal dignity or an intrusion into private life, but rather the unjust enrichment of the infringer and the loss of an economic opportunity for the person whose identity was exploited.

Consequently, this property-based framework provides more fitting remedies. As a property right, the primary remedy is to recover the monetary value of the right that was infringed, allowing the celebrity to seek damages not only for their own harm but also for the profits the infringer made. In contrast, a privacy-based claim would typically be limited to compensation for emotional distress or violation of dignity, which is often difficult to quantify. While privacy law is useful for addressing non-commercial harms, it is insufficient to address the economic injury of commercial misappropriation.

More crucially, viewing personality rights as a valuable, tradable asset, similar to a trademark or copyright, provides a clear legal and commercial framework. It allows the right to be inheritable, ensuring that the posthumous business of fame or commercial value of a person's legacy can be managed by their estate. Take the experience of late actor Sushant Singh Rajput's father, who in 2021, sought to stop the screening of a film based on Sushant's life. The Delhi High Court refused relief, holding that the actor's right to privacy, publicity and 'personality rights' were not heritable.

In the Interregnum…

While awaiting a definitive legislative framework, judicial caution can limit such chilling effect created by overbroad injunctions. Focussing on the specificity of the injunction can act as the principal safeguard here. Orders should include clear, express carve-outs for protected speech. Practically, this would mean restraining only the precise infringing activity (for instance, sale of specific merchandise etc.) and explicitly stating that the injunction does not apply to fair commentary like parody, satire, news reporting, or criticism.

Further, to safeguard against overbroad injunctions, especially those granted ex parte, courts should emphasize a high evidentiary threshold. A celebrity seeking an immediate injunction against unauthorized commercial misappropriation must clearly demonstrate a prima facie case and establish that irreparable economic or reputational harm would occur if the order is not granted immediately. In cases where fair use might be a defence (satire, parody, etc.), the court should require strong evidence of a clear commercial or profit-making intent by the infringer, moving beyond merely incidental use of a personality's image or name in a non-commercial context.

Courts should proactively establish distinct legal tests for violations of privacy right (addressing non-commercial harms like defamation and deepfakes) and publicity right (addressing unauthorized commercial exploitation and unjust enrichment). Such reasoned distinction of basis of relief, depending on the type of violation addressed, would bring consistency, clarity, and coherence to such orders. Consequently, commercial misappropriation claims would be assessed based on the economic property framework, while non-commercial harms would be addressed through the personal dignity and emotional distress lens of the privacy framework.

Given the complex nature of personality rights, particularly with the advent of AI-generated content, the Legislature must step up. It is best positioned to create a comprehensive framework that incorporates the necessary balance: a strong property right to secure the economic persona, tempered by necessary privacy protections, and critically, clear exceptions that safeguard free speech, parody, and the public's right to engage with their cultural icons. India cannot afford a future where celebrity rights are defined by a series of judicial fire-fighting.

The author is an Advocate at the Punjab and Haryana High Court and the Supreme Court of India, and a Solicitor of the Senior Courts of England and Wales

Views Are Personal.