This article is written by Dhruv Shah, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from lawSikho.com.
Table of Contents
Introduction
Voters of a village in Maharashtra were fooled when they were promised this:
But instead got this:
As funny as this news is, the real Virat Kohli has not even an ounce of an idea that his images are used in fake campaigns to lure voters to the event forcing them to vote in the favor of the organizing politician. Celebrities’ images are used in almost all mediums of advertising without permission violating their rights. While this may sound normal it may have a devastating impact on a celebrity’s brand image. Imagine a scenario where a celebrity endorsing Maggi finds himself on a billboard with Patanjali’s atta noodles.
Can a brand ambassador of a perfume brand protect his personality rights?
Yes. But first, let us understand the whole concept of being a brand ambassador. A particular company may choose a celebrity to be the “face” of the brand. They are called brand ambassadors.
They may promote the product at events or consent to use their images for promoting the products. They leverage their fan following by giving the idea that they use the products for their personal use also. Although it may sound not much, they have a lot of responsibilities on their shoulder.
They have to represent the brand positively in many events and interactions. They have to participate in event marketing, generate brand awareness through word-of-mouth marketing, and also promote the brand via his/her social media accounts. Famous Bollywood actor Ranveer Singh is the brand ambassador of Nivea. Under the tag of ‘Nivea Man’ comes a lot of products including a body deodorant.
Being the brand ambassador his images are used across billboards with him holding the deodorant in his hand. Imagine if any other small brand uses his image for promotions standing next to a can of deodorant with the line ‘the choice of Bollywood’. Now this will lead consumers into thinking that even Ranveer Singh uses that deodorant. This also leads to negative publicity of Nivea of which he is the sole ambassador.
Recently in March 2021, Bollywood actor Suniel Shetty filed a police complaint in Mumbai against a production company for circulating a fake film poster featuring him. This is termed misrepresentation when there is the usage of photographs in any form of advertisements without explicit permission. Let us understand the concepts of ‘Celebrity’ and their ‘Personality Rights’.
Celebrity
Under the purview of ‘celebrity is anyone who is in the public eye and garners their attention be it an actor, cricketer, author, singer all come. The whole concept of celebrity comes from the Latin word ‘celebritatem’ which means ‘the condition of being famous’. In case of exploitation when an identity is misused directly for commercial gain, the person whose identity has been misused becomes a celebrity for the right of publicity purposes.
Personality rights
Personality rights, publicity rights, and privacy rights are some of the rights relished by celebrities all over the world. Personality is a concept of how an individual is viewed by society.
Under privacy right it includes every person’s right ‘to be let alone. One of the most fundamental rights is publicity rights. Publicity rights can be deemed as a personal right to control how their identity can be used commercially. It has been introduced to forbid others from cashing out on the fame associated with their persona. Any person must, therefore, obtain the permission of a celebrity before using his/her persona for commercial gain. Failure to do so may lead to legal remedies employed by the affected celebrity.
Relevant laws
In India, Personality Rights per se, are not recognized as distinct legal rights but have been established through the Right to privacy and the Right to publicity. Personality rights are considered as property as opposed to Personal rights, and hence courts in India recognize the Right to license and sell the Right to publicity.
The Right of publicity upholds all persons’ rights from birth until death. No statute or law preserves personality rights in India per se. Nevertheless, these days India also started recognizing these rights through many substantial judgments.
Coming to the main question of this article, What can a brand ambassador of a perfume brand do to protect his personality rights?
Remedies in case of celebrity’s personality rights
In case of violation of any Celebrity’s personality rights, he/she has the following legal remedies available:
Protection under trademark law
Trademark registration of any aspect of a celebrity’s personality occurs when they are ready to license their own personality to be used commercially, albeit with their permission. It can also be called a means of safeguarding those aspects of their personality against unauthorized use by any individual or entity.
Protection under copyright law
Copyright law provides an exclusive, although the limited right of protection under which they can permit the lawful use of their photograph for example for any commercial use. But to take any authorized user to court, the celebrity in question has to provide proof of ownership and their copyright in that particular image.
Passing off action
The action of passing off comes into play when an individual’s name or likeness or particular characteristics are exploited commercially. We could say that passing off that celebrity’s popularity and fan following is misused to show endorsement or collaboration of any product by that celebrity. After all, the exclusive right for commercial gain from their personality rights is an integral part of the legal remedies.
What is the need to Protect personality rights?
Celebrities’ personality rights can be used commercially. That does not mean that any individual or company can use them without their explicit permission for commercial gain. In the current context, such endorsements are only possible with an enormous amount of money.
Also if the celebrity is a big personality that it increases the value of the brand. Recognizing this valuable asset as an intellectual property ensures that no other brand in conflict uses its likeliness to establish a connection. No celebrity would like to be shown in any collaboration or partnership of any kind with a kind of product they do not consume nor promote. Take for example Ronaldo’s infamous removal of coke bottles.
Global perspective
While India has many cases like Titan Industries Ltd. vs M/S Ramkumar Jewellers, Shivaji Rao Gaikwad(Rajnikanth) vs. Varsha Production, the issue of violation of personality rights is also a rampant issue in the US. According to US law, publicity rights to directly related to privacy rights.
In a landmark judgment, it was held that the unlicensed use of an artist’s photograph in an advertisement violated their right to privacy. Under the Canadian common law, where a person has profitable economic value in their personality and such a personality has been copied or misused to resemble their likeliness in a manner that suggests an endorsement of any goods or services then they are justifications for legal action in the appropriation of personality.
Conclusion
A celebrity attains his celebrated status through intellectual, emotional, and physical efforts. Hence, only a celebrity can approve how his/her name, goodwill, and reputation can be used and successfully exploit commercially. Only the illegal and unjust usage of personality rights with unjust intentions are unlawful under the law. This also includes any brand ambassador be it for deodorant.
In this scenario, we can conclude that any celebrity’s name or image can not be used for any commercial use without any prior consent of the concerned celebrity, as these celebrities acquire their brand value through their hard work. Therefore, any use of their name or photographs that are commercially utilized, must be exploited by the celebrities themselves and no one else.
References
- https://www.mondaq.com/india/privacy-protection/801764/protection-of-celebrity-rights-personality-rights-in-india?login=true
- https://www.lexology.com/library/detail.aspx?g=0759e39a-7803-4d67-95fa-f54624e99951
- https://www.slwip.com/resources/copyright-personality-rights/
- https://txpatentattorney.com/blog/what-are-image-and-personality-rights/
- https://www.inta.org/topics/right-of-publicity/
- https://www.degruyter.com/document/doi/10.1515/jetl-2018-0113/html
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