Celebrity Rights

Protecting Celebrity rights under IP laws is a significant development in the field of IPR. The identity of an individual
refers to all distinct, recognizable elements which make up a particular persona, including the individual’s physical
appearance, image or likeness, name, voice, signature, style, photograph, gestures, recognizable attire, look and facial
features .A public persona generates an enormously lucrative brand equity, instantly encashablein the form of
endorsement contracts. So stupendously lucrative are endorsements that often the earnings of a celebrity from the
professional pursuits, whether sports or acting, is a small fraction of his earnings from endorsements.

A celebrity enjoys what are known as rights of publicity or image rights which enable them to commercially exploit the
goodwill associated with their star status.

There are several ways in which the image of a celebrity can be used in advertising. The most obvious manner is tools
of the trade& endorsements of products that are closely related to a celebrity’s field of activity. For instance,
sportsmen routinely endorse sports equipment or clothing. Another is non-tools Endorsements where a celebrity’s
image is used in connection with goods or services that are completely unrelated to his field of activity, for instance a
film star endorsing a bank or a telecommunications company.

1.Need to protect Celebrity Rights :

Firstly ,to protect performers by alleviating a sense of insecurity in performers due to fear of “technological
unemployment” including replacement of musicians by recorded music, Controlling exploitation of performers who
cannot manage the situation.

Secondly the right to publicity is inheritable. Therefore descendants of celebrity can gain from the popularity created
by celebrity during his/her lifetime

Thirdly, Celebrity Rights are assignable &licensable for commercial benefits. In the present times publicity involves
immense amount of money& the public image of a celebrity is of tremendous value. Thus, this creates an economic
incentive of the public & celebrities are adequately rewarded due to their moral claim over money arising out of their
fame.

2. Violation of Publicity Rights

Use of a person’s persona for commercial gain in an unauthorized manner amounts to violation of publicity rights of
the person. Any person must therefore take permission of a celebrity for using his persona for commercial gain. The
unauthorized use of a celebrity’s personality can be call for an action of passing off, of unfair competition, of
misrepresentation and can cause damage to their reputation. It can also amount to a breach of confidence or a
violation of privacy.

The right of publicity encompasses the right to initiate action to prevent the wrongful appropriation of an individual’s
identity for commercial purposes without his or her consent; or seek compensation.

3.Jurisprudence in India :Protection Through IP rights in India

The jurisprudence on publicity rights is in its nascent stages in India. It was first recognized by the Supreme Court of
India in R.R. RajaGopal v. State of Tamil Nadu, (JT 1994 (6) SC 514) where the Supreme Court recognized right of
publicity in the form of right of privacy as follows: “the first aspect of this right must be said to have been violated
where, for example, a person’s name or likeness is used, without his consent, for advertising – or non-advertising –
purposes or for any other matter”.

Right of publicity as an independent right, was first time recognized by the Delhi High Court in ICC Development
(International) Ltd. v. ArveeEnterprises, (2003 (26) PTC 245 Del) where the Delhi High Court held that the right of
publicity does not extend to events and is confined to persons.

3.1 Trademarks

The Trade Mark Act ,1999, prohibits the use of personal names under section 14 where an application is made for
the registration of trademark which falsely suggests connection with a living person ,or person whose death took
place within 20 years prior to date of application for registration of trademark. Certain names like ,Sri Sai Baba, Lord
Buddha ,Sri Ramakrishna, the Sikh gurus cannot be registered under section 16(1) of 1940, 23(1) of Trade &
Merchandise Act 1958Mark &159(2) of the Trade Mark Act,1999.

Individuals may apply for the protection of their name, likeness among other things, with the Indian Trademarks
Registry in order to obtain statutory protection against misuse. This is of strategic importance for celebrities who
intend to use their image and likeness to identify their own or an authorized line of merchandise. Few of the pertinent
cases are discussed below:

In DM Entertainment v Jhaveri (Case 1147/2001), Daler Mehndi, a famous Indian composer and performer, brought
an action against the defendant following the registration of the domain name ‘dalermehndi.net’. The Delhi High Court
restrained the defendant from using the trademark DALERMEHNDI, thus recognizing the fact that an entertainer’s
name may have trademark significance.

Another case involving an Indian citizen was that of Ratan Tata, the chairman of Tata lodged a complaint in Word
Intellectual Property Organization (WIPO) arbitration panel seeking the transfer of domain names comprising the
name Tata (Tata Sons Ltd v Ramadasoft (Case D2000-1713, February 8 2001)).

In an another instance ,Sourav Ganguly v. Tata Tea ltd., Sourav Ganguly, a hugely popular cricketer and former
Indian captain, who returned from a tour of England to find a well-known brand of tea cashing in on his success by
offering consumers a chance to congratulate the cricketer. The offer implied that the cricketer had associated himself
with the promotion, which was not the case. Ultimately, Sourav Ganguly could successfully challenge it in the Court
before settling the dispute amicably.

In a different but pertinent case, In 2009 Montblanc released luxury pens in India called “Mahatma Gandhi Limited
Edition 241” and “Mahatma Gandhi Limited Edition 3000”, which were engraved with Mahatma Gandhi’s portrait on
the nib. Tushar Gandhi (Gandhi’s great-grandson) had given his prior approval; however, the launch was met with
immediate opposition on account of the Protection under the Emblems and Names (Prevention of improper use) Act
1950. Under this act, unless the government permits it, names and images of nationally important personalities cannot
be used for any trade, business or professional purpose. As a result, Montblanc was forced to withdraw its
advertisements and the pens in question from the market.

In Jaitley v Network Solutions Private Limited (

[181(2011)DLT716]) political leader Arun Jaitley sought a permanent injunction to restrain the defendants from
misusing the domain name ‘arunjaitely.com’, and to order the immediate transfer of such domain
name. Jaitley wished to register the domain name ‘arunjaitley.com’, which the defendants had already registered. It
was alleged that after expiration of the domain name, the defendants did not delete it or transfer it to the plaintiff, but
rather transferred it to an auction site for domain names (the third defendant). An interim injunction order granted by
the court restrained the transfer, alienation or offer for sale of the domain name ‘arunjaitley.com’ to any third party
and the creation of any third-party interest therein.

It was contended that it is incumbent to protect domain names so that the identified names of companies and
individuals which are distinct in the marketplace may not fall into the wrong hands

3.2 Copyright

The Indian copyright Act, 1957 does not define the word “celebrity”. But reference can be made to the definition of a
performer as given under section 2(qq). The performer includes an actor, singer, musician, dancer, acrobat, juggler,
snake charmer, a person delivering a lecture or any other person who makes a performance. There is not much clarity
as to what aspects of celebrity rights may be protected under Copyright Law.

The Indian Copyright Act,1957 provides protection of specific image in the form of a photograph, painting or other
derivative works. To pursue an action of infringement individual must show ownership of copyright in the image or
photograph and copying of that image. In the context of celebrities , it becomes difficult for them to show their
ownership of their specific image or photograph being exploited. For an instance ,In Titan Industries Limited
v Ramkumar Jewellers ([CS(OS) 2662 of 2011]), the plaintiff had asked celebrity
couple Amitabh Bachchan and Jaya Bachchan to endorse and advertise its range of diamond jewellery sold under the
brand name Tanishq. The couple had assigned all the rights in their personality to the plaintiff to be used in
advertisements in all media, including print and video. The plaintiff had invested huge sums of money in the
promotional campaign. The defendant, a jeweler dealing in identical goods to those of the plaintiff, was found to have
put up a hoarding identical to the plaintiff’s, including the same photograph of the celebrity couple displayed on the
plaintiff’s hoarding.Since the defendant had neither sought permission from the couple to use their photograph,
nor beenauthorized to do so by the plaintiff, the court held it liable not only for infringement of the plaintiff’s
copyright in the advertisement, but also for misappropriation of the couple’s personality rights. The court thereby
granted an interim injunction in favour of the plaintiff while specifically recognizing the couple’s rights in their
personalities.

Historical facts are not copyrightable per se .One of the prominent case on this issue
is Phoolan devi Vs Shekar Kapoor & others. In Phoolan DeviCase, Phoolan Devi herself protested that the film has
distorted the facts .She sought an injunction as she had given up her past criminal activities & had started her life
afresh. The court held that issue need to be thoroughly examined and the implications of such exhibition on the
private life of an individual be scrutinized before permitting release of such films. Thus, a celebrity can protect his /her
name & image as a constitutional right.

2.1.3 Passing Off Action :

Passing Off Action is a remedy to damages to reputation and goodwill of an individual caused by misrepresentation by
another person trying to pass off his goods or business as goods or business of another .An action in passing off may
lie for any unauthorized exploitation of celebrity’s goodwill or fame by falsely indicating endorsement of products by
the celebrity.

An action for passing off requires proof of:

· the reputation of the individual;

· some form of misrepresentation;

· & irreparable damage to the individual.

In Henderson Vs Radio Corporation the claimants were professional ballroom dancers .The defendants produced a
record “strictly for dance” in which they used a picture of the claimants in the cover illustration. The claimants argued
that this amounted to “Passing Off “.The court held it as wrongful appropriation of personality and professional
reputation of plaintiff’s.

A recent controversy relates to a new ad from Weatherproof, a maker of jackets, that US president ,Barack
Obama standing at the Great Wall of China wearing one of their jackets. Apparently, the company spotted a photo
showing him in its garment, bought the rights to the photo, and is now using the photo to sell its jacket by showing
that US president is one of the fashionable people who wear it.This is a use of the Obamas’ selling power to sell the
products of companies’ who have never received consent from the Obamas.

3. Provisions in International Conventions:

Few landmark conventions in regards to protection of performer’s rights are The International Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting Organizations,(1961)Rome Convention, TRIPS &
The WIPO Performances and Phonograms Treaty 1996 (WPPT) .

Inference:

The protection of publicity and image right is expanding in a celebrity obsessed culture of India .Recent cases where
legendary Bollywood actor AmitabhBachchan spoke out against the unauthorized use of a sound-alike of his
distinctive deep baritone in an advertisement promoting a brand of gutka(chewing tobacco), an association which was
detrimental to his image and of the famous Indian actor Rajnikanth ,published a legal notice in various magazines
before the release of his latest film prohibiting anyone from damaging his screen persona or from using his character
in the film for any financial gain including advertisements ,and impressions by comedians ,clearly suggests that Right
of publicity has emerged as an individual class of IP protection.

While Indian celebrities have intermittently attempted to protect their personality rights, the law on this aspect has
taken a long time to develop. In light of the increase in celebrity endorsements and with celebrities eager to prevent
unauthorized exploitation of their rights it is high time for legislature to recognize publicity rights in a statutory
manner .