This article has been written by Riya Gupta, pursuing a Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.
Table of Contents
Introduction
Who would’ve thought somebody’s personality could be traded as well as protected as a property? With the development of Intellectual property rights laws, there has been an acceptance of the concept of personality rights of celebrities. It has become extremely important to recognize this right in this day and era where celebrities are worshipped and influence a lot of choices people make. In this article, the endeavour has been made to understand who are celebrities, what special rights do they get by acquiring this status and how these rights are protected in India. The article will highlight how the rights which emanate due to a particular industry are also exploited the most by the same industry.
What are personality rights?
Personality rights emanate from the two contradictory rights of right to publicity and right to privacy. As conflicting it may sound but people who thrive on publicity do have the right to seek privacy as well. Right to publicity entails the right to restrain others from commercially exploiting one’s identity. Nobody can ride on the goodwill and reputation earned by somebody. Personality includes one’s voice, image, likeness, signature and other attributes of one’s identity. Right to privacy means the right to be free from public attention and interference in one’s life and choices. To be worthy of personality rights, one should be a Celebrity which is why Personality Rights are also known as Celebrity Rights.
Who is a celebrity?
Celebrity is sought by many as an honour. In a democracy, it is generally a reward for success. Sportsmen and artists earn it by skill. Businessmen and TV personalities earn it by wit. Politicians earn it by votes. Anyone can aspire to it. It is the public that confers celebrity. The public are stipulated by the media. But in the end, it is the public’s choice that conveys who is a celebrity be it as a consumer or electors. There is also another class of celebrity which is more or less involuntary. Princes and princesses acquire it by marriage or by blood. Others acquire it by their chance of involvement in newsworthy events. Only when the public is able to associate a person with an identity or persona is when his/her personality can be exploited.
In Titan Industries Ltd. vs. Ramkumar Jewellers, the Delhi High Court in 2012 defined a celebrity as “a famous or a well-known person and is merely a person who “many” people talk about or know about” and further went on to lay down that “The right to control commercial use of human identity is the right to publicity.”
Statutory inroads of personality rights
There is no statutory provision as such to protect and enforce the personality rights of celebrities. They can resort to passing off action under Trademark law to protect this right in case of violation. Passing off is an action under the common law of tort. Under this, nobody is allowed to misrepresent or pass off others goods or services as theirs.
Three things need to be proved in order to establish a passing-off action in this case- reputation of the celebrity, misrepresentation of his/her identity, irreparable damage caused to the celebrity due to such an act amounting to passing off. This shows the evasive intent of the legislature to treat persons as chattels or commodities. The basis of this lies more on human dignity and liberty than proprietary status or commercial value.
Other provisions regarding Personality Rights are:
Protection under advertising legislation
All advertisements are governed by the Code for Self-regulation in Advertising (“Code”), adopted by the Advertising Standards Council of India which mandates that no advertisement should contain unauthorised references to any person, firm or institution such that the product advertised gains any unfair advantage and brings disrepute to the person, firm or institution referred to.
It also states that if and when required by the Advertising Standards Council of India, the advertiser or advertising agency should be ready and willing to submit the authorization granted by the person, firm or institution referred to in their advertisement. As per Cable Television Networks Rules, 1994, no advertisement shall be carried in the cable service violating this Code. The Cable Television Networks (Regulation) Act, 1995 makes a contravention of this provision punishable with imprisonment which may extend to two years or a fine extending to one thousand rupees or both. The Standards of Practice for Radio advertising and the Code for Commercial Advertising on Television contain similar provisions.
Protection under Right to Privacy
Right to privacy is now a fundamental right read under Article 21 of the Constitution of India, though not without restrictions. Freedom of the press is enshrined under Article 19 of the Constitution. Also, the expression of ‘freedom of speech and expression’ used in Article 19(1)(a) includes within its purview, the right to acquire information and disseminate the same.
The Supreme Court has given a broad dimension to Article 19(1)(a) by laying down the proposition in various cases like State of Uttar Pradesh v. Raj Narain that the freedom to receive and to communicate information and ideas without interference is an important aspect of freedom of speech and expression. This provision has been consistently challenged by the celebrities on the ground that the media has misused their freedom under the guise of giving news in ‘public interest’.
The four distinct rights that are included under the matrix of the right of privacy are:
(1) The right to prevent public disclosure of private rights.
(2) Right against intrusion into the solitude of a person and prevent any form of prying into the personal affairs of a person.
(3) Prevent false light publicity.
(4) Prevent misappropriation of a person’s name and likeness.
Multiple defences are raised when there is an intrusion into the private affairs of a personality. People are interested to know trivial details dealing with a celebrity including the places they visit, the brands and clothing that they wear, the cosmetics they apply, which to an ordinary person would seem extremely trivial. Even though celebrities live for publicity yet they are too entitled to privacy in their personal as well as in parts of professional life.
Personality rights in the form of the right to privacy were first recognized explicitly by the Supreme Court in R RajaGopal v State of Tamil Nadu (JT 1994 (6) SC 514). In that case, the court observed that: “The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising or non-advertising purposes or for any other matter.” This is a landmark judgement and there have been many such rulings since then, by various Courts citing this judgement.
Protection under Trademark Law
The limited protection to a celebrity’s image is provided under the provisions of trademark laws. Under the Trademarks Act, 1999 there is no specific provision to grant protection to image and publicity rights. Though, the Act under Section 2(m) providing the definition of ‘mark’ does include names. Some well-known personalities from India like Baba Ramdev, Sanjeev Kapoor, Sachin Tendulkar, Shahrukh Khan and Yuvraj Singh etc. have applied for the registration of their name as a trademark to have protection under the Act against its misuse.
Section 14 of the Trade Marks Act, 1999 restricts the utilization of individual names where an application is made for the registration of the trademark, which dishonestly proposes an association with a living individual, or a man whose passing occurred inside 20 years before the date of application of the registration of the trademark. In this manner, the lawful beneficiaries of the celebrities can likewise protect the abuse of their names. The purpose of perceiving the transferability and permitting of the specific right can be constructed from the statute. Accordingly, the property right in one’s name is allowed to celebrities in the trademark law. Though, the lacuna of not delineating the rules on assigning and authorizing such a right needs to be taken into consideration.
Protection under Copyright Law
The Copyright Act represents a challenge in regard to acknowledgement of publicity and image rights. There is very little lucidity with reference to what parts of celebrity rights might be ensured under the Copyright Act. Celebrities’ voice cannot be granted protection under Indian copyright laws as it does not fall in the category of literary, dramatic or musical work. Though, the voices of celebrities are frequently abused by promoters or advertisers. The economic or commercial rights to the performer under copyright laws have been provided as a separate class of performers’ rights. But the problem which subsists is that these rights are provided in specific performance and not in the artist or celebrities’ general image. In this way, the Copyright Act also proves to be insufficient to invest personality rights on celebrities.
The Copyright Act, 1957 does not define the word ‘celebrity’. However, the definition of a ‘performer’ under section 2(qq) includes an actor, singer, musician, dancer, acrobat, juggler, snake charmer, lecturer or any other person who delivers a performance. There is a lack of legal definition of celebrity as even if the reference is made to the definition of a performer as provided in section 2(qq) of the Indian Copyright Act, a performer is not a celebrity always and a celebrity may not be a performer at all. For example, a teacher teaching in class or a snake charmer performing his art are performers but not celebrities.
Some of the noteworthy cases supporting the protection of Celebrity Rights in India:
In the case of Phoolandevi Vs Shekar Kapoor & others, Phoolan Devi protested that the film made by the respondent had morphed the facts. She sought an injunction as she had already begun a fresh decent life and given up her all past criminal activities. The court held that the issue should be properly examined and before the release of film, the effect on the private life of individuals due to its exhibition should be scrutinized.
In the case of Sourav Ganguly vs Tata Tea Ltd, Tata Tea Ltd., in which Sourav Ganguly was employed as a manager, was promoting its 1 kilo tea packet by alluring the consumers by offering them a chance to congratulate Ganguly through a postcard which was inside each packet of tea. In a way, the company intended to promote the sale of its tea packet in the Indian market using the cricketer’s fame and popularity. Relief was granted to him by holding that his popularity and personality forms to be his intellectual property and thus a licensed innovation.
In the case of DM Entertainment v Baby Gift House & others, Delhi High Court held the Defendants liable for violating the personality rights of Daler Mehndi, for passing off and false endorsement. The defendants, in this case, were selling dolls which were lookalikes of Daler Mehndi and were also singing his musical compositions. While granting permanent injunction and damages, the Court also held that the right of publicity stems from the right of an individual to control the commercial exploitation of his identity or likeness.
In the case of Titan Industries Ltd. vs M/S Ramkumar Jewellers, the court, while recognising the personality rights of Amitabh Bachchan and Jaya Bachchan granted an injunction to the Defendants who had put off a hoarding containing photographs of a celebrity couple without their consent.
In the case of Sampat Pal Vs. Sahara One Media and Entertainment Ltd. and Ors, Delhi High Court recognising the image rights of Sampat Lal and her organization allowed the release of the film “Gulaab Gang” only with the disclaimer that the film has nothing whatsoever to do with the life and works of Sampat Lal and her organization named “Gulabi Gang”. The plaintiff, in this case, alleged the movie to be an adaptation of her life in a highly defamatory and horrific manner.
In another case of Shivaji Rao Gaikwad vs. Varsha Production, renowned celebrity Rajnikanth filed a suit seeking an injunction restraining the Defendant from using his name, caricature, style of dialogue delivering etc in its upcoming film “Main Hoon Rajinikanth” alleging infringement of his personality Rights as such use was without his consent and of defamatory nature. The court while granting the same, held that as per Article 21 of the Constitution every individual is entitled to live a life of dignity and hence causing damage to one’s reputation and personality would be against the law.
Conclusion
The above-mentioned cases show the exploitation of personality rights in India in the media and entertainment industry and thus the need for streamlined protection to be awarded to the celebrities in India. Any kind of unauthorised commercial exploitation of a celebrity’s identity or part of identity is a violation of his Personality Rights especially owing to the fact that the identity has been earned with hard work. Courts need to not only balance the highly valued rights of celebrities and the constitutional right of freedom of speech but also protect the consumers from false and misleading endorsements. All this is evidence of the fact that Celebrity Rights have emerged as an individual class of protection hence it is high time the legislature recognised this too.
References
1) Anurag Pareek and Arka Majumdar , “Protection of celebrity rights- The problems and solutions” 11 JIPR 415-423 (2006)
2) J. Thomas McCarthy, The Rights of Publicity and Privacy (2d ed. 2014).
3) Melville B. Nimmer, “The Right of Publicity” 19 Law And Contemp. Probs. 203 (1954)
4) Thomas George, Celebrity-focused Culture Highlights Need for Statutory Right to Publicity, available at :http://www.worldtrademarkreview.com/issues/article.ashx?g=1596958f-55a7-4b2b-a93c-66f887027801(last visited on 2 Feb. 2021).
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