Not Copyright Infringement But Passing Off: Answering The Delhi High Court's Question On Celebrity Photographs

The question from the Bench

On 28.09.2026, while hearing the suit filed on behalf of Ms. Aaradhya Bachchan [CS(COMM) 230/2023] along with two connected suits, the Hon'ble Mr. Justice Anup Jairam Bhambhani of the Delhi High Court put to the Bar a question which goes to the root of the personality rights docket. As reported by LiveLaw, the learned Judge asked whether a person who may freely photograph the Taj Mahal may not photograph a celebrity, observed that "The conventional law says that copyright in that photograph belongs to the photographer", and asked whether the photographer's use of his own photograph then becomes a violation of the celebrity's personality rights. The answer from the Bar, as reported, was that the owner of the copyright would still require a clearance of personality rights.

It is pertinent to note that the question did not arise in a vacuum. On 10.11.2025, another learned Judge of the same Court, declining to restrain the sale of posters of the 1973 film Abhimaan in the suit filed by Ms. Jaya Bachchan, is reported by Bar and Bench to have told learned counsel: "You don't have any copyright in this." The same Court has, on the other hand, vide its interim order dated 12.08.2026 in Khushi Kapoor v. Ashok Kumar/John Doe and Ors. [CS(COMM) 869/2026], recorded that a stock photography platform's licensing of photographs of the plaintiff taken at public events "amounts to unauthorised commercial exploitation of her likeness and personality attributes and violation of copyright", without stating how the plaintiff came to own the copyright in them.

The Court has thus, within one year, told one actor that she has no copyright in a film poster and recorded a violation of copyright in photographs of another. Delhi High Court has always been the forerunner in shaping the jurisprudence of Intellectual Property Rights and therefore the question raised by Delhi High Court deserves a doctrinal answer.

The premise is correct

The Copyright Act, 1957 includes a photograph within "artistic work" under Section 2(c), defines its author in Section 2(d)(iv) as "the person taking the photograph", and makes the author the first owner of the copyright under Section 17. The statute thus attaches authorship to the act of taking the photograph and not to the person in front of the lens, a position as old as Burrow-Giles Lithographic Co. v. Sarony reported as 111 U.S. 53 (1884), where the copyright in a portrait of Oscar Wilde was held to belong to the photographer.

Nor is there a copyright at common law to fall back upon. Section 16 provides that no person shall be entitled to "copyright or any similar right in any work" otherwise than under the Act or any other law in force, and a Division Bench of the Hon'ble Delhi High Court held in Time Warner Entertainment Company L.P. and Ors. v. RPG Netcom and Ors. reported as AIR 2007 Delhi 226 that the plaintiffs "cannot claim copyright and sue for infringement of copyright de-hors the Act."

The proposition is admittedly not universal, and a plaint which treats every image of the plaintiff alike will be wrong about most of them.

The performers' rights in Sections 38 to 38B do not fill the gap, inasmuch as a photograph taken at an airport is not a "performance" within Section 2(q). The deepfake sharpens the point: under Section 2(d)(vi) the author of a computer-generated work is "the person who causes the work to be created", and the one person who cannot answer that description is the person depicted.

A plaintiff who is neither the author, nor the first owner under a proviso to Section 17, nor an assignee in writing under Section 19, nor an exclusive licensee, has no cause of action for infringement of copyright in a photograph. Fame is not a mode of acquiring title.

What the wrong label costs

It may be said that nothing turns on the label so long as the injunction issues. With respect, a good deal turns on it. An order which records a violation of copyright without identifying the work, the author and the chain of title is exposed in appeal. Furthermore, a celebrity whose representatives issue copyright notices over photographs he does not own invites a suit for groundless threats under Section 60. The wrong label does not merely fail. It puts the sound parts of the claim at risk.

Copyright is a right to exclude, not a licence to use

The question from the Bench carries a second premise, and it is here that the answer begins. It assumes that if the photographer owns the copyright, his use of the photograph is lawful as against the person in it. Section 14, however, confers only an exclusive right to do or authorise certain acts in respect of the work. It is a right to stop others, and not an immunity from every other law which the use of the work may attract. A photograph of a celebrity is thus one object carrying two interests. The work belongs to the person who made it. What the work is made to say about the person in it belongs to a different branch of the law.

Copinger names the cause of action

Copinger and Skone James on Copyright deals with the point in its treatment of the advertising industry (17th edn., paragraphs 26-356 to 26-358). The learned authors identify defamation and passing off as the two causes of action clearly available, in appropriate circumstances, to a living person referred to in an advertisement without authority. On passing off, paragraph 26-358 states that the claim is available to a celebrity whose image or name appears in an advertisement without his consent, where the manner of the use conveys to the public that he has consented. The claimant must prove that false message and injury to a goodwill which he himself trades upon, which the authors consider unlikely in the case of a private person, or of a public figure such as a senior politician who does not endorse products for a fee. The authority cited is Irvine v. TalkSport Ltd. A treatise on copyright thus sends the reader not to copyright but to passing off, and tells him in the same breath where passing off stops.

Delhi said so in 2007, and Madras recorded it in 2008

The principle is not foreign to the Court which asked the question. In Time Warner, decided on 15.05.2007, film studios which had been refused injunctions in respect of films not yet made fell back on the law of tort. The Division Bench set out the three classical requirements of passing off, namely reputation or goodwill, misrepresentation and resultant damage, and held at paragraph 18:

"Action for passing off can be initiated, where interest of an author or owner of a copyright work in his business reputation and goodwill is damaged by misrepresentation that falls outside the copyright law, i.e. the Act. Passing off action will be maintainable, when the claim is not based on infringement of copyright but damage to reputation and goodwill of the proprietor and the said damage is caused by deceit or misrepresentation by the defendant."

The Bench referred to Copinger and Skone James on Copyright for the proposition that recourse to the tort lies where copyright does not reach. The studios nevertheless failed, because passing off had not been pleaded, and the Bench held at paragraph 19 that "To claim injunction on the basis of passing off under law of tort, necessary pleading in the plaint is incumbent". Time Warner thus supplies both the doctrine and the discipline.

The passage travelled south within a year. In Mariappan and Ors. v. A.R. Safiullah and Ors. reported as 2008 (38) PTC 341 (Mad), a dispute over a patent for artificial banana leaves, a Division Bench of the Hon'ble Madras High Court reproduced paragraph 18 in full at paragraph 43 of its judgment while recording the submissions of learned Senior Counsel, and sustained the injunction against passing off. So far as a search of the Indian Kanoon database shows, it is the only later decision to reproduce the passage. The passage has not travelled back to the field where it is most needed.

The photograph cases

In Irvine v. TalkSport Ltd. reported as [2002] 1 W.L.R. 2355, a radio station circulated a leaflet bearing the image of a Formula One driver holding a radio. As the Court of Appeal recorded in its judgment reported as [2003] EWCA Civ 423, the station had "(perfectly properly and without any breach of copyright) purchased from a photographic agency a photograph of Mr Irvine listening to a mobile telephone", and had substituted a radio for the telephone. Liability nonetheless followed in passing off, on proof of goodwill and of "a false message which would be understood by a not insignificant section of his market that his goods have been endorsed, recommended or are approved of by the claimant."

Fenty v. Arcadia Group Brands Ltd. reported as [2015] EWCA Civ 3 is closer still. A retailer sold a T-shirt bearing a photograph of the singer Rihanna which had been "taken by an independent third party photographer. He, as owner of the copyright in the photograph, licensed the use of the image to Topshop". The retailer was held liable in passing off all the same. The English courts were careful about the limits: Kitchin L.J. held that "There is in English law no 'image right' or 'character right' which allows a celebrity to control the use of his or her name or image", and Birss J. had held at first instance that "The mere sale by a trader of a t-shirt bearing an image of a famous person is not, without more, an act of passing off."

It is evident from these decisions that a person who owns the copyright in a photograph, or holds a licence from the owner, can yet commit a wrong against the person photographed. The wrong is not infringement of copyright. It is the false message which the use conveys.

The Court's own decisions point the same way

The Hon'ble Delhi High Court had itself reached this position before the present wave of suits began. D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. reported as 2010 SCC OnLine Del 4790 required a claimant alleging false endorsement to prove that the use of his identity "likely misled consumers into believing the concerned personality endorsed the product at issue." In Digital Collectibles Pte Ltd. and Ors. v. Galactus Funware Technology Pvt. Ltd. and Anr. [CS(COMM) 108/2023, decided on 26.04.2023], the Court held at paragraph 55 that "the violation of the right of publicity in India has to be considered on the touchstone of the common law wrong of passing off", and that the right "cannot be infringed merely on the basis of a celebrity being identified or the defendant making commercial gain". It is settled position of law, since Laxmikant V. Patel v. Chetanbhat Shah and Anr. reported as (2002) 3 SCC 65, that no one may carry on business so as to persuade customers that the goods or services of another "are his or are associated therewith". Association is the language of endorsement.

The contrary observation in Shivaji Rao Gaikwad v. Varsha Productions reported as 2015 (62) PTC 351 (Mad), that infringement of the right of publicity "requires no proof of falsity, confusion, or deception", cannot stand with paragraph 55 of Digital Collectibles as the test for the commercial claim. The materials are thus all on the record. What the reports of the present hearings do not show is their being assembled in answer to the question of the photographer's copyright.

Testing the answer

A proposition of this kind must be tested against the uses which actually come before the Court.

Passing off thus governs the commercial half of what is pleaded as personality rights. It does not govern the dignitary half, and it was never meant to: the Hon'ble Supreme Court in R. Rajagopal v. State of T.N. reported as (1994) 6 SCC 632 located the objection to the use of a person's name or likeness without consent in the right to privacy. It may be objected that this shrinks the protection available to celebrities. The objection is correct, and it is the merit of the approach, inasmuch as goodwill, misrepresentation and damage are the line which the Court has been asking the Bar to draw. The dignitary cases lose nothing. They return to privacy and defamation, where a deepfake of a private citizen is as actionable as one of a film star.

The views expressed are personal and are offered as a discussion of principle. The suits referred to are pending, and nothing in this article is a comment on their merits.

Navod Prasannan is also the author of A Practitioner's Casebook on the Arbitration and Conciliation Act, 1996 and Jurist’s Crossword: Foundations

Table of References

1. Can Using Celebrity's Image Violate Personality Rights When Copyright Vests With Photographer? Delhi High Court Asks, LiveLaw, 28.09.2026.
2. Delhi High Court protects Jaya Bachchan's personality rights, Bar and Bench, 10.11.2025.
3. Khushi Kapoor v. Ashok Kumar/John Doe and Ors., CS(COMM) 869/2026, order dated 12.08.2026, paragraphs 40 and 44.
4. Copinger and Skone James on Copyright (17th edn., Sweet & Maxwell), paragraphs 26-356 to 26-358.
5. Time Warner Entertainment Company L.P. and Ors. v. RPG Netcom and Ors. reported as AIR 2007 Delhi 226, paragraphs 9 and 17 to 19.
6. Mariappan and Ors. v. A.R. Safiullah and Ors. reported as 2008 (38) PTC 341 (Mad) and (2008) 6 MLJ 1117, paragraphs 43, 69 and 70.
7. Irvine v. TalkSport Ltd. reported as [2002] 1 W.L.R. 2355; judgment of the Court of Appeal, neutral citation [2003] EWCA Civ 423, paragraphs 15 and 33.
8. Fenty v. Arcadia Group Brands Ltd.: judgment at first instance, neutral citation [2013] EWHC 2310 (Ch), paragraph 75; judgment of the Court of Appeal, neutral citation [2015] EWCA Civ 3, paragraphs 2, 5 and 29.
9. M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. reported as 2010 SCC OnLine Del 4790, as extracted in Digital Collectibles, paragraph 44.
10. Digital Collectibles Pte Ltd. and Ors. v. Galactus Funware Technology Pvt. Ltd. and Anr., CS(COMM) 108/2023, decided on 26.04.2023, paragraph 55.
11. Laxmikant V. Patel v. Chetanbhat Shah and Anr. reported as (2002) 3 SCC 65.
12. Shivaji Rao Gaikwad v. Varsha Productions reported as 2015 (62) PTC 351 (Mad), paragraph 21.
13. Rajagopal v. State of T.N. reported as (1994) 6 SCC 632, paragraph 9.
14. Burrow-Giles Lithographic Co. v. Sarony reported as 111 U.S. 53 (1884).
15. Delhi HC on personality rights: No blanket injunctions, MediaNama, 22.09.2026.
16. The Copyright Act, 1957, Sections 2(c), 2(d), 2(q), 2(s), 14, 16, 17, 19, 38 to 38B and 60.

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