Imagine that you are a person who is fortunate enough to have a great talent – you are an artist or an entertainer or a sportsperson or someone tending to attract media attention. You find that there are people who will exploit your situation for their benefit. Some will sell merchandise with your face or likeness on it. Some will use your life as a canvas on which they will comment or speak, or make fun of in their comedy routines. Some will use AI to mimic your mannerisms and your misstatements. You are upset not only because your personal space is being violated, but also that the person engaging with your personality is also profiting from it. You could be any celebrity; the problems of fame do not discriminate between people blessed by fortune.
You now seek a legal remedy. I will talk about the legal recourse taken last year by the singer Arijit Singh; similar legal remedies have been explored by Anil Kapoor, Amitabh Bachchan, and Karan Johar. Arijit Singh filed a case in the Bombay High Court seeking to restrain platforms that sold merchandise with his name and face and from using AI tools that used his voice and his signature tunes to sell services to people.
This is where things get interesting. I think by now it’s moderately clear to the general public that there’s something wrong with people exploiting celebrities for their own ends. But what might be the legal basis for protecting celebrity exploitation? The Bombay High Court in Arijit Singh v Codible Ventures LLP recognised the ‘personality’ rights of Arijit Singh and issued a ‘dynamic injunction’ that prevented any digital platform from exploiting Arijit Singh’s voice or likeness. A dynamic injunction makes sure that any website does not escape the legal restraints on it by creating a similar platform under a new domain name. But the problem of identifying the legal foundations on the basis of which Arijit Singh has been given a remedy remains.
Legal scholarship in this area grapples with some difficult conceptual issues. For example, Nina Nariman, a lawyer, has discussed legal remedies for celebrities in terms of property rights and personality rights. She notes that legal scholars and judges are divided on the issue of how to protect personality rights. Some jurists base these rights on the right to privacy of an individual. An individual deserves to be left alone, and an extension of leaving him alone is not to exploit his personality in any manner. Some other jurists believe that privacy alone can’t justify the legal remedies in celebrity exploitations; they believe that a person protecting his personality rights must be asserting a property right.
A property rights approach towards the protection of celebrity personalities has several advantages. One, it acknowledges the idea of a celebrity and their unique intellectual property in their personality. Privacy rights, on the other hand, apply to everyone, not just to celebrities. Second, legal
scholars have emphasised the point that recognising property rights helps in the resolution of other problems arising out of these celebrity cases, something that privacy jurisprudence struggles to accomplish. By now, some of you might be thinking that it’s pretty rich of celebrities to assert their personality rights when it is society that has made them famous. It’s all well and good to say that their personality rights are to be respected, but why give so much attention to them when they owe their status to the culture that supported them. Society made them; let society be the unmaking of them as well.
Celebrities might point to the uncompromising value of privacy in response, but I agree with those legal scholars who believe that the property rights model provides a more sensible response. Celebrities have been created by the fan following of their fellow citizens, but that does not disentitle them to their personality rights. However, they can’t
complain if people use celebrity profiles or signature phrases, or tunes for comedic or educational, or artistic purposes. The
property rights model allows a fair use of a celebrity’s intellectual property for such
purposes.
The discerning reader would have realised that the two models are not merely two different legal approaches but represent different moral outlooks. One takes the view that a person has a certain inviolable personality that makes them immune to anyone else partaking in any part of it. The other takes the view that all of our personalities arise from a common cultural pool; while we are entitled to safeguard our personalities, we should not be allowed to prevent others from a reasonable use of our personalities, particularly when our personalities carry a degree of name recognition. Fame needs to be protected but also shared, celebrated, and parodied.