A celebrity’s name and image are protected by publicity rights while they live. But do those rights survive death, letting heirs stop unauthorised commercial use? India has no clear answer — and that’s the grave question.
The right of publicity
Once famous, a person becomes almost a product for mass consumption. The right of publicity (personality rights) lets a person own and control the commercial use of their name and image, and stop others profiting off their persona — protecting what they built through hard work. The contention: should these rights, like property, continue post-mortem, with heirs entitled to prevent unauthorised use?
Einstein vs GM (US)
General Motors used a morphed image of Albert Einstein — buff body, e=mc² tattoo — with the tagline “Ideas are sexy too.” The Hebrew University of Jerusalem (heir to Einstein’s IP) sued for violating the right of publicity and unfair competition. The court held that over 60 years after his death, people could incorporate Einstein’s persona into creative expression — consumers would get the joke and not think Einstein (or his heirs) endorsed the car.
India: Rajinikanth laid the foundation
In India, Rajinikanth laid the foundation of publicity rights, when a film tried to use his name and dialogue style without consent. The Madras High Court held his name couldn’t be used without permission, that publicity rights vest in those who’ve attained fame, and that mere unauthorised use suffices — no need to prove falsity or confusion. (See our detailed note on the Rajinikanth case.)
But post-mortem? The law is silent
Courts haven’t expressly ruled on post-mortem rights. The only post-mortem protection is under the Emblems and Names (Prevention of Improper Use) Act, which bars commercial use of certain images/names — Mahatma Gandhi, Jawaharlal Nehru and others. When Mont Blanc issued a commemorative Gandhi pen (priced up to ₹12 lakh), a PIL won an injunction against using Gandhi’s image as a symbol of decadence.
For celebrities not in that Act, post-mortem publicity rights link to privacy — part of the Article 21 right to life and liberty — but there’s no precedent on post-mortem enforcement. The only recourse is the ASCI Code, the Commercial Advertising code, and radio-advertising standards, which require prior authorisation for use.
So what happens?
Had GM used, say, C.V. Raman, there’d likely be protests and outrage — but not clear legal recourse for the heirs, who might resort to an injunction or defamation. Absent a clear post-mortem publicity right, decisions must be case by case — and until the law develops, the famous can rest assured no one can exploit them without digging their own grave (of controversy).
The takeaways
- Publicity rights are recognised for the living (Rajinikanth) — but post-mortem rights aren’t settled.
- Only the Emblems and Names Act clearly protects specific deceased figures (Gandhi, Nehru).
- The Mont Blanc Gandhi pen was injuncted under that Act.
- Other celebrities’ heirs have no clear route — decided case by case, via privacy/Article 21 or defamation.
Frequently asked questions
Do publicity rights survive death in India? There’s no clear law — courts haven’t expressly recognised post-mortem publicity rights, so such claims are decided case by case, unlike the living-celebrity rights recognised in the Rajinikanth case.
What protects deceased public figures like Gandhi? The Emblems and Names (Prevention of Improper Use) Act, which bars commercial misuse of certain names/images — as enforced against the Mont Blanc Gandhi pen.
Can heirs stop commercial use of a deceased celebrity’s image? There’s no clear post-mortem publicity right for celebrities outside the Emblems and Names Act; heirs may resort to injunctions or defamation, decided on the facts.
Are publicity rights linked to privacy? Yes — post-mortem publicity rights are linked to privacy, part of the Article 21 right to life and personal liberty, though enforcement after death remains unsettled.
Legislation referred to
- The Trade Marks Act, 1999
- The Emblems and Names (Prevention of Improper Use) Act, 1950