Understanding the Personality Rights with Jaikishan Kakubhai Saraf Alias Jackie Shroff V. The Peppy Store & Ors Case.

In the evolving world of AI and digitalization, where content creation on various platforms such as YouTube remains a source of entertainment and also a source of livelihood for the creators, Can personality rights of the celebrities be a threat to their creation or is it protected under the constitutional provisions? These questions along with the interplay of personality rights, right to privacy, and the constitutional provisions have been discussed below along with the opinion of the Hon’ble Delhi High Court in the case of Jaikishan Kakubhai Saraf Alias Jackie Shroff v. The Peppy Store & Ors

UNDERSTANDING PERSONALITY RIGHTS

Personality of each person is unique and at times, attractive enough to catch everyone’s eyes. Personality rights further is granted to the individuals so that they can protect commercial usage of their identity which also includes their name, likeliness or any distinctive part of their personality they wish to be protected. In India, these rights are not listed in any specific legislation and not consider as a single right but, a ‘bundle of rights’ which is linked with the fundamental rights, constitutional principles and publicity interest. The Hon’ble Supreme Court of India has observed that every individual should have a right to control the usage of their identity which further enhances the scope of personality rights in India.

The rise of social media also intersects with the data protection which is governed by the Digital Personal Data Protection Act, 2023 (DPDP Act). The Act requires the consent of an individual before using their identity for the purpose of commercialization. It also grants the individual to control the same by giving them the power to delete or modify the content uploaded which violated their rights and also imposes penalty for the ones who impeaches the principles of the Act. The personality rights therefore holds a wide umbrella which deals with DPDP Act, the Trade Mark and Copyright Act, and also the constitutional principles. 

The idea of personality rights grew with the right to privacy.  In the 1995 case of R. Rajagopal v. State of Tamil Nadu, the right to privacy was acknowledged as a basic right under Article 21 of the Indian Constitution, marking the first recognition of the idea of personality rights. Despite being largely about privacy, the ruling recognized people's ownership over their personal data, which paved the way for personality rights.  

Later on, in the year 2003 with the case of ICC Development (International) Ltd. v. Arvee Enterprises , the Delhi High Court acknowledged the business importance of a personality as the idea evolved further. Ever since then the concept is evolving. The concept of personality rights is demanding maximum attention, along with AI and digitalized world to develop.

THE INTERPLAY BETWEEN DIGITAL CONTENT CREATION, CELEBRITY RIGHTS, AND AI-DRIVEN PLATFORMS

The recent cases coming up serves as a perfect example of how content creation, AI and celebrities rights are interlinked. In other words, the interplay between the former can be understood as content creation is rapid specially with the inclusion of AI and at times with the help of AI. There are various content creators on the platform such as YouTube, Instagram, and other social media platforms. 

To gain more views the content creators often recreate content from the public figures which are already famous and to which the general audience will be more likely to stick on. The process of content creation and the fight of the creators to attract more audience at time knowing or unknowingly use some tactics which might infringe upon the personality rights of an individual or a public figure. 

The recent judgements including that of Jackie Shroff v. The Peppy Store” also demonstrate the same trend as discussed above which highlights the interplay of AI, content creation and personality rights. Therefore, the celebrities turn into the court to protect their personality rights against AI and content creation done in a manner which will lead to infringement of their personality rights.  

BACKGROUND 

The plaintiff, Jaikishan Kakubhai Saraf, popularly known as Jackie Shroff is a well-known actor and a public personality. His mimicry has also been noticed in different comedy and entertainment shows. The plaintiff, sought protection for safeguarding several facets of his personhood, including as his name, voice, picture, likeness, unique mannerisms, gestures, and delivery of words.  A petition was sought against several parties, and the court stopped several parties from making unauthorized use of the actor's names and voices.

The plaintiff gained a strong presence in the film industry by making its presence in over 220 films including the super hit films such as Ram Lakhan', Tridev,' 'Devdas' and 'Parinda'. The plaintiff has also received the National and Filmfare Awards and is also the registered owner of the trademark 'Bhidu' under 3227968 number 3227968 in class 25 (prepared clothes, hosari, clothing shirt articles; jeans, cotton trusters, garments. Apart from this, the plaintiff is also the registered proprietor of the mark "Bhidu ka khopcha" under No. 4362494 in Class 41 (Education; Providing of Training; Entertainment; Sporting And Cultural Activities)

The present case concerns various defendants for violating the plaintiff’s personality rights by the means of infringing the plaintiff's registered trademarks and name "JACKIE SHROFF" by the means of selling printed goods on an online store, also making disparaging YouTube videos and using it for content creation.  The defendants also opened a restaurant called "Bhidu Shawarma & Restaurant," and are also accused of publishing links that sold goods and explicit pornographic material under the name "JACKIE SHROFF" without the plaintiff's prior consent. The plaintiff in this case wanted to safeguard his rights to publicity, personality, and other aspects of his identification, Copyright in photographs, literary, musical, artistic, and dramatic works, sound recordings, cinematographic films, and other related works; (c) common law rights encompassing protection against passing off, misappropriation, and unfair competition; trademark infringement concerning its registered marks “BHIDU” in classes 25 and 41, as well as the mark “Bhidu Ka Khopcha” in class 4.

JUDICIAL FINDINGS 

The court considered all the legal challenges being faced keeping in mind several defendants and cited the judgment of D.M. Entertainment Pvt. Ltd. v. Baby Gift House decision, which established that people's right to publicity shields them from the unapproved use of their names, voices, images, and other distinguishing characteristics. The Court acknowledged that such unapproved use may violate an individual's right to privacy by granting another party unjustified financial gain. According to the Court's application of the aforementioned principle to the case at hand, the Defendants' alleged actions on a prima facie basis resulted in commercial benefits through the unauthorized exploitation of the Plaintiff's personality.’

They had violated the Plaintiff's publicity rights and personality by using his name, image, voice, and other distinctive characteristics without authorization. In order to prevent the defendants from selling such goods and violating the plaintiff's personality rights, the plaintiff is therefore entitled to an ad-interim injunction. 

[Image Sources: Shutterstock]

Through a contextual analysis, the Court determined that "Thug Life" is frequently used in a humorous, positive context in meme culture, celebrating bold and assertive personalities, with regard to the YouTube video created by Defendant No. 5. The creator's modifications, including the caption "Thug Life," were meant to draw attention to Mr. Shroff's captivating personality. As a result, the video might be interpreted as a celebration rather than a disparaging depiction, which would be consistent with how the term is used in popular culture today. The Court further emphasized that content providers rely on the popularity of the video and their creative contributions to support themselves. According to the Court, limiting this kind of content could have a significant impact on both the YouTuber community and artistic expression. Additionally, it might establish a precedent that restricts freedom of expression by discouraging public speech out of concern about potential legal consequences. The Court decided to hear Defendant No. 5's response in order to weigh his right to artistic and economic expression against Mr. Shroff's right to moral integrity and personality. As a result, the Court did not issue an ex-parte ad-interim injunction in favor of Mr. Shroff against Defendant No. 5.

The Court further prohibited the aforementioned defendants from violating the plaintiff 's rights to publicity and personality by using, exploiting, or misappropriating the plaintiff's name, "JACKIE SHROFF," and other variations, such as "JACKIE," "JAGGU DADA," his voice, and his image for the purpose of creating downloadable wallpaper, making deceptive videos of the plaintiff that damage the plaintiff's reputation, and any other commercial use of an unlicensed Al Chabot that uses the plaintiff's persona in any way without the plaintiff's permission or authorization.

PERSONALITY RIGHTS IN THE UK AND US

In the US, the personality rights are recognized and is covered under ‘right to publicity’ which further allows individuals to control the commercial usage over their unique voice, name, likeliness etc. In many US states these rights are valid up to 100 years after the death, where as in other states such as California which is governed by the ‘Celebrities Right Act’ is governed up to 70 years after the death. 

The United Kingdom on the other hand is not governed by any separate remedy or statutes instead it is relied upon traditional torts actions or claims such as passing off which also evaluates ingredients such as goodwill, misrepresentation, commercial usage etc. A celebrity can claim against misleading actions regarding their right through general remedies. In the case if Fenty v. Arcadia The celebrity image rights were claimed under ‘passing off’ therefore, unlike US, the UK does not typically include personality rights as a different regime but reverts to the trademark rule for the same. 

In India, personality rights are evolving by witnessing more and more cases about the same. Personality rights are boarding into the constitutional principles. In the landmark judgement of KS Puttaswamy vs Union of India it was held that article 21 also includes individuals’ rights over its name, images and commercial usage over the same which emphasis the personality rights. However, with an absence of an explicit legislation of personality rights unlike the US, the India is following the precedents such as rooting of personality right In article 21 whereas UK is relying upon the claims such as passing off or remedies under the torts in order to provide relief to the individuals. 

LEGISLATIVE VACUUM IN INDIA AND REFORM IMPERATIVES 

As more and more AI tools evolve there is a strong belief that India needs a codified and structured statute for Personality Rights. By this time there are enough cases of personality rights coming in the court be It for infringement by AI or by individuals to gain views over social media by unethically using the celebrity’s image, voice etc to gain attention. In India, instead of relying on a specific statute reliance have been seen in the torts law, passing off remedies, or the constitutional principles. One such example of the same is the case of Titan Industries Ltd. vs M/S Ramkumar Jewelers in which the famous actor Amitabh Bachchan along with wife Jaya Bachchan sued a jewellery brand for ‘passing off and misappropriation of personality rights’ because the brand was sing their pictures to commercialize their brand without the celebrity’s permission. 

India, with respect to personality rights, is uncodified and unstructured. The relief is mostly granted as per the passing off claims, showing the same as an act of defamation and incorporating the personality rights issues in the torts and constitutional principles. The Delhi High Court has stressed that “the right to control the commercial use of human identity is the right to publicity,” yet it must still be “tested at the anvil of passing off” and freedom of expression. 

The current framework remains unequipped the deal with the recent trends such as AI, and the craze of social media. Tools like deep fake, ChatGPT, copilot etc. are capable of using a celebrity’s voice and use it further without their knowledge. Something this serious requires immediate attention and perhaps a separate legislation in itself. The Delhi High court has observed that The AI tools which intentionally produces a singer’s voice for a commercial purpose will be held liable for the infringement of personality rights. The case dealt with Indian celebrity Anil Kapoor whose name and image was used unethically which was produced by AI without the actor’s knowledge. Such kind of infringement of personality rights require special attention by including a separate statute or guidelines so that the personality rights have a clear and structured approach. 

The judgment Jackie Shroff V. The Peppy Store is a perfect balance of protecting freedom of speech and expression and personality rights. The interpretation of the thin line between usage of social media in a faith without infringing the celebrities personality rights whereas using it in a manner to gain views by violating their right to privacy and also infringing their personality rights is highly significant. Today, freedom of speech and expression is not limited but also through the digital platforms deeply relates with one’s source of livelihood. 

At the same time, in the former judgment the Honorable Court also commented on unjustified financial gain, in other words the we can assume unjustified financial gain by violating somebody’s personality rights will still not be tolerated in the Indian judiciary and the issues of personality rights are given importance irrespective of a special legislation for the same. With the influencer driven era, celebrities’ image has become highly significant and the judgment rightly evaluated the issues such that of the e-commerce platforms and is also an example for the other influencers to produce the content carefully. 

However, In addition to that the case also serves as a reminder that legal systems need to be updated to meet contemporary issues and provide robust protection for individual rights in an increasingly virtual society. Personality rights today is widely discussed about and therefore, there remains the need for a more uniformed and modern approach so that in the near future as well legal domain runs smoothly and individuals can be made more and more aware the rights each and every one of us holds within us.  

Author:  Rashie Sharma, 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.