From Amitabh Bachchan to SRK, why do celebrities have personality rights?

There is no particular legislation that statutorily protects such rights, courts often rely upon other statutes to bestow this protection

Bitter towards her fiancé and missing her ex, Joan, a mid-level manager in a tech company, is your average Joan. Until she stumbles on Joan is Awful, the television show that retells the events of her life almost in real time. Using generative artificial intelligence (AI) and quantum computing, it has a virtual actor playing Joan, and revels in her darkest secrets and deepest fears.

Joan is Awful can get away with it because the platform on which it streams, Streamberry, had Joan sign its “terms and conditions”. This is the dystopian plot of the sixth season of Black Mirror on Netflix.

It is being eerily replicated in real life.

Striking members of the Screen Actors Guild-American Federation of Television and Radio Artists in Hollywood say big studios want to scan the background performers, pay them a day’s wages, and use their image and likeness till eternity, with no further consent required and no more payment made.

Indian courts hold such contracts as one-sided and unconscionable. They can be held to be unlawful and unenforceable under Section 23 of the Indian Contract Act, 1872.

Hindi film actor Shah Rukh Khan’s familiar gesture in which he opens up his arms and raises them can be trademarked under personality rights, which are also called publicity rights and cover his voice, image, and persona. Publicity or personality rights protect the facets of a person, including the name, voice, image, likeness and other characteristics identifiable and associated with them.

In 2022, Amitabh Bachchan, the well-known actor, filed a suit seeking protection of his personality rights on the ground that his name, voice, and images were being misused by third parties. The suit was filed against the named defendants as well as the unknown John Doe. The Delhi High Court granted an ex-parte, ad-interim order protecting the plaintiff’s personality rights, effectively restraining the world at large from misusing Bachchan’s personality and publicity rights.

Public figures and celebrities, such as Bachchan and Khan, have personality rights because they are identified with their unique characteristics. The common people only have privacy rights, which the Supreme Court recognised in 2017 as a fundamental right and which allow a human being to be left alone. So, Khan’s arms gesture is protected, but not yours, unless you are a celebrity and the gesture identifies you uniquely.

“The Delhi High Court, in the case of Titan Industries versus Ramkumar Jewellers, laid down the test for determining infringement of publicity rights. This test involves identifying ‘validity’, that is, the plaintiff owns an enforceable right in the identity or persona of a human being, and ‘identifiability’, that is, the celebrity must be identifiable from the defendant’s unauthorised use,” says Pravin Anand, managing partner at law firm Anand and Anand.

Naturally, publicity rights cases are usually filed by celebrities. However, who is a “celebrity” is not defined and can include any person who has earned fame or reputation for a facet of their persona.

Where does that leave artists who have not yet attained fame or celebrity? Can a studio own their image or voice?

Sudeep Nigam, who has written dialogues for Sonam Kapoor-starrer Blind, says currently artists’ contracts have no clause to protect them against the use of AI to replicate or replace their services. “Our studio executives and producers are unlikely to address this in contracts, even if they begin using AI. It is only when human beings begin to lose their livelihoods that such a thing will become an issue,” he says.

It is already an issue in Hollywood. 

Tony Award winner and Grammy nominee Lena Hall, who stars in TNT’s Snowpiercer, recently said on X (formerly Twitter) that she and other series regulars did “full body scan and full range of emotion capture” without being told “the real reason why”.

“NOW I know why and it’s really disturbing because I didn’t consent,” Hall said.

The Flash, a superhero movie, recently used a generated version of Christopher Reeve as Superman. Reeve died in 2004. 

He did not give his consent to it.

“There are no specific set of regulations at present in India for controlling the use of AI. This is where the government needs to step in,” says Dev Robinson, partner at Shardul Amarchand Mangaldas.

However, there is hope for the yet-to-be-famous.

Recently, Justice C Hari Shankar, in a case filed to enforce the personality rights of deceased actor Sushant Singh Rajput (Krishna Kishore Singh v Sarla A Saraogi), observed that rights that emanate from one’s personality would be available to all, and not only to celebrities.

The issue is that an individual, to be able to enforce publicity rights, must acquire some degree of fame on account of personal achievements. 

Secondly, there is no particular legislation that statutorily protects such rights. Courts often rely on other statutes to bestow this protection, such as the Copyright Act, Trademark Act, the Indian Constitution, or the Tort of Passing Off, which is based on unfair competition and misappropriation.

“In India, we have had a mixed approach. There have been cases filed invoking Passing Off, like the Arun Jaitley v Network Solutions case, wherein Mr Jaitley’s name was protected from being misused as a domain name. And there have been cases like the one where the personality rights of Mr Amitabh Bachchan was invoked, wherein the courts held that the likelihood of confusion was not important,” Anand says.

Ajai Garg, director and head of tech and law at Anand and Anand, says the need of the hour is to protect the cause of the industry while not stifling the creative voices in the AI space. 

He says unions such as the Junior Artists Association should be mindful that images of artists are not sold without their consent.

“There should be proper disclaimers in agreements that state which scenes are being shot with the use of AI. Also, artists should be educated about their rights so they can negotiate for an ethical contract from the studios,” he says. 

An individual has privacy rights applicable to information and content that relate to their private lives. In the case of Kaleidoscope (India) v Phoolan Devi, the Delhi High court restrained the exhibition of the film, Bandit Queen, on the ground that Shekhar Kapur’s much-talked-about film infringed Phoolan Devi’s Right to Privacy, notwithstanding the fact that she had assigned her copyright in writing to the film’s producers.

The Right to Privacy can however be voluntarily waived by an individual. For this, the terms of the contracts entered into by artists with the movie studios once again become important. In cases where the information or content is disseminated without the permission of the individual relating to their private life, it may result in a breach of privacy. 

Of course, contracts that provide for blanket waivers may be held as unconscionable by the courts and therefore unenforceable.

Pratik Parihar, who has acted in television shows such as Yeh Hai Mohabbatein and Kumkum Bhagya, says he has seen the use of AI for writing stories, screenplays, and editing. “Most of the artists get paid on a daily basis. Their income depends on the number of days they work. AI has the ability to replace them, which will result in fewer working days and less wages,” he says. 

Experts say it is important for artists to be aware of their rights.

“Artists, including background artists, need to be careful when they enter into contracts with production houses or movie studios. They must ensure that the rights they are assigning are limited to a particular project and in respect of activities necessarily required in the project for which they have been hired. They must ensure they retain their moral rights and not waive them. They would also need to ensure that such contracts have sufficient safeguards in place to ensure that the rights are not used excessively and only used for the purpose for which they have been given. Therefore, informed consent becomes important,” says Anand.

That sounds like a lot. The easier way is to become famous before you open up your arms and raise them.