Recalibrating the expanding scope of personality rights in India: Constitutional dimensions and the path forward

In Part I of this series, we examined the recent surge in personality rights litigation in India and identified areas where judicial protection may be expanding beyond traditional boundaries. We discussed the importance of principle of proportionality, the requirement of transformative use principle, and the need for differentiated analysis in evaluating diverse defendant activities.

Part II explores the constitutional dimensions of this debate, particularly the tension between personality rights and free speech, and examines institutional and legislative solutions that could provide much-needed clarity and balance.

Courts have emphasized celebrities’ right to livelihood, noting that endorsements constitute significant income. This recognition is undeniably valid and important. The Supreme Court has long recognized that the right to livelihood is intrinsic to the right to life, and for celebrities, control over their persona is directly tied to their earning capacity.

However, the constitutional analysis cannot stop there. It must also consider competing livelihoods and fundamental rights:

a. Small businesses creating unofficial merchandise depend on their ability to engage with popular culture for their survival. A small vendor selling t-shirts with celebrity caricatures or quotes earns a modest living through transformative creative expression.

b. Digital creators producing compilations, mash-ups, and commentary content build their livelihoods on engaging with public figures and cultural phenomena. These creators add value through curation, editing, and contextualization.

c. Comedians and impersonators whose entire craft depends on mimicry and satire of public figures exercise both their right to livelihood and their right to artistic expression. Impersonation shows and comedy sketches are legitimate art forms with deep roots in the entertainment industry.

d. Fan communities that create tribute pages, fan art, and celebratory content often drive the very popularity that celebrities monetize. These communities are not merely passive consumers, but in fact actively create cultural value.

e. Journalists reporting on and commenting about public figures exercise their constitutional right and professional duty to inform the public. Critical commentary, investigative journalism, and cultural criticism are essential to democracy.

The South African Constitutional Court’s decision in Laugh It Off v. South African Breweries, which was cited with affirmation by the Delhi High Court in Tata Sons Ltd. v. Greenpeace International, provides an instructive parallel. A small business produced and sold t-shirts parodying the “Carling Black Label” beer brand, replacing “Black Label” with “Black Labour” and adding “Africa’s lusty lively exploitation since 1652”, acting as a pointed social commentary on labour practices and historical exploitation. The court held that South African Breweries failed to prove substantial economic harm and emphasized that anti-dilution claims must be read through the constitutional lens of freedom of expression.

Laugh It Off demonstrates a crucial principle that small vendors have constitutional rights too, and these are rights equivalent to the rights of celebrities. A legal framework allowing wealthy celebrities or corporations to shut down small businesses through expensive litigation creates an unjust hierarchy of economic power masquerading as intellectual property enforcement, especially where such businesses have neither caused any actual harm to the celebrity nor caused any actual deception to the public.

In India, the Constitution doesn’t establish a hierarchy of livelihoods. It protects the livelihood rights of small vendors and digital creators just as much as it protects A-list celebrity’s endorsement income. Personality rights, being judicially created rather than statutory, must be carefully balanced against other fundamental rights, particularly the right to free speech and expression under Article 19(1)(a). It must also not be lost sight of that personality rights, in fact, are a direct creation of the public attributing and conferring value on the personality concerned. Therefore, to seek a broad-based injunction against the public from enjoying that value would be akin proverbially biting the hand that feeds you.

The Delhi High Court in DM Entertainment Pvt. Ltd. v. Baby Gift House correctly noted that “in a free and democratic society, where every individual’s right to free speech is assured, an over-emphasis on a famous person’s publicity rights can tend to negate the exercise of this invaluable democratic right." The court recognized that “caricature, lampooning, parodies, and the like” should not constitute infringement, or “an entire genre of expression would be unavailable to the public." This principle deserves continued emphasis as courts navigate the expanding landscape of personality rights litigation.

Free speech is not merely one interest to be balanced against personality rights. It is a foundational constitutional right upon which democratic discourse depends. When personality rights begin to restrict criticism, satire, parody, or commentary, they threaten the very marketplace of ideas that sustains democratic society.

The problem is that while most of the time, courts do doff their hat to the principle of free speech, they do no more than that. In our view, this is both the cause and effect of the following:

a. The problem of vague standards: The boundaries of free speech are frustratingly unclear. Terms like “crossing a line” or “tarnishment” lack objective standards, creating profound uncertainty for content creators, satirists, merchandise sellers, and journalists. What constitutes permissible satire versus impermissible exploitation? When does commentary “cross a line” into actionable misappropriation? What level of commercial benefit defeats an otherwise transformative use? Without clear answers, creators face a chilling effect and they self-censor not because their activity is actually unlawful, but because they cannot afford the risk and cost of litigation.

b. The chilling effect on legitimate expression: This uncertainty creates a “chilling effect”, i.e., people refrain from legitimate expression because the legal boundaries are unclear and litigation is expensive. A small business owner might avoid selling a t-shirt with a celebrity caricature, not because it’s actually illegal, but because defending against a lawsuit would likely bankrupt the business. Similarly, a YouTube creator might avoid making a compilation video or commentary piece or even a meme about a celebrity, not because it violates any law, but because an injunction could destroy their channel and consequently their livelihood. This vicious cycle of self-censorship impoverishes public discourse and stymies cultural creativity.

It scarcely requires stating that greater clarity and consistency in applying free speech exceptions would benefit all stakeholders. Therefore, courts should develop clear standards distinguishing protected expression from actionable misappropriation, providing predictability while protecting legitimate interests on all sides.

The Trademark Registry’s willingness to grant registrations for popular catchphrases and dialogue merits serious examination. Expressions like “Jhakaas” and “Bhidu”, borrowed from common cultural parlance and popularized through films, raise fundamental questions about whether trademark monopolies should extend so broadly over language that has become part of the public and cultural lexicon.

Trademark law exists to prevent consumer confusion about commercial source, not to grant ownership over common expressions. When a catchphrase from a popular film is based on everyday conversation from a particular culture or area’s lexicon, when people say “Jhakaas” to mean “fantastic” without any reference to Anil Kapoor, it has arguably become generic or at least so culturally embedded that monopolistic control becomes problematic.

There are also a few other issues under trademark law which, when applied in the context of personality rights, present themselves as obvious and requiring serious deliberation:

a. The genericide problem: Trademark law recognizes that marks can become generic through widespread public use. “Aspirin” and “Xerox” were once trademarks but lost protection when they became common terms. While “Jhakaas” may not necessarily be completely generic, its widespread cultural adoption and part of a cultural vocabulary (in the case of “Jhakaas”, it is a Marathi word hailing from the Pune dialect) should directly inform if, how, and how much it is protected.

b. Construing trademarks narrowly: Even where such trademarks exist, courts should construe them narrowly within the specific goods or services for which they were registered. A trademark for “Jhakaas” on clothing shouldn’t necessarily prevent all uses of this widely-adopted cultural expression, particularly in transformative or expressive contexts. If a trademark is registered for “Jhakaas” brand t-shirts, it should prevent competitors from selling t-shirts under the “Jhakaas” brand, which could create consumer confusion about the commercial source. But it shouldn’t prevent a different vendor from selling a hand sketched painting featuring the word “Jhakaas” as part of a larger design, commentary, or cultural reference, so long as the usage does not lead to obfuscation of origin.

c. Trademark vs. personality rights: The interaction between trademark rights and personality rights also requires careful analysis. Should celebrities be able to leverage trademark registrations to extend their personality rights beyond their natural scope? Or should personality rights and trademark rights remain distinct, each with its own standards and limitations? These questions require thoughtful judicial and legislative engagement to prevent the trademark system from becoming a tool for overreaching personality rights enforcement.

The conversation about personality rights must extend beyond any single order or case. India would benefit from a comprehensive legislative framework that provides clarity for all stakeholders. The current multi-colour patchwork of judicial precedents creates uncertainty about where legitimate protection ends and overreach begins.

A clear legislative framework, in the absence of judicial certainty and standards, would help if it:

a. Defines actionable misappropriation clearly: Legislation should distinguish commercial exploitation and fraudulent use from protected expression. It should specify that personality rights prevent unauthorized use creating consumer confusion about endorsement or commercial affiliation, but not use for commentary, criticism, news, or transformative purposes.

b. Establishes explicit exceptions: The statute should enumerate exceptions for transformative use, satire, parody, commentary, news reporting, journalism, and educational purposes. These exceptions should be robust, not easily defeated by commercial benefit.

c. Incorporates proportionality principles: The law should require that remedies be tailored to actual harm proved, not broadly prophylactic. Injunctions should be narrowly drawn to address specific misappropriation, not sweep broadly across all uses of a celebrity's persona.

d. Limits remedies appropriately: Remedies should be available only in cases involving actual consumer confusion, false endorsement, or demonstrable reputational harm. Mere unauthorized use, without confusion or harm, should not give rise to liability, particularly for transformative or expressive uses.

Such a framework would give predictability to both rights holders and content users, reducing litigation by clarifying legal boundaries. Celebrities would know what protection they can expect and creators would know what activities are permissible. It would also prevent the judicial system from being overwhelmed by personality rights litigation, allowing courts to focus on genuine cases of fraud and exploitation rather than adjudicating disputes about fan art and satirical t-shirts.

Personality rights serve important purposes. They protect celebrities from fraudulent misuse and secure their commercial interests in their persona, while simultaneously protecting the public against deception and misrepresentation.

However, as this doctrine evolves, courts must carefully balance celebrity interests against free expression, transformative creativity, journalism, and the rights of others to earn livelihoods. The challenge lies in maintaining genuine protection against exploitation without inadvertently restricting the very creative ecosystem that gives celebrities their cultural significance.

Public figures who benefit from public attention and adulation occupy a unique position in society. While entitled to protection from commercial exploitation and fraud, they cannot monopolize all references to their public persona.

The recalibration that we propose is not about rolling back all protections or denying the legitimate concerns that drive personality rights litigation. AI-enabled fraud and exploitation are real problems requiring legal solutions. Rather, recalibration means developing nuanced frameworks rooted in proportionality, whether by way of a legislation (which would be the preferred route) or by way of judicial march of law. In case of the latter, courts must rigorously evaluate each case, distinguishing harmful misappropriation from valuable creative expression, and avoiding overbroad relief that chills legitimate activity. They must recognize that not every use of a celebrity’s persona constitutes actionable misappropriation and that some uses are protected expression, however commercially motivated they may be.

The vitality of personality rights as a legal doctrine depends on maintaining equilibrium. When personality rights are too weak, celebrities suffer exploitation and consumers face fraud. When they’re too strong, free speech withers, creativity is stifled, and cultural engagement is criminalized.

It is only through measured evolution can personality rights fulfil their purpose without inadvertently shifting power dynamics in ways that prove counterproductive to the creative and democratic values that define our society. The cases of the past two years provide an opportunity not for celebration or alarm, but for reflection and recalibration of the personality rights doctrine that respects both celebrity interests and the public that created that interest in the celebrity.

About the authors: Surabhi Pande and Devvrat Joshi are Associate Partners at Saikrishna & Associates.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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