India: Face Value: Personality Rights and Celebrity Endorsements

Recently, the actor Rajnikanth issued a legal notice just before the release of his latest film, "Baba", prohibiting anyone from imitating his screen persona or using the character of "Baba" for commercial gain, including by way of advertisements and imitation by mimics on television.

Published in a number of leading Tamil and English dailies the legal notice also declared that no attempt should be made to use Rajnikanth's photos or sketches, or attire in the film, such as head-scarves, pendants, etc, for the purpose of endorsing products.

Given Rajnikanth’s iconic status in South India, even his mannerisms, dialogues and antics have been copied and imitated innumerable times. By issuing a legal notice to prevent unauthorised copying of his ‘persona’, is Rajnikanth somehow attempting to assert his "personality right" – heretofore unheard of in Indian legal parlance. Are stars and celebrities in India finally waking up to smell the coffee?

The ‘personality right’ is also commonly referred to as ‘the right to publicity’ and is usually attributed to celebrities or famous people. It may be defined as "the right to control and profit from the commercial use of one’s name, image, likeness, etc, and prevent unauthorized appropriation of the same for commercial purposes".

One of the theories supporting such a ‘personality right’ is the theory that the celebrity has the ‘moral right’ to reap the fruits of his labour, since a ‘commercially marketable image’ must be viewed as the celebrity’s own product, created through conscious and sustained effort in a chosen field of endeavour. Advocates of such a personality right also use the ‘prevention of unjust enrichment theory’, stating that it would be unjust to allow the exploitation of a celebrity’s fame without adequate compensation paid to him.

In the United States, the ‘right to publicity’ is a well-recognised and widely accepted right, which originally arose as an offshoot of the right of privacy - the ‘right to be left alone’. However, as early as the 1950's, courts and commentators recognized that there could exist a separate right - the right of publicity - pertaining to a person's commercial interest in the value of his or her persona. In fact the term, "right of publicity", was first coined in 1953 by Judge Jerome Frank in the landmark case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.

Advocates of the right to publicity in the United States initially sought to bring it into the framework of the existing law on privacy, trademark and unfair competition. Since then, courts and state legislatures in the United States have come to recognize the need for a separate legal basis for the right of publicity with approximately 25 states having some form of statutory legislation or judicial recognition of ‘personality rights’.

The United Kingdom seems to have moved closer to actually recognizing that celebrities have a ‘personality right’ that permits them to control the exploitation of their ‘persona’. Though there is no statute expressly recognizing such a right as in the US, judicial interpretation of existing laws (also known as ‘common law’) have been used successfully.

In 2002, in the case of Edmund Irvine Tidswell Limited v. Talksport Limited, the High Court held that a celebrity could have a property right in his goodwill, which he could protect from unlicensed appropriation. The racing car-driver Eddie Irvine had sued the commercial radio channel, Talksport, for using a ‘doctored’ photograph of him, manipulated to show him listening to a Talk Radio branded radio.

Previous attempts to assert some sort of monopoly right over use of the image and likeness of famous people in the UK had met with limited success. The Trade Marks Registry refused an application in February 1999, made by the Diana, Princess of Wales Memorial Fund to trade mark Diana's ‘likeness’ by seeking to register 52 different ‘images’ of Diana, as trademarks. Had it been successful, the registration would have prevented all unofficial commercial exploitation of Diana!

Thus the Eddie Irvine case in 2002 may signal a new judicial acknowledgement of the ‘personality right’ in the UK.

In India, as of date, neither has there been any judicial precedent recognizing ‘personality rights’ nor is there any legislation expressly granting such a right.

As in the United States and the United Kingdom, could the ‘right to publicity’ be asserted by bringing it within the framework of the existing law on privacy, passing-off or defamation? An attempt to carve out such a ‘personality right’ from the existing statutory and common law in India is yet untried and untested. Rajnikanth may well be the harbinger of such a ‘right’ in India – a right that all celebrities and stars would definitely benefit from.

In India, the right to privacy is judicially recognised as a fundamental right, enforceable against the State as held by the Supreme Court in R. Rajagopal v. State of Tamil Nadu. The right to privacy could also be similarly extended against private persons through the law of torts (the law dealing with ‘civil wrongs’). Though the right to privacy as a tortious right is not geared directly to protect the commercial appropriation of a celebrity’s image, it is conceivable that in case the "commercial appropriation" has also led to "loss of privacy" of the celebrity, such a right may be sought to be enforced.

In India, in order to bring an action under defamation, ‘injury’ to the person defamed should be in terms of his reputation, profession, etc. Whether ‘commercial loss’ for wrongful appropriation of a person’s persona or identity would also be covered under ‘defamation’ is uncertain. Though it may be difficult, it may not be impossible to seek a remedy for wrongful appropriation of a celebrity’s persona through the tort of defamation.

A ‘passing-off’ action is a remedy against the injury to the business or goodwill or reputation of a person caused by misrepresentation by another person trying to ‘pass-off’ his goods or business as the goods of another. An action in passing-off may lie for any unauthorised exploitation of a celebrity’s ‘goodwill’ or ‘fame’ by falsely indicating any endorsement of products by the celebrity. Similarly, the "wrongful appropriation of personality" could amount to passing-off as the celebrity could be said to have a proprietary right in the exclusive marketing for gain in his personality.

It is often seen that law is unable to keep pace with commercial practices, and new concepts and rights that emerge out of commercial realities do not immediately secure legal protection, whether through statute or through judicial pronouncements.

This is clearly the age of merchandising and celebrity endorsements. The skyrocketing endorsements deals received by film stars and cricketers indicate that there is great commercial value attached to endorsement by such ‘celebrities’. If such commercial value is mis-appropriated by persons without adequate compensation to the celebrity, should the celebrity have the right to sue for such mis-appropriation?

Is it therefore timely and justified to recognize a ‘personality right’ in India? With jurisdictions such as the USA and the UK (and several others such as Australia) providing explicit recognition of the ‘personality rights’ of celebrities, maybe it is time for India to provide judicial and legislative recognition to this new type of ‘intellectual property’.

Significantly, celebrities, stars and lobby-groups in such countries have played an important role in securing such rights from the legislators and the courts, and it may be high time for celebrities and stars in India to get into their act.

The views expressed in this article are those of the author and do not represent the views of the firm. This article does not purport to be professional advice, nor a complete or comprehensive study on the subject. It is recommended that professional advice is sought before taking any action pursuant to any matter contained in this article.