I had underestimated how much of the personality rights space in India is one big, vague, wild west! The personality rights order passed by the Delhi High Court in favour of the plaintiff, Anil Kumar Tiwari (aka Aniruddhacharya Ji Maharaj) shows what happens when an already confusing jurisprudence continues to develop without guardrails: IP law protections are claimed for ineligible content; social commentary based on meme-culture collides with ambiguous private rights; and, doctrinal confusion continues to blur the scope of how these injunctions should be prayed for before the court. In this post, I analyse the order and argue that the court should take a stricter stand, even though at this stage, the suit requires only a prima facie analysis.
[Transl: “If someone abuses you, do not react immediately”](Image from here)
A viral statement repeated in several sermons by the Plaintiff, “koi aapko gaali de toh, turant jawab na dijiye” (if someone abuses you, do not react immediately). Instead, I suppose it’s best to pray to the court for a strategic interim injunction on your behalf!
Here’s a rundown on who the Plaintiff is and what this interim injunction is about.
Facts & Decision
The Plaintiff, Mr. Anil Kumar Tiwari; popularly known as Aniruddhacharya Ji Maharaj and also known by the moniker ‘Pookie Baba’, is a self-styled Hindu spiritual preacher. Millions of followers on his social media platforms consume content in the form of snippets, full recordings, and live streams of his sermons. He has been invited to speak on TV programs, usually by news channels; though he had a particularly controversial visit to the sets of reality TV show Bigg Boss for which he later issued a public apology. The Plaintiff claims to work for public welfare and partakes in social charity. His claim to fame comes through said sermons; in particular, clippings of his communications with disciples which often include amusing remarks (a short compilation here).
The fact that his mannerism of communication makes for shareable digital content is not lost on the Plaintiff. He seeks protection of his “global persona” from being undermined by “unauthorised creation and circulation of manipulated digital content, memes and AI-generated videos” (para 13). He asserts that “unauthorised exploitation, misrepresentation, or disparagement of his identity… undermines the dignity and credibility associated with the Plaintiff’s spiritual teachings and charitable activities.”
It is alleged that the defendants have created and circulated AI-based morphed videos, deepfakes, manipulated images, digital replicas impersonating the Plaintiff and the like; thereby causing misrepresentations, misappropriation of commercial gain and free-riding on goodwill and reputation, ultimately leading to a distancing of his devotees. The court, moved by this complaint, believes a ‘strong case’ is made out on prima facie grounds, finds balance of convenience in his favour and prevents irreparable loss by passing an ex parte ad-interim dynamic injunction order.
Open and shut case? No, far from it.
Analysis of the order
There are significant issues in the Plaintiff’s averments that show how uncertain the scope of personality rights has become. First, a doctrinal confusion that has been seen in previous personality rights cases (see here, here, here, here, here) of conflating unrelated causes of action and muddling established IP doctrines, privacy rights and personality rights into one twisted legal quagmire. The Plaintiff’s claims for protection of “dignity and credibility” of his reputation in order to prevent audiences from disengaging from his works (privacy and tort-based arguments), are made within the guise of the more central arguments for protection of commercial benefits (copyright and personality rights).
It is debatable if personality rights protection is for the benefit of the Plaintiff in toto, or only, as is claimed to stop meme-styled content that the Plaintiff perceives “diminishes the seriousness and sanctity of the Plaintiff’s spiritual discourse.” The latter veers strongly towards defamation, and proof of the audience’s rejection could be evidence of disrepute to claim an appropriate remedy. Furthermore, since digital media has been the entire playground of this order, what would be adequate evidence? For a personality with millions of followers, surely a handful of cherry-picked comments on social media that read like independent opinions should not be sufficient to establish real commercial harm, and that too somehow within the ambit of IP law.
Since in such cases the Plaintiffs merge distinct rights and remedies in order to obtain a singular relief, the court should be strict on clear identification and differentiation, even at the interim stage. When this is not done, a simple textual interpretation of the order in its entirety creates evident legal uncertainty. Such uncertainty then risks free speech and fair use works being taken down with otherwise infringing content – more on this below. This kind of clarity was recently shown by Justice Subramonium Prasad when Raghav Chadha went to court having confused criticism for defamation, and pleading the same through a personality rights infringement – we will review the order when it’s published.
In the case at hand, an emergent concern is also that the Plaintiff avers that commercial harm is being caused by the defendants’ activities, but gives no information on what he himself is commercialising, or intends to commercialise, from where his earnings are at risk of diversion. The court must also clarify if anticipated harm to the ability to monetize is actionable as a personality rights claim!
Second, the Plaintiff’s advocates list 9 categories of his persona that “constitutes valuable intellectual property and forms the basis of his personality rights and publicity rights, which are recognized and enforceable under Indian law” (para 14, see image below) (emphasis supplied). Hardly any of these are really cognisable and/or enforceable; most of them are not valuable intellectual property assets; and the remaining are also not subject to defined laws, see here.
Kartik and Yogesh have discussed at length that personality rights protection of names requires much context and framing; and their copyrightability per se is non-existent. ‘Affection and admiration’ are not legally protectable attributes whether under IP law or personality rights. Popular catchphrases have been at the centre of prior disputes, like the decisions on Anil Kapoor’s ‘jhakaas’ (see here and here) and Jackie Shroff’s ‘bhidu’. Whether this type of exclusivity should be granted has not been conclusively determined. While the pattern of claims is same, the facts are not comparable – for instance, these celebrities averred recognition of catchphrases through a body of work, later protected through trademark registrations and then alleged connection to misleading merchandising. The Plaintiff here avers that the catchphrases have acquired a “secondary meaning” but the order shows no proof of specific trademark registrations.
To a discerning reader, point (vii) in the list above would stand out. A commercially monetizable meme-cultural identity sure could be a part of a carefully curated business strategy. But to think of “meme” and “culture” as siloed into an individual’s control is antithetical to these concepts. Since the Plaintiff has admitted that his memes have a “direct commercial monetisation value”, the problem isn’t just that memes may have been made, is it that they’ve been made with a lack of authorisation?
In the same vein, the argument is that a fan page is permitted as long as it is authorised, “There are several authorised fan pages actively running on Instagram and Facebook” (para 13) (emphasis supplied). The interim order, however, does not state any details of when, how and how many such authorisations might have been given. Creating a categorisation of ‘authorised’ and ‘unauthorised’ fan pages itself is a dangerous assertion of control over free speech. The court must seriously consider if it can be the province of one plaintiff to control the entirety of discourse around his public persona. This overlap has been discussed in depth on our blog here, here, here and here.
Fan-made content is how the public expresses social participation and it shouldn’t be subject to a take-down-based surveillance mechanism. While the majority of the instances provided in the Annexure appended to the order satisfy preliminary test of infringement, it is concerning that the court found the entirety of the Annexure “self-explanatory”. I find 2 out of the 17 that seem to prima facie satisfy fair dealing conditions.
Consider S. No. 2 with the following allegation –
And at S.No. 16 is an actor Ronit Ashra, who is alleged to –
Both instances are parodic spoofs. In the first instance, the claimed use of voice-over is merely a few seconds; in true satirical fashion it is a comment on the cricketers. For the actor, regard should be had to the plethora of legal literature on mimicry; in context specific to personality rights, the decision in Jackie Shroff that acknowledges digital content creation as work. If we see the intent, amount of usage, and potential effect on audience, we can reasonably find no competition, no substitution, and sufficient transformation. There is neither intent to deceive, nor proven reputational harm.
A word on these interim orders
“Sattar mei kya jode ki satra ho jaye” (what would you add to 70 to make it 17?) is a humorous jibe that the plaintiff took during one of his disciple interactions. While the disciple attempted to give a correct mathematical answer, the plaintiff says the difference is rather a vowel diacritic in the Hindi script. This reminds me of how writers on our blog have been trying to find legal rationale in these court orders for over two years, and yet the confusions keep amplifying.
My main takeaway here is this – it is one thing to curate identifiers that may establish a cult of personality and then argue for its protection for reasons of commercial misappropriation, privacy infringement or personal harm. It is quite a different thing to start laying claims to these identifiers as stand-alone, out-of-context, and in perpetuity; especially when antecedent rights of free speech and expression are involved. Koi aapse pyar kyu karega (why would anyone love you?) is another one of Plaintiff’s viral statements. I extend this question to the court with an additional quip of my own – koi aapse pyar kyu karega… if you don’t allow fair use?
Thanks to Swaraj and Praharsh for helpful comments!