Opinion Why Anil Kapoor shouldn’t own Jhakaas

However, the order is overzealous in the remarkable breadth of protection that it affords Kapoor.

The extensive range of elements of persona sought to be protected via this case is worrying. Kapoor claimed proprietary rights in his gestures, manner of speaking and dialogue delivery, including the expression “jhakaas” which is a Marathi word that roughly translates to “superb” in English. He claimed to have popularised this word via his Hindi film Yudh. However, the word was being used by millions of people before he became an actor. The order recorded that his specific manner of saying the word had become synonymous with his energetic persona. However, it is analytically unhelpful to lump together vastly different uses and then injunct them through one broad remedy.

Using the term “jhakaas” on t-shirts, keychains or stickers for sale is qualitatively different from morphing Anil Kapoor’s images to create pornographic videos via Artificial Intelligence. The latter involves dignitary harm, defamation, and violation of privacy whereas the former entails no real economic or dignitary harm. However, in expressing its sympathy for Kapoor’s concerns, the court goes too far.

It holds that reputation and fame can damage various rights of a person including their “right to livelihood”. Deploying this broad rights language to refer to all the uses injuncted demonstrates the dangers of irresponsibly constitutionalising IP law. Kapoor’s right to livelihood is not impacted in the least by a small retailer selling keychains bearing his image.

The order notes that this adversely impacts a celebrity’s right of endorsement, a major source of their livelihood, which cannot be “destroyed completely” by permitting unlawful dissemination and sale of merchandise such as t-shirts, magnets, key chains, etc., bearing their images. There is a logical leap here.

The court incorrectly assumes that merchandise bearing celebrity images necessarily indicates endorsement. In stark contrast, courts in the UK have emphasised that mere sale by a trader of a product bearing an image of a celebrity is not illegal per se because customers typically do not have any positive expectation that the goods have been endorsed if they bear celebrity images. The UK recognises no common law right of celebrities to prevent the use of their images unless such use creates an impression of celebrity endorsement or authorisation. There is no shortage of celebrities in the UK despite no protection for publicity rights, highlighting the absence of an economic incentive-based justification for these rights. In other words, publicity rights are not necessary to stimulate the pursuit of fame. So, if nobody is being misled and the use does not cause any dignitary harm, why is it restrained?

Indian case law has echoed the need to curtail the scope of celebrities’ publicity rights because they are already handsomely compensated. The Delhi High Court in its recent decision in Digital Collectibles v Galactus Funware dismissed the plaintiff’s contention that all sports players have limited playing time and therefore, a right to monetise all aspects of their personality. Relying on US case law, the court concluded that sportspersons, especially cricketers in India, are handsomely rewarded via their participation in games, brand endorsements and sponsorship arrangements, making massive amounts of money through IPL auctions, BCCI contracts, match fees, etc. Similar arguments apply to Bollywood celebrities like Anil Kapoor. Their “livelihood” or endorsement rights are far from being “completely destroyed” via the use on merchandise which does not confuse purchasers as to their endorsement of the products, especially when the indica used is a popular Marathi word (jhakaas). Kapoor’s lawyer relied on the landmark US case of Vanna White v Samsung Electronics. Justice Kozinsky’s dissent in Vanna White had crucially cautioned that something very dangerous is afoot when it becomes illegal to even remind the public of a celebrity; not to imply the celebrity’s endorsement but simply to evoke their image in the public’s mind. The vibrancy of our cultural communication and creativity depends on the right to draw ideas from a rich and varied public domain, and the right to mock, for profit as well as fun, the cultural icons of our time.

Further, publicity rights in India are transferable and actors often transfer their rights to corporations. In a world cluttered with brands, celebrities, and advertising, an ever-expansive law to prohibit the mere evocation of celebrity identity via words like “jhakaas”, grants celebrities and corporations property-like ownership of the public’s mental images as well as the cultural products of our time. Publicity rights should not allow the rich and famous to hold a monopoly over meaning and language in an increasingly commodified world.

Celebrity fame is authored by multiple actors: The scriptwriter for the film Yudh who used the term “jhakaas”, the audience that responded enthusiastically to it, the comedians and other media persons who mimicked Kapoor using it in their own expressive parodies, PR agents, fan communities, etc. The economic applications of this celebrity fame are limitless. The celebrity should not have a property-like right in all of those infinite applications. Their right to endorsement should not be conflated with the prohibition of uses that neither cause dignitary harm nor mislead viewers regarding their endorsement of the products in question.

Finally, the case law on publicity rights in India is currently a mess. Courts should recognise that different uses of people’s identities can have vastly different economic and non-economic impacts, especially in the age of AI. Hence, remedies should be expressly tailored according to the nature of the use instead of providing a broad injunction against all uses at the expense of the public domain and freedom of speech and expression.

The writer is MPhil in Law candidate, University of Oxford