Recent personality rights orders from the Delhi High Court continue to push the doctrine into uncertain territory, with the latest ruling in favour of Allu Arjun marking a particularly sharp turn. In Part I of the two-part post on the order, Dr. Aakanksha Kumar argues that by characterizing the likeness of the actor as “copyrights of the plaintiff, the Court collapses distinct IP doctrines into an overbroad conception of “personality rights,” raising serious concerns for copyright and publicity jurisprudence in India. Dr. Aakanksha Kumar (She/Her) is an independent researcher and academic who also consults with content creators and advises Chhattisgarhi music artists on copyright-related matters. Previously, she served as Associate Professor, Associate Dean, and Associate Director of the Centre for Post Graduate Legal Studies (CPGLS) at Jindal Global Law School (JGLS). Since 2019, she has designed and taught a self-created elective course across law schools titled Comparative Celebrity Laws: Personality, Publicity and Free Speech.
Part I: Flower Nahi, Fire: Delhi HC Waters the Wrong Rights (Again!)
By Dr. Aakanksha Kumar
In another recent order in the spate of personality rights rulings from the Delhi High Court (DHC), the multi-hyphenate Allu Arjun’s rights have been upheld. This order marks a particularly concerning trajectory in the growth of personality rights jurisprudence, especially in the aftermath of the equally troubling Vikas Pahwa DHC Order and the speculation surrounding the seeming post-mortem attempt at copyright registration of the name of the actor-performer-star Rishi Kapoor [discussed on the blog here].
Here, the Court granted wide-ranging protection over Arjun’s persona across fan merchandise, digital platforms, and AI-based uses. In doing so, it made, yet again, a critical doctrinal move: it characterised elements such as voice, gestures, dialogue delivery, and mannerisms (particularly, and inclusive of the actor as a popular fictional character, Pushpa Raj) as “copyrights of the plaintiff”. This is a gross misidentification of the underlying right, collapsing distinct legal doctrines into a single, undifferentiated “personality rights,” (a concern we discussed recently on this blog here) while also treating qualitatively different “takings” as causing the same type of “harm”. The result is a framework that is simultaneously overbroad and analytically underdeveloped.
This post, in two parts, offers a critique of the order in three prongs. Part I discusses how the court misapplies the copyright doctrine and how the right of publicity observation has expanded the right beyond its economic rationale. Part II discusses the failure of the Court to distinguish between different forms of fan engagement and technological misuse, and further concludes by pointing to a worrisome structural flaw in several recent personality rights interim orders, including in Allu Arjun.
Copyright and the (Ignored) Eligibility Threshold
At para 35, the DHC observed –
“…the unique and distinctive attributes of the plaintiff are exclusive to the plaintiff and are source identifiers of the plaintiff. The attributes such as name, appearance, voice, manner of delivery dialogues, gestures, attires, speech, signature, likeness would clearly constitute copyrights of the plaintiff over which none other than the plaintiff would have exclusive rights of exploitation.”
This not only conflates trademark logic with copyright, but it further bypasses the most basic threshold question of copyright law: what qualifies as protectable subject matter.
Indian Copyright statute, as judicially interpreted, protects “works” of authorship that are original, creative, expressions of ideas, i.e. it furthers the “idea-expression dichotomy”. However, fictional characters aren’t included within the broad categories of ‘work’ that is eligible for copyright protection [discussed in Chapter 3 of my PhD]. The Supreme Court in R.G. Anand additionally observed that “There is… no common-law literary property right in the manner and postures of the actors used by them…”, This was diluted to an extent by the observations of Justice Gautam Patel in Chulbul Pandey wherein stand-alone copyright in the character Chulbul Pandey (Dabangg) was recognised due to its unique portrayal as well as underlying “writing-up”, with ownership vesting in the producer – Arbaaz Khan Films (the plaintiff), and not the performer – Salman Khan. Thus, reading this together with and building from the works of Foucault, Jaszi, Woodmansee(paywalled), and Kaplan, it can be argued that authorship of such a protectable character may be composite, involving writing, direction, and performance inputs, but ownership vests in the producer of the underlying work. Therefore, by any stretch, an actor- performer, does not own “copyrights” in their own name, or their own likeness, gestures, voice i.e. their own personality indicia (as these are not eligible categories of “work” under S.13) – within or without character portrayals, neither do they own copyrights in the mannerisms, gait, dialogue delivery style, etc. of the character itself.
The Rocky Balboa analogy similarly turns on the fact that Sylvester Stallone was not merely the actor but also the creator and producer, which allowed a stronger claim to both ownership and authorship. The critical distinction is not performance alone, but the convergence of writing, creation, and control. Applied to Allu Arjun’s portrayal of Pushpa Raj, even if one accepts that the character is sufficiently delineated to attract copyright, that copyright arises from the combined inputs of script, dialogue, and portrayal, but vests in the producers of the film. Winning accolades and awards, and the undeniable force of his performance (including those now-iconic elevation sequences and world-class dancing props – this author, too is a fan of the Icon Star!), do not translate into “copyrights”.
Recognition, however well-deserved, does not alter the statutory framework. Unless Indian law were to move towards a model that explicitly recognises commodified personality indicia-based copyright interests, there is no doctrinal or statutory basis to treat performance excellence or celebrity status as generating copyright in persona or fictional / film character traits. The mistake unfortunately, stems from a “historical error” in that, in an early “personality rights” order in India, before the Madras HC, the claim inter alia sought that “Any use/misuse of the Plaintiff’s (Superstar Rajinikanth) name/image/caricature/style of delivering dialogues amounts to infringement of his personality right and copyright arising thereof…” Without going into the potential copyrightability of a dialogue delivery style, the Madras HC nonetheless ruled in favour of the plaintiff, under the larger idea of personality rights violation, unfortunately, conflating the subject matters of copyright, trade mark, passing off, privacy, defamation, and right of publicity.
If Not “Copyrights”, Where Do We Go? Passing Off and/or Right of Publicity, But Carefully
Looking at the profuse descriptions of the plaintiff’s achievements, claims to fame, and IP ownership in the initial parts of the order (bordering on an overkill – will explain why subsequently), it may seem preposterous to the reader that I am suggesting that the court got it wrong about a consequentially owned monopoly. That is not the argument, and there is no reason to be appalled or to panic. In fact, I am going to further the submission that an element of the actor’s persona, though not in the copyright-ownership sense, is still present, and ‘claimable’ when their signature, identifiable mannerisms, moves etc. are taken without authorisation and commercialised. This is the Right of Publicity (RoPub, explained and discussed recently on this blog here).
At this juncture, I must point to a very interesting minor part of the claim in Applause Entertainment. There, the plaintiff had brought an action against Meta and Instagram, seeking the pulling down of accounts and handles that were using substantial clips from their web series Scam 1993 for allegedly promoting their own business activities, and it asserted inter alia that “it has the character rights [copyright] on the web-series and holds the “publicity rights of the cast members”. As discussed elsewhere RoPub in India is a facet of the larger personality rights salad platter, best conceptualised as protecting the economic associative value (EAV) of identity against commercial misappropriation, often operating in proximity with, yet in contradistinction to passing off principles where questions of a misrepresentative endorsement or association arise. On this framing, the Allu Arjun matter then, arguably should have been articulated, if at all, as a claim in the actor’s RoPub. Even then, the claim is not straightforward.
In the context of film production, the EAV of an actor’s “in character” personality indicia, particularly where it stems from the actor’s portrayal, is rarely retained entirely by the actor. Standard talent agreements typically include model release clauses through which the actor licenses the economic value of their performance, including all of the character’s associated personality indicia, to the producer(s). This means that the right to commercially exploit the character, including through merchandising, often vests in the producer, even though it is derived from the actor’s persona. This is discussed by the BomHC most aptly, in Star India where it discussed the elements of the passing off tort, and added the requirement of “reputation” alongside goodwill, to be shown in fictional characters, for a valid claim to subsist.
The court noted, “reputation does not extend to or separately exist in any particular person or dialogue in or part of a serial so that any member of the public would associate any particular incident or script or word or sentence or scene in the film with the plaintiffs alone”. It applied a test known as the “state of mind of public” to determine whether a character can be merchandised. This test is similar to the likelihood of confusion test for passing off. It then held that a character must have gained public recognition and achieved a form of independent life, separate from the original product or context in which it appears. Explaining ‘Character merchandising’, the court observed that it involves the exploitation of fictional characters or the fame of celebrities by licensing such famous fictional characters to others.
Interestingly, in Rajinikanth, transplanting the thresholds of identifiability from Titan, Justice Subbiah of the Madras HC explained that “infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable” – thereby clearly distinguishing between the “likelihood of confusion + goodwill” requirements of claiming passing off, versus the easier threshold of the burden of proof on the plaintiff in a RoPub claim.
The problem in the present order is that it bypasses the ‘distinct claims-distinct elements to prove’ structure entirely. It extends protection to “any attributes… identifiable with” the plaintiff and treats unauthorised use as sufficient to trigger liability. In doing so, it seemingly detaches RoPub from its economic (and particularly for actor’s rights in film character cases – contractual) foundations and recasts it as a generalised right to control identity – a fear Prof Tushnet elucidates thus –
“Today, the right of publicity expansively grants celebrities the right to control commercial exploitations of their names, likenesses, voices and often enough their “identities” in any form that those identities are evoked. This right can be metaphorically shorthanded as a right to control “image,” indicating the way in which publicity rights are bound up with the heavily visual culture of the past century that gave us the modern celebrity.”
This moves the doctrine away from its limited function of addressing commercial misappropriation and towards a property-like entitlement over persona, without engaging with who, when, and why, in law, is entitled to exercise that control. The argument then further is that any Actor-Character-RoPub claim in such cases must first be grounded in the contractual allocation of rights between the actor and the producer(s). Without this enquiry, it cannot be assumed that the actor retains enforceable control over the commercial use of the character’s indicia. Moreover, the order invokes the language of “source identification,” but does not apply the structure of passing off. There is no sustained analysis of likelihood of confusion or damage, only the establishment of the plaintiff’s reputation. This is a glaring omission, especially when dealing with the identified “fan merchandise” defendants, as the correct question then should have been whether consumers are likely to believe that the goods are authorised or endorsed by Allu Arjun. The order seems to have glossed over and assumed this conclusion without demonstrating it whatsoever, and clubbed the rights of Allu Arjun in his own personality indicia with those in his character portrayals.
All is not bad, though. A redeeming is seen at para 39 a., which restrains the identified and bundled defendants from violating, very broadly, the plaintiff’s “personality/publicity rights” and from “misappropriating” the personality indicia of the plaintiff for commercial purposes – which is exactly what a successful RoPub claim entails. Then again, however, para 39 b. moves to restraining the defendants from “misappropriating the plaintiff’s performances” – without any preceding discussion on what such an action in “misappropriation of performance” entails.
This concludes Part I, tracing the Court’s doctrinal missteps in conflating copyright eligibility – with RoPub – with passing off; and also virtually obliterating structural and doctrinal limits; distinct elements and tests for each right to be claimed. Part II will examine the Court’s shortcomings in adequately distinguishing fan activities from technological misuse, and will locate all these errors within broader structural deficiencies in similar rulings.