This article is written by Suvigya Buch, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Introduction
Personality rights, as the name suggests, refer to those rights of a person that are related to their personalities such as certain characteristics, personality traits, and their commercial use and exploitation. These rights are available to people who have attained a certain level of fame where the said personality traits are associated with them or are unique to them and may be used to monetize items that are attached to their names. These rights aim at the prevention of misuse of the said person’s name, image, resemblance, and any other identifying aspect of the personality of a famous individual, including their right to privacy. Despite their importance, Personality rights are not covered by a separate codified law in India.
However, with the heightened impact of globalization and the onset of social media, various athletes among people from other fields have gained global recognition. The impact caused by their personality is not restricted only to their fans. Therefore, over the years, the need to protect such personalities has increased.
In Europe, sporting organisations have used personality and the image rights that fall thereunder to help generate massive revenues. One of the most decorated football clubs, Real Madrid Club de Fùtbol (“R.M.C.F.”), purchased Gareth Bale for a whooping £85.3 million in 2013. In return, Bale assigned 50% of his image rights to the club and these rights went on to help them recover the investment made by them in Bale. The club used its image rights to sell merchandise and make money through product and brand endorsements or advertisements.
This is proof of the impact that can be created by personality rights and their importance in today’s world. Hence, there is a major scope of research to help, understand, and analyse why there is a lack of legislation for a right so widely used and this paper seeks to do the same.
Understanding personality rights
The right of an individual comprises the right of publicity and the right of the image and both flow from the right of privacy of individuals. Such rights control the commercial use and exploitation of a person’s identity or his personality rights. Initially, the unauthorised use of a person’s name, likeness, and image was protected only under the right of publicity, however, the scope is much wider now. It now protects all attributes that distinguish an individual and make him/her unique. Therefore, the right to publicity and image rights are equally important parts of personality rights.
The identity of a person refers to all identifiable and definite elements of his/her persona which makes said person unique. Such elements may include one’s name, physical appearance, voice, gesture, attire, look, image, likeness, and even signature. An individual or any third party on behalf of an individual following assignment or inheritance exercises the personality right which is a right in personam. Personality rights incorporate the right to initiate action to prevent the wrongful expropriation of an individual’s identity for commercial purposes without his/her consent or seeking compensation.
Current scenario
Personality rights may be protected under common law and Article 21 of the Constitution of India which provides for the right to privacy and publicity under the right to life. Additionally, the Copyright Act, 1957 (“Copyright Act”), and the Trade Marks Act, 1999 (“Trade Marks Act”) broadly govern and protect personality rights. Section 14 of the Copyright Act states that “…‘copyright’ means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof…”, thereby safeguarding the rights of the creator of the work. Furthermore, the Copyright Act under Section 38, 38A, and 38B provide for performers rights according to which they have the right to be given credit or claim authorship of their work and have a negative right, restraining others from causing any kind of damage to their work which consequently disrupts their reputation. Section 14 of the Trade Marks Act restricts the use of personal names of persons living or recently dead, thereby preventing misuse of a person’s name or representation of the said person. Personality rights under intellectual property law are therefore interpreted in a manner where Personality rights are the property of well-known personalities and hence cannot be misused or misappropriated by anyone else. However, there is no specific or comprehensive statute or legal provision dealing with personality rights in India and this is a problem.
Similar to most other countries, India too holds its sportspersons in high regard and a majority of the youth idolises them. Therefore, there is a hunger to consume more information, they want to keep up with their lives, and follow their lifestyle to be like them. As a result of this, Personality rights hold high value. As mentioned above, the deal made between R.M.C.F. and Gareth Bale revolutionised the deal structures between sportspersons and their employers or endorsers. Personality rights are now a big part of these deals as social media is at an all-time high and even single pictures of such personalities from the sporting world sell for unimaginable amounts. Therefore, having a right over thousands of such pictures, a part of endorsements, and all other things that fall under personality rights is extremely valuable. In various instances, if the player’s name, image, or likeness has been registered, been copyrighted, or used as a trademark, the said copyright or trademark can be licensed. Sachin Tendulkar, for instance, has trademarked his name across various classes and so has Kapil Dev.
While the sporting industry as a whole has developed over the years, its business aspect has seen the most exponential growth. Various franchises and individual players have started merchandising items related to them and their personality traits. Athletes and sports celebrities market and sell merchandise bearing their image and personality rights to further commercially exploit their fame and extend the scope of their personality rights. It is therefore essential that the personality rights of these celebrities are not used for the wrong reasons.
The mere association of the name of a team, their logo, or a team player, could offer unprecedented mileage to the person or entity using such name or logo. It is a loss to the team, team owner, the player, and an unwarranted gain for the entity associating such name or logo for their commercial benefits, without taking any permission or paying any license fee or royalty. Hence, having a clear line of demarcation between the sportsmen’s personality rights and his image as a part of the team is very important. Any such unauthorised use of the trademark would amount to unfair trade practice, unfair competition, and also dilution of goodwill and reputation of the respective proprietor.”
Personality rights and image rights have therefore become of utmost importance in the sporting industry. Another example of the same is the appointment of Jose Mourinho as the manager of the legendary football club, Manchester United. His appointment to Manchester United brought his former club Chelsea and Manchester United both to a standstill over the issue of his Personality and image rights, as Chelsea held several EU trademarks with his signature, name, and other goods. Additionally, Chelsea also owned his image rights. Eventually, Manchester United paid an undisclosed amount which is assumed to be at least a six-figure amount to obtain the image rights.
- In ICC Development (International) Ltd. vs. Arvee Enterprises and Ors, the plaintiff contended that the commercial persona and identity of events held by the ICC vest wholly and exclusively with the plaintiff and that they own publicity rights in all events held by the ICC that have any commercial value. The defendants in the case were wrongfully exploiting the persona of the plaintiff’s events and thereby making wrongful gains. The court observed that despite all forms of appropriation of a legal entity’s property being protected under various laws including the Copyright Act, granting personality rights to a corporate entity would defeat the concept of ‘persona’. The court held 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… 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 the case of Gautam Gambhir vs D.A.P & Co. & Anr., the plaintiff contended that the defendant’s chain of restaurants could not use his name in their tagline as he is a famous cricketer and therefore his name is protectable as a well-known trademark. The plaintiff argued that due to his name being used, confusion was being caused in the minds of the general public as to the Plaintiff’s association with the said chain of restaurants amounting to deception and personality rights of the Plaintiff being illegally violated. The court declined the plaintiff’s contentions and held that as the defendant did not use the plaintiff’s image or in any other way portray to the public by using his photo or poster in his restaurant or on his social media pages, there was no intention on the defendant’s behalf to confuse. Therefore, unless there is unjust enrichment of one by using a famous personality’s name, image, or likeness, the suit will fail to stand the test of personality rights.
- The Delhi High Court in the case of Tata Sons Limited & Anr vs Aniket Singh, dealt with a domain name dispute involving Mr. Cyrus Paillonji Mistry, a famous personality and the chairman of the TATA Group. In this case, the court recognized that India was beginning to address the concept of personality rights which is multifaceted. Additionally, it also held that the commercialisation of one’s personality rights by a person not authorised to do so allows for the right to sue for the act of embezzlement.
Therefore, only recently have we seen certain judgments dealing with the concept of personality rights and there still is a long way to go to solidify the same as well as provide clarity on the rights of various stakeholders involved.
Conclusion
The Indian sports industry expands exponentially, year by year. With the expansion of the industry, sportspersons and other personalities that are associated with the sport are in the limelight, more than ever before. In a country like India, where sportspersons are worshipped more than or as much as actors and other famous personalities, the importance of personality rights is unparalleled. These rights provide the right to use and/or control the commercial exploitation of one’s name, image, likeness, or any other aspect of personal identity. However, despite their importance, there is no specific, let alone comprehensive statute or legal provision related to the same. It is not uncommon to misuse the images or likeness of famous personalities to make commercial gains or imply an association with such personalities to the public. Such misuse of one’s identity, image, or likeness can be extremely harmful to their reputation.
The protection provided under common law and certain provisions of the Copyright and Trade Marks Act is not nearly enough and therefore it is essential to understand the importance of Personality rights and create comprehensive legislation addressing and providing for the same. While broad topics like copyright, trademark, and patents concerning sports fall in the limelight, niche topics like personality rights are often side-lined. In certain cases, personality rights have transformed the very deal structures and this is proof of how strong and important they are. It is of utmost importance to spread awareness and work towards solidifying these rights in our sports-loving nation.
References
- Gareth Bale joins Real Madrid from Spurs in £85m world-record deal, BBC, 2013 https://www.bbc.com/sport/football/23538218
- £85m Real Madrid signing Bale will earn £300,000 a week but what about doctors and firefighters?, Shout Out UK, 2013 https://www.shoutoutuk.org/2013/09/05/85m-real-madrid-signing-bale-will-earn-300000-a-week-but-what-about-doctors-and-fire-fighters/
- Chiramel, Christine, Intellectual Property Rights In Sports-Indian Perspective, Mondaq, 2012 https://www.mondaq.com/india/trademark/164974/intellectual-property-rights-in-sports-indian-perspective
- Sharma, Rohan, Celebrities: Just what are their personality rights?, Asia Business Law Journal, 2016 https://www.vantageasia.com/celebrities-just-what-are-their-personality-rights/
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