copyright trademark india
Is it legal to make a 3D model of a person without their consent?
<p>These would be 3D models of celebrities, famous people etc. Do I need consent for this?
<a href="https://www.turbosquid.com/Search/3D-Models/trump" rel="nofollow noreferrer">https://www.turbosquid.com/Search/3D-Models/trump</a></p>
<p>Country - India</p>

<p>The question is not one of copyright law or trademark law, neither of which apply. Instead, it is a question of a common law right of publicity, which in India is recognized in some circumstances, but is not well developed and has many gaps that courts will have to resolve as cases are presented to them.</p>
<p>The right of publicity is largely a right to sue if another person without permission profits commercially from someone's likeness without their consent and it is unclear to what extent, if any, it encompasses a right to control the use of one's own image otherwise. It is not in and of itself a crime, even though it is a tort which is the basis for a civil lawsuit for money damages and perhaps injunctive relief. As explained <a href="https://www.bananaip.com/ip-news-center/india-and-right-of-publicity/#:%7E:text=In%20India%2C%20the%20right%20of,to%20the%20celebrity%27s%20individual%20persona.&amp;text=These%20rights%20are%20transferable%20and,name%2C%20likeness%2C%20and%20persona." rel="nofollow noreferrer">here</a>:</p>
<blockquote>
<p>In India, the right of publicity is governed by common law and accrues
to the celebrity’s individual persona. It is a right to a celebrity’s
particular distinguishing and identifying characteristics, features,
behavior, likeness, image or other unequivocal aspects. These rights
are transferable and are generally used as an individual’s right to
control and profit from the commercial use of his or her name,
likeness, and persona. . . .</p>
<p>The Indian Courts scrutinize the law governing publicity as a right in
which an individual’s identity suffers the loss of commercial purpose.
Some courts refer to the unauthorized appropriation of an individual’s
identity as an invasion of the right of privacy. However, the two
bodies of law can be distinguished as follows: while the right of
publicity provides the individual with a property right in his or her
identity, the right of privacy protects an individual from the
publication of private facts that are embarrassing or intimate, or
that portrayal of him or her in a false light is offensive. The right
of publicity claims usually arise from the publication of information
of which the public is already aware; the celebrities thrive on being
known and talked about.</p>
<p>In Sourav Ganguly v. Tata Tea ltd.,  Sourav Ganguly returned from an
extremely successful tour of England and Tata Tea Ltd., where he was
then employed to promote a tea packet, offered the consumers a chance
to congratulate Sourav through a postcard which was inside each
packet. The company intended to profit from his popularity and his
latest success. Sourav could successfully challenge it in the Court
before settling the dispute amicably.</p>
<p>The right of publicity protects all persons’ rights from birth to
death and beyond. When the right of publicity extends after death, it
is called the post-mortem right of publicity. However, whether the
right of publicity extends beyond life is jurisdiction specific. For
example, the post mortem right of publicity has only been recently
recognized in the US in California and will soon be recognized other
American states too. Legal recognition of post mortem rights of
publicity usually permits the deceased’s beneficiaries or heirs to
control and financially benefit from the use of a deceased’s image and
likeness. The news about the movie Dirty Picture having been
challenged by the kin of the deceased actress Silk Smita, claiming
that the movie does not depict her personality in the right spirits,
is first of its kind in India.</p>
</blockquote>
<p>The linked examples, showing satirical portrays of a famous U.S. politician, hinge on the issue of what constitutes commercial use, as opposed to other uses.</p>
<p>The right of publicity doctrine arose at common law when images of models were used to market consumer goods, when the models for the painting and photographs weren't paid. It has not generally been used to prohibit political cartoons or their 3D equivalent, the basic thrust of which is political commentary or satire that does not suggest endorsement by the subject of the image. In the U.S., such a broad reading of the right of publicity would probably be overcome by the very strong First Amendment protections of free speech. But while India also protects the right to free speech, it, like most former British colonies, tends to be less extreme in the extent to which other generally applicable laws and protections of other individual rights yield to free speech protections than the United States.</p>
<p>I doubt that a right of publicity lawsuit by the individual depicted in the linked materials which appear to be basically satirical political depiction would be recognized in India, and it is likely the some of the same considerations that apply to fair use of copyrights or nominative use of trademarks without permission would inform its judgment on the scope of this common law right. But because India's common law in this area isn't very well developed it isn't possible to know with certainty how a case like this one would be evaluated by an Indian court.</p>
<p>This said, there are a couple of caveats that should be added.</p>
<p>First, it is easy to imagine that the 3D image is obtained by some illegal means which could be tortious (i.e. the basis for an invasion of privacy lawsuit) or criminal. The illegality in obtaining the information could arise not just from common law protections but also, for example, for statutory or contractual non-disclosure requirements.</p>
<p>For example, if this was obtained obtained from records maintained for health or educational purposes it could violate laws providing privacy protections in those areas. Obtaining the 3D image surreptitiously and without the knowledge of the person whose image is obtained (e.g. through a secret camera in a changing room) would probably be both a crime and a tort.</p>
<p>Second, if the 3D model were used to defraud someone, e.g., by impersonating them on a Zoom call, this would likely be both a crime and a tort under the general principles that apply to fraud in general, as a form of affirmative misrepresentation, even though it is visual rather than verbal.</p>
