Smile, you are on camera!

Every celebrity would agree when we say that stardom comes at a price. Their right to privacy is always threatened with the constant paparazzi encroaching upon their personal lives. Unauthorized photography often results in tabloid and defamatory reports in the media, which can sometimes scar the celebrity’s life forever.  From sports persons to movie stars to politicians to Princes and Princesses- they are all celebrities.

The Indian Copyright Act, 1957 defines a ‘performer’ in Section 2(qq). It includes ‘an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance’.

A celebrity is licensable for commercial benefits, since his public image is a monetary asset for himself.  But how are his rights protected? The first resort a celebrity would take would be a passing off (in case of an unregistered trademark) or an infringement action (in case of a registered trademark).  With respect to performer’s rights, on June 8, 2012, an amendment was passed in the Indian Copyright Act. Section 38 provides rights of the performers.  A performer who appears in any performance has a right over such a performance until fifty years from the beginning of the calendar year next following the year in which the performance is made. Further, a person would be deemed to have infringed the performer’s rights if he makes a sound/visual recording with his consent or broadcasts it without permission. Hence, the performer has a right to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation. Sadly, the rights of the extras in films cannot be protected since they are not covered under the definition of a performer.

Once a performer gives valid consent for the incorporation of his performance in a film, he cannot be able to object to the enjoyment by the film’s Producer of his performer’s right in it. But there are two important limitations here though. One is that there is no statue that prohibits a performer from entering into an agreement which states that he could object to the producer enjoying his performer’s rights in the film. Next, the Producer’s enjoyment of the performer’s right in the film is limited to the film, so the Producer would not be able to have the benefit of the performer’s right for the purpose of out-film use such as in ring tones or public performances, which is used for the promotion of his film. Section 13 (4) provides that separate creative components within a film are copyrightable.

In Milder v Ford Motor Co & Others (1988) 849 F.2d 460 (9th Cir), the advertising company wanted to use a song by Bette Milder in a commercial for Ford cars. The license for the song itself was accepted but Milder turned down the request for permission to use the song in her version. The Agency then contacted Ula Hedwig, a singer who had been a back-up vocalist for Milder and asked her to sing the song under the instructions ‘to sound as much as possible like the Bette Milder record’. Milder sued when the commercial was aired on television.  The defendants argued that this was in accordance with Section 3344 of the Civil Code since they had not used the ‘name, voice, signature, photograph or likeness’ of Milder rather they had used the voice of Ula Hedwig. The court held that the defendants were liable since by using a sound alike, they had clearly sought a commercial association with an attribute of Milder’s identity. This was held as the right of publicity,that grants entertainers or public figures exclusive control over the commercial exploitation of their names and other aspects relating to them.

In India, there is a need for such legislation in order to protect rights of a performer and his different shades. With the advent of technology, now any film star’s image can be created by animation and be reproduced in unauthorized usage in film footages. Another burning question left unanswered in India is whether the author has copyright protection over digitally made graphics or cartoons. If the digital image is of a well-known personality, is there a conflict between the author’s right in his creation and the actor’s right in his image.

In India, it is only through litigation that the celebrity’s rights are protected. Heavy amount of damages have been awarded to the celebrities who have won such suits. But there is an urgent need for the legislature to recognize the astounding gaps in the Copyright Act and recognize the commercial and moral rights needed to protect the image of the celebrities.

About the Author: Ms. Madhuri Iyer, Trade Mark Attorney at Khurana & Khurana and can be reached at: Madhuri@khuranaandkhurana.com

Leave a Reply

Archives

  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010