June 13, 2021

Celebrity Woes: Locating the Publicity Rights in The Existing Laws

Introduction


With the due passage of time, we see everybody trying to earn fame, but it leaves us baffled, how exactly do we define a ‘Celebrity’ and what is so distinctive about them to give them special protection of rights? Celebrity, as universally, refers to a person who has become revered in public eye. For several years, we have been seeing countless brand commodities being endorsed by our celebrities. Be it an inexpensive daily-use product such as Vicco Vajradanti endorsed by the actress Alia Bhatt, a higher price L’Oreal shampoo endorsed by the Aishwarya Rai, or an expensive commodity such as gold or diamonds endorsed by eminent actor Amitabh Bachchan, Celebrity brand endorsers add value by appealing to their fan following across all demographics and helps the brand in building greater awareness and attracting potential consumers as well generates higher brand recall than a non-celebrity endorse.

But the public figures cannot be considered to be anyone’s public property and the unauthorized use of their names, photographs or even their voices to boost up a commodity’s sale or for any other purpose is a violation of privacy under Article 21 of the Indian Constitution[1]. The author aims to be focusing on the meaning and justification of celebrity rights, the incapacity of the current framework in the realm of Intellectual property law and various international conventions that recognizes such rights. The article will further suggest the few proposed solutions in order to reflect on what the development path of this right should be in India for the protection of such rights.


Who Is A Celebrity?


The word ‘celebrity’ takes upon itself a sense of honour and why shouldn’t it, they have put in efforts, time, and finances and have honed skills to reach where they have today. If intensive effort has been put into the creation of work, then the property belongs to the author according to the “sweat of the brow” theory.[2]

In the same way, the unjust benefit gained by the use of celebrity’s work such as their dubbed voice or images for advertising a product without their slightest knowledge is a violation of their right as the work belongs to the celebrity. The term “celebrity” has nowhere been defined under the Indian legislation. However, we can put a reference on the term ‘performer’ which given a broader interpretation may include the term celebrity within its ambit defined in section 2(qq) of the Copyright Act 1957.


In Titan Industries Ltd. vs. Ramkumar Jewellers[3], the Delhi High Court in 2012 defined the scope of celebrity as “a famous or a well-known person and is merely a person who “many” people talk about or know about”. Along with the invaluable status of being a celebrity, their rights also need to get protected which are frequently hindered upon by the media. Celebrity rights are a combination of personality rights, privacy rights and publicity rights.


Personality Rights

Personality rights are associated with people who have acquired the status of a celebrity and further seek to prevent others from the unauthorized use of the name, image, and likeness including their right to privacy. Protection of moral rights is an important facet provided in our copyright law under section 57 of the said act which is based on personality of a performer. An individual’s personality is how one individual recognizes others and identifies his/her status in the society.

In Tolley v Fry[4], there was a question concerning the use of the image of a popular golf player advertising the brand Cadbury. Tolley’s reputation was being misused as a golf player for advertising purposes, thereby the court held that the conduct of the defendant amounted to libel and awarded damages. This scenario today has changed drastically, and celebrities now claim paradoxical right, which means they claim right of privacy along with the right of publicity.


Privacy Rights

Celebrities must look out for their privacy. The public remains curious to know from what they are doing to what they are wearing to whom they are dating. Publicity rights in the form of the right to privacy were first time recognized by the Supreme Court in RR Raja Gopal v State of Tamil Nadu[5] where the court observed that right is said to be violated when the where the person’s name or likeness is used without their consent for advertising purposes or any other matter. In another case of Barber v .Times Inc.[6], Dorthy Barber, a non-public figure checked into a hospital for treatment of an eating disorder.

A week later, Times magazine published a humorous story under the heading “Starving Glutton” accompanied by Barber’s photo in hospital bed. She had filed a suit of “Invasion of Privacy” against Time Inc. for unauthorized entry into the hospital room and for taking pictures despite her denial. The court held that media can be held liable for damages when they publish any private matters. Neither the freedom of the press nor the right to privacy is absolute, therefore privacy rights and matters of social interest are to be treated harmoniously. Therefore, in this case, we can see there has been a remedy available to the celebrities either in the form of an act of “invasion of privacy” or as a violation of “Right to Privacy” under Article 21 of the Indian Constitution.


Publicity Rights

The individual’s right to control the commercial use of his/her name which leads to exploitation of the economic name and fame is termed as publicity right. The right of publicity has emerged from the right of privacy and can exist only in an individual’s personality like his name, personality trait, signature, voice, etc.[7]Advertising requires massive amounts of money and a celebrity’s public image is of great importance. Instances of such cases in the media world are very common these days.

Taking the case of Sourav Ganguly v. Tata Tea ltd.[8] wherein Sourav Ganguly, the legendary cricketer filed a suit against the Tata tea Ltd. when he realized that the company was promoting its tea packet by offering the consumers a chance to congratulate Ganguly through a postcard kept inside each packet of tea. Indirectly, the company’s intented to promote the sale of its tea packet in the Indian market. The court ruled in favour of Ganguly by accepting that his fame and popularity are his intellectual property and one cannot exploit that.

Another landmark case adjudged by the Delhi High Court was of Gautam Gambhir v D.A.P & Co.[9], where Gambhir filed a suit against a Delhi based resto-bar for using his name as a tagline. He alleged that the use of his name would mislead the public to believe that the restaurant is associated with him. But here, in this case, the court rejected the petition as the owner of the pub shared the same name and he didn’t associate his business with any kind of sports or cricket that could create confusion amongst the public. Therefore, it was held that an individual is entitled to carry on his business in his ‘own’ name if it was carried with a bonafide intention.


Status Quo in India

In Civil law countries, most of the countries have specific statutory provisions for the protection of any person right, image, data, or any other information. However, some countries have specific rights for celebrities. In France, protection is provided under Article 9 of the French civil code[10]. In Germany, personality rights are protected under German Civil Law[11]and in Greece, the consent is required for the Commercial use of a published picture of a person in a public space.[12]


But when it comes to India, neither the legal system is adequate enough to deal with protection of celebrity rights nor do we have any specific codified statutory provisions for their protection. Moreover, the need for statutory provisions is increasing every day, because more and more celebrities are endorsing brands through advertisements and a huge amount of money is invested in this collaboration. When we look upon the jurisprudence of celebrity rights in India, then only the precedents set are considered to be the sole authority as there is no statutory legislation on it to date.

Few statutory provisions indirectly protects the personality rights such as Copyrights Act 1957, which protects the Authors or the Performers right to claim authorship of their work and also have a negative right restraining others from causing any kind of damage to their reputation under section 57 of the said act.[13]Section 14 of the act also provides the exclusive rights to performers.

Then the Trademark Act 1999 also prohibits the use of personal named of personalities under section 14 of the said act.[14]In circumstances, where the name, appearance or performance features of an individual are misused, the practice of passing off as a remedy is also used to redressal against the damage to a person’s goodwill caused by misrepresentation by another person Lastly, remedy under Law of Torts can also be used to protect the rights against the tort of disparagement or defamation.


Role of International Conventions

The concept of celebrity rights or performers is changing with the passage of time across the world. There are various international conventions which are specifically related to the performer’s right. Firstly, there is Rome Convention for the protection of performers right which is open to the states party to the Berne Convention for protection of artistic or literary works or to the Universal Copyright Convention[15] Secondly under Article 14 of the trips agreement, protection is granted to performers by preventing their acts such as fixation and reproduction of their performances on phonogram and broadcasting of their live performances.[16] Thirdly, there is WIPO Performance and Phonograms Treaty (WPPT) which came in existence in 1996 for the effective functioning and protection of performer’s right, and helped in identifying the various problems faced by the performers at international level and tries to balance between the interest of public and Right of a celebrity.[17]


Conclusion


In India, there is no clear statutory provision within the intellectual property laws that gives protection to the personality rights of the celebrities and at present the courts while dealing with celebrity cases place reliance on the constitutional protection under Article 21 of the right to privacy and publicity. There only exists a provision for secondary rights to prevent public performances or broadcasting or recordings made without the performers’ consent, whereas the exclusive right vesting with the performers to authorize public performances and broadcast them, does not exist with them.

Looking at the current situation where the privacy of these celebrities is encroached upon, there is an urgent need to recognize celebrity rights within the realm of intellectual property rights and to give them protection against the substantial similarity of their work. The Government by repealing Consumer Protection act 2019[18] has realized the urgent need to protect the consumers from misleading advertisements of products endorsed by such personalities. In the light of increasing endorsement agreements involving famous personalities, the government has now imposed penalty on the endorser from promoting misleading advertisements.

The author suggests that the legislature should give statutory commercial recognition in the celebrity rights aspect to fill up the lacunae in law and keep pace with high speed commercialization of celebrity status.

References

[1]INDIA CONST. art. 21.

[2]Fiest Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[3]Titan Industries Ltd. v. Ramkumar Jewellers, (2012) PTC 50 Delhi486.

[4]Tolley v. Fry, AC 333 (1931).

[5]RR RajaGopal v. State of Tamil Nadu, JT (1994) 6 S.C. 51(India).

[6]Barber v.Times Inc., 159 S.W. 291(1942).

[7]ICC Development (International) Ltd. v. Arvee Enterprises and Ors, (2004) 1 RAJ 10.

[8]Sourav Ganguly v. Tata Tea ltd, (2008) 1 CS 361.

[9]Gautam Gambhir v. D.A.P & Co., (2017) 9 CS 395.

[10]FRENCH CIVIL CODE, art. 9.

[11]Corinna Coors, Celebrity image rights versus public interest: striking the right balance under German law, 9 Intellectual Property Law & Practice L.J, 835–840 (2014).

[12]Kirsty Hughes, Photographs in Public Places and Privacy, 2 Media L.J. 159–171(2009).

[13]The Copyright (Amendment) Act, 2012, No. 27, Acts of Parliament, 2012, Sec.57 (India).

[14]The Trade Marks (Amendment) Act, 2010, No. 40, Acts of Parliament, 2010, Sec.14(India).

[15]WIPO, Summary of Berne Convention for the Protection of Literary and Artistic Works (1886), https://www.wipo.int/treaties/en/ip/berne/summary_berne.html.

[16] TRIPS Agreement, art. 14.

[17]WIPO, WIPO Performance and Phonograms Treaty,https://www.wipo.int/treaties/en/ip/wppt/.

[18] The Consumer Protection (Amendment) Act, 2019, No. 35, Acts of Parliament, 2019, (India).


Author Details: Ayush Bhatia Ruchika Baweja are students at Institute of Law, Nirma University.

 

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