Legal Position in India Pertaining to Infringement of Right to Publicity of a Celebrity

It is a well-known fact that celebrities have a great impact on the audience and therefore, the advertisement industry hugely expends in collaborating with the celebrities in order to expand their brand value in the market. With the great potential and incentives that this endeavor brings, there is also another side to the story where the name and likeness of the celebrities is used without their consent to gain commercial advantages. Deriving commercial gains by creating an illusion of involvement of such a celebrity with a brand not only causes loss to the celebrity in terms of licensing and endorsements but is also a violation of his right to publicity and reputation.

Right to Publicity

Every individual has a right in the publicity value of his personality, identity and persona. He has the right to exercise exclusive privilege in granting permission for the usage of his picture, persona or identity by anyone. This right can be acquired by virtue of being associated with an event, movie or sport etc. The unwarranted usage would not only bruise the feelings through the exposure of their likeliness but also will lead to monetary losses as licensing and endorsements come into the picture when the right to publicity is made the subject of an exclusive grant. In order to concisely define the right to publicity, the case of Ali v. Playgirl can be referred to which states as follows –

“A distinctive aspect of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or persona”

Essential Ingredients for an Infringement

There are three key ingredients that need to be fulfilled for establishing an infringement of the right to publicity and commercial exploitation –

  1. The plaintiff must have gained some public recognition so that the essential of character merchandising is fulfilled.
  2. The plaintiff must be identifiable from the unauthorized use of the defendant.
  3. The aforementioned use must be substantial, adequate and sufficient to show that the defendant has appropriated the persona or some attributes of the plaintiff.

Position of law and leading precedents

The aforementioned ingredients do not have a statutory recognition in India, as the personality rights are not enshrined in any statute but emanate from the Article 21 and the findings of various courts in judgments.

One such prominent judgment is D.M. Entertainment Pvt. Ltd. v. Baby Gift House. This is one of the cases that substantially discusses all the aspects related to Right to Publicity and False Endorsements. In this case, the Plaintiff represents Daler Mahendi who is a popular singer in the Indian subcontinent. The defendant sold dolls which had a similar appearance like him and it also could iterate some of his popular songs. The plaintiffs claimed that there is a clear infringement of right to publicity and further, the persona of Daler Mahendi has been affected because of appropriation that the defendants have done.

The Court held in favour of the plaintiff stating that commercial exploitation of identity of a person is his right to permit or bar and thus, the defendants are liable for their action of selling dolls with similar attributes to the celebrity. Further, the claim of false endorsement was also upheld as the consumers were misled into believing that the personality concerned endorsed their product.

There are a few other judgments as well which have clarified stances on the concept of right to publicity. These principles become important to discuss as the law on this subject is not very evolved and these judgments are the primary derivatives of understanding the position of law.

The case of Titan Industries v. M/s Ramkumar Jewellers laid down two important principles namely – (1) the famous personalities have the right to control the use of their identities (2) this vested right to control the commercial use of their identity refers to the right to publicity.

Another important case in this regard is Sourav Ganguly v. Tata Tea Ltd.  where Sourav Ganguly was granted relief by the Court by holding that his popularity constituted to be an intellectual property in form of a licensed innovation and therefore, sale of tea using his name without his consent amounted to be a violation even though he was an employee of the defendants.

Considering there is no statutory backing which allows the celebrities to approach the Court for a misuse of their persona or likeliness the remedies that the plaintiffs have availed in the previous instances are in the nature of an injunction against the use of their persona or reputation and damages for the loss caused.

Exception to the Infringement of right to publicity

The D.M. Entertainment judgment enunciates an exception in which the infringement of right to publicity cannot be sought by the plaintiff. The exception is, in principle, based on the right to freedom of speech and it is substantiated that over emphasis on publicity rights might chill the exercise of such an invaluable democratic right. The caricatures, lampooning, parodies etc. which might show some of the traits of personality traits should not be seen as causing infringement as that would lead to unavailability of an entire genre of expression to the public. The forms of expression of such caricatures, parodies etc. can be newspapers, mime theatre, songs and films and they should not be deemed to be an infringement per se.

Conclusion

Therefore, the view that various courts of India have consistently adopted is that personal rights of a person cannot be exploited without their consent, especially in the cases of famous personalities who have a public recognition. The recent case of Shivaji Rao Gaikwad v. Varsha Productions also sumptuously addressed the questions of law in relation to personality rights and its unauthorised use. The case dealt with the South Indian Actor Rajinikanth seeking interim injunction restraining the defendants from using the plaintiff’s name, image, caricature or style of delivering dialogues. The Court granted an injunction holding that an individual has the right to live with dignity, which follows from the fundamental right of ‘right to life’ as found in the Article 21 of the Indian Constitution. Although there are a myriad of questions that may remain unanswered with respect to inclusion of these rights within the copyright law or other Intellectual Property Rights but the aforementioned judgments amply clarify the position of law with respect to false endorsements, unauthorized use of persona and infringement of right to publicity in India.

Author: Akshat Shukla, – a student of National Law Institute University (Bhopal), currently an intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at harsh@khuranaandkhurana.com.

Leave a Reply

Archives

  • 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