The Uninvited Stardom: Understanding Publicity Rights, Infringement & Intellectual Property Issues

Exordium: Understanding the Cost of Stardom

Call it what you want, celebrities are often recognised for their glamourous persona and appealing identities. Eventually, the market monopoly acts swift and smart to utilise their influence to drive commercial gains for themselves. This ranges from merchandising, promotional advertisements, brand endorsements, and money-making. However, in the gold rush of enhancing one’s brand value against the other brand, celebrities often face exploitation of their own power and identity. Thus, it becomes crucial for the big-name to protect the commercial use of self-identity. In the field of intellectual property rights (“IPR”), such growing phenomenon is known as the right to publicity.

[Image Source: Freepic]

The Legal Genesis of Right to Publicity

In the time bygone, commercial exploitation of a celebrities’ fame as a commodity was barely recognised. With the advent of modernisation, publicity rights came to be found in the formulation of torts on privacy, which includes, “use of identity by the defendant, appropriation of identity of the plaintiff, lack of consent and resultant injury.” The earliest historical genesis was seen in the 1953 case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., where “right in the publicity value” was perceived as originating from the right to privacy, and was present in the unauthorised photograph of a player. Eventually, the US Supreme Court reiterated the importance and existence of publicity rights in the case of Zacchini v. Scripps- Broadcasting Company.

Connecting the “Stars” of IPR Constellation

The right to publicity, which has garnered recognition for decades, is essentially composed of two basic ideas: name and likeness. Name, as elucidated in Rogers v. Grimaldi, is the first and foremost impression of a celebrity’s personality. If one’s name is utilised to simply generate monetary benefit, without any consent, such appropriation will not sustain. Even in the domestic realm, Shivaji Rao Gaikwad (Rajinikanth) v. M/s. Varsha Productions dealt with the misuse of super-star Rajnikanth’s name, image, and acting style by the defendant in his movie titled “Main Hoon Rajnikanth,” nowhere having the actor’s prior consent, and reaping huge publicity and commercial gains due to the massive fan-following of the super-star. The Court passed in the favour of the plaintiff, and has continued to do is in a plethora of cases.
Other attribute that qualifies a celebrity persona to function like a trademark is the “likeliness,” which includes physical appearance, voice, and style. However, these features have not garnered much IP protection in foreign jurisdictions. In India, on the flipside, Courts have held appropriation of famous singer Daler Mehendi’s voice through sale of dupe dolls as siphoning off the publicity rights.

The Legal Lacunae and a Way Out

Given the catena of cases reflecting the “existence” of publicity rights, it is pertinent to note that IP backing for such rights has not attracted strong understanding. However, such backing can be easily identified in terms of analogies drawn from trademarks and copyright laws. Precisely, first, if a celebrity identity is understood in terms of trademark, it is not the name of the person that can seek the pedestal of trademark protection; it is the goodwill, reputation and publicity value attached to that name which is protected. This is because commercial benefits arising out of the prestige earned by a celebrity are similar to how trademarks help in enhancing the marketability of the products. Hence, if a celebrity-sportsperson does not utilise alcohol, but is portrayed doing so in a false advertisement, his repute and prestige gets diluted. Such dilution does not merely creates confusion, but also brings down his repute. Thus, it can garner IP protection similar to trademark dilution dealing with product disparagement. Secondly, trademark although solidifies the gist of publicity rights; however, the pre-emptive defence of not allowing one’s persona to be monopolised requires protection in terms of copyright law. Although copyrights widely deal with artistic and literary works, they arise significantly in context of publicity rights when the issue pertains to a person’s consent against the use of one’s identity. As seen in the case of Kajal Aggarwal v. The Managing Director, V.V.D & Sons P. Ltd, where the respondent company continued to promote their hair oil even after the termination of contract between them, and the actress. The Court went on to favour the plaintiff under the provision of Section 17 of the Indian Copyright Act, 1957, whereby the contractor for a work is vested with its copyright, even if the work is produced by someone else. Such decisions can provide a ray of hope to the idea that publicity rights emerge under copyright laws, and can be developed more significantly.

Conclusion

With the ever-increasing use of social media, infringement of publicity rights linger prone. Thus, it becomes essential that legislative reforms be made in this regards. It can include bringing publicity rights with a provided explanation under the provision of Section 2(m) of the Trade Marks Act, 1999, and adding a proviso in section 17 of the Copyright Act, 1957, that explains the situations leading to infringement of publicity rights. A proactive approach of Courts can also, as it has always done, provide significant serving of justice.

Author: Pravertna Sulakshya, A Student of the Rajiv Gandhi National University of Law, Punjab, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

Leave a Reply Cancel reply

Archives

  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • 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
  • Exit mobile version