The Right to Publicity: 21 Years Since Madow’s Scathing Verdict, Yet……. The Show Must Go On?

Courts lately have been passing a slew of ex-parte ad interim orders against Generative Artificial Intelligence (‘gen AI’) models for training their models using the voices of celebrities, and for producing output that reciprocates the celebrity’s voice. (Not their performance, just their voice! The difference is crucial!)

Most recently, in Arijit Singh v. Codible Ventures LLP and Ors., the Bombay High Court has granted an ex-parte ad-interim injunction against  various gen AI tools prohibiting them from exploiting the “name”, “image”, “voice” and “personality traits” of the renowned singer Arijit Singh. Prior to this, in Jaikishan Kakubhai Saraf alias Jackie Shroff v. The Peppy Store and Ors., the Delhi High Court restrained a gen AI chat-bot from operating its platform which responds to certain questions in the way, the famous actor Jackie Shroff would. Even before this, the Delhi High Court in Anil Kapoor v. Simply Life India and Ors., has restrained various Defendants from using gen AI tools for exploiting the attributes of the persona of the famous actor Anil Kapoor, including his voice, to create any merchandise, ringtones, ring back tones etc.

Importantly, for our purposes, due to these orders essentially being ex parte, none of these Courts have indulged in weighing whether the additional revenue stream supposedly due to the celebrity for exploitation of their likeness/voice is a more/less important legal interest when pit against the freedom of expression of society, and commercial ventures in using their likeness/voice as a cultural symbol or for producing new expression as a part of the cultural grammar (when use is not deceptive or defamatory, but merely appropriative). The analysis of freedom of expression has been restricted to cases of parody/satire/memes­­––due to the potential impossibility of licensing the same, resulting in potential market failure and thus a need to protect. But does freedom of expression stop short at that? At least a finding thereof is crucial yet missing.

Prof. Michael Madow, in his seminal (and scathing!) piece in 1993 titled Private Ownership of Public Image, providing a contrary point of view, in defense of use of the name/image and likeness of celebrities, for commercial purposes, however in a non-deceptive/defamatory way that does not harm the reputation of the celebrity or mis-appropriate/represent their goodwill. Here are the key repudiations, which may all the more be relevant for Courts to consider in defense of use of such names, images, likeness and voices by genAI platforms, especially due to the want of a statute.

• “It Protects Their Hard-Earned Reputation”

The Claim: Celebrities have valuable personality rights due to their immense goodwill and reputation. Unauthorized use for commercial gain violates these rights.

The Reality Check:

• The Meaning Monopoly: It’s Not About Money, It’s About Meaning: The judicial and academic rhetoric on publicity rights makes reference to ‘natural right’, ‘economic incentives’ and ‘unjust enrichment’. The subtext however is control over the production and circulation of meaning in our society. It’s not really about protecting celebrities’ income streams; it’s about who gets to control the narrative in our culture. By framing publicity rights as a form of property protection, we’re actually granting celebrities (and their management teams) the power to shape public discourse and cultural meaning, in a top-down centralized manner, given their relevance to the grammar of cultural communication and consciousness of our society.
• The Fame Lottery- “deservingness” fallacy: “Fame does not play fair, it plays favorites,” says Madow. This arbitrary nature of fame utterly undermines the idea that celebrities inherently deserve exclusionary rights to profit from their public image. Fame often hinges on factors entirely beyond an individual’s control:
• Timing: Being in the right place at the right time.
• Luck: That random viral moment or chance encounter.
• Societal trends: Riding the wave of what’s “in” at the moment.
• Collective whims of fans and media: The unpredictable nature of public attention. “Plenty of people become famous through sheer luck, dramatic misfortune, or involvement in scandal or criminal activity. Do they ‘deserve’ to own and control their celebrity identities?”

The concept of “deserving” fame or the right to control one’s image becomes extremely problematic when we consider the arbitrary nature of celebrity. A sports star who achieves fame through skill may seem more “deserving” than a reality TV personality who becomes famous for outrageous behavior. But who are we to judge the value or legitimacy of different forms of fame? The legal system certainly isn’t equipped to make such distinctions.

• Fame: Nature or Nurture?: Fame is not solely produced by individual effort but is relationally constructed. The public and media play crucial roles in ascribing semiotic power to celebrities. Publicity rights ignore this collaborative reality. This point underscores the collective nature of fame creation. A celebrity’s reputation isn’t solely the result of their own efforts; it’s co-created by fans, media, and the broader culture. Granting exclusive control over this collectively produced asset to the celebrity alone is a fundamental misunderstanding of how fame works. We, the public, are active participants in creating and sustaining celebrity:
• Fan culture: From letter-writing campaigns to social media stan armies.
• Media amplification: Tabloids, entertainment news, and gossip sites.
• Consumer choices: What we watch, buy, and engage with shapes the celebrity landscape.

Moreover, there’s no empirical justification for claiming more labor input by famous individuals compared to non-famous ones. Cultural production always involves borrowing and reworking existing cultural elements. society as a whole plays such a significant role in creating and maintaining celebrity status, how can we justify giving individual celebrities exclusive control over their public image? It’s akin to allowing a surfer to claim ownership of the wave that carried them to shore.

• The Reputation Paradox: How can a movie star or a professional athlete, who had deliberately and energetically sought the limelight, complain of embarrassment and hurt feelings when an advertiser or merchandiser simply gave their face additional publicity?
• “It’s Their Voice, Their Face – They Should Control It”

The Claim: Technological exploitation infringes upon an individual’s right to control and protect their own likeness and voice.

The Reality Check:

• The Privacy Bait-and-Switch: Initially conceptualized as protection against “embarrassment” or “reputational injury,” personality rights have morphed into a property-like right to control and profit from one’s likeness. This evolution reveals how publicity rights have strayed from their original purpose. What began as a protection against genuine harm has become a tool for extracting profit from public attention. This shift fundamentally alters the balance between private rights and public interest.
• The Celebrity Privacy Paradox: How can a movie star or a professional athlete, who had deliberately and energetically sought the limelight, complain of embarrassment and hurt feelings when an advertiser or merchandiser simply gave their face additional publicity? This question exposes the inherent contradiction in many publicity rights claims. Celebrities actively seek public attention and benefit enormously from it. To then claim harm from that same public attention when it’s not directly compensated seems disingenuous at best. The real complaint is about uncompensated publicity, not unwanted exposure. This paradox cuts to the heart of why publicity rights for celebrities are so problematic. Public figures actively court attention and benefit enormously from public recognition. To then claim a privacy interest in controlling all uses of their image is inconsistent with their chosen public role.
• The Public Domain Dilemma: Aren’t the voices and images of celebrities already in the public domain by virtue of their celebrity status? This places them outside their zone of reasonable expectation of privacy, especially for non-deceptive uses. This question challenges the very basis of publicity rights. If someone has deliberately made themselves a public figure, profiting from public attention and recognition, how can they then claim exclusive control over their public image? It’s akin to a company trying to trademark common words after they’ve entered general usage.
• Privacy vs. Property: A defense of privacy using the well-founded argument of ‘dignitary interests’ while simultaneously enabling their evasion/licensing via contract would be nothing short of perverse. Publicity rights are thus, suspect to, this logical inconsistency in being treated rights as a form of privacy protection. If these rights are truly about protecting personal dignity, how can we justify allowing them to be bought, sold, and traded like any other form of property? This commodification of personality undermines any claim to dignitary protection. The fundamental reduction of  the fundamental right to privacy to a monetarily transactable activity let alone to the vagaries of the freedom of contract, is contradictory to its foundational justification based on human dignity. For instance, someone who is economically in need, could have the option to give up their right to privacy for a meagre compensation, in respect of a huge volume of their personal data, merely on account of the fact that the meagre compensation was something that they, as rational fools, preferred at that instant of time. Courts looked down upon such waiving of personal and fundamental rights through economic transactions, as the same would be detrimental to fundamental “being” in a society.
• “It Protects Them From Exploitation”

The Claim: Capitalizing on celebrities’ identity subjects their personality rights to potential abuse and jeopardizes their career and livelihood.

The Reality Check:

• The Myth of Total Ownership: No one, be it a celebrity or a carpenter has a property right to extract and internalize the full value of their labour. Why should celebrities be a special case?. In no other area of life do we grant individuals the right to capture all value derived from their work or existence. A beautiful building adds value to a neighborhood, but we don’t demand that passersby pay the architect for the privilege of looking at it. Why should celebrities be granted this extraordinary right to control all value associated with their public image?
• The Positive Externality Principle: Society generally doesn’t require compensation for all benefits derived from others’ efforts. A food vendor near a stadium may charge ‘supramarginal’ prices because of the crowd attracted by the game inside, yet we do not require him to compensate the stadium owner. Our economy and society function through a complex web of uncompensated benefits. Celebrities, like sports teams or beautiful buildings, create positive externalities that benefit others. This is not a bug in the system; it’s a feature of how culture and commerce interact.
• The Missing Harm: Non-deceptive uses of celebrity likeness don’t create obvious social costs or disincentives for celebrities to pursue their primary activities. There’s no evidence of inefficiency in cultural production when celebrity likeness is used non-deceptively. This point is crucial. For a legal protection to be justified, there should be clear harm prevented or benefit provided. In the case of non-deceptive uses of celebrity images, it’s not clear what harm is being prevented. Celebrities continue to pursue fame and fortune even in contexts where their image rights are less protected, by practicing the vocations that generate fame in the first place.

• The Incentive Illusion: There is no incentive loss, as the only kind of incentives that the law is concerned with are enablement incentives and not incentives that cater to luxurious accumulations. Legal intervention by providing exclusionary rights in informational goods, which are often public goods due to their non-rivalrous and non-excludable nature, is for a specific purpose. We bear the social cost on access and downstream creation to enable production of information goods, as they are costly to create and cheap to imitate. However, this production problem does not exist with publicity rights, as the source of enablement or a revenue stream that incentivizes production already exists (through the vocation that generates the fame). The law should only be concerned with providing incentives that enable creative production, not with guaranteeing additional income streams for already successful individuals.

  Non-deceptive uses of celebrity likeness don’t create obvious social costs or disincentives for celebrities to pursue their primary activities. Celebrities are already highly incentivized to cultivate their public image through their primary income sources (acting, sports, music, etc.). The idea that they need additional incentives in the form of publicity rights to motivate them is simply not credible. To the contrary, conferring an exclusionary right over name and likeness (including voice, etc.), de hors deception or defamation, generates significant inefficiencies for downstream cultural production, without any efficient tradeoff. There, is thus, no viable rationale, to provide any economic right or a right to exclude over such intrinsic human traits that are part of the cultural grammar as a result of socially generated “stardom”.

• The Misappropriation Misconception: It is not commercial appropriation that is actionable but commercial mis-appropriation – appropriation that causes ‘harm’ which is socially recognized and not individually stated. This distinction is crucial. Not all uses of a celebrity’s image or likeness are harmful, even if they are commercial in nature. The law should be concerned with preventing genuine harm, not with allowing celebrities to monetize every instance of their image being used. There is no common law prohibition from benefitting from the commercial efforts of others, unless it causes a socially recognised “harm”, often known as a negative externality which has an adverse effect either on incentives or a socially desirable pursuit. Take for instance- passing off- it requires mis appropriation by causing deception – a socially recognised harm. Take IP rights- it causes mis appropriation as it causes static inefficiencies- de-incentivsing pursuit of socially valuable cultural and technological innovations. As already observed above- there is no such inefficiency caused by virtue of non-deceptive cultural use of images, names and likeness of celebrities.
• The Icing on the Cake: Unlike copyright, which protects even starving artists, the right of publicity only provides the proverbial ‘icing on the cake’ to already established stars.”Copyright serves a clear purpose in incentivizing creative production and protecting the livelihoods of artists at all levels. Publicity rights, on the other hand, primarily benefit those who are already successful and wealthy. Publicity rights are less about protecting vulnerable creators and more about extending the earning power of celebrity brands.
• “It Stops Others From Profiting Off Their Fame”

The Claim: Unauthorized use of name, likeness, and voice can lead to unearned commercial gain for another party.

The Reality Check:

• The Labor Myth: Fame is not solely the result of individual labor but a complex social process. As previously noted, Even the celebrity herself does a good deal of ‘borrowing’ and ‘free riding’ on others’ ideas, images, and sounds. If fame is a collaborative creation involving the media, fans, and broader cultural trends, why should the celebrity have a monopoly on its commercial exploitation?
• Transformation Creates Value: Many uses of celebrity likeness, especially in AI contexts, create new value through transformation. These transformative uses often contribute to cultural dialogue without causing harm to celebrities. This is particularly relevant in the digital age. When artists, meme creators, or AI systems repurpose celebrity images, they’re often creating entirely new cultural works with new meanings using the celebrity as a part of the grammar in the language of cultural production. These transformative uses can add significant value to our cultural discourse without detracting from the celebrity’s own earning power.
• No Clear Rationale: There is thus, no viable rationale, to provide any economic right or a right to exclude over such intrinsic human traits that are part of the cultural grammar as a result of socially generated ‘stardom’. Unlike other forms of intellectual property, there’s no clear justification for granting celebrities this level of control over their public image. It doesn’t serve a clear social purpose, doesn’t incentivize creation in the way that patent or copyright law does, and potentially harms cultural discourse.
• The Cumulative Nature of Culture: Cultural production is always and necessarily a matter of reworking, recombining, and redeploying already-existing symbolic forms, sounds, narratives, and images. Culture doesn’t progress through entirely original creations springing forth from individual geniuses. It evolves through recombination, reinterpretation, and dialogue with existing cultural elements. By restricting the use of celebrity images, which are significant cultural symbols, we risk stifling this process of cultural evolution.
• “It Protects Consumers From Deception”

The Claim: Unauthorized platforms cannot mislead consumers into believing they are permitted to collect fees by misappropriating celebrities’ personas.

The Reality Check:

• The Deception Detection Fail: The law should distinguish between uses that cause genuine consumer confusion and those that don’t. Non-deceptive, non-defamatory uses play a crucial role in cultural dialogue and should be given more leeway. This point highlights the importance of nuance in applying publicity rights. Not all unauthorized uses of a celebrity’s image or likeness are deceptive or harmful. Many uses, particularly in artistic or commentary contexts, are clearly not attempting to mislead consumers about celebrity endorsement.
• Endorsement Overreach: Extending endorsement rights to all uses of celebrity likeness is an overreach. It assumes that any use of a celebrity’s image implies endorsement, which is not necessarily true in cultural or artistic contexts. This assumption fails to account for the many ways celebrity images are used in our culture. When an artist creates a portrait of a famous person, or a comedian impersonates a celebrity, or a mimicry artist performs their skill, no reasonable person would assume this implies endorsement. Treating all uses as potential endorsements ignores the rich tradition of cultural commentary and artistic expression involving public figures.
• We Already Have Laws for That: Existing laws on fraud, misrepresentation, and false advertising already protect against genuine cases of consumer deception. This point underscores the redundancy of using publicity rights to prevent consumer deception. Our legal system already has robust protections against false advertising and consumer fraud. Adding another layer of protection through publicity rights is unnecessary and potentially harmful to free expression.
• “It’s a Privacy Issue”

The Claim: Unauthorized use violates the right to privacy of the celebrity and amounts to dilution and blurring, which are actionable torts.

The Reality Check:

• Privacy vs. Profit: Privacy rights are fundamentally about protecting personal information and dignity, not commercial interests. This distinction is crucial. Publicity rights are often framed as a privacy issue, but their primary function is to allow celebrities to profit from their image. This conflation of privacy and property rights is problematic and potentially undermines genuine privacy protections.
• The Harmless Dilution: Not all uses that could be considered “dilution” actually cause harm to the celebrity’s brand or image. Many uses may actually enhance the celebrity’s cultural relevance and value. This point challenges the assumption that any unauthorized use of a celebrity’s image necessarily harms their brand. In many cases, cultural references or artistic uses of celebrity images can increase their cultural cachet and reinforce their status as important public figures.
• The Public Interest Trumps Card: There’s a strong public interest in allowing cultural dialogue and commentary involving public figures. This interest often outweighs the marginal harm of potential “dilution.” This balance is critical. While celebrities have a legitimate interest in protecting their reputation, this must be weighed against the public’s interest in free expression and cultural commentary. In many cases, the social value of allowing unrestricted use of celebrity images in cultural discourse outweighs any potential harm to the celebrity’s brand.

• Cultural Expression in Handcuffs: Strict enforcement of publicity rights can chill important forms of cultural commentary, critique, and artistic expression. This could lead to homogenizing cultural discourse in a top-down centralized manner. By limiting the ways in which artists, commentators, and ordinary citizens can engage with celebrity images, we risk creating a cultural landscape that is less diverse, less critical, and ultimately less vibrant.
• Innovation Interrupted: As AI and other technologies evolve, overly broad publicity rights could stifle innovation. We risk sacrificing tomorrow’s creative breakthroughs on the altar of celebrity control. This concern is particularly relevant in the age of AI and machine learning. Many cutting-edge technologies rely on large datasets that may include celebrity images. Overly restrictive publicity rights could hamper the development of these technologies, potentially slowing progress without any cognizable harm.
• The Fame Gap Widens: As there are unjustified disparities in fame, due to visibility or what controllers of visibility i.e., the media likes etc., such disparities are usually accompanied by disparities in income- the superstar 1% vs. the rest. What a Right to Publicity, as a matter of policy does is exasperate such disparity, as against remedy it- channeling additional dollars under the garb of a completely unrelated cloak of a dignitary interest- privacy- but with the remedy of a property claim i.e., exclusionary rights.”This exacerbates existing inequalities in the entertainment industry, widening the gap between established stars and struggling artists. The publicity rights regime doesn’t just protect celebrity images; it actively contributes to wealth inequality in the entertainment industry. By granting additional legal protections and revenue streams to those who are already at the top of the fame pyramid, we’re creating a system that makes it even harder for new talent to break through and challenge established stars.
• Public Domain in Peril: Publicity rights effectively privatize aspects of our shared cultural history. Celebrities are not just private individuals; they’re part of our shared cultural narrative. Allowing perpetual control over their images limits our ability to engage with and reinterpret our own cultural history.
• Dialogue Diversity Diminished: Strict personality rights stifle diverse cultural conversations by allowing only “preferred meanings” of celebrities to circulate. This limits the potential for critique and reinterpretation of cultural icons. This point underscores how publicity rights can lead to a sanitized, corporate-approved version of celebrity culture. By giving celebrities (or their estates) control over how their image is used, we limit the potential for critical, subversive, or alternative interpretations of these cultural figures.

Let’s go back to the question we started with: “Whether the additional revenue stream supposedly due to the celebrity for exploitation of their likeness/voice is a more/less important legal interest when pit against the freedom of expression of society, and commercial ventures in using their likeness/voice as a cultural symbol or for producing new expression as a part of the cultural grammar (when use is not deceptive or defamatory or harming the reputation of the celebrity)?”

In my view, the answer seems to be a strong no. There is no justification, whether economic or moral in favour of the former, as against the cost it imposes on the latter. There is no overpowering incentive function of the Right to Publicity (beyond intellectual property or compensation from the activity to which one owes their fame), as compared to the dynamic inefficiency or the cost it incurs on downstream cultural production. There is no fairness claim to labour that is ipso facto valid to justify full internalization of value through a property-like right, inspite of there being no harm. Moreover, there is a widening of the gap that such rights generate between the lucky superstar and the hard-working, yet unlucky, struggling performer.

We need a more nuanced approach that considers:

• The socially constructed nature of fame
• The importance of diverse cultural dialogues
• The potential benefits of non-deceptive, transformative uses
• The adequacy of existing protections for celebrities
• The need to foster innovation in the AI era

Such a nuanced understanding foundationally challenges the basis of the ex parte orders passed by the Delhi High Court and the Bombay High Court. It is, thus, time to unmask the publicity rights racket and reclaim our collective cultural conversation. The stakes are nothing less than the richness and diversity of our shared cultural discourse.