This article is written by Prakarsh.
Celebrity/Publicity/Personality Rights represent a particular set of rights that are granted to influential or well-known personalities. Celebrities can include athletes, public figures, historical figures, actors etc. Celebrities are usually individuals who create a certain reputation or ‘fame’ and then capitalize on their image. This is similar to corporations creating good-will for a brand or their trademark. However, when it comes to celebrities, their image, caricatures, voice etc. also become a matter of privacy. Hence, these rights can be considered to be a hybrid between Intellectual Property Rights (‘IPR’) and Privacy Rights.
Celebrity rights have been recognized across the globe in various jurisdictions, either by statute or by judicial precedents. There are multiple international instruments (Such as the WPPT and TRIPS) that recognize performance rights for artists which cover a small portion of what celebrity rights would cover. And the privacy and data protection regimes may protect unauthorized usage of images or voice of individuals sans the commercial aspect. However, there is no international or regional instrument that codifies celebrity rights.
Digital Media is being revolutionized aggressively with every passing day and a major portion of digital media involves influential or well-known personalities. Nowadays, it is not even important for an individual to actively take part or be present for the creation of digital content, the accuracy of animation has reached a level where individuals may be created from scratch on a computer. This puts celebrity rights in a vulnerable position and hence would need protection just like any other brand or trademark would.
Recognition of Celebrity Rights
India does not have a codified provision for the protection of celebrity rights. Nevertheless, Indian Courts have recognized celebrity rights to a great extent in light of publicity rights. With respect to publicity rights, the Delhi High Court went beyond false advertising and provided an injunction against unauthorized use of a celebrity’s image. The Court held that when it is established that an individual has used the image of a celebrity without permission, and the celebrity is clearly identifiable then no additional proof is required for providing injunction. The same Court in a different case has also incorporated elements of right to privacy within the domain of publicity rights.
It held that the persona of an individual is an integral part of his life and the same will be protected by the fundamental rights laid down under the Constitution of India. The right to exploit the persona of an individual would rest solely with the individual himself. Other Courts such as the Bombay and Madras High Courts have also granted injunctions and damages for unauthorized usage of images, and use of the name, caricature and image of a celebrity without permission and said that the same could tarnish the status that the individual has gained in society through their work.
Finally, in the landmark Supreme Court judgement on right to privacy, the Indian Apex Court has clearly held that “every person has a right to control his/her own life and image as portrayed to the world and to control the commercial use of his/her identity” according to the Constitution. The Apex Court has therefore read such rights into provisions of the Constitution itself. This makes it clear that publicity rights and celebrity rights have been recognized by the Indian judiciary even though there has been no codification of the same yet.
The U.S. has a scattered set of laws varying from State to State that recognize celebrity rights. Nevertheless, many States have recognized them while California even has them codified in its Civil Procedure Code and as a separate Statute called the California Celebrities Rights Act, 1985. The States that do not have a celebrity or publicity right in place, give rulings based on privacy rights that have been vested in the citizens of the United States. Such as the Georgia Ruling which granted an injunction and damages based on the reasoning that using the image of an Artist without his/her authorization would be in violation of the right to privacy of that individual.
The California Civil Code has two sections, one which provides publicity rights to living individuals and one which was passed as the Celebrity Image Protection Act in the year 1985 for providing post-mortem estate rights. The Celebrity Act vested the publicity rights of a deceased individual with their estate, similar to how a copyright exists even after the author has passed away. It was based on this provision that the estate of Princess Diana was successful in getting an injunction against unauthorized use of her image, post her death.
Within the EU
The United Kingdom does not have codified provisions that protect Celebrity Rights. However, there have been a few instances where the English Judiciary has provided a certain level of clarity over the position of the same. In the early case filed with the U.K. Tax Court, the image rights of famous footballers were recognized for purposes of taxation. The revenue that was generated from the athletes letting other entities use their image was seen as separate from their regular salary and considered as revenue from their image rights. Further, the famous Irvine judgement made it lucid that the reputation and good-will that is attached to the image of an individual cannot be used without prior permission and unauthorized use can be a cause of action.
France and Germany
France and Germany both have recognized personality and publicity rights under their respective laws. The French Civil Code protects personality rights under Article 9. Article 9 of the French Civil Code provides for the right to privacy, but there have been lawsuits for protecting personality rights under this provision.
In Germany, the issue of personality or publicity rights has been around for decades. In the year 1898, photographs of Otto Von Bismarck were taken and published by newspapers. This created a huge issue which led to the German Government extending copyright provisions to protection of an individual’s image.
Image rights have been provided for under the Kunsturhebergesetz Act under Sections 22 and 23. These provisions have also allowed individuals to bring claims against entities using their image and caricatures without their permission. In another case, a famous athlete was even allowed to bring claims against a gaming company for using his name and character in a video game.
Time for the EU to codify Celebrity Rights
E.U. laws are largely composed of directives that are passed by the Commission. Considering the trend of Courts granting important public figures rights for commercial exploitation of their own image, it is high time that E.U. passed a directive that codifies such rights. Reference can be taken from the German and French provisions as well as guidelines given by various common law Courts. Reliance can be placed on the decisions passed by the Indian judiciary because it is one of the most comprehensive set of judicial precedents on the issue of celebrity and publicity rights.
Particularly, the two points which the Delhi H.C. expressed in the Titan Industries judgement:
- Whether the plaintiff has the requisite permission to use the image of the individual for commercial purposes.
- Whether the individual is clearly identifiable.
Additionally, the provision provided for under the Californian Celebrity Act that allows for the publicity rights to exist post-mortem may be included in such a directive. It would elevate the Publicity rights to the level of other IP Rights that subsist post the death of an author/inventor.
One might argue that privacy laws and the GDPR protect the unauthorized usage of any individual’s image, voice, caricature etc. However, it is pertinent to note that this largely leaves out the commercial aspect of the issue.
IP Rights are granted for two primary reasons, one, to protect the efforts of an individual that goes behind creating something and second, the economic or commercial incentive that IP protection provides to the creators.
The E.U. may formulate a directive to provide a minimum threshold of protection at a regional level and then leave it upon the member States to carve out their own provisions.
Important figures put in years of efforts in building an image in society that can then be used for various purposes such as promotion of a product, influencing groups etc. A news article in India reported that Actors earn more from advertising/endorsements than acting itself. This is also true for athletes, singers and other artists. Hence, the incentive rationale on which the IPR regimes are based may very well be applied to Celebrity/Publicity Rights.
It is high time for provisions specific to Celebrity Rights may be added in international instruments such as the WPPT or the TRIPS Agreement. Before that happens, it is important for regions like the EU which has been a forerunner in formulating modern laws, to implement the same in a specific geographical area which may then be followed at a global level.
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