After Amitabh Bachchan and Anil Kapoor, Jackie Shroff is the latest Hindi film star to move court to protect his “personality rights”. Like his peers, the Bollywood actor wanted safeguards against the unauthorised use of his name, mannerisms and other personal aspects, especially with regard to brand endorsements.
Shroff and Kapoor have even sought to protect their nicknames – “Bhidu” (Hindi for dude) in the case of Shroff, “Jhakaas” (Marathi slang for superb) for Kapoor. All three actors have won favourable interim orders from the Delhi High Court.
“They want to protect against the misuse of their personal attributes without their consent,” said Ameet Naik, managing partner at Naik Naik & Co, who was part of the legal team that represented the actors. “We pleaded that there were offenders who were misusing their image for commercial purposes or otherwise.”
The actors obtained an order “against the world at large – unknown defendants”, Naik told Scroll. “You can’t cross a line. There has to be a semblance of responsibility.”
Among the targets of the action are performers who make a living through mimicry or parody. For example, The Kapil Sharma Show will need to get Bachchan’s permission to clear a gag parodying the actor – his appearance, his baritone, the way he delivers a line. In essence, Bachchan will decide the extent to which he can be spoofed, if at all.
Ameet Naik acknowledged that what is considered offensive is highly subjective: “Only the person who is hurt can decide what is fair use.” Since the plaintiffs won’t be able to track every potential offence, the interim orders serve as cease-and-desist notices, as warnings to content creators that these gentlemen are not to be trifled with.
The legal pleas come at a time when Bollywood A-listers seek to monetise their public image. Actors stand to lose money if imitators who look and sound like them are seen to be selling hair oil or cement.
But there are some complications in the position taken by these stars. As some have pointed out, an actor’s image is not self-generated: they are the result of collaboration. Bachchan, Kapoor and Shroff are household names fundamentally because of their movies – which are team efforts.
From directors and writers to costumiers and make-up artists, many hands make stars work. Bachchan did not write his iconic lines. The superlative “jhakaas” was first uttered by Anil Kapoor’s character in Rajiv Rai’s 1985 film Yudh, written by Rai and two others. “Jhakaas” is a common word in films set in Mumbai that have local slang-laced dialogue. The characters played by Aamir Khan in Rangeela (1998) and Andaz Apna Apna (1994) use the same word, for example.
In addition, actors become stars – and brand endorsers – because of their fanbase. One type of fandom is expressed by imitating actors. The effect might appear comical, but the intention is affectionate. Again, it is unclear about who decides what is heartfelt and what is insulting.
To understand the complexities surrounding the enforcement of personality rights, Scroll spoke to Nikhil Narendran, partner, technology, media and telecoms, at the firm Trilegal. Here are edited excerpts from an interview.
What are personality rights, and why are some celebrities going to court to enforce them?
A personality right is a part of your right to be let alone and the right to privacy. Personality rights have evolved in the United States and Commonwealth jurisdictions.
Intellectual Property is protected by a statute (like the Copyrights Act) and common law rights. This latter form of IP, such as personality rights, is based on case laws, and so it has its complexities, including the fact that it is unequal in its application.
Personality rights protect the most famous and those at the top of the pyramid, not non-lead actors or junior artists. How many non-lead artists will have the ability to move court to enforce their personality rights?
It is reasonable to say that as a public personality, you have the right to decide on specific aspects of how your personality is being used – for instance, somebody using a photograph of yours and using it without your permission out of context. But should that extend to the right to block GIFs about a famous movie scene of yours?
How does this litigation square off with the fact that actors are public figures and cannot always make demands on how their image is used? Also, a screen image is not constructed solely by an actor but has several contributors.
Some of these interim orders are broad and therefore questionable, as they deal with not just the commercial use of images but also, in some cases, genuine parody. If you are earning a livelihood by putting yourself out as an actor, you have subjected yourself to public gaze and scrutiny.
Anyone in the world is free to make a parody of a particular scene or dialogue. That is part of the right to free speech. Remember, it is fair game if they are not trying to compete with you by doing so but playing a part in enhancing your popularity and relevance.
A person’s personality right cannot triumph over another person’s right to free speech, provided that it does not harm that person. For instance, any public personality should be protected from defamatory or illegal content, but that should not go to the extent of stifling parody or mimicry.
Typically, when an actor is cast in a movie, he assigns his rights to the movie’s producer. The producer opens the film to the world, which viewers could re-use or parody. While the producer has the right to prevent the illegal use of this content, the actor doesn’t have the right to stop parody.
Films are team efforts. Many people are responsible for an actor’s image, from writers to music directors (let's not forget the BGMs [background music] in mass movies) to directors. In this instance, the producer holds the rights to the work. So from a copyright perspective, the actor doesn’t and shouldn’t have any right to claim, do not use a particular dialogue he delivered.
There is another aspect to this: the personal data angle, which again is linked to the right to be let alone. Here too, the jurisprudence across the world, even in India under our new personal data protection act, is that if a data principal has willingly put out his data in public, that’s not necessarily considered as personal data that is worth protecting. The argument about privacy therefore gets weakened.
It’s a complicated, complex subject and will be subject to more debate before our courts. I am reasonably sure that the courts will strike a reasonable balance concerning personality rights once these matters move to final adjudication.
How does the situation affect dubbing artists, mimicry performers and singers who perform pre-recorded songs?
This is a long-standing debate about intellectual property rights. Artists have agitated over other performers’ use of their songs. We have seen such debates in the context of Ilayaraaja and KJ Yesudas.
Sometimes, they take extreme positions concerning intellectual property. Intellectual property was created to incentivise innovation and creativity, promoting more creativity and innovation and further spreading knowledge. Every work is inspired by a previous work at some level.
However, IP rights are often used to prevent further innovation and creativity. From a public policy perspective, there needs to be a more evolved position between balancing the rights of original creators, performers and further use by others, such as on social media.
IP rights is an Industrial Revolution-era concept. We now live in the beginning of the Fifth Industrial Revolution, with artificial intelligence and other technology coming in which is capable of generating content as good as human beings. We need to have a relook at IP rights. The construct of IP needs to be seriously disrupted, given that our production and creation models are changing with generative AI.
Do court orders protecting personality rights have a potential for misuse?
The application of personality rights can have wide-ranging implications. Take Shyam Rangeela, who does imitations of the prime minister. Imagine a politician taking this route of stifling parody. A mimic or stand-up comedian may not have the ability to go to court and fight it out. In such cases, personality rights get completely twisted and interpreted out of context.
Public personalities should not forget the role played by their fans in getting their stardom. In South India, fan associations are a big part of any film star’s stardom. The actor controls the messaging, marketing and hype around their movies using these fan clubs. They could utilise these personality rights through their fan clubs to prevent the dissemination of their likeliness.
They often forget that if the fans made them stars by watching their movies and paying their hard-earned money, they should have the right to critique you.
I remember Shah Rukh Khan once talking about how he handles the public gaze. He said, I have fought very hard to get here, I don’t want to hide my face when I go out into the world. That attitude is often missing in this conversation.
It is a difficult line to draw. As a lawyer who practises technology laws on the periphery of IP and media, I believe that the proliferation of an image will lead to more dissemination of information and more commercialisation not just by the actors but also by millions on social media. There should be a delicate balance while protecting a person’s right to privacy and another person’s right to livelihood.
Defaming someone or using someone’s image to make illegal gains is different. If it’s within the boundaries of fair use, if the use is not for competition with the personality or making illegal use, it should be fair game.
Is it the responsibility of producers to bell the cat?
This is not a debate left alone to the film industry. There is a deeper angle here. This is one of the issues debated by the recent writers’ strike in Hollywood. Personality rights could unlock a treasure trove in the age of generative AI.
You can make a movie with an Amitabh Bachchan look-alike or by using a Gen AI-generated avatar. Should we stop AI-generated movies, or should we reexamine the personality rights concepts at an equitable level so everyone wins? True, actors should be rewarded for the years of effort they have taken, but what is that adequate reward when there is no new physical or intellectual effort by an actor?
The whole paradigm concerning the film industry may be disrupted, where the actor’s remuneration is the most significant cost in a movie's balance sheet. There are movies where actors’ fees are close to 70% of the costs. In the age of AI, you can create a movie by paying only 20% of the costs to the actors. We are just a few years away from seeing such projects, and if it were to happen, content creation would be democratised even further. We will see more diversified content coming up from smaller towns.
We will see a more extended legal battle to iron out the delicate balance between personality rights and fair use. It will take a strategy involving producers, artists and technology companies to demolish some of these Industrial Revolution-era concepts.
Generative AI companies could potentially be the ones which can really take this on. We need to create a scenario where we protect the ultimate goal of IP rights, that is to protect innovation, creativity and dissemination of knowledge.
(The views expressed are of the individual and does not represent the views of any organisation to which which he belongs.)