Image rights are the rights of a person in connection with his name, image (whether still, moving or animated), voice, signature, catchphrases, facial expressions, mannerisms and other personal characteristics. They also refer to the person’s associated iconic acts, logos, trademarks and brands.  

Image rights are usually associated with famous people such as entertainment personalities, athletes, models and politicians. Violation or misappropriation of image rights happens when these famous people’s names, photos, signatures and attributes are being used by individuals or entities without their authorization. 

Such rights are also called publicity rights in India and the United States. In certain parts of Europe, they are called personality rights.  

“The central question that arises in this situation is, what type of legal protection shall be attributed to the image of a person?” said Ancy Jacob, an associate at Khurana & Khurana in New Delhi.  

Image rights, she says, are considered part of the right to privacy and publicity rights. They are also protected as an intellectual property right. 

“The right to privacy comes as a result of an extension of the concept of every person’s ‘right to be let alone,’ which is especially pertinent in the case of celebrities whose lives the general public is desperately curious about. Publicity rights prohibit the unauthorized use of the identity of a person through advertisements or endorsements without a license. 

It is sometimes difficult to protect rights through IP, in particular, directly fitting into a specific property protection, but using IP rights are mostly resorted to due to the absence of specific legislation to protect such rights, Jacob said.  

“IP only fits in relation to image rights if the person whose image is being used himself applies for or takes registration for his image or persona or assigns it to another entity that gets it registered as a trademark in its name with the consent of the image rights holder,” explained Anuradha Salhotra, a founding partner at Rahul Chaudhry & Partners in Gurugram. 

India 

India has no regulations or legislation in place for image rights.  

“For clarification and better understanding of the rights for all, I believe these regulations and legislation should be in place. The judgments already passed by the courts can help in the formulation of these,” Salhotra said. 

When dealing with image rights, Indian courts have resorted to the law of trademarks, passing off and copyright. However, the basic right stems from the right to privacy and the right to exploit one’s own image. Contractual protection of image rights through agreements are also in play. 

In Titan Industries v. M/S Ramkumar Jewellers, (CS (OS) No. 2662/2011), the Delhi High Court relied on Section 17(b) of the Copyright Act for its decision. The section explains the determination of first owner of copyright. 

The plaintiff, Titan Industries, had secured the personality rights of the Bollywood celebrity couple Amitabh Bachchan and Jaya Bachchan. The case involved endorsements and advertisements of a range of diamond jewellery sold under Titan’s brand, Tanishq. The company engaged the services of the Bachchan couple to help market their jewellery line. Meanwhile, the defendant was found to have mounted advertising hoardings all over Muzaffarnagar in Uttar Pradesh. Said hoardings featured photographs of the Bachchans identical to those on Titan’s hoardings. 

(In India, an advertisement hoarding is a structured, outdoor display erected in a public space, generally targeting places with heavy traffic volume, heavy pedestrian activity and high visibility.) 

“Since the defendant did not have permission to do so by the plaintiff, the court held it liable not only for infringement of the plaintiff’s copyright in the advertisement but also for misappropriation of the celebrity’s personality rights,” said Salhotra. “The court thereby granted an interim injunction in favour of the plaintiff while specifically recognizing the couple’s rights in their personalities.” 

“The court also observed that in the event of unauthorized advertisement of a famous personality, the right to determine how their identity should be used vests solely with that individual. The right to control the commercial use of human identity was identified as part of the right to publicity,” Jacob added. 

However, protecting image rights as IP has its own set of challenges.  

First of all, IP rights are usually time-bound. This does not dovetail with the nature of image rights which possess longevity and attribute value to the individual and his heirs. Athletes, for instance, have short careers. This requires them to maximize their earnings from their competitive years using the brand value they’ve built and earned after they retire.  

“In the U.S., a 2009 report found that within two years of departure, 78 percent of NFL players are bankrupt or under financial stress, and within five years post-career, 60 percent of NBA athletes are broke,” shared Jacob. “Such shocking statistics reveal how post-retirement earnings are particularly essential in the case of athletes.”  

Second, image rights protection as an IP needs a system for effective tax planning for sale and licensing of such rights.  

Another challenge arises when a celebrity or famous person switches from one brand endorsement to another – a competing product, at that – after a limited period of time. There is the possibility that the former will continue to use the famous person’s image on its product. The problem begins when both products – from the brand he used to endorse which still carries his image and that of its competitor which he now endorses – are both in the market.  

Violation of image rights is rampant in India.  

A recent example is the case involving legendary actor Amitabh Bachchan himself. In Amitabh Bachchan v. Rajat Nagi & Ors., (2022 SCC OnLine Del 4110), the Delhi High Court passed an omnibus interim order restraining defendants at large who used the actor’s personality traits for commercial purpose without authorization. The omnibus interim order was the first of its kind. 

Following the 2020 Olympic Games in Tokyo, local business entities have been using images of India’s athletes for their advertising and marketing campaigns without consent. Among these athletes was P.V. Sindhu who won the bronze medal in women’s badminton singles in Tokyo as well as the silver medal in the 2016 Rio de Janeiro Olympics. With her twin victories at the Olympic Games, Sindhu became the first Indian female athlete to win two Olympic medals. Cashing in on her fame, reputation and goodwill, several business establishments have associated their brands with Sindhu via their social media posts, without authorization. Sindhu’s image rights company, Baseline Ventures, is now serving legal notices seeking damages against these brands. Among these brands are MG Motor, Pan Bahar, Eureka Forbes, Vodafone Idea, State Bank of India and ICICI Bank. 

Sourav Ganguly v. Tata Tea Ltd. is another example. Tata Tea distributed postcards of Ganguly, a famous cricket player, as part of an advertising campaign but without the athlete’s permission. The court granted relief to the cricket player by holding that “fame and popularity is part of IP.” 

In Jaitley v. Network Solutions Private Limited ([181(2011)DLT716]), politician and attorney Arun Jaitley sought a permanent injunction to restrain the defendants from misusing the domain name ‘arunjaitely.com.’ The injunction was granted. “The Court inter alia held that the name ‘Arun Jaitley’ fell within the category of personal names that had acquired a distinctive connotation or identity of its own. Therefore, the name had become a well-known name or mark under trademark law, thus enabling the plaintiff to restrict others from using his name unjustifiably, in addition to his personal right to sue them for the unauthorized use of his name,” Salhotra revealed. 

Singapore 

“Image rights, and in particular, the right to stop others from unauthorized use of one’s own image, is not presently recognized as a standalone concept in Singapore,” shared Marcus Liu, associate director at Amica Law in Singapore. “Instead, there are multiple doctrines that allow a person to protect the use of their image.” 

These are the Copyright Act, Personal Data Protection Act (PDPA), Prevention of Harassment Act, the law of confidence, the penal code where there is codified criminal liability covering obscene images and the tort of passing off. 

“The tort of passing off protects the goodwill in the use of a person’s image in the context of false endorsement and is a common cause of action for celebrities and other public figures. Such cause of action has also been pleaded under the law of defamation,” said Liu.  

As with India, the gaps exist.  

For one, causes of action come with specific conditions which cannot be applied to all parties and circumstances. “For example, in the tort of passing off, it is essential to establish goodwill in one’s image which may be challenging for non-celebrities or aspiring celebrities. Under the law of confidence and the PDPA, photos which are publicly available cannot be protected,” Liu explained. 

There is also the question of whether protection should extend to moral rights or individual rights to one’s image. The good news is that the recently amended Copyright Act now reflects the increasing acknowledgment of such rights in Singapore. Under the Copyright Act, certain moral rights are extended to authors, including the right to attribution. 

In 2022, a news article came out reporting about a Singaporean model and artist whose photo was replicated twice in third-party artworks. The artworks were replicated first by a Singaporean artist and then by a Russian artist. However, none of these cases seems to have been litigated. 

Taiwan  

“The protection of image rights in respect of IP is limited. While courts in Taiwan have resorted to relevant U.S. doctrines, the concept has not been codified into Taiwan law,” said Ling-ying Hsu, a partner at Winkler Partners in Taipei. 

"According to Hsu, Taiwan’s trademark act expressly prohibits an individual from registering a third party's portrait as a trademark. Additionally, only those with famous names, stage names, pseudonyms or alternative names can revoke the registration of a third party’s mark using those names."

“In case of copyrights,” said Hsu, “the issue becomes more complicated.”  

“Whether a person can claim infringement of his image rights may depend on whether he is a celebrity and engages in a public activity. If a photo of a celebrity is taken in a public event and used in a news report, the celebrity may not claim that his image rights are infringed. Moreover, in the aforementioned example, the image right holder is different from the copyright holder of the photo. If a third party uses that photo without any permission, it may simultaneously infringe different right holders’ image rights – that of the celebrity – and copyright – that of the photographer,” she explained. 

Though certain image rights are protected as a personality right in Taiwan with both injunctive and economic relief, Hsu noted that the scope of protection is uncertain. “In my opinion, it should encompass other indicia of a person’s personal identity such as voice, gesture and others,” she said. 

Misappropriation of image rights is also rampant in Taiwan.  

A famous case involved the late Kobe Bryant’s famous nickname Black Mamba. A Taiwanese individual sought to register Black Mamba as a trademark for clothes. The Taiwan Intellectual Property Office revoked the registration on the ground that the mark contains another person’s well-known stage name. The Taiwan IP Court upheld the revocation. 

The digital era isn’t making things any better for any jurisdiction. Image rights protection via IP is territorial in nature. Thus, protection is available only in the jurisdiction where it is granted. In the digital era which allows people to easily copy and share images across borders, this is certainly problematic. Not only does this open more doors for infringers, it also makes enforcement more difficult. 

“With exponential technological advancements today, there may also be a need to consider further extended protections for image rights. The advent of deepfakes and the potential increase in the use of personal images online and virtually such as in metaverse may require the establishment of a doctrine that can act decisively and have some level of extra-territorial impact,” Liu added.  

Image right as a separate IP right 

Should image rights be protected as a separate IP right? Our interviewees said yes, they should.  

“Protection of image rights as a separate right would help to tackle the challenges posed by traditional IP protection. Conventional IP protection does not ideally conform to the commercial realities and inexplicable power of the internet,” explained Jacob. 

She added that unlike personality rights, formally registered IP rights allow easier transfer of IP rights and efficient enforcement of rights. They also aid a financial valuer in the assessment of valuation and the associated potential risks.  

“Except for the subset of the right of name, there is no specific definition of image rights in any law or regulation. Furthermore, the property nature of image rights may not be prominently emphasized if they are deemed a personality right. These ambiguities in the law often lead to difficulties in discerning liability. Also, the scope of protection is limited. Therefore, I welcome the inclusion of image rights as a separate IP,” said Hsu. 

According to Liu, overlapping doctrines for protection of a particular intangible asset aren’t unusual since each doctrine protects a specific harm that is clearly identified. “There is thus conceptual clarity amidst the multiple causes of action. There is however a question of whether there are gaps of protection which would necessitate establishing a new and consolidated doctrine,” he noted.  

If image rights become a separate IP right, the term of the IP would also be a relevant consideration, according to Salhotra. 

In 2012, the UK Channel island of Guernsey broke new ground by putting in place an image rights registry – the first in the world – providing a mechanism for people to register their personality rights and secure protection. 

The rest of the world must follow Guernsey’s example. Lawmakers in other jurisdictions should begin to acknowledge the reality of image rights and learn to anticipate the possibilities within the ambit of technological development. By taking this first step, countries are on their way to creating their own breakthrough legislative framework for image rights – one that has more clarity and provides greater scope of protection. After all, the law shouldn’t be left behind to play catch up all the time.