Posthumous Celebrity Rights- Until Death Do Us Apart?

14th August, 2023 - 9:36 am Categories: Celebrity Rights Trademark 0 Comments

Introduction

With the advent of the 21^st century, branding has gained importance. A successful banding strategy needs advertising. Engaging a known popular face for advertisement has become a trend. These faces often happen to be celebrities with large fan following who trust them. Celebrity endorsements are a way of influencing customers, gaining visibility and increasing credibility in the market. But what happens when a celebrity’s image or voice is used unfairly by a third party?Any unfair use of a celebrity’s likeness infringes a group or rights- Privacy, Personality, and Publicity. These rights together form Celebrity rights. When a celebrity endorses a product, the audience believes that the celebrity has faith in that product. In many situations, unfair use of a celebrity’s image or voice by brands for advertising their products can disrepute the celebrity if the brand is viewed negatively by the people.

At such a nascent of development of the pool of Celebrity Rights, India does not have any written law protecting these rights. It is the Indian judiciary that has been defining and protecting these rights. According to the Delhi High Court, “A ‘celebrity’ is merely a person who ‘many’ people talk about or know about”[1].The concept of celebrity rights was loosely mentioned when the Supreme Court said held that nobody can publish anything concerning the private life of a person without his consent, whether truthful or otherwise and whether laudatory or critical.[2]The first case that introduced celebrity rights through publicity rights in India stated that such a right is only vested in an individual or the indicia of the individual’s personality like name signature voice.[3]

What Is Celebrity Right?

As mentioned before, Celebrity rights are a bundle of three rights- Privacy rights, Personality rights and Publicity rights. While Privacy rights is a known concept in India which finds a place in the constitution, the other two right are comparatively new and developed through interpretation by courts. The case of DM Entertainment v. Baby Gift House defines Personality rights as “Each person is recognised by their personality which creates a certain image of themselves in public eyes. A celebrity’s persona assumes tremendous significance as a quasi-property right meant to protect the economic value associated with the identity”[4]. Publicity right is the simple right to control commercial use of such elements of likeness of the celebrity that is attributable to them like their images or voice.[5] In order to protect such likeness from undue exploitation, celebrities often turn to IPR. Indian actors like Shahrukh Khan, Kajol, Ajay Devgan, Sunny Leone and a few more have trademarked their names. The celebrities who have not trademarked their name can seek protection from unauthorised use of their names through the common law protection of passing off. Further, the Copyright legislation in India protects the celebrities against unauthorised use of their photographs even when such photographs are not registered.

Posthumous Celebrity Rights

IPR gives rights to the owner/author for a particular period of time. But, the question arises, do these celebrities have rights over their likeness even after their death? The Indian judiciary has time and again answered this in negative. In the case of Krishna Kishore Singh vs Sarla A Saraogi &Ors[6]otherwise known as the Sushant Singh Rajput (SSR) case, the court observed that “publicity rights are inextricably linked to and emanate from the right to privacy and thus publicity right cannot be distinguished from privacy right.”In the case of Deepa Jayakumar v. AL Vijay and Ors[7], more famously known as the Jayalalitha case, the court held that “privacy or reputation earned by a person during his or her lifetime, extinguishes with his or her death. After the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality right, reputation or privacy enjoyed by a person during his life time comes to an end after his or her life time.” These court decisions points out to the fact that celebrity rights do not survive the death of the celebrity, thus awarding no posthumous celebrity rights.

The question that arises is, what happens if we follow this jurisprudence? It can set off a series of event that would have been otherwise illegal if the person was alive. In an instance, Amitabh Bachchan tried to copyright his voice after his voice was used by a gutka company without his consent. The same thing can happen again after his death, since his privacy right and publicity right both gets extinguished with his death.Should this be legal?The famous actor Rajnikanth was able to get an injunction against a film titled “Main Hoon Rajinikanth” which had explicit dialogues since his name as used in a film which he did not authorise. If this film came after his death, would the film be injuncted from release?The same follows for all the cases.

Since the concept of posthumous celebrity rights has just seen a couple of cases in India, we cannot say that this is the course that will be followed in the country. But, as of now, it does set a bad precedent. All the cases where the celebrity is alive, have got the relief that they asked for, which means the court does believe in protecting a celebrity against unauthorized commercial exploitation. But what happens after they die? Does their persona have zero economic value? Can their persona be commercially exploited after their death?While privacy of a person goes away upon the death of the person, but the years of hard work to build the reputation does not go away overnight. According to Forbes, Michael Jackson’s music and publicity rights generated $140 million after his death from Oct’13 to Oct’14. Monetization of the rights of Elvis Presley, who died around 40 years ago, generated $55 million in the same time period.

Opinion-Should Celebrity Rights Survive The Death Their Owner?

Yes.

The courts believe that publicity rights are rooted in privacy rights, so if privacy rights extinguish upon the death of the person, then publicity rights too gets extinguished. But there is a grave difference between the two rights- one is a personal right and the other is a commercial right.Celebrities own their persona, since they can license it for commercial value. Thus, their persona should be seen as their property. Infact, the Gujrat HC ruled that reputation is a property that is transferable and heritable.[8] Further, the Delhi high court while defining personality rights mentioned that a celebrity’s persona assumes tremendous significance as a quasi-property right meant to protect the economic value associated with the identity.[9]Celebrities also find a recourse in IPR. There should not be any difference between the remedy in IPR and remedy awarded by the courts since it is the same thingthey are seeking protection for. Trademark act allows inheriting trademark through succession laws upon the death of the owner and the Copyright act allow the subject matter to be protected for 60 years after the death of author.

Conclusion

It is apparent that the courts in India are not in favour of awarding posthumous celebrity rights. But by doing so, they are causing huge and grave injustice to the family of such celebrities. Media, newspapers, social media, movies, books etc, can easily piggy back on their carefully crafted goodwill and reputation and make money out of it, and for this, they would not even have to check the facts! They would have the leeway to twist the facts their way to attract more public. Although the court believe that reputation and goodwill of a person cannot be inherited like a property after death, but during acquisition of a company which can be compared to its death, the goodwill of the company is weighed in terms of money and acquired by the other company. So, if the goodwill can be looked as an intangible asset of a company that can be acquired after its death, why can’t a human’s reputation seen the same the way? After all, reputation earned with decades of hard work does not get wiped off in a day.

Author: Nandini Biswas, 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.

[1]Titan Industries v. Ramkumar Jewellers (2012) 50 PTC 486 (Del.)

[2]R. Rajagopal v. State of Tamil Nadu(1994) 6 SCC 632

[3]ICC Development (International) Ltd. v. Arvee Enterprises2005 (30) PTC 253 (Del)

[4]CS (O.S.) 893 of 2002 (Del.)

[5]Supra Note 1

[6]MANU/DE/1056/2021

[7]MANU/TN/3107/2021

[8]Kirtibhai vs Raghuram 2010 SCC OnLineGuj 13952

[9]Supra Note 4