The Cost Of Fame: Arbitration Over Personality Rights In India

Introduction

The influence of celebrities in India is unmatched, they are considered larger than life and celebrated as ‘heroes’. Resultantly, it does not come as a surprise that the estimated brand value of India's top 25 celebrities, who include both sports stars and Bollywood celebrities, was $1.9 billion in 2023, with a staggering 15.5% annual growth, as per a report by Kroll.¹ In view of such high stakes, there has also been unauthorized use of such brand power by many. In recent times we have seen celebrities like Anil Kapoor successfully seeking exclusive rights over the term ‘Jhakaas’,² to Jackie Shroff who followed the steps and moved to the Hon’ble Delhi High Court³ and successfully gained a restraining order against approximately 15 defendants from using the actor's name, voice, likeness, and trademark "Bhidu" without permission.⁴ These cases do not present themselves as an anomaly in the realm of IPR jurisprudence in India, however, can a dispute of similar nature be the subject matter of an Arbitration proceeding? The recent appointment of Arbitrator in a proceeding ensued by famous cricketer Mr. Yuvraaj Singh against a real estate company might present an answer for the same. The present article shall discuss the possibility of Arbitration over Personality Rights in India at length:

What are ‘Personality Rights’?

Personality rights refer to an individual's capacity to protect their identity, its usage and subsequent gains which may be unlawfully acquired by a third person, arising from any unauthorized use of the brand value associated to a well-known personality. These rights give people the authority to decide how their name, likability, voice, and even distinguishing characteristics are used—especially when it comes to commercial usage.⁵ Celebrities treasure these rights because their names, likability, or even voices could be improperly used in advertisements by different companies trying to boost sales. Thus, the idea of personality rights recognizes an identifiable person's right and value over certain aspects of their personality or their brand value in totem.

Recognition of Personality Rights in the Indian jurisprudence

India does not have a separate codified law protecting Personality Rights. However, the courts in India have recognized and progressively expanded upon personality rights by drawing on foreign jurisprudence and common law. However, the Trademark Act of 1999 and the Copyrights Act of 1957 protect some aspects of an individual's identity from being used for commercial purposes.⁶ While such statutes can shield an individual's name (under trademark law) or a performer's rights (under copyright law), they cannot safeguard the unauthorized exploitation of a celebrity's voice, any quirk unique to them, or the brand value that the personality leverages.⁷

The first case which discussed the right over one’s own persona was R. Rajagopal vs. State of Tamil Nadu⁸, famously known as the Auto Shankar case, wherein the Hon’ble Supreme Court observed that anyone, including famous people, have a right to manage how their image is used for profit. Later, the Delhi High Court upheld the right to publicity, especially for celebrities, in D.M. Entertainment Pvt. Ltd. v. Baby Gift House⁹ and prohibited the unapproved commercial exploitation of singer Daler Mehndi's persona, under relevant provisions of the trademark law pertaining to passing off and false endorsement.

Finally, In Titan Industries Ltd. v. Ramkumar Jewellers¹⁰, the Delhi High Court laid down and recognized the concept of the "Publicity Right," characterizing it as the "right to control commercial use of human identity" and set a milestone in the jurisprudence of Personality /Publicity Rights in India. The Hon’ble Court ruled that, “When a prominent person’s name is exploited in advertising without their consent, the objection isn’t that no one should commercialize them; rather, it’s that they should have the power to decide when and how their identity is utilized. The power to regulate how one’s identity is utilized for commercial reasons is defined as the right to publicity.”¹¹ Thereafter, many similar actions were taken by Celebrities to protect the unauthorized commercial exploitation of their personality.¹²

However, so far in Indian Jurisprudence, the Personality Rights are protected only under the IPR regime. In my opinion, there is a major shortfall in utilization of Trademark or Copyright laws ‘only’ for redressal of disputes pertaining to Personality Rights. On one hand, Personality Rights include the authority of a person to manage the commercialization of the personality traits attributed to himself. Whereas trademark laws on the other hand confer exclusive right to use any mark as a means of identifying the commercial source of the particular goods or services, granted to the owner.¹³ It is not possible to have a trade relation in every case where personality rights are violated. Therefore, in cases where the Personality Rights of a person is exploited for their sheer brand value by a specific party, ADR mechanisms can prove to be a much potent means of dispute redressal.

Arbitrability of Personality Rights

A four-pronged test to decide the arbitrability of a dispute was established in Vidya Drolia v. Durga Trading Corporation¹⁴, superseding the previous test established in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd.¹⁵ Outlining the view of the Hon’ble Supreme Court which was taken in Booz Allen, Vidya Drolia outlined the following requirements for a dispute to be not arbitrable:¹⁶

i. When subject matter and cause of action are actions in rem and do not concern subordinate rights in personam derived thereof.

ii. Where the subject matter and cause of action impact the rights of third parties, and mutual adjudication is not appropriate.

iii. When the dispute's subject matter comprises of State's unalienable sovereign and public interest functions.

iv. When the subject matter is specifically or impliedly non-arbitrable in accordance with mandatory statute(s).

Thus, in terms of the arbitrability of disputes, both Booz Allen and Vidya Drolia have made out an exception for rights in personam arising out of rights in rem.¹⁷ A legal claim that one person has against another person and not against the world at large is known as a right in personam. It could be a legally protected authority, privilege, or immunity. With the ever-growing Celebrity status and emergence of brand endorsement contracts between such parties, breach of contractual terms and the consequent violation of one’s Personality Right calls for venturing in the realms of Arbitration to address disputes relating to Personality Rights, that are deemed to fall under the purview of IPR regime in India.

A precedential case in this regard is Hero Electric Vehicles Pvt. Ltd. & Anr. v. Lectro E-Mobility Pvt. Ltd. & Anr.¹⁸ when the Hon'ble Court observed that when facts of the matter required it to decide whether the parties' rights to use the IP assigned in the requisite contracts were being used in compliance with their terms, the disputes amounted to an adjudication of the parties' rights in personam, which the court found to be arbitrable.¹⁹ This was also followed by the Hon’ble High Court of Delhi in Golden Tobacco Limited v. Golden Tobie Private Ltd.²⁰ as well as in Vijay Kumar Munjal v. Pawan Kumar Munjal.²¹ Thus, the disputes related to Personality Rights can be Arbitrable, if the claim is not against the world at large similar to other trademark issues as upheld in the cases above.

The recent Arbitration proceedings initiated by Yuvraj Singh

In the light of the above precedents, an intersection between IPR laws, Arbitration and Personality rights exist. However, a precedent deciding the core issue of Arbitration over Personality Rights is unfolding through an upcoming Arbitration proceeding between the famous cricketer Yuvraj Singh and a real estate company. In the facts of the case, An MoU was executed between Mr. Yuvraj Singh and Brilliant Etoile Private Limited (BEPL) to utilize his brand value for endorsement of the ‘Sky Mansion’ Project, which was being developed by BEPL, in which Mr. Singh wanted to buy a property. This in exchange held a benefit of INR 1,15,00,000 Cr against the purchase of an Apartment in the project, in furtherance of which an agreement dated 05.02.2021 was executed between the two parties. In due time, certain disputes arose between the parties regarding issues such as delay in delivery and alleged misrepresentation by the builder BEPL. Consequently, a notice to arbitration was invoked by Mr. Singh on 26.05.2024, following which BEPL issued termination letter of the Agreement to Petitioners.²²

In the course of these events, the builder unequivocally refused to initiate Arbitration proceedings in reply to the Notice of Arbitration. However, an interesting issue has arisen as the builder has continued to exploit the brand value of the well-known cricketer Mr. Yuvraj Singh despite the expiry of MoU dated 24.11.2020. It was alleged that BEPL has persistently pursued the commercial use of his image through articles, billboards, and social media posts, even after the duration of their agreement expired.²³ An application thereafter was placed before the Hon’ble High Court of Delhi, which resulted in appointment of an Arbitrator in this dispute quite recently on 04 August 2024.²⁴

Even though it remains unclear how the court or arbitral tribunal will address the arbitrability question in the current situation, and whether it will adhere to the accepted rules established in situations involving intellectual property issues which generally is associated with such rights. This proceeding shall likely set a milestone for Arbitration over Personality Rights in Indian jurisprudence, irrespective of the fact that which party actually takes the winning share at the end.

Conclusion

An issue that however still persists in determining Arbitrability of Personality Rights is that in the case of Anil Kapoor²⁵ the Court granted him relief on his violation of Personality Rights by putting it in the ambit of one’s fundamental Right to livelihood. The court held that celebrities have a right to livelihood through endorsement, which can be destroyed by its unauthorized use.²⁶ The Court further held specifically in Para 38 of the Order that “(unauthorized use of) reputation and fame can transcend into damaging various rights of a person including his right to livelihood, right to privacy, right to live with dignity within a social structure, etc.”²⁷

The suit was followed in granting ad interim relief to actor Jacky Shroff²⁸ as well. This precedence leaves a sour taste for the potential that ADR mechanism holds in resolving issues of Personality Rights. Since, if Arbitration is allowed to adjudicate over an emanating Fundamental Right, it shall not be capable of settlement by Arbitration.²⁹

With the advent of virtual reality boom, AI, Personality Rights should not remain a grey area in Indian Jurisprudence and must be codified for the coming times which is the age of digital marketing and influencing. Nations like the US, France and Germany³⁰ have established their own statutory laws for the protection of personality rights in order to curb such unapproved use of others’ personality.³¹ The author looks forward to the upcoming Arbitration proceedings in the Case of Yuvraj Singh and wishes that the Hon’ble Tribunal or Courts may produce some guidelines for application of Arbitration mechanism to redress the in personam disputes of Personality Rights.

Disclaimer: This article was first published in the S&A Law Offices - 'Indian Legal Impetus' newsletter in August 2024.