Safeguarding Celebrity Rights Through IPR

With the increasing use of the Internet, invasion of privacy has become a major concern, especially for celebrities.

Media is constantly releasing private details of the celebrities including their intimate lifestyle to the public in order to gain economic profits.

One of the major issue’s celebrities face is, violation of their privacy by media, their followers and public at large.

An Individual’s right is an extension of their property. The media and the public do not respect the rights of celebrities with respect to the levels of exposure they wish to accept.

Every celebrity has the exclusive right over their image and no other person has the right to use it unless permitted.

For those in need of legal aid pertaining to Intellectual Property, A&A is the preferred choice to access a team of highly skilled Intellectual Property lawyers based in India. Don't hesitate to get in touch with us for any concerns related to IP.

Who is a Celebrity?

A celebrity can be defined as “a person who, by his accomplishments, fame or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a public personage.”

Actors & models, artists, authors, athletes, politicians, singers & musicians, television personalities, business executives, and anyone who seeks to capture the public attention including reality TV stars are all celebrities.

Importance Of Celebrity Rights

Celebrities are associated with various good causes, product launch, endorsements, events, and campaigns which in turn enable others to exploit their status in society.

The increasing pace of popularity leads to misappropriation of their personas and commercially valuable reputation. Understanding such situation would pave the way for recognizing the rights of celebrities.

Courts have time and again stated that a celebrity’s name and his personality have value way beyond the right to privacy.

In the case of ICC Development (International) Ltd. v. Arvee Enterprises[1], it was held that “the right to publicity has evolved from the right to privacy and can inhere only in an individual or in any indicia of the individual’s personality like his name, personality trait, signature, voice etc.”

This case led to a breakthrough for the development of publicity rights in India.

Publicity rights emanate from the rights of Human Dignity and Liberty enshrined in Article 19 and 21 of the Indian Constitution. The celebrities in addition to the right to privacy, also have the right to publicity and the right to choose the level of exposure.

The rights accrued to the celebrities can be licensed and assigned for commercial exploitation. The right to control the commercial use of human identity is considered as the right to publicity and is the exclusive right of the celebrity.

This right is inheritable; hence the descendants of the celebrity can gain from the celebrity’s popularity built during their lifetime.

Protecting The Celebrity Rights

The celebrity rights are a combination of rights namely the personality rights, privacy rights and publicity rights. Although there is no separate legislation in India to protect the rights of a celebrity, the Judiciary has invoked existing Intellectual Property Laws to protect the rights of a celebrity.

Trademarks

Registration of a celebrity’s name as a trademark, with respect to any aspect of a celebrity’s personality, indicates that the celebrity is open to the authorized assignment or licensing of his personality/public image for merchandising purposes in the class of goods and services for which registration has been sought.

This also gives the celebrity a means of defending those aspects of their personality against unauthorized use.

For example, Shah Rukh Khan has filed applications to register trademark 'SRK', in almost all the 45 classes. The protection under the trademark law is considered one of the strongest levels of protection amongst the various forms of IP right protection as it ensures the celebrity control over his personality viz-a-viz right over his name, image, and popularity.

Copyright

In India, celebrity is not defined. However, reference can be made from the definition of the performer under Section 2(qq)[2] of the Indian Copyright Act, 1959. A performer is not a celebrity always and a celebrity may not be a performer at all.

The Copyright law provides exclusive, although, limited rights of protection. It allows celebrities to authorize reproduction, creation of a derivative image, sale or display of any photograph by others.[3] No copyright is granted to the name or image of the celebrity in India.

In the case of, Titan Industries Limited v. Ramkumar Jewelers[4], an interim injunction was granted against the unauthorized use of the picture of the celebrity couple Mr. Amitabh Bachchan and Mrs. Jaya Bachchan on a hoarding.

The Plaintiff had secured rights from the celebrity couple to use such a picture for advertising their brand “Tanishq Jewellers” in print media as well as audio-visual media.

The defendant, competent jeweller without any authorization used the same photograph to advertise his brand. The court held that “the defendant did not take permission from the celebrity couple to use their photograph and they were also not authorized by plaintiff to use that photograph so; therefore, they are not only liable for infringement but also for misappropriation of the personality rights of the couple.”

To ascertain copyright infringement, a celebrity must show ownership in the image and subsequent copy of that image.

Passing off Action

A passing off action is generally available as a remedy against the injury to the goodwill and the reputation of an individual due to misrepresentation by another person. For example: falsely indicating endorsements of products.

Celebrities are also entitled to proprietary right in the exclusive marketing of their personality. This remedy is available in the form of ‘wrongful appropriation of personality’.

Need Of a Legal Regime in India

Publicity rights over an individual’s personae emanate from human dignity. This poses the inherent problem in enacting comprehensive legislation. Being a property right, it does not include the inherent uniqueness embedded in a human persona.

Another issue is that these rights are transferable. Additionally, considering publicity right as a fundamental right under Article 19 and 21 would not allow an individual to ascertain his publicity rights against private entities as a fundamental right is ascertained against the government.

Secondly, a fundamental right cannot be waived. This will create an issue in case of commercial transactions with other parties.

Thirdly, a fundamental right is extinguished once a person dies. This would hamper the successors right to exploit the benefits in the image of a celebrity.

In India, there are no adequate case laws, nor statute governing celebrity rights per se. A suitable approach to protect the right to free development of personality must be guaranteed.

Suggestions and Conclusion

To accord widest protection to a celebrity, firstly, it is required that India should define and adopt an understanding of celebrity and the rights attached to them.

Secondly, a multi-directional approach should be adopted to provide protection to an individual’s name, photograph, voice, popularity, and public image.
The law governing the issue of celebrity rights must acknowledge and comprise all the rights including the Personality Rights, Publicity Rights and Privacy rights.

Third, clarify the existing laws namely trademark law, copyright law, passing off and cybersquatting laws with respect to celebrity rights. Fourth, register domain names of websites of celebrities as a trademark to prevent misrepresentation and cyber-squatting.

[1] 2005 (30) PTC 253 (Del)

[2]A performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.

[3] Sim v Heinz & Co Ltd- [1959] 1 WLR 313 1959

[4] CS(OS) 2662/2011 (Delhi High Court)