This article is written by Anu Saharan, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from lawSikho.com.
Table of Contents
Introduction
Artwork is loved by all of us, but making a work of art is not something that can be accomplished by everyone since not all of us possess artistic craftsmanship and brilliance. The history of art, especially wax sculpting art, can be attributed to the pre-historic age, wherefrom it began to assume a significant role in depicting and replicating the aspirations of dominant rulers, documentation of their victory and socio-cultural and religious beliefs of certain communities.
Among all the art forms, wax sculpting is the most distinctive and it takes hours of labour and skills for achieving the finest level of detailing. In today’s time, whenever we think of the wax sculptures and figures, it just strikes us about Madame Tussauds Wax Museum, the world-famous tourist and entertainment attraction known for the exquisite representation of wax figures of the most popular historical personalities as well as popular film celebrities and TV characters.
Like other works which can be copyrighted, the artistic works may also be protected by copyright. In fact, when art is expressed in a material form by an artist, the works get automatically protected under the IP law, thereby bestowing a bundle of exclusive rights on such artists and protecting it from being used unfairly.
In this article, we will discuss the legal regime under which the wax sculptures of Madame Tussauds Wax Museum is covered.
History, Origin and Ideology of Madame Tussauds
Madame Tussauds as it is called today is a mark of dedication and skill of Marie Tussauds, the finest wax modelling artist of the 19th century and maker of Madame Tussauds Wax Museum. Born in the year 1761 in Strasbourg, Marie Tussauds learnt the art of making wax figures from Philippe Curtius, a doctor, who was quite a skilled wax modeller too, for whom her mother worked as domestic help.
Her first wax model was that of a renowned author, historian and philosopher, François Voltaire. During the French revolution, she also got imprisoned for being considered loyal to the royals, but her art of creating lifelike figures out of wax had helped to her release. She was asked to cast death masks of monarchs and well-known personalities directly from the head severed at the guillotine
Later, she inherited the wax models created by Philippe Curtius, which she along with self-created wax figures showcased and fascinated people across England and nearby states. 4 In 1835, she opened up her first permanent exhibition space at Baker Street, London, which later was acquired and is now managed by Merlin Entertainment Group Limited.
In the present time, Madame Tussauds Wax Museum has spanned its branches across the globe and is the world’s most visited attraction that features wax figures ranging from members of the royal family, popular villains in history to famous personalities and stars of film, TV, sports and politics.
Copyright Protection and Ownership – Artistic Work
All forms of art are expressions of creativity of the artists, and IP protection is afforded to the creative talent of the artist of such forms of art. As per Section 13 of the Copyright Act, 1957, copyright subsists in the Artistic works which include paintings, sculptures, drawings (including a diagram, map, chart or plan), engravings or photographs, works of architecture and all other works of artistic craftsmanship, and Section 14 provides a list of the exclusive rights that can be exercised either themselves by the owners of copyrights in such works or someone who is duly authorised by them.
The exclusive rights in respect of artistic works are namely, reproduction of the work in any expression including storing of it in any medium or 3D representation of a 2D work or 2D representation of a 3D work, communicating the works to the public, issuing a copy of the work to the public, incorporating the works in a cinematograph film, and making an adaptation of the works, and confers protection to it from unauthorized use.
In India, copyright protection to artistic work lasts for the artist’s lifetime until the completion of sixty (60) years beginning from the calendar year following the date of the artist’s death. So long as such protection exists, the permission of the copyright holder of the Artistic Works is required in respect of usage/exploitation of exclusive rights listed above.
Section 17 of the Copyright Act, 1957 recognises artists (i.e. the author) as the first copyright owner of artistic work. However, if the work is made for hire or in the course of author’s employment under an employment contract or during on the job training, the copyright in such artistic works shall vest in the employer or person or entity who has commissioned such service, in the absence of an agreement to the contrary.
Becoming of wax figures in Madame Tussauds
The art of creating lifelike wax figures is not as easy as it looks. It requires painstaking attention in making the minutest detail of each figure. From the research work on the subject to be casted, followed by initial sitting where more than 150 photographs of the subject are taken from head to toe and from different angles by the team, it takes over 800 hours, 150 kg of clay per wax figure and investment of 250,000 euros to create only one figure out of wax.
Not only this much but more than 500 exact body measurements of the subject are also taken to replicate the subject perfectly so that on looking at the figure one would imagine that one is facing a real-life person. The modeller uses the details taken to build a clay sculpture of head and body using conventional modelling techniques, which takes up to 6 weeks and then plaster moulds are created of the clay sculpture of head and body and melted wax is poured onto it and put to rest overnight to settle and cool.
Then comes the finishing stage when eyes, skin texture, hair and hairstyle is matched and fixed, including its colour, to copy the desired look. Before the wax figure is ready for exhibition at the Museum, it is approved by the team and personality who is sculpted, if alive.
Personality Rights of the people whose figures are created and exhibited at Madame Tussauds Wax Museum
Unlike many other jurisdictions, the statutory provision governing Personality Rights is absent in India and developing through case laws. In India, personality rights emanate from Rights to Privacy and Rights to Publicity.
Right to privacy is the right to prevent unauthorised access/ intrusion into and disclosure of certain information, including a person’s image that such person does not want to be out in public, which may or may not have a link with commercial use is available to all individuals.
On the other hand, the right to publicity is advanced from the right to privacy, and vests only in the famous persons whose identity, persona or likeness has acquired recognition and some commercial value in the eyes of the public and can undoubtedly be identifiable when appropriated. It is associated with the right to control the commercial use of one’s personality traits, namely, name, image, likeness, caricature and other attributes and prevent others from using it and earning profits without permission.
The Supreme Court of India has recognized the Right to privacy for the first time in the case judgement R Rajagopal v State of Tamil Nadu (JT 1994 (6) SC 514), where the court observed that the right to privacy is said to be violated when certain information including individual’s name or likeness is disclosed without the permission of such individual, whether for advertising or non-advertising or any other purposes. Courts have referred to this judgement in many rulings since then.
The Courts have in matters such as ICC Development (Intl) Ltd. vs. Arvee Enterprises and ors; DM Entertainment vs. Baby Gift House & others; and Titan Industries Ltd vs. Rajkumar Jewellers, have observed upon the right to publicity and concluded that the right to control when, how and where the identity or likeness is used should be entrusted with the famous personality and question of commercial use of the identity is important but secondary.
Also, the court has in the matter Justice K. S. Puttaswamy (Retd.) v. Union of India held that the right to control the commercial use of one’s aspect of life and image to the world shall vest with that individual and such individual may prevent others from making use of it for commercial purposes without his/her permission.
In other words, no one should be allowed to make use of someone’s identity, characteristics, images, likeness, etc and unjustly enrich themselves at the expense of others, as such unauthorised control and exploitation of personality traits are unwarranted, and therefore is subject to a license/permission of the celebrity. Otherwise, it would amount to a violation of privacy rights and publicity rights (together, personality rights) for unauthorised use, false endorsement and passing off of the personality rights of the celebrity.
Further, the court also observed the question of posthumous personality rights and had held that since the rights to privacy, a natural right is given to every individual from birth, which forms an important ingredient of Personality rights, is gone with the individual’s death, therefore, the personality rights too extinguishes upon the death of the celebrity and thus cannot be inherited by his/her legal heirs. However, action for defamation could still be commenced by the close relatives of such celebrity if the portrayal of such celebrity’s sculpture is done in a manner that would have harmed his/her repute if he/she was alive .
Conclusion
In view of the above legal aspects of ownership in the artistic works of Madame Tussauds Wax Museum and how the personality rights of the personalities and public figures whose sculptures are exhibited at Madame Tussauds are interrelated with it, it is analysed that wax sculptures fall under the category of the Artistic Works as per the Copyright law, and Madame Tussauds Wax Museums holds complete ownership in the wax sculptures created by its team of experts by themselves (through a contract of service) or in collaboration with an interdisciplinary group of artists (through a contract for service/commissioned works) and is endowed with all exclusive copyright listed under Section 14 of the Copyright Act, 1957, and unauthorised use and reproduction in any manner (except fair dealing and exemptions under Copyright law) amounts to infringement of copyrights of Madame Tussauds, a division of Merlin Entertainment Group Limited.
As regards to its interrelation with personality rights, when wax sculptures of a celebrity or a public figure are created and exhibited at Madame Tussauds, it divulges image and likeness that are the main and recognizable characteristics of any individual in an error-free and lifelike manner and therefore, as a prerequisite personality rights of the personality whose figure is created and exhibited at Madame Tussauds Wax Museum is acquired, otherwise, it would amount to a violation of publicity and privacy rights.
Further, an NDA or a confidentiality clause is also executed by Madame Tussauds to ensure that no vital statistics of the celebrity is divulged in public, which could amount to a breach of privacy rights.
References
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