Celebrity Rights – Is It Important In India?

During the past couple of years, celebrity or personality rights has been a hot topic of discussion in field of intellectual property. Various schools of law have mixed opinions when the matter of celebrity rights is considered. In this blog, the main quest will be to briefly study the major laws that may come in path while considering the celebrity rights in various jurisdictions and how Indian law should recognize the same for better protection of the rights of celebrities.

1.      Introduction
Celebrity, as common understanding refers to, is a person that have obtained a fame and name in society which makes him/her easily recognizable in the society. In a country like India, it can be associated with the recognition and honor for some form of success by a large group public.[1] This can be also viewed in commercial sense, when a person’s reputation being used in promotion of a product, then under the ‘direct commercial exploitation of identity’ test, such a person will be considered as a celebrity in publicity sense.[2] Celebrity rights, in association with the personality they possess, can influence the masses in a great way. Importance has to be given in such a situation on the efforts that they have put in throughout years for building the same, unless it was from unpredicted sudden situation. In both the situations, commercial values associated with the person can reach great extend and hence the rights in discussion can be considered as his/her intellectual property right. Importance has to be given to such rights since there are situations in which identity of a product is being tagged with identity of person, signature styles of person becoming commercial attraction etc. shows its similarity with trademark and copyright. Along with them, the consideration of privacy right also leads to idea of serious consideration of celebrity rights.

2.       Celebrity Rights: What all may be considered?
The ingredients of celebrity rights are still a matter of confusion.  In India, there is no per se understanding of who can be considered to be a ‘celebrity’. The copyright act considers two kinds of person, authors[3] and performers[4] that have the potential to become celebrities and rights associated with them of what their creation is[5]. But it is not necessary that they will be for sure celebrities or only such persons can be celebrities. An understanding obtained from the study of laws pertaining to celebrity rights in other jurisdictions can be used to clearly define the word celebrity and the right associated. The widest amplitude of this is found in the publicity statute of Indiana[6], which give protection to name, voice, signature, photograph, image, likeness, distinctive appearance, gesture and mannerism.[7] Different provinces in Canada provide protection to name, image, likeness, voice etc.[8] In Germany, special consideration is given to picture[9] and name[10] of a person. In short, from an economic point of view, anything that can be related to a celebrity to use it for commercial purpose can be considered as his/her right, which should be given protection under law.  On the other hand, an unauthorized access and utilization of the same will fall under the privacy rights, which is also a part of celebrity rights. In short, celebrity rights can  comprise mainly of Personality Rights, Publicity Rights and Privacy rights.[11]

3.         Why Celebrity Rights are important?
The recognition of elements in such rights itself shows why it is important. As per Leggatt LJ, “The theory of the right is that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity. The famous have an exclusive legal right during life to control and profit from the commercial use of their name and personality.”[12] The influencer technique is used by a lot of people in marketing and the results of increase in sales have been proven. Celebrity endorsement is a common market technique that is calling for serious consideration of such rights to be restricted.[13]This involves a great amount of income for celebrities also as many of them earns more in this way than in their normal career.[14]  When someone without authorization associate celebrities with their product, they makes the efforts of parties who invest to acquire fame associated with celebrities useless.

Another important factor to be considered simultaneously is the privacy concept. Since celebrities are traffic attractors, people utilize this factor for their benefits. The curiosity of public thus may lead to situation where the ‘paparazzi’ makes the life of such celebrities hard to be out in public in a normal way. It is true that in our country there is a right to obtain information, but the same cannot be considered as the intention of law to intrude into the matters that such persons do not want to be out in public. Other jurisdictions have considered the same matter specifically in relation to privacy of celebrities and viewed that “In publishing details of private matters, the media may report accurately and yet – at least on some occasions – may be found liable for damages. Lawsuits for defamation will not stand where the media have accurately reported the truth, but the media nevertheless could lose an action for invasion of privacy based on similar facts situation. In such instance the truth sometimes hurts.[15]” The same cannot be considered as a fair dealing for the public need and such instances are supposed to be avoided in possible manner.[16] In existence of these views, along with recent developments in our jurisprudence through right to privacy judgement[17],  it is time to consider the celebrity rights more seriously in our country.

4.      Will the trademark law be able to protect celebrity rights?
Even though the nature of matters associated with celebrity rights can be in prima facie understanding brought under the ambit of trademark laws, it is not how the law actually considers the same. Authorities pertaining to the subject have opined that such rights will not be covered by the trademark or copyright law or even they may be considered as another kind of privacy right, although they may have a family resemblance of all three.[18] Well to what extend this can be considered in this digital era is still a matter of debate. Generally, trademark is defined as a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.[19] Thus from this understanding considering the celebrity rights will be in effect actually costing the necessity of protecting other rights also simultaneously. It has to be noted that our laws give protection to use of a person name falsely in connection a product not to be registered.[20]Similarly, an issue of domain name[21] and passing off[22] also arises in association with celebrities, but such aspects will be only limited to certain aspects of a large bundle if it is brought under the concepts of trademark. Moreover, whether the personality of a celebrity can be considered under the trademark law is still an unanswered question.[23]In the opinion of author, celebrity endorsement is used by parties to differentiate their product from those of others. We never used to see same celebrity endorsing same kind of product belonging to two different parties. However, considering the development of law in relation to trademark in our country, it is better to bring this aspect under a separate statute along with other ingredients.

5.       Copyright, Moral Rights and Celebrity rights
Protection of moral rights is an important aspect provided in our copyright law which is based on personality of an author/performer.[24]Kant and Hegel in their consideration of private  property view that it is not necessarily such property be a part of labour only, as natural law of instrumentalist theory speak[25],but can be created by joining ‘individuals will’ with some external objects[26]. This view lead to consideration of rights solely based on ‘personality’ in many jurisdictions. It is reasoned as mistreat of an expression of the artist’s personality, affect his artistic identity, personality, and honour, and thus impair a legally protected personality interest[27]“or against the public presentation of the artist’s work” in a manner or context that is harmful to the artist’s reputation or contrary to the artist’s intellectual interests, personal style, or literary, artistic or scientific conceptions[28]. Necessity of protecting ‘personality’ of a celebrity itself can be observed from these words. Yet it is still a matter which jurisprudence in our country has to seriously consider.

Other jurisdictions have already forwarded with idea of providing copyright to personality.[29]Decisions from US give attribution to the fact that the personality and publicity rights includes right in Photograph[30], Voice[31], Style[32], Appearance[33] etc. Canada has an approach that when a person has a marketable value in his likeness and such likeness has been used in a manner that suggest an endorsement of a product then there are grounds for an action in appropriation of personality[34]. Personality right include both image and name[35]. In English Law, due to the influence of ECHR certain rights in image are considered. Taking photographs without consent is considered as violation of Article 8 of ECHR. It is settled that a good will is attached with the image of a celebrity and unauthorised use of image can entitle for compensation[36].

Even though Indian jurisprudence has not grown to such wide considerations, there are certain instances[37] which provide with hope of developing of celebrity rights in our country in future.

6.     How Indian courts have viewed the matter?
Even though Indian jurisprudence have not developed to an extend of providing celebrity rights as a spate right, certain observations from the court show the possibilities of their development in future. While considering the publicity rights in Titan Industries Ltd. V. M/S Ramkumar Jewellers[38] court has provided two factors that should be considered necessarily: “Validity: The plaintiff owns an enforceable right in the identity or persona of a human being and Identifiability: The Celebrity must be identifiable from defendant’s unauthorized use. Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws”. The court thereby granted an interim injunction in favour of the plaintiff while specifically recognising the rights in personalities.

In ICC Development (International) v. Arvee Enterprises and Anr.,[39] Delhi HC observed that “ The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals, to the organiser {non-human entity} of the event would be violation of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it. For example, if any entity, was to use Kapil Dev or Sachin Tendulkar’s name/persona/indicia in connection with the ‘World Cup’ without their authorisation, they would have a valid and enforceable cause of action.”

In Sonu Nigam v. Amrik Singh (alias Mika Singh),[40] the parties to the case were to appear at the Mirchi Awards 2013, and were shown through photographs on the official posters of the event, with their due consent. Mika Singh, in order to promote himself displayed hoardings and posters, which were different from official hoardings and posters of the event, carrying huge pictures of himself along with smaller pictures of the other artists, including Sonu Nigam, without their consent and permission. It was contended that the said hoardings and posters gave an unjustified and incorrect impression to the public about the prominence given to Mika Singh as compared to the other artists. The Bombay High Court restrained the defendants from displaying the pictures of the Plaintiff without consent and ordered the defendant to pay Rs. 10 Lakhs as damages towards specified charities, as consented by the parties.

In Shivaji Rao Gaikwad v. Varsha Productions,[41]superstar Rajnikanth filed a suit seeking injunction to restrain the respondent from using the applicant’s name/caricature/ style of dialogue delivering etc. in its forthcoming film “Main Hoon Rajinikanth” in any manner whatsoever alleging infiltration of his personality rights by such unauthorized use. Rajnikanth also expressed distress that the film had scenes of immoral nature and the respondent was trying to cash in on his popularity. The court observed that it cannot be disputed that intellectual property right is a recognized valuable right under the modern laws being followed by all civilized countries. Copyright Act, Trade Marks Act, etc. are properly safeguarding the rights, by way of relevant statutes. As per Article 21 of the Constitution, everyone is entitled, not only for his life and personal liberty from taking away the said rights, except by procedure established by law, but also guaranteed to lead a dignified life in a society and hence, no one can cause damage to the fame or reputation of any person against law. From the available materials of the film, the Court held that the film’s title and caricature of Rajnikanth in the film would degrade his reputation.

In Justice K. S. Puttaswamy (Retd.) v. Union of India[42] the court viewed that “Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent”. “Aside from the economic justifications for such a right, it is also justified as protecting individual autonomy and personal dignity. The right protects an individual’s free, personal conception of the ‘self.’ The right of publicity implicates a person’s interest in autonomous self-definition, which prevents others from interfering with the meanings and values that the public associates with her.”

Even very recently the Delhi HC again considered all these views to be right and important, hence restrained the unauthorised use of plaintiff’s name in print media, TV Channel etc. by defendant.[43]

7.     Conclusion
Celebrity rights are very important aspect of an artist or personality as well as it comes under the ambit of IPR. On considering the influence of celebrities in life of a common man and the development of jurisprudence in our country. The author is of the opinion that it is time for lawmakers to introduce specific law regarding celebrity rights that will introduce, illustrate and provide protection from misuse of rights associated with celebrities and simultaneously provide privacy to them.

Author: Alvin Antony, Intern at IP and Legal Filings  and can be reached at support@ipandlegalfilings.com.

References:

[1] http://www.legalserviceindia.com/article/l139-Celebrity-Rights.html

[2]Martin Luther King Jr Centre for Social Change v American Heritage Products 694 F2d 674

[3]Section 2(d), The Copyrights Act 1957

[4]Section 2(qq), The Copyrights Act 1957

[5]Section 14 and Section 38-A, The Copyrights Act 1957. Also Section 38-B and Section 57, can be considered more relevant since attribution given to personality also.

[6]IN ST 32-36-1-1

[7]See Section 3. Ibid.

[8]Amy M. Conroy , “Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?“, (2012) 1:1 online: UWO J Leg Stud 3

[9]§§ 22 ff, Kunsturhebergesetz (KUG)

[10]§ 12, Bundesgerichtshof (BGB)

[11]T Ahamed and Swain SR, Celebrity Rights: Protection under IP Laws, JIPR Vol 16, Jan 2011, pp 7-16

[12]Carson v Here’s Johnny Portable Toilets Inc 698 F 2d 831, 835 (1983)

[13]Steve Olenski, How Brands Should Use Celebrities For Endorsements, Forbes, Jul 20, 2016,

[14]Dubey B, Actors earn more form endorsement than in films, The Times of India, June 26, 2011

[15]Barber v Times 1959 SW 2d 291, 295(1942)

[16]Hyde Park Residence Limited v Yelland (2000) EMLR 363

[17]Justice K. S. Puttaswamy (Retd.) v. Union of IndiaWrit Petition (Civil) No 494 Of 2012

[18] McCarthy J T, The Spring 1995 Horace S Manges Lecture: The Human Personal as Commercial Property: The Right of Publicity, Columbia-VIA Journal of Law and Arts. 19 (1995) 131

[19] http://www.wipo.int/trademarks/en/

[20]Section 14, The Trade Marks Act, 1999

[21]Celine Dion and Sony Music Entertainment (Canada) Inc v Jeff Burgar Case No.D2000-1838 ( WIPO)

[22]Christopher Renzi v JBS Textile Group A/S and Cristiano Ronaldo a.k.a Cristiano Ronaldo Dos Santos Aveiro Case Number: 1:2014cv00341/July, 2014

[23]DrRanjanaFerrao, Status of Celebrity Marks in India, JLJ 2016

[24]See Section 38-B and 57, The Copyright Act, 1957

[25] This view is followed mainly in United States, See TF Cotter, PRAGMATISM, ECONOMICS, AND THE DROIT Moral (76 N.C. L. Rev. 1 1997)

[26]See G.W.F. Hegel, Philosophy of Right (T.M. Knox trans., Oxford Univ. Press 1952); Immanuel Kant, The Philosophy of Law 81-84 (W. Hastie trans., Augustus M. Kelley Publishers 1974)

[27]See John Henry Merryman, The Refrigerator of Bernard Buffet( 27 Hastings L.J. 1023)

[28]See Neil Weinstock Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation(24 Rutgers L.J. 347)

[29]For example, See CAL. CIV. CODE § 3344. and CIVIL RIGHTS LAW, ART. 5. RIGHT OF PRIVACY NY CLS Civ. R § 50 (2000).

[30]Healan Laboratories Inc V Topps Chewing Gum Inc (1953) 202F.2d.866 (2d Cir)

[31]Waits v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir. 1992)

[32]Motsenbacherv .J. Reynolds Tobacco Co. (498 F.2d 921,9th Cir. 1974)

[33]White v. Samsung Electronics America, Inc. 971 F.2d 1395 (9thCir. 1992)

[34]Krouse v Chrysler Canada Ltd 1971 5 CPR 2d 30

[35]Athans v Canadian Adventure Camps (1977) 17 O.R (2d) 30

[36] Irvine v Talksports [2003] EWCA Civ 423

[37]See Amar Nath Sehgal v UOI 2005(30) PCT 253 Del

[38]2012 SCCOnline Del 2382.

[39]2003 (26) PTC 245 Del.

[40]Sonu Nigam v. Amrik Singh (alias Mika Singh), SUIT NO. 372 of 2013 Bombay High Court (Civil Original Jurisdiction), MANU/MH/0517/2014.

[41]Shivaji Rao Gaikwad v. Varsha Productions, (2015) 2 MLJ 548.

[42]Supra note 17

[43]Rajat Sharma v Ashok Venkataramani&Anr CS(COMM) 15/2019

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