He Said, He Said: Personality Rights and the Protection of Phrases

An order passed by the Delhi High Court in Anil Kapoor vs Simply Life and Others CS (COMM) 652/2023 granted interim relief to Mr. Anil Kapoor for protection of his name, likeness, voice, persona, manner of speaking, dialogue delivery, and other attributes of his personality against unauthorized commercial use, including, notably, the phrase ‘Jhakaas.’

While a popular term in Marathi, the Court found that, “a perusal of the press reports and videos would show, that the manner in which he delivers the said word [Jhakaas], while speaking a dialogue, and the nature of expression is exclusively synonymous with the Plaintiff’s energetic and enthusiastic persona.” The understanding of personality rights in India has, therefore, now been expanded to even include catchphrases from a movie. While it may be debated who should be able to claim the rights to a dialogue from a movie, the writer of the screenplay, owner of the underlying works or the director, this order squarely puts this in the domain of the actor.

For a developing society in transition, collective aspirations are often projected onto larger-than-life figures. Courts in India have, time and time again, protected celebrities from unauthorised commercial use of their likeness. The common law right to publicity in India has been derived from the right to privacy and the tort of passing off, while the right to privacy of public figures is held to a different standard when, “a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”1 Furthermore, to initiate an action for infringement of personality rights, it is essential that, “the plaintiff must be ‘identifiable’ from defendant’s unauthorized use. In this instant case, the evidence on record very well establishes the primary requirement. As a secondary consideration, it is necessary to show that the use must be sufficient, adequate or substantial to identify that the defendant is alleged to have appropriated the persona or some of its essential attributes. The right of publicity protects against the unauthorized appropriation of an individual’s very persona which would result in unearned commercial gain to another.”2

In the present case, the Defendants were found to be misappropriating the Plaintiff’s personality rights by: (i) using his name and image to falsely endorse him as a motivational speaker and using ‘dark patterns’ to charge fees for the named Defendant’s services; (ii) selling merchandise including stickers, t-shirts and magnets using the phrase ‘Jhakaas;’ and (iii) using generative artificial intelligence to superimpose the Plaintiff’s face on other famous actors’ bodies and creating images of the Plaintiff as cartoon characters, to name a few.

In Titan Industries Limited vs. M/s Ramkumar Jewellers CS(OS) No. 2662/2011 the Delhi High Court observed that, “when the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity.” In Amitabh Bachchan vs. Rajat Nagi & Ors. CS (COMM) 819 of 2022, the Delhi High Court again found that using a celebrity’s status for promoting the Defendants’ commercial activities, without authorization or permission, would be impermissible and granted an interim injunction to the Plaintiff.

While in Titan, images of Amitabh Bachchan and Jaya Bachchan were being used in an advertisement to promote the Defendant’s jewellery business and in D.M. Entertainment, Daler Mehndi’s voice and likeness were being used to sell dolls, these cases dealt with a subject matter which conveyed active endorsement by the celebrities. Affirmed by the Delhi High Court in Digital Collectibles Pte. Ltd. and Others vs Galactus Funware CS(COMM) 108/2023, where the Court recently declined to pass an interim injunction against the use and sale of NFT-backed trading cards featuring the likeness of certain cricketers since “the said cards do not suggest any kind of endorsement or association with the player concerned. Nor do they claim that the cards have been autographed or officially licensed by the players.” Could the use of a popular regional phrase on a keychain, which existed prior to the national popularisation by any celebrity, then be deemed to convey endorsement?

While the Court in the present case recognised the exceptions of free speech, right to information, satire, authentic parody and news to the right to publicity, it underscored the observation by noting that if “the same crosses a line, and results in tarnishment, blackening or jeopardises the individual’s personality, or attributes associated with the said individual, it would be illegal.” Since endorsements are a primary source of income for celebrities, the Court found that misleading customers into believing the Plaintiff will be present as a motivational speaker (and collecting a fee from the misrepresentation), along with the use of a person’s attributes in an illegal manner for commercial purposes, is impermissible and unjustifiable, the right of endorsement would be defeated if such actions are permitted.

The use of the Plaintiff’s image to sell products, misleading customers into buying tickets on the pretence of him being a motivational speaker, domain squatting and creating deepfakes certainly run afoul of his right to publicity. The concern arises from the protection of the phrase ‘Jhakaas,’ and the association of it solely with the Plaintiff. While his manner of delivery and inflections may be attributable to him, giving him the sole power or authority over the use and commercialisation of the phrase could set a dangerous precedent.

1 R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264.

2 D.M. Entertainment Private Limited vs. Baby Gift House and Ors., CS (OS) 893 of 2002.