In the matter of:
ANIL KAPOOR ….. Plaintiff
Versus
SIMPLY LIFE INDIA & ORS. ….. Defendants
Date of Order: – 20.09.2023
CASE OF FILM ACTOR’S PERSONALITY RIGHTS.
The Plaintiff is a well-known Indian actor, has filed the present suit seeking protection of his own name, image, likeness, persona, voice and various other attributes of his personality against misuse of all hues over the internet.
The Plaintiff’s case was that he is one of the most celebrated, acclaimed and successful actors in the Indian film industry, and has extensive appearance in over 100 films, multiple television shows and web series. He has endorsed a large variety of products & services and has appeared in several advertisements as well.
Plaintiff submitted that he has acted in several famous Hindi films in Bollywood and has also acted in Hollywood in a famous film, Plaintiff submitted that he has been awarded the prestigous awards in Bollywood.
The Plaintiff submitted that plaintiff has won several prestigious awards including the Filmfare Award, National Film Awards, Zee Cine Awards, IIFA etc. amongst others.
The Plaintiff submitted that plaintiff has registered trademarks in favour of its production company, Anil Kapoor Films Company, bearing registration number ‘1811341’ in class 41.
The basis of plaintiff’s case is that his name and persona, apart from having immense commercial value, is liable to be protected against misuse and tarnishment over the internet. In the present suit, the Plaintiff seeks protection of his personality rights, publicity rights and elements associated with his persona such as:-
a) His name; b) His voice; c) His photograph/image/likeness; d) His manner of speaking and dialogue delivery; e) His gestures; f) His signatures.
According to the Plaintiff, his voice is also of immense value as he has lent his voice for Hindi dubbing of some of the most viewed films such as “Baloo the bear” of the film “Mowgli: Legend of the Jungle”.
The Plaintiff submitted that the expression ‘Jhakaas’, which is a Marathi slang word, roughly translated as ‘fantastic’, ‘awesome’ or ‘superb’ in English, was popularized by him through one of his Hindi movies, namely ‘Yudh’.
A perusal of the press reports and videos would show, that the manner in which he delivers the said word, while speaking a dialogue, and the nature of expression is exclusively synonymous with the Plaintiff’s energetic and enthusiastic persona.
The rights claimed by the Plaintiff, in the present suit, are stated below:
I) Personality rights, including right to publicity;
II) Copyright in the dialogue, image as also in other associated works;
III) Common law rights including the right to be protected against passing off, dilution and unfair competition.
Defendant No.1 – Simply Life India, Defendant No.2 – Vision Computers, Defendant No.3 – TP Apparel LLC, Defendant No.4 -MAD Ventures (Book My Face), Defendant No. 5- Refaceshorts 2.023 (Jitendra Mishra), Defendant No.6 – Giphy, Defendant No. 7 – Khajistan, Defendant No. 8 – VIP Cutouts, Defendant No. 9 – Merchbay Products Pvt. Ltd, Defendant No.10 – Thunder Buddy Enterprise Private Limited, Defendant No.11 – Paridhan Showroom, Defendant No. 12 – https:/mobcup.net/, Defendant No.13- Firma Stella, Defendant No. 14- Kareti Rama Krishna, Defendant No.15- Shahid SK, Defendant Nos. 16- Sun Systems & Solutions, Defendant no. 17- PDR Limited, Defendant Nos.18- Domains by Proxy LLC, Defendant no.19- Go-Daddy LLC, Defendant No.20- Dynadot LLC, Defendant No.21-John Doe(s).
The allegation of the Plaintiff is that all the Defendants are in some manner utilizing various features of the Plaintiff’s persona, and are misusing the same in malicious ways. Some examples are illustrated below:
i) Publishing and collecting fee by using his photographs that he would be attending an event, as a motivational speaker;
ii) Using morphed images of the Plaintiff and collecting monies for selling prints of his images;
iii) Creating wallpapers on mobile phones using Plaintiff’s image;
iv) Using voice, dialogues and names from his movies in his own voice, as ringtones and ring back tones;
v) Promoting and selling merchandise such as magnets, T-shirts, cups, stickers, keychains, using his photographs with/without the word ‘Jhakaas’.
vi) Advertising and selling face masks with the Plaintiff’s pictures;
vii) Providing electronic stickers with Plaintiff’s image and collecting monies for the same;
viii) Using his name and photographs for posters;
ix) Selling suits under the Plaintiff’s name and image;
x) Providing forged autographs and photographs of the Plaintiff;
xi) Creating images and videos of the Plaintiff in a morphed manner;
xii) Using Artificial Intelligence to produce images and videos that are extremely derogatory, not merely to the Plaintiff but to other actresses as well including Katrina Kaif, Madhuri Dixit and Late Sridevi, whose faces are being morphed with the Plaintiff’s face – resultantly picturising the Plaintiff on a song or photograph with the clothes worn by these actresses;
xiii) Generating images of the Plaintiff as cartoon characters using Artificial Intelligence;
xiv) Providing GIF images of the Plaintiff on various social media handles;
xv) Squatting on domain names such as www.anilkapoor.in, www.anilkapoor.net and www.anilkapoor.com;
xvi) Creating, publishing, and disseminating fake pornographic videos of the Plaintiff along with other actresses.
The above incidents of misuse are merely illustrative in nature and is meant to demonstrate the spectrum of illegalities and unlawful conduct which the Defendants are indulging in.
According to the plaint, a large number of these websites/Defendants are collecting monies, fee etc. by selling various merchandise with Plaintiff’s image, likeness and other elements of his persona, and are gaining monetary benefits out of it.
Plaintiff relied upon a few decisions of foreign courts and Indian courts to argue that elements of a personality such as name, image, likeness, voice, and other attributes are protectable elements. He places reliance on the following decisions: • Bette Midler v. Ford Motor Company [849 F.2d 460 (1988)] • Vanna White v. Samsung Electronics America [971 F.2d 1395 (1992)].
Hon’ble Court said, This case shows that reputation and fame can transcend into damaging various rights of a person including his
right to live with dignity within a social structure, etc.
Observation no. 1. free speech in respect of a well-known person is protected in the form of right to information, news, satire, parody that is authentic, and also genuine criticism. However, when the same crosses a line, and results in tarnishment, blackening or jeopardises the individual’s personality, or attributes associated with the said individual, it would be illegal.
Observation no.2. Using a person’s name, voice, dialogues, images in an illegal manner, that too for commercial purposes, cannot be permitted.
Observation no.3. 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.
Observation no.4. The technological tools that are now freely available make it possible for any illegal and unauthorised user to use, produce or imitate any celebrity’s persona, by using any tools including Artificial Intelligence.
Observation no.5. The celebrity enjoys the right of privacy, and does not wish that his or her image, voice, likeness is portrayed in a dark or grim manner, as portrayed on the porn websites.
Observation no.6. the domain names that have been registered are just being squatted upon, and there can be no reason why the same could be allowed to be squatted upon.
Observation no.7. The creation of ringtones and GIF images for commercial gains would also be a complete misuse of Plaintiff’s rights.
The Court mentioned that it cannot turn a blind eye to such misuse of a personality’s name and other elements of his persona. Dilution, tarnishment, blurring are all actionable torts which the Plaintiff would have to be protected against.
Court said Plaintiff’s name, likeness, image, persona, etc., deserves to be protected.
Accordingly, the Plaintiff has established a, prima facie, case for grant of an ex parte injunction.
Balance of convenience lies in favour of the Plaintiff in the present case considering that the Defendants are infringing his personality rights as well as right to privacy.
If an injunction is not granted in the present case, it will lead to irreparable loss/harm to the Plaintiff and his family, not only financially but also with his right to live with dignity.
Defendants were restrained from using the name and persona of Plaintiff in any manner.
Ex Parte Ad- Interim injunction was granted in favour of Plaintiff. Defendants were restrained from using the name and persona of Plaintiff in any manner.
Read, Reviewed & Edited by
Neeraj Gogia, Advocate