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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 –
- The plaintiff must have gained some public recognition so that the essential of character merchandising is fulfilled.
- The plaintiff must be identifiable from the unauthorized use of the defendant.
- 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.
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 email@example.com.