PROTECTING CELEBRITY RIGHTS THROUGH THE LENS OF IPR
Intellectual property (IP) Rights protect the subject matter of intangible things, due to its nature of being outside the scope of physical protection, unlike tangible things which can be protected physically. Undoubtedly, the scope of protecting intangible materials not only extends to one's intellect but even to the presence of oneself as in the case of celebrity. The utmost importance that celebrities enjoy comes with a humongous brand value that they have. While every person has the right to privacy, the scope protection of that right becomes very difficult as in the case of the celebrity where it gets affected due to the person's increase in popularity and public recognition. Eventually, such increases reach a point where the public may intrude into certain aspects of the life of a popular person or celebrity without liability.
The popularity of a celebrity comes up with the right for effective commercial use of his persona. This humongous popularity leads to the loss of the right to privacy to a certain extent. The right of publicity, which springs from public recognition, enables a person to control the commercial exploitation of his persona, including name, likeness, signature, or any other identity. In other words, no other person can go with the unauthorized use of a celebrity name to promote the commercial product by using the name without license or authorization. A large chunk of revenue that is earned by celebrity comes from the authorization of permitting the use of their name with commercial products, and publicity rights play an important role in preventing false endorsement and the tort of passing off.
The Indian Copyright Act does not define the word 'celebrity'. But reference can be made to the definition of a performer as given under Section 2(qq). A performer is not a celebrity always and a celebrity may not be a performer at all. The word performer includes 'an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance'. Section 38 of the Act gives a special right i.e. performers' right to any performer who appears or engages in any performance concerning such performance and that right shall subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made. Clause 3 of the same section says that during the continuance of a performer's right concerning any performance, any person who, without the consent of the performer, makes a sound recording or visual recording of the performance; or reproduces a sound recording or visual recording of the performance, etc., shall subject to the provisions of Section 39, be deemed to have infringed the performer's right.
Protecting the Celebrity Rights
In India, we don't have specific legislation to govern the issue of celebrity rights. But as it can be analyzed through available literature, three basic remedies can help protect celebrity rights in India i.e. under copyright, trademark, and passing off action.
Trademark registration has significance as far as the rights of celebrities are concerned. The TM registration is unique in providing effective protection. When the celebrity registers itself under the trademark, this gives us the impression that the celebrity is open to the authorized assignment or licensing of his or her personality for merchandising purposes. This registration is the indication that the celebrity will defend any such unauthorized use of his personality. In India, celebrities and commercial partners can obtain some protection from trademark law but such protection may be limited in scope. Section 2(1) of the Indian Trade Marks Act, 2000, allows registration of any 'sign capable of distinguishing goods and services of one person from another, any word (including personal names), design, numeral and shape of goods or their packaging' as a trademark. Courts in India have accorded protection to film titles, characters, and names under trademark laws.
There is not much clarity as to what aspects of celebrity rights may be protected under the Copyright Act. Copyright does provide an exclusive right whereby it allows celebrities/performers to authorize reproduction, creation of a derivative image, sale or display of, say, a commissioned photograph of themselves by others. So if a celebrity goes to the court for action against infringement, the celebrity must be able to show that the ownership of the copyright in the image and copying of that image if that depicts the celebrity's image. Well, this is a problem since it becomes very difficult to prove the ownership in the photograph. In Sim v Heinz & Co Ltd (1 WLR 313 1959), the court said that copyright is neither granted to voice, likeness nor other identifiers of a persona. The Indian Copyright Act, 1957 protects sketches, drawings, etc., which fall within the category of artistic work. Section 14 of the Act grants exclusive right to authorize others to reproduce the work in any form, including conversion of a two-dimensional work to three-dimensional works and vice versa. However, no copyright is granted to the name or image of the celebrity in India.
Passing off Action
The action of passing off could be of much relevance when we see that the trademark and copyright failed to protect. It can be of much relevance in cases where personality merchandising is associated, where a person's name, likeness, or performance characteristics are misused. Passing off action can be taken against the injury to the 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. If the celebrity name or image is being used in an unauthorized manner, an action in passing off may lie for which a celebrity's 'goodwill' or 'fame' is injured by falsely indicating 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. Indian law recognizes personality rights only when the character or the person has independently acquired public recognition.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.