India: Protection Of Celebrity Rights/ Personality Rights In India

Last Updated: 30 April 2019
Article by Mudita Gairola

The Delhi High Court recently passed an order of injunction against Zee Media from using the TV personality Rajat Sharma's name in any of its advertisements, whether electronic or print. The Court also asked Zee to remove all hoardings bearing Sharma's name. Thus, by passing such an order, the Court upheld celebrity rights in the country. But what exactly do celebrity rights refer to?

Celebrity rights or Personality rights, as the name suggests, refer to rights associated with the personality of an individual. This is intricately involved with right to privacy and property of a person. This is mostly important to celebrities as their names, photographs or even voices can easily be misused in various advertisements by different companies to boost their sales.

The right of publicity, the term used in the United States, is defined by the International Trademark Association as "a form of intellectual property right that protects against the misappropriation of a person's name, likeness and perhaps other indicia of personal identity for commercial benefit." In America, there's no federal statute recognizing the right of publicity, but majority of the states  have a state law for it. In 1977, for the first time, the US Supreme Court heard a case on rights of publicity in Zacchini v. Scripps-Howard Broadcasting Co1Justice White, delivering the judgment on behalf of the majority wrote, "Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent."

In Europe, "image rights" is the preferred term for such rights. Even though the European Union lacks a unified regulation, most of the countries recognize "image rights" of certain type as a part of the personality rights. But the UK does not have an established right of publicity. It indirectly stems from copyright law, trademark law and the tort of passing off. The tort of passing off covers those cases where one trader misleads the public into believing falsely that the brand being projected is his, when in fact it's someone else's.

The scenario in India

Before the Justice K. S. Puttaswamy (Retd.) v. Union of India2judgment was passed by the Supreme Court in 2017, personality rights were mostly derived from the common law principle of the tort of "passing off", just like in the UK. With the 2017 judgment, these rights were elevated to the position of constitutional rights. Justice Sanjay Kishan Kaul gave constitutional legitimacy to these rights by stating:

"Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent".

This is not the first time that the right of publicity has been discussed by the Court. There have been several exclusive personality right cases involving various celebrities such as Rajnikanth – Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Production3wherein the Court rejected the defendant's plea that plaintiff's case be dismissed on the grounds that "Personality Right" has no definition and this particular property right is not recognized by any statute in India. The Court stated that "though there is no definition for the personality right under any statute in India, the Courts in India have recognized the personality right in the name, in various judgments." An injunction was thus passed by the Court against the defendants from using the plaintiff's name/image/caricature/style of delivering dialogues in their forthcoming project/film. The Court relied upon the famous case of ICC Development (International) Ltd., Vs. Arvee Enterprises and another4in which it was 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 traint, signature, voice, etc., An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals, to the organiser (non-human entity) of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it."

The Court further relied upon the famous Titan Industries5case, in which it was observed that "No one was free to trade on another's name or appearance and claim immunity." The Titan Industries case also laid down the famous test for determining the liability for infringement of the right of publicity:

"Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.

Identifiability: The Celebrity must be identifiable from defendant‟s unauthorized use Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws."

The latest case of Rajat Sharma also relied upon this case, along with the case of Rajnikanth, to pass its injunction order.

Therefore, even though there's no statute in India regarding Personality Right, the intention of the Court has been to recognize and protect these rights. Perhaps, the first time this was recognized by the Court was in the guise of right of privacy in R RajaGopal v State of Tamil Nadu6. Here the Court noted that the right of privacy has two aspects:

(1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and

(2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion."

Conclusion

Over the years, many celebrities like Daler Mehndi, Sridevi, Sonu Nigam, Cyrus Mistry, Arun Jaitely and as we have seen above, Rajnikanth have been involved in cases related to celebrity rights. With the discussion around Article 21 of the Constitution in Justice K. S. Puttaswamy (Retd.) v. Union of India, it can be assumed that right to publicity has been accorded a constitutional status. But since the case actually didn't revolve around the issue of celebrity rights, this can be ignored by the lower courts as simply obiter. Still, the jurisprudence of this offshoot of the Intellectual Property rights is at a nascent stage. Even judicial interpretations have been limited regarding this evolving field of IPR. The latest case of Rajat Sharma, though applies the principles evolved over the years correctly, but still fails to elaborate this unique field of Intellectual Property Rights.

Footnotes

1 Zacchini v. Scripps-Howard Broadcasting Co 433 US 562 (1977)

2 Justice K. S. Puttaswamy (Retd.) v. Union of India Writ Petition (Civil) No. 494 of 2012 (Sup. Ct. India Aug. 24, 2017)

3 Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Production 2015 (62) PTC 351 (Madras)

4 ICC Development (International) Ltd., Vs. Arvee Enterprises and another 2003 (26) PTC 245

5 TITAN Industries vs. M/s Ramkumar Jewellers 2012 (50) PTC 486 (Del)

6 R RajaGopal v State of Tamil Nadu 1995 AIR 264

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