Anil Kapoor & Jhakaas: Is artists' work an end in itself or is it a means to an end?

The court ruled that anybody using the expression in Aninl Kapoor’s style for commercial purposes is in violation of his right to his personality traits.

Jhakaas!

This is the best description for the interim order passed by the Delhi High Court on a plea moved by actor Anil Kapoor to grant him legal protection against the misappropriation of his persona and “personality rights” by third parties across mediums, digital included. In the course of the hearing, Kapoor’s counsel argued that the usage of the aforementioned catchphrase may be common but the manner in which he delivered it in his popular film ‘Yudh’ is unique to him. Therefore, anybody using the expression in Kapoor’s style for commercial purposes is in violation of his right to his personality traits.

While the court passed an interim order in favour of Kapoor, this writer’s right to use jhakaas for the purpose of making a point was defended in yet another judgment delivered by the Delhi High Court in April this year, in which the court said that the use of names and images of celebrities for the purpose of satire, parodies, art, academics, news and information is to be defended in the interest of the right to the freedom of speech. On the face of it, these may seem like trivial issues but at their core are some entangled social, cultural, economic and legal issues that need unscrambling.

Intrinsic vs Extrinsic Motivation

The story goes that after he finished writing Ramayana, Goswami Tulsidas was asked by many of his well-wishers to make amends to his text for wider appreciation and acceptance. He, however, refused such suggestions saying that the Ramayana was the reward in itself for his hard work and he wrote it not for any accolades but “swantah sukhay” or for his own inner joy.

Indeed, creativity, at its core, is the expression of internal quest for most human beings. However, the argument that the reward for artists is their work itself, is dated. A world that is driven by commerce and capital requires a framework to safeguard the art and artists’ interests, and also, provide an extrinsic motivation to create, and that motivation could be the freedom to monetize one’s work. To be sure, a work of art is meant for people and the society at large but when that work is used for profiteering by others, or when the creators are denied the monetary gains made on their account, then, it’s a situation that needs redressal not only for the artists’ sake but also, for the upkeep of the values that a civilised and sophisticated society needs to live by.

The intellectual property rights of actors and artists, to not only their work but their entire persona, need to be viewed in this context. These are not merely legal tools dictated by a capitalist system that puts a price tag to every component of social structure but also, a means to create an order and a cultural environment that encourages creativity and is fair.

Setting A Precedent

Kapoor had moved the court to seek legal protection against the misappropriation, digitally and otherwise, of his “personality rights”. In other words, he had sought shelter from the law against the use of his name, images, voice, and names, dialogues and mannerisms of popular characters he has played in films by a third party without his consent.

Last year, Amitabh Bachchan, too, had moved the Delhi High Court seeking similar protection. In his case, too, the court had acknowledged that Bachchan was entitled to such rights.

For actors, their persona and personality traits are the core assets upon which their livelihood depends. The legal acknowledgement of their right to defend it from misuse or use for commercial gains without their consent is a step in the right direction.

The court’s order on Kapoor’s plea is particularly special because it has set a precedent in acknowledging artists’ right to the digital versions of their art and personality, too. In its interim order, the Delhi High Court has restricted third parties from utilising in any manner Anil Kapoor’s name, likeness, voice, or any other aspect of his persona to create any merchandise, ring tones, ring-back tones or any other use of his name, likeness, image, etc, by use of tools like AI, face morphing and gifs.

There is an even more serious concern over the use of digital versions of an artist’s work and personality by a third party which is beyond profits. In today’s tech-driven world, where artificial intelligence tools make it possible to create content whose authenticity is difficult to ascertain, it is very easy to exploit someone’s goodwill and reputation or even damage it by creating unsavoury content.

Though monitoring such content on the internet is a herculean task, a clear legal directive on the issue is a good start. The most commendable in the series of judgments passed by the court on the subject is the distinction made on the usage of celebrity content for right and wrong reasons. To disallow it for commercial purposes and to defend its use in the interest of freedom of expression is expected of a mature legal system.

Jhakaas, again.

Archna Shukla is a senior journalist based in Delhi. Views are personal, and do not represent the stand of this publication.