Who Owns Jhakaas: Examining Personality Rights In India

In the recent case of Anil Kapoor Vs Simply Life India and Others, Indian Actor Anil Kapoor was recently granted an interim ex-parte omnibus restraining order from the Delhi High Court that prevents the use of his name, voice, likeness, image, persona and the word “Jhakaas” without his consent in any advertisement or representation online.

Similar protection was granted by the Delhi High Court to another Indian Actor, Amitabh Bachchan, in the matter of Amitabh Bachchan vs Rajat Negi & Others, CS Comm 822 of 2022 last year. The order protects his voice, image, likeness, and persona from being used without his consent in any advertisement or promotion on social media or any other online activity. In that case, there were instances of use of his mannerisms and how he conducts the game show “Kaun Banega Crorepati”, which was copied by online lotteries without his authorisation. The Actor wanted to curtail this misuse as the public was being misled into believing that he was endorsing those lotteries, which were using the same language, tone and mannerisms as he uses in Kaun Banega Crorepati.

Such cases highlight the issues relating to how Personality Rights are evolving in India.

What are Personality Rights?

The name, voice, signature, images or any other feature easily identified by the public are markers of a celebrity’s personality and are loosely referred to as “personality rights”. These may include a pose, a mannerism or any aspect of their personality.

Celebrities have a right to decide which product, website or event they want to lend their name to for endorsement. The professional fee they charge for these advertisements, products or event endorsements is a remuneration for lending their credibility and fan-following to give an impetus to the product or event being endorsed. To deprive the celebrity of commercial remuneration by using the image, voice, photo or all of these in combination, without their permission, depriving them of the commercial benefits of the distinct persona they have created and for which they are adored and remembered by their audience.

Initially, there was no specific legislation to protect Personality Rights in India. However, the Right to Privacy is implicit in the Right to Life and Liberty guaranteed by Article 21 of the Constitution. This Right to Privacy for a celebrity or public figure will entail two subsets of rights, i.e. Publicity Rights and Privacy Rights. The Personality Rights of Celebrities were examined and upheld by the Madras High Court in 2015 in the case of Shivaji Rao Gaikwad aka Rajnikanth vs Varsha Productions, wherein actor Rajnikanth was able to stop the film being made by Varsha Productions titled “Main Hoon Rajnikanth” which used the Actor’s name, signature style and mannerisms but did not have Rajnikanth as an actor.

Additionally, Privacy Rights and Publicity Rights are very closely intertwined in the case of film stars, politicians, and sportspersons. In the present day and age, new-age celebrities such as stand-up comedians, YouTube artists, other upcoming stars, and public figures with strong media following on social media also fall under this ambit. All these personalities have a right to regulate and control how their image is used, and the products, events or ideologies are endorsed or promoted by using their image, likeness, silhouette, voice and other personal attributes. In particular, there may be a public outcry, trolling and also loss of reputation if their image, photo or voice is used to sell junk food, tobacco, alcohol, lotteries, fairness products, weight loss products, cosmetic surgeries, etc., which the celebrities may wish to steer away from.

The advent of Generative AI, NFTs and Deep Fakes is a celebrity’s nightmare as it leaves them with little control over how nefarious elements use their image and voice to promote their activities and earn credibility by riding on the reputation of the celebrity who is not even aware of their association with the product or service.

The recent relief granted by the Delhi High Court to Anil Kapoor through the ex-parte interim order is in light of this dangerous trend. The Court held that the image, voice, likeness, and photograph of Anil Kapoor cannot be used on any merchandise or to promote any event without his express consent. Moreover, the derogatory manner in which his image was being morphed and used by some websites was offensive and had to be curtailed so as not to tarnish the reputation of the celebrity, who has built it assiduously through his hard work over a lifetime.

Further, the Court ordered that the control of the three domain names, i.e. www.anilkappor.inwww.anilkapoor.com and www.anilkapoor.net, that third parties were using will be handed over to Mr. Anil Kapoor on payment of requisite fees. There is a precedent to this decision in the well-known 2011 order of the Delhi High Court, in the matter of Arun Jaitley vs Network Solutions Pvt Ltd and Others, where Arun Jaitley was able to get back www.arunjaitley.com from domain name squatters who were using his name without his authorization.

However, certain aspects of the Anil Kapoor order are not as straightforward as the forgoing discussion. One such aspect is the restraint against using the word JHAKAAS in the manner and style in which Anil Kapoor spoke it. “Jhakaas” is a colloquial Marathi word that can be loosely translated to mean fantastic and was used in the film YUDDH. Several people may have heard this word in Marathi cinema more often and associate it with those characters. It makes it difficult to ascertain how different the rendition of the word is from how Anil Kapoor rendered it in the movie Yuddh. Therefore, the debate over the right to use “Jhakaas” remains prominent, especially regarding the legitimate use of this word in films released after this interim order.

Further, while an injunction has been granted against the use of Jhakaas, there is some debate around whether the Actor can be entirely credited with the success of the dialogue, which is part of a film and was created by the teamwork of the producer, screenplay, writer and director in conjunction with the Actor. Similarly, the iconic characters like Majnu Bhai, Lakhan, Mr. India, etc., that the Actor played were created by the teamwork of the entire production unit in addition to the Producer and Director who made the film a reality on a reel and created a larger-than-life personality which the Actor depicted on screen. Clearly, the contribution of all these stakeholders should be addressed.

Moreover, over the years, mimicry artists and stand-up comics have regaled the audience with performances using iconic dialogues like KITNE AADMI THE, or how Shahrukh Khan spoke “KKKKiran” in the movie Darr. The question remains whether these acts will soon be forbidden if similar orders are granted to restrain their use. At present, stand-up comics do not fall foul of the law based on the fact that they were performing with the express intent only to entertain. There is no doubt in the audience’s mind that what they watch is a copy, not the original dialogue. Still, if these restrictions are taken too far, then the broadcasting of such comedy shows may also be considered to be violative of the rights of the original actors or the film producer who owns the copyright in the film.

Further, stringent protection from such “misuse” may reduce the recall value of the dialogues on which celebrities rely, and the practice may become counter-productive if the iconic characters begin to feed out of public memory. Clearly, there is a need to carefully examine these aspects as the legislation around personality rights, character merchandising, and caricature of artists’ performances evolves.

Another aspect to consider is the sale of the collection of old postcards with pictures of Anil Kapoor, which a fan wanted to sell online. If the person legitimately had the postcards, having purchased them long ago without any means to prove it now or verify who owns the copyright in the image, the question arises as to whether the celebrity can be allowed to stop the sale of the postcards.

The Hon’ble Delhi High Court will soon address the matter in detail and provide further clarity on these issues after hearing the 16 parties arrayed in this case.