Films & Television Series +
IP & Technology Series
Series 1 | Article 2
Personality Rights include within the broader concept, privacy rights, publicity rights and moral rights - a) publicity rights include the right to commercially utilise a personality’s name, photograph, voice, image, signature, etc.; b) the right to privacy is a personal right essentially saying, “let me be”; and c) moral rights mean the right of authorship. With this understanding of personality rights, this article will deal with personality rights and its relation to the law of copyright.
A person’s personality can become a copyrightable asset when the personality of an individual is used to create any literary, dramatic, artistic, or cinematographic work. One widely produced film genre are biographical pictures, commonly referred to as, biopics. These consist of dramatisations of real life events of a non-fictional person. The elements of “personality” included in a biopic can include the likeness, style, mannerisms as well as the personal life events and stories of such a person on whom the biopic is being made. For example, the film “Sanju” consisted of exploiting the style, behaviour, and mannerism of the actor, Sanjay Dutt, as well as dramatising his life story.
Additionally, as it relates to copyright law, the term “personality” can also mean to include personal letters, diary entries, photographs, story-narration by the personality, etc. shared by the personality for the production of the biopic. These elements not only form a part of the personality of a person but may also be considered as “works” for the sake of protection under the Copyright Act, 1957 (“Act”).
Any creation of copyrightable work, i.e. a film, book, drama, etc. based on or derived from the life of any personality, wherein the personality is recognisable from such copyrightable work, requires the prior permission of the personality. A statutory procedure for granting such permission does not exist. However, as a standard industry practice, a “Life-Rights Assignment Agreement” or a “Personality-Rights Assignment Agreement” is entered with the concerned personality, whereby the terms of the agreement provide the specific rights granted by the personality. These rights may include the right to make a film on the personality, the right to use the character, name, likeness of the personality, the right to dramatise, alter, modify the personality’s story, etc. However, the right to use, dramatise, modify and/or alter the story/life elements of a personality, as assigned/licensed under such agreements cannot be in derogation to the right of privacy to which the personality is entitled, i.e. one cannot exploit any information or element of the personality over which no express permission has been granted or which has been expressly denied from any use/exploitation. The Delhi High Court in Phoolan Devi v. Shekhar Kapoor & Ors. [57 (1995) DLT 154], injuncted the release of the film, “Bandit Queen”, as the modifications and additions made to the film gravely distorted the true story of Phoolan Devi.
It is relevant to mention that, while permission of the personality is required to create a copyrightable work on the life of the personality, such permission itself does not grant any copyright ownership to the personality in the resulting copyrighted work i.e. once the permission is granted, save and except for, a) breach of their right to privacy and/or b) defamation, the personality cannot claim any copyright ownership over the copyrighted work, unless of course, it is provided to the contrary under a contract.
Under Section 57 of the Act, the “author” (as defined under the Act) of a copyrightable work is entitled to the following moral rights: a) to claim authorship of the copyrighted work, i.e. the right to be duly credited and; b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the copyrighted work if such distortion, mutilation, modification or other act would be prejudicial to the author’s honour or reputation. Moral rights flow from the fact that a copyrighted work reflects the personality of the author. Therefore, the Act sets out injunctive and compensatory provisions for any destruction or mutilation of the work that may affect the reputation or honour of the author.
Before creating any copyrightable work based on or derived from any personality and their life story, one needs to secure the personality’s permission and the contours of what can and cannot be exploited (in legal terms) while creating such copyrightable work. Further, as a part of an author's personality rights they are guaranteed certain statutory rights in the work so created which can be enforced in accordance with the provisions of the Act.
Apart from the law on copyright, the law on trade marks also covers the concept of personality rights. In my next article I will deal with the relation of personality rights under the trade mark law and how the different elements of a personality are commodified.
About the Author
Shivani Talati has been with MZD Legal Consultancy and practising law since 2021. Shivani is a part of the Films & Television and Intellectual Property teams at MZD Legal Consultancy. She can be contacted at shivani@mzdlegal.in
About MZD Legal Consultancy
MZD Legal Consultancy is a boutique law firm in Mumbai, India. The firm was established in 2011 and comprises professionally qualified lawyers with varied levels of experience and expertise in specific practice areas. To know more, click here www.mzdlegal.in
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