DON’T SAY JHAKAAS: YOU CAN NOT USE ANIL KAPOOR’S PERSONALITY RIGHTS

Whether protection can be sought for the personality rights, publicity rights and elements associated with persona such as name, voice, photograph/image/likeness, manner of speaking and dialogue delivery, gestures, signatures etc. against misuse over internet?

In the High Court of New Delhi[1], the famous Indian actor Mr. Anil Kapoor has initiated a suit seeking protection of his personality rights, publicity rights and of rights associated with his persona. The suit is filed under the title Anil Kapoor versus Simply Life India & Ors., CS(COMM) 652/2023 and I.A. 18237/2023-18243/202. In this case the court has restricted defendants from utilizing plaintiff’s persona to create any morphs, GIF, voice, video, merchandise or any misuse for monetory gains or otherwise. Further Defendant No.19 -GoDaddyLLC and Defendant No.20-Dynadot LLC are directed to immediately lock and suspend the domain names http://www.anilkapoor.in, http://www.anilkapoor.net and www.anilkapoor.com. The matter is listed for 12^th March 2024.

Plaintiff:

The plaintiff i.e. Mr. Anil Kapoor is one of the most celebrated, well known and successful actor of the Indian Cinema. He has appeared in more  than 100 films, numerous television programs, and series. He has provided his endorsement for a wide range of goods and services and has also been featured in various commercials. Some of the very famous work of the plaintiff includes Meri Jung’ (1985), ‘Karma’ (1986), ‘Janbaaz’ (1986), ‘Mr. India’ (1987), ‘Ghar Ho To Aisa’ (1990), ‘Gandhi, My Father’ (2005), ‘Welcome’ (2007),  ‘Khoobsurat’ (2014). He was highly praised for his role in the film Slumdog Millionaire which also garnered him international recognition. The plaintiff is also the producer of films such as “Gandhi, My Father”, “Veere di Wedding”, “Fanney Khan”, “Thar”, etc. The plaintiff has also landed his voice for the dubbing of films such as “Baloo the bear” which is a Hindi dubbed version of the film “Mowgli: Legend of the Jungle” for the character “Baloo”. He also provided his voice for the character “Karna” in “Mahabharat 3D Film” (2013), and the Hindi dubbed version of Mani Ratnam’s “PSI” (2022). The Plaintiff claims that the expression ‘Jhakaas’ was popularized by him through one of his Hindi movies, namely ‘Yudh’.

Dispute:

The plaintiff alleges that the defendants are using different aspects of his persona in some way and abusing those aspects for harmful purposes.  The defendants are publishing the plaintiff’s photographs and charging a price for using them to indicate that he would be speaking at an event as a motivational speaker; they are also utilizing modified photographs of the plaintiff and charging a fee for selling reproductions of those photographs. creating mobile phone wallpapers using the image of the Plaintiff;  using his own voice to narrate language, names, and scenes from his films as ringtones and ringback tones; promoting and peddling goods like magnets, T-shirts, cups, stickers, and keychains that include his images  or use of his famous dialog “Jhakaas.”, Squatting on domain names including http://www.anilkapoor.in, http://www.anilkapoor.net, and making,   disseminating, and publishing pornographic videos featuring the Plaintiff and other females.

Counsel for plaintiff:

The counsel for plaintiff argues that elements of a personality such as name, image, likeness, voice, and other attributes are protectable elements and places reliance on the following decisions: Bette Midler v. Ford Motor Company [849 F.2d 460 (1988)] and Vanna White v. Samsung Electronics America [971 F.2d 1395 (1992)]. The counsel cites case of Digital Collectibles PTE Ltd. v. Galactus Funware Technology Pvt. Ltd. & Anr., 2023:DHC:2796 wherein there were two gaming platform, where the cricketer’s image were not permitted to be used. There was a disclaimer on the website and the real images themselves were not being used as non-fungible token (‘NFTs’).

Observation of the Court:

The Court referred to the  Supreme Court judgment of R. Rajagopal v. State of T.N., (1994) 6 SCC 632, famously called as the ‘Auto Shankar case’ wherein  any form of misuse or commercial use of a celebrity’s name, voice, persona, likeness has also been disapproved by the Supreme Court. The Court in aforestated judgement stated that “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.”

The Court observed that the  celebrity’s right of endorsement would in fact be a major source of livelihood for the celebrity, which cannot be destroyed completely by permitting unlawful dissemination and sale of merchandise such as t-shirts, magnets, key chains, cups, stickers, masks, etc. bearing the face or attributes of their persona on it without their lawful authorization.

Decision of the Court:

Considering the circumstances the Court had no doubt in holding that the Plaintiff’s name, likeness, image, persona, etc., deserves to be protected, not only for Plaintiff’s own sake but also for the sake of his family and friends who would not like to see his image, name and other elements being misused, especially for such tarnishing and negative use.

Since the plaintiff had established a prima facie case, the court restrained the defendants from utilizing the Plaintiff-Anil Kapoor’s name, likeness, image, voice, personality or any other aspects of his persona to create any merchandise, ringtones, ring back tones, or in any other manner. Such restrained in the eyes of the Court was necessary as not only financially but due to the acts of the defendant’s plaintiff’s as well as his family’s right to live with dignity was getting hampered.

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[1] Anil Kapoor V. Simply Life India & Ors., CS(COMM) 652/2023.