The advent of social media has led to the increased access of not only entertainment but has brought the general public closer to these entertainers. The industry term used for those who are famous online is ‘influencers’, and global corporations across the world market their products and services through them.

It is undeniably true that the internet and the online market offers businesses easy access to a large target audience and consumer base and these influencers serve as a connect between them. Even though the current legal framework allows monetization, it isn’t clear on the protection of the brand or goodwill an influencer may have built or recognize copyright over their images. Since their content is so easily available online, any person may be infringing their personality by using such content to market their own product without prior permission or consent.

Superior courts in the country have recognised such rights but protection of the same is yet to be codified, when the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality.

The right to control commercial use of human identity is the right to publicity. The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice. etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc.

The existing issue is that as mentioned above, the current legal system does not provide for the protection of personality rights and this adversely affects those who have a presence in social media and their ability to control their image. The solution to this issue is not straightjacket or easy to implement, conferring blanket image rights and protection of ones personality may open a pandora’s box of applications for infringement.

Such rights are specifically protected in certain provinces of Canada and the UK. The extent and scope of these rights are as follows ;

  1. An appropriation of personality can be achieved through the use of a person’s name, likeness, or voice.
  2. The plaintiff must be identified or identifiable by the use made of his persona.
  3. An action for the appropriation of personality can only succeed where the defendant intended to commit the wrong.
  4. The  use of the plaintiff’s persona must have resulted in a gain or advantage for the defendant.
  5. An appropriation of personality is actionable without proof of damages.
  6. The right of action for appropriation of personality is extinguished upon the death of the person whose privacy was violated.

Illegal and unrightful usage of the personality rights with unjust intentions are punishable under the law. To be more precise, it is clear by the above discussed case laws that in India a celebrity’s name can not be used for any commercial use without any prior consent of the concerned celebrity, as these celebrities acquire their brand value through their hard work.

Therefore, any use of their name or photographs that is commercially utilized, must be exploited by the celebrities themselves and no one else. That being said, in case of protection of rights of online personalities, there needs to be a stronger mechanism for enforcement.

TITAN Industries vs. M/s Ramkumar Jewellers 2012 (50) PTC 486 (Del)

ICC Development (International) Ltd. vs. Arvee Enterprises 2003 (26) PTC 245