Celebrities' legal fight for intellectual property: A double-edged sword

As celebrities increasingly seek legal safeguards for catchphrases, images and personality traits associated with them—as Jackie Shroff has for "bhidu" and Anil Kapoor for "jhakaas"—concerns are rising over the potential impact on creative freedom and expression.

Bhidu is a colloquial usage, in Mumbai and in the Marathi language, for bro or dude, that's also come to be used as a nickname for Shroff. Jhakaas is Marathi for fantastic or superb, which caught on after Kapoor used the word in his 1985 hit movie Yudh.

On 15 May, the Delhi High Court issued orders protecting the personality and publicity rights of Shroff and Kapoor, barring the use of Shroff's name, sobriquets such as “Jackie" and “Jaggu dada", as well as his voice and image for commercial purposes without his consent.

Earlier, in September 2023, the court had restrained 16 online entities from infringing upon Kapoor's personality rights, including the use of jhakaas.

Experts caution that the trend of celebrities seeking intellectual property rights for such phrases and other common traits could stifle content creators, leading to self-censorship for fear of legal repercussions.

This would also have implications for platforms such as Instagram and X, which would have to strengthen monitoring of AI images and videos impersonating celebrities as well as the use of any content associated with the rich and the famous.

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“Aggressive enforcement of personality rights by celebrities can certainly lead to self-censorship, pervading fear of being involved in protracted litigation, and consequent financial repercussions," said Swati Sharma, partner and head of intellectual property at law firm Cyril Amarchand Mangaldas. 

“If the courts were to adopt an overtly liberal approach in granting personality rights to celebrities, it will result in a significant reduction of creative content and stifle legitimate freedom of expression," Sharma said.

The importance of personality rights

Personality rights allow individuals to protect their identity in the context of property or privacy rights. For celebrities, this means safeguarding their names, images, or voices from unauthorized commercial use. 

In India, although there is no specific law for personality rights, the Supreme Court and various high courts recognize these rights under Article 21 of the Constitution, which pertains to the right to privacy. Celebrities can also register their names, voices, and signatures under the Trademark Act 1999.

Kapoor and Shroff are at the forefront of a trend, say experts, with more celebrities likely to approach courts to safeguard their personality rights.

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"Celebrities are likely to follow suit because, in today's digital age, their image, voice, and likeness can be easily manipulated," said Ramya Ramachandran, the founder and CEO of Whoppl, a Mumbai-based marketing agency. “By securing these rights, celebrities can ensure their personal brand is used in a manner that aligns with their values and public persona."

Safeguarding content creators

Legal experts suggest several strategies for content creators to protect themselves from infringement claims. 

These include paying royalties to original creators, using disclaimers to clarify that the content is not endorsed by the celebrity, and ensuring that content adds sufficient creativity or meaning to the original material. 

Content that is largely parodic or satirical, rather than a mere replication, is more likely to be protected under the law.

"Content creators can protect their work and comply with laws by understanding copyright laws, using contracts and agreements to document terms with partners, and adopting Creative Commons licences to control use and ensure proper credit," said Amit Panigrahi, partner-designate at Luthra & Luthra Law Offices India.

Impact on AI and digital platforms

The trend also poses challenges for artificial intelligence (AI) platforms that generate content using celebrity likenesses. 

"Celebrities have the sole right to exploit the value of being a celebrity. This will indeed impact the current use of AI in generating content using celebrity likeness or catchphrases," says Hariom Seth, AI expert and founder of Tagglabs.

According to Seth, AI models that use celebrity likenesses will likely need to sign licensing deals and retrain models to avoid using licensed catchphrases. While this could slow down AI content releases, it may also drive the development of new AI tools.

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Experts suggest that intermediaries like Instagram, X, and Facebook will need to develop measures to inform and protect users regarding celebrity IP rights. 

"Intermediaries hosting user-generated content have a key role in ensuring that the interests of both celebrities and creators are balanced," said Sharma of Cyril Amarchand Mangaldas.

Steps could include preparing guidelines, responding to takedown notices, and establishing monitoring mechanisms to prevent unauthorized content.

A balanced approach

Some experts advocate for a balanced approach that protects celebrities' rights while supporting creativity. 

"The changing landscape of intellectual property rights, especially personality rights, requires a balanced approach," said Kalindhi Bhatia, partner at BTG Advaya. "Celebrities have a right to protect their unique IPs, but it's also vital to support creativity and innovation in digital content creation."

Sneha Jain, partner at Saikrishna and Associates, adds, “No right is absolute. Considering personality rights are not statutorily conferred but emanate from common law, the extent and limitations on these rights will have to be determined by the courts."

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