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

12th November, 2022 - 9:31 am Categories: Copyright Intellectual Property 0 Comments

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.