Evolving IP Or Judicial Overreach? India's Personality Rights Problem

It is noteworthy that the present matter is only the latest in a continuing line of decisions where Indian High Courts have recognised and enforced personality rights in favour of well-known public figures. Similar protective relief has previously been granted in matters concerning Arijit Singh, Amitabh Bachchan, Anil Kapoor, Jackie Shroff, Aishwarya Rai, Karan Johar and Ajay Devgn, reflecting an increasing judicial willingness to restrain unauthorised commercial exploitation of celebrity persona, likeness, voice, and associated indicia.

Protecting public figures from misuse is necessary, but the legal principles used matter equally. A few observations from the above-mentioned latest order, from a copyright law perspective, are as follows:

Para 35 of the order states: "The aforesaid documentary evidence etc. clearly demonstrates that the unique and distinctive attributes of the plaintiff are exclusive to the plaintiff and are source identifiers of the plaintiff. The attributes such as name, appearance, voice, manner of delivery dialogues, gestures, attires, speech, signature, likeness would clearly constitute copyrights of the plaintiff over which none other than the plaintiff would have exclusive rights of exploitation.".

This is where the order invites debate. This observation collapses distinct forms of intellectual properties into a single proprietary right. Under Section 13 of the Copyright Act, 1957, copyright subsists only in specified categories of original works such as literary, dramatic, musical and artistic works, cinematograph films and sound recordings. Copyright protects expression rather than identity, style, reputation, voice or physical traits. A person's name, likeness, gestures, gait or public persona do not ordinarily constitute “works” capable of copyright protection. On the other hand, describing such attributes as “source identifiers” invokes a trade mark law doctrine, since under the Trade Marks Act, 1999 a trade mark functions to distinguish the goods or services of one person from another [Sections 2(1)(zb) and 29], not to confer ownership over human identity itself. While a celebrity's name or signature may be registrable and enforceable as a mark in specific commercial classes, personality attributes as a whole are not automatically trade marks.

Another potential conflict arises from the Court's apparent conflation of the Plaintiff's personality rights with the popularity of the fictional character portrayed by him in a film. Traditionally, copyright in a fictional character or other film-based expression vests in the producer or other underlying rights-holders, rather than in the performer alone. However, in the present case, the Court has repeatedly relied upon the commercial and cultural success of the character to substantiate the Plaintiff's proprietary claims. In paras 21 to 23, the Court specifically records that the Plaintiff's pan-India prominence arose from the film character “Pushpa Raj”, and notes that the role was recognised for its distinct characterisation, persona, dialogues, gestures, gait, and dance style. This reasoning is carried further in para 34, where the Court relies on the success of Pushpa and the popularity of its dialogues and attributes as evidence of the Plaintiff's iconic status. Most significantly, in para 35, the Court concludes that such attributes are exclusive to the Plaintiff and constitute his copyrights. The difficulty, however, is that many of these elements emanate from a cinematograph film and a fictional role developed through a collaborative creative process involving writers, directors, costume designers, choreographers, and producers. To that extent, the reasoning risks blurring the distinction between the actor's personality/publicity rights in his own identity and copyright interests that would ordinarily vest in the producer or other underlying rights-holders.

Another point to note is that, paras 39(a) and 39(d) of the order grant broad restraints against use of the Plaintiff's name, image, likeness, and “any other attributes” across all mediums, including AI-generated formats. While misuse may justify relief under personality rights, passing off, trade mark, or performer's rights, such wide language can blur the boundary between copyright in works and proprietary control over persona.

After all has been said and done, the larger problem remains. An individual's right to his or her personhood/ likelihood, and protection of the same in the age of AI impersonation, fake calls, explicit fake content, and false endorsements, is imperative. However, the tools and methodologies being used by the Courts and the existing jurisprudence are not enough to tackle these problems.

By way of comparative perspective, several jurisdictions have begun responding to these issues through targeted legislation rather than relying solely on incremental judicial development. In the United States, personality and publicity rights protections have historically varied from State to State, with many states recognising statutory or common law protection for name, image, likeness, and in some cases voice. California has long recognised protections extending to voice, while Tennessee enacted the ELVIS Act in 2024 to expressly address unauthorised AI cloning of voice, likeness, image, and identity. At the federal level, legislative proposals such as the No AI FRAUD Act and the NO FAKES Act seek to create a more uniform framework governing digital replicas and unauthorised synthetic impersonation. The significance of such developments lies not merely in the substantive rights recognised, but in the legislative clarity they provide to creators, platforms, right-holders, and courts alike. India, by contrast, continues to address comparable disputes largely through judge-made principles derived from existing IP and common law doctrines. The result is a patchwork jurisprudence where judges are frequently required to stretch existing doctrines to fill legislative gaps. This is likely to create more hurdles than clarity.

The need of the hour is a dedicated legislation which is technology-neutral, carefully balanced, and capable of protecting legitimate personality rights while preserving free speech, creativity, parody, news reporting, and fair commercial use in the digital age. This case is therefore likely to become an important talking point not only on the boundaries of copyright and trade mark laws, but also on the urgent need for a coherent personality rights framework in India.