Protecting Jhakkas! Anil Kapoor’s lawyer says celebrities’ unique character traits cannot be copied without authorisation

Anil Kapoor Jhakaas

As companies protect their trademarks, celebrities protect their persona, said lawyer Pravin Anand, who obtained an order from the Delhi High Court restraining unauthorised use of Anil Kapoor's personality, name and likeness for commercial use.

According to Anand, who is the managing partner of Anand and Anand, a person prefers a brand over another because of the magnetic power of that trademark, the trade dress and the experiences that it brings to their mind, based on previous consumption.

Similarly, when it comes to a human being, personality traits and characteristics also exert a magnetic effect on people, he said.
“People are drawn to character traits so much that they watch a film because of a certain actor or actress. You're drawn to a cricket match because of a particular player, you're drawn to a seminar because of a top speaker,” Anand said.

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He noted that when people are drawn to a person’s mannerisms and character traits, it assumes a value and cannot be used for monetary gains without authorisation. He explained that exploiting the value for monetary purposes without due authorisation is wrong as per law. The only exception to this, according to Anand, is fair use of someone’s copyright. Fair use permits a party to use a copyrighted work without the copyright owner's permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

When do a personality trait and a characteristic become valuable?

According to Anand, personality traits and characteristics become valuable when they become popular. For instance, in Anil Kapoor’s case the court has restrained companies from unauthorisedly using the word ‘jhakaas’ in the specific way the actor delivers it. This is because people associate the word ‘jhakaas’ with Anil Kapoor’s delivery in his distinctive manner.

Anand said, “When I uttered the word ‘jhakaas’ in the court, three of the staff members laughed, so I told the judge that it is popular enough for the general population to associate it with Kapoor. He said the word ‘jhakaas’ was used for the first time in the film Yudh in 1985.’ According to Anand, the word and the way in which it is delivered is unique to Kapoor and it has an impact on the audience, hence it becomes valuable.

Anand noted that since this is a very factual aspect, one has to see whether an action, word or trait by a celebrity is distinct to them, depending on case to case.

He cited the example of American public speakers who have a tendency to keep their hand in a particular way when they deliver lectures and noted that this cannot be distinctive because many of them use the same gestures.
He said, “To be distinctive, a trait, gesture or action should be attributable to just one person. If there is certain exclusivity and people broadly associate the trait with a particular individual, then it is worth protecting.”
According to Anand, when such traits, gesture or action is used by someone to make profits without consent, then the court may protect and stop them from using it. He said, “Amitabh Bachchan and Anil Kapoor’s voices are used in films and advertisements because people know it enhances the value of the product.” Anand noted that since it has value, others should not be permitted to exploit it as its owner will lose the market.

How can such orders be enforced?

Anand noted that in the era of internet and Artificial Intelligence, such orders can only have limited enforcement. Noting that it is difficult to trace people on the internet and penalise them for misusing a celebrity’s publicity rights, he said, “Since people hide behind the cloak of anonymity you can probably stop the wrong but you cannot punish them.”

The lawyer noted that if a personality right is being proliferated openly it can be stopped, however, on the internet the scenario is different. “If you find something in the darknet, the access to this content is limited and it does not hurt, but at least for a glaring and brazen wrong a court order takes it to a level that it is available only to a few who know how to navigate it.”
Anand noted that court orders create a deterrent to people who intend to copy the celebrity’s publicity right.