From Congratulatory Posts to Legal Action: How the Manu Bhaker Case Redefines Personality Rights

27th September, 2024 - 9:56 am Categories: Celebrity Rights Judiciary 0 Comments

INTRODUCTION

The recent controversy involving Indian Olympian shooter Manu Bhaker has reignited the debate over personality rights in India. After Bhaker secured two bronze medals at the Paris 2024 Olympics, several brands, including Bajaj Foods, LIC, and FIITJEE, used her images without her consent in congratulatory posts on social media. These posts, while seemingly celebratory, were strategically designed to align the brands with her success, thus promoting their products through a marketing technique known as “moment marketing.” This practice capitalizes on trending events or achievements by using a celebrity’s image to gain attention and enhance brand visibility, often without obtaining the necessary consent.

In Bhaker’s case, her management company, IOS Sports & Entertainment, issued legal notices to the brands, arguing that the unauthorized use of her image exploited her personality rights. These rights, sometimes referred to as publicity rights, allow individuals, especially public figures to curb the commercial use of their name, photographs, and likeliness. While these rights are well-established in countries like the United States, Indian jurisprudence surrounding personality rights has developed primarily through case law rather than statutory provisions.

This piece highlights the growing need for India to establish clearer legal protections against the unauthorized or unconsented commercial exploitation of an individual’s persona. With the development of digital platforms and social platforms, where content is rapidly shared and circulated, the boundaries between genuine celebration and indirect marketing have become increasingly blurred. Bhaker’s case emphasizes the need for updated laws to safeguard personal identity in the modern, highly digitized world.

Main Body

Recently in Paris Olympics 2024, Manu Bhaker representing India secured two bronze medals in shooting. After which several brands, including Bajaj Foods, LIC, FITJEE among others congratulated her on social media using her images in an unauthorized manner to promote their products, consequently iOS sports & Entertainment, the management company of Many issued legal notices to these brands for infringement of personality rights.[1]

The practice adopted by these brands is known as “Moment Marketing”, a technique adopted by brands for promotional purposes and gaining attention in the market based on trending news, events or instances, primarily through social median and digital platforms.[2] Such marketing techniques often lead to infringement of personality rights of celebrities, like in the case of Manu Bhaker. Before discussing further, it is important to understand what personality rights means and how they found their place in the US and Indian jurisprudence.

WHAT ARE PERSONALITY RIGHTS

Personality rights or publicity rights are considered a part of intellectual property rights. These rights allow individuals, particularly celebrities, to restrict the economic use of their image, name, likeliness, and other identifiable individual persona. The theoretical foundation of personality rights is deeply rooted in the concept of “self-ownership,” which postulates that an individual has autonomy over their identity and should have exclusive control over its use, especially in commercial contexts. This includes the right to exclude others from exploiting their persona without consent, aligning with broader principles of privacy and personal autonomy. Moreover, the commodification of celebrity identities in the modern age has necessitated legal recognition to prevent unjust enrichment and commercial exploitation by unauthorized third parties.

The U.S. legal system offers more robust protection for personality rights, particularly through the “right of publicity,” which is acknowledged by many states. Unlike India, where personality rights have developed through case law, the U.S. has clear statutory protections in several states, such as California and New York. The U.S. ‘right of publicity’ primarily safeguards celebrities’ commercial interests and prohibits the unauthorized use of their persona for commercial gain. In cases such as ‘Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.’[3] (1953), the U.S. courts recognized that a celebrity’s image and persona have significant commercial value, laying the foundation for modern personality rights in America. Additionally, in ‘Zacchini v. Scripps-Howard Broadcasting Co.’,[4] the Supreme Court of U.S. ruled that unauthorized commercial misuse of an individual’s performance for broadcasting violated personality rights, focusing more on the economic aspects than privacy concerns.

It is also crucial to know the stance of Indian legal system towards protecting personality rights, how it evolved through judiciary overtime.

“INDIAN JURISPRUDENCE ON PERSONALITY RIGHTS”

In India, Personality rights or publicity rights does not find any mention in any statute however they are considered as facet of intellectual property rights and the jurisprudence around it has developed through various judgments. Personality rights majorly include, first, right to privacy that is protection against intrusion in the personal affairs of an individual and second, right to publicity that is protection against the unconsented commercial usage of one’s personal life and image.[5]

At various instance conflict between personality right and freedom of press is seen, in India this issue was resolved by the Apex Court in ‘R. Rajagopal v. State of Tamil Nadu’,[6] also known as Auto Shankar case. The Supreme Court while striking out balance between the right to privacy and freedom of press subject to reasonable restriction held privacy as “right to be let alone”, meaning the individual has legitimate control over their identity, no one can publish anything about one’s private affairs or exploit identity of an individual without consent for personal commercial gains.[7] Another landmark judgement that upholds the right to privacy is ‘K.S. Puttaswamy v. Union of India’, the supreme court held “right to privacy as intrinsic part of right to life under the Indian Constitution, Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life”.[8] The concurrent opinion addressed the facet of right to publicity where he stated that right to privacy ensures individual to protect its personal life from state and non-state actors, and there is a need to strike a balance between privacy and legitimate state needs.[9]

With regards to the second facet of personality rights, that is right to publicity, the development is at very nascent stage and can be understood through different judgements. The one of the first judgments that recognized the need of one’s consent before using their personal affairs for economic pursuits is Phoolan Devi v. Shekhar Kapoor,[10] the high court of Delhi held that in spite of a person being a public figure no one has the right to put the personal life of an individual to the public record without consent or license. The court has brought out certain exceptions that the information put in public record must be in legitimate interest of public, it must not relate to the personal life of celebrity and shall not have any commercial motives.[11]

In 2003, the Delhi high court expressly dealt with right to publicity in the case of ‘ICC Development (International) Ltd. v. Arvee Enterprises,’ where it held that “The right of publicity vests in an individual and he alone is entitled to profit from it”, it includes voice, signature, personality trait etc. arising from movie, sports or any other event. [12]

A divergence towards recognizing personality rights as a facet of intellectual property is also seen in the recent past judgments. On of which is D.M Entertainment Pvt. Ltd. v. Baby Gift House And Ors.,[13] where the issue revolved around the registered trademark of the plaintiff for the letters DM and the selling of dolls by the defendant that was inspired by the artist that played his song, the Delhi High Court highlighted the exploitation of Daler Mehndi’s trademark and recognised right to publicity by treating it as a passing off action under trademark act without indulging into the constitutional aspects. The court ruled that the right of publicity is tied to an individual’s autonomy to control the commercial use of their likeness or personality traits. Section 27 of the Trademark act,[14] recognise the act of passing off which means unauthorised sell of products using others trademark thereby inducing the purchaser to mistakenly believe that the goods or services offered by one party are actually provided by another.[15] In Titan Indus. Ltd. v. Ramkumar Jewellers,[16] court applied provisions of copyright act for protecting personality rights, the defendant used billboards featuring Amitabh and Jaya Bachchan without their consent, well-known Indian celebrities, to promote their jewellery shop. The plaintiff, who held the celebrities’ personality rights via contract, filed a lawsuit for copyright infringement, misappropriation of personality rights, and passing off damages. The Delhi High Court ruled in favour of the plaintiff, stating that the plaintiff owned the copyright to the advertisement under Section 17(b) of the Copyright Act, 1957,[17] which provides protection against wrongful use of photographs or portraits, based on endorsement agreements, the court further noted that unauthorized commercial use of a prominent person’s identity without consent violates the right to publicity.

In ‘Anil Kapoor v. Simply Life India & Ors’, the issue arose as a result of unauthorised use of his copyrighted dialogue “jhakas” and use of AI for creating images, stickers and video of him, the High Court of Delhi broadened the ambit of personality rights by including one’s name, voice, photographs, way of spealing, gestures etc and held that it is important to protect the persona of individual from jeopardising and negative use without consent, for one’s own sake as well for the sake of the people related to him.[18] The case highlights how attributes of individual life is protected by intellectual property rights and constitution. Revolving around the similar dimensions the court provided protection to another celebrity against trademark and copyright infringement in ‘Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store & Ors.’[19]

A NEW DIMENSION OF PERSONALITY RIGHTS

Manu Bhaker’s case stands apart from most past Indian cases involving personality rights because the brands in question used her images in a non-traditional marketing context that is congratulatory messages. While on the surface, these messages seem harmless or even celebratory, but the brands did not obtain her consent, and the purpose of these posts was commercial by leveraging her achievement to enhance their brand visibility. This distinguishes the case from past instances, where the commercial nature of exploitation was more explicit. 

In the Manu Bhaker case, the cause of action arises not from direct product endorsement or blatant commercial exploitation, but from unauthorized usage of her image in congratulatory posts, a more subtle form of advertising. The brands attempted to associate themselves with her success, indirectly promoting their own business by capitalizing on the moment. This is where the distinction lies: the case revolves around the fine line between genuine congratulation and moment marketing for commercial gain.

The most comparable case to Manu Bhaker’s situation might be Titan Industries,[20] because, in both cases, the images were used without the celebrities’ consent and tied to indirect commercial benefits. However, even in Titan Industries, the commercial context was more explicit because the images were part of a direct advertising campaign. Manu Bhaker’s case represents a more nuanced situation where brands, under the guise of celebration, used her persona to attract attention and possibly increase engagement on social media, which could lead to indirect commercial gains.

After understanding the stance of Indian Judiciary towards personality rights, it is also important to have a fair idea of the legislations which though not directly but peripherally supports the implementation of personality rights in India.

Existing legal framework and need for development.

AI technologies like deepfakes present major challenges to personality rights by enabling the unauthorized exploitation of an individual’s identity, likeness, and voice. Deepfakes can be used for commercial gain without consent, violating a person’s right to control their image, especially for celebrities and public figures. Moreover, deepfakes can invade privacy by creating harmful or inappropriate content, leading to reputational damage, emotional distress, and defamation through false attribution. This manipulation blurs the line between reality and fabrication, eroding public trust in media and institutions. While India’s legal framework offers some protection, such as under constitutional privacy rights (Article 21), intellectual property laws, like trademark protection under section 2(m) of the trademark act,[21] and protection for passing of under section 27 of the same act.[22] Further Section 17(b) of the copyright act,[23] allows individuals to retain ownership over creative works, but only performance-related attributes, defined under Section 2(qq),[24] are protected, however the Indian legal system lacks comprehensive legislation directly addressing personality rights in the digital age. There is a need for specific developments in the existing laws to criminalize unauthorized deepfakes, enforce consent-based use of personal identity, and ensure compensation for violations, expanding existing the Copyright Act and Digital Personal Data Protection Act, to cover AI-generated content would further safeguard individuals from exploitation. Strengthening personality rights is crucial to addressing the growing threats posed by AI-driven manipulation and preserving privacy, dignity, and authenticity in the digital era.

Conclusion

The Indian Judiciary has played remarkable role in protecting the personality rights of individuals time and again but considering the rapid development of technology in the era of AI like deepfakes and misuse of social media. Further, Manu Bhaker’s case expands the scope of personality rights by highlighting indirect commercial exploitation, such as moment marketing. This calls for clearer legal boundaries between celebratory use and exploitation, offering better protection in the evolving digital landscape. Strengthened laws are essential to safeguard individuals from both overt and subtle misuse of their identity.

India needs to strengthen personality rights through a combination of constitutional safeguards, intellectual property laws, and new, specific developments in the existing legislation. These rights should not only protect the personal privacy of individuals but also provide the mechanism to control over the commercial misuse of one’s identity, while addressing the growing threat of misrepresentation and exploitation.

Author: Bhoomi Ahirwar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1]https://www.hindustantimes.com/business/manu-bhakers-managers-to-send-legal-notices-to-non-sponsor-brands-making-congratulatory-ads-report-101722326364574.html

[2] Shiva Sharma, Dr. Ruchi Sisodia, Manish Sharma, Abhishek Sharma, Moment Marketing: The Next Big Thing In Content Marketing, Webology, Volume 18, Number 5, 2021

[3] Haelan Laboratories, Inc. v. Topps Chewing Gum Co., 112 F. Supp. 904 (E.D.N.Y. 1953)

[4] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

[5]Samarth Krishnan Luthra, Vasundhara Bakhru, Publicity Rights And The Right To Privacy In India, National Law School of India Review, article 6, volume 31 issue 1, 2019.

[6] R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632.

[7] Ibid.

[8] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[9] Ibid.

[10] Phoolan Devi v. Shekhar Kapoor, 1995 (32) DRJ 142.

[11] Id.

[12] ICC Development (International) Ltd. v. Arvee Enterprises, 2003 (26) PTC 245.

[13] D.M Entertainment Pvt. Ltd. v. Baby Gift House And Ors, MANU/DE/2043/2010.

[14] The Trademark Act, 1999, § 27, No. 47 of 1999, Acts of Parliament.

[15]Passing Off Action Under Trade Mark Law, indian national bar association https://www.indianbarassociation.org/wp-content/uploads/2013/02/Passing-off-action-under-trade-mark-law.pdf.

[16] Titan Industries Ltd. v. Ramkumar Jewellers, 2012 (50) PTC 486 (Del).

[17] The Copyright Act, 1957, § 17, No. 14 of 1957, Acts of Parliament.

[18] Anil Kapoor v. Simply Life India & Ors, on September 23, 2023.

[19] Jaikishan Kakubhai Saraf alias Jackie Shroff v The Peppy Store & Ors on May 14, 2024.

[20] Supra Note 16.

[21] The Trademark Act, 1999, § 2(m), No. 47 of 1999, Acts of Parliament.

[22] The Trademark Act, 1999, § 27, No. 47 of 1999, Acts of Parliament.

[23] The Copyright Act, 1957, § 17(b), No. 14 of 1957, Acts of Parliament.

[24] The Copyright Act, 1957, § 2(qq), No. 14 of 1957, Acts of Parliament.