Open Access Research Article
NAVIGATING THE INTERSECTION OF CELEBRITY PERSONA RIGHTS AND INTELLECTUAL PROPERTY IN THE DIGITAL AGE
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Article Details
NAVIGATING THE INTERSECTION OF CELEBRITY
PERSONA RIGHTS AND INTELLECTUAL PROPERTY IN THE DIGITAL AGE
AUTHORED BY - HIMANSHU
RANJAN[1]
ABSTRACT
In the rapidly evolving
landscape of the digital age, the intersection of celebrity persona rights and
intellectual property has become a complex and dynamic legal arena. Celebrities
have long leveraged their personas for commercial and non- commercial endeavours,
but the digital era has ushered in unprecedented challenges and opportunities.
This paper delves into the multifaceted aspects of protecting and managing
celebrity persona rights within the context of intellectual property in the
digital realm. In this analysis, we explore how celebrities face a myriad of
issues in the digital age, including unauthorised use of their likeness, deep
fake technologies, and the viral spread of their images and content. The
researcher investigates the legal frameworks and precedents in various
jurisdictions, emphasizing the importance of balancing public interests with
the protection of ‘celebrities’ identities. Additionally, we examine
international conventions recognising these rights and the role of copyright,
trademark, and other IP mechanisms in safeguarding celebrity personas. By
critically examining the intersection of celebrity personas rights and
intellectual property in the digital age, this paper aims to offer insights for
legal practitioners, policymakers, and scholars seeking to navigate the complex
and devolving terrain of celebrity protection.
Keywords: Celebrity
persona rights, Intellectual property, Digital age, Unauthorized use,
Copyright, trademark.
I.
INTRODUCTION
In the age of rapid
technological advancements, the confluence of celebrity persona rights and
intellectual property has transformed into an intricate and dynamic legal
domain. Celebrities have traditionally harnessed their personal identities for
both commercial and non- commercial purposes, but the digital age has
introduced a new array of unprecedented challenges and opportunities. In this
digital age it has become very easy for anyone to copy and use content without
the permission of its creator or even without giving due credits to their
author. The persona of a celebrity includes their voice, their image and all
other distinct attributes of his personality which has made him earn a good
name throughout his career and which he has developed by burning the midnight
oil. This digital age brings before them a host of novel challenges, chief
among the unauthorized use utilisation of their likeness and the virulent
dissemination of their images and content across the vast expanse of the
internet. This analysis delves into the legal framework and precedents
governing these issues in various jurisdictions, with a particular emphasis on
the delicate equilibrium that must be struck between the public interests and
the imperative to protect the very essence of ‘celebrities’ identities.
Furthermore, a real analysis of the problem with an interaction with the
stakeholders of this topic and analysing why protection of persona rights is
the real need of time giving the policymakers and lawyers a real time need
analysis of legislation on this particular matter. The analysis delves into the legal framework
and precedents governing these issues in various jurisdictions, with a
particular emphasis on the delicate equilibrium that must be struck between the
public interests and the imperative to protect the very essence of
‘celebrities’ identities. In examining this intersection, it is crucial to
consider the legal foundations, such as the Copyright Act, Trademark laws, and
international agreements like the Rome Convention or TRIPS, that play a pivotal
role in shaping the protection of celebrity rights.
II.
Introduction to Celebrity
Persona and Intellectual Property in Digital Age
A recent order of the Delhi HC in Amitabh
Bachchan v. Rajat Nagi & Ors[2]. has turned the spotlight again on the right to
personality, which could be broadly understood as a right of a celebrity to
control how his or her name, likeness, or identity is used by third parties.
The idea that an unauthorized third party should not be allowed to
misappropriate the persona of a famous individual for commercial gains is
intuitive. Irrespective of legal knowledge, it is likely that one would
conclude that such misappropriation is unfair, and should be prevented by law.
It is this intuition and idea of unfairness which has led well-meaning judges
to protect personality rights. Unfortunately, however, in following intuition,
courts have failed to adequately forward the legal basis for the decisions.
Resultantly, Indian law on personality rights continues to be vague and
unstructured, standing on the flimsy pillars of unreasoned orders and
judgments.
A judicial decision must be supported by reasons in order
to deliver the essence of the judgement. The obligation to render reasoned
decisions act as a restraint on arbitrary exercise of judicial power[3], which is implicit in Article 14[4]
of the Constitution, and is also consistent
with principles of natural justice. Furthermore,
it is the ratio decidendi of judicial decisions of courts of record which act
as precedent for future judgments[5].
However, despite the Supreme Court having stressed on the
importance of furnishing reasons in the judgment, courts often fall foul of the
requirement. In the interim stage, courts, understandably, do not want to pass
detailed orders, given the nascent stage of proceedings. Thus, for instance,
interim orders in straightforward cases of trademark infringement have almost
become standardized. However, the fundamental requirement of indicating the
legal basis for an order, even if stated briefly, cannot, and should not, be
sacrificed at the altar of judicial expediency, especially in areas of the law
which are not sufficiently developed.
III.
Jurisprudence of
Personality Rights in India and Abroad
In Amitabh
Bachchan v. Rajat Nagi & Ors[6]., the defendants were sued for, unauthorizedly using Mr.
Bachchan’s name and likeness to promote their good, and were restrained by
an ex parte ad interim injunction on the very first hearing.
The order, however, was cursory. It simply relied on Titan Industries to state that personality rights could be
protected, but did not indicate any statutory or common law basis for the
protection. But even the decision in Titan Industries simply declared that a famous personality could
control where and how their identity is used— again failing to provide a basis
in statutory or common law. While some jurisdictions, such as Spain[7],
provide statutory protection for personality/publicity rights, Indian statutes
do not expressly recognize or protect personality rights. In the absence of
legislative intervention, courts must base their recognition of personality
rights either on common law or constitutional principles. In failing to do so,
courts leave many questions unanswered. For instance, can personality rights be
considered an extension of the right to privacy? In this context, it will be
pertinent to look at the legal position in the US, which relies on common law
to enforce personality rights (though some states have statutory recognition).
The US Supreme Court in Zaccchini v.
Scripps-Howard, distinguished the
right of publicity from the right to privacy, by recognizing the need to
monetarily compensate Zacchini for the unauthorized broadcast of his
performance by the defendant under publicity rights, and by differentiating it
from personal harm and mental anguish which the plaintiff suffers in usual
privacy infringement cases. This judgement indicates that personality
rights are not a derivation of privacy rights, because of an inherent
‘commercial’ angle involved in the former. Therefore, an extension of the right
to privacy to regulate commercial exploitation of one’s celebrity status may
not be appropriate. Furthermore, the public has a right to free speech and
expression, and whether, and when, publicity rights can override free speech interests
is another question that deserves attention. In this context,
creative/editorial speech and commercial speech may be treated differently. US
courts in Havilland
v. FX Networks and Guglielmi
v. Spelling-Goldberg Prods., have
indicated that free speech in case of editorial works, or creative and
expressive works in general, will take precedence over publicity rights. This
general rule, however, might not apply in cases of commercial speech. Also, in
the US, simply using the name or image of a celebrity for brand advertisement
or promotion will not always attract liability, so long as the brand is
not falsely
misleading the public that the said
celebrity is endorsing the concerned brand. Thus, the right to publicity in the
US does not protect privacy, but prevents unfair appropriation of an
individual’s celebrity for commercial gains, indicating a close association
with false advertisement law.
Indian courts, on the other hand, have relied on an
interplay of legal concepts to analyze the position on personality rights.
In Gautam
Gambhir v. D.A.P & Co. & Anr.,
the question was of unauthorized usage of the name ‘Gautam Gambhir’ by the
defendants in their restaurant. However, the court refused to rule in the
plaintiff’s favour owing to, firstly, failure to prove actual consumer
confusion, secondly, failure to prove harm to reputation, and thirdly, no
commercial misappropriation of plaintiff’s name by the defendant. This decision
clearly depicts the ambiguous status of personality rights under Indian law.
While the court in Titan Industries held that evidence of falsity,
confusion or deception are not required to be put on record, the court in Gautam
Gambhir stressed on the necessity of evidence to prove confusion and
disrepute, thus, taking the exact opposite stance. This is possibly because the
issue of personality rights in Gautam Gambhir was analyzed
under the lens of trademark law. However, the requirement to prove disrepute
has limited scope under trademark law (usually limited to dilution), and is
more associated with defamation as a tort or a crime u/s. 499 of the Indian
Penal Code, thus, suggesting a conflation of different legal bases. In Shivaji
Rao Gaikwad v. Varsha Productions, the
Madras High Court stressed on the fact that defendant’s unauthorized usage of
Rajnikant’s name was leading consumers to draw incorrect association with the plaintiff.
This, again, like Gautam Gambhir, seems a blend of passing off
(confusion), defamation (reference to the plaintiff) and privacy
(non-consensual usage), but the court concludes without explicitly indicating
the law under which the decision was arrived at. Recently, in DM
Entertainment Pvt. Ltd. v. Baby Gift House,
the Delhi High Court while ruling in favour of the plaintiff relied upon the
intermix of the concepts of well-known trademarks and trademark dilution, false
endorsement and passing-off, and privacy, as it held:“The right of
publicity can, in a jurisprudential sense, be located with the individual’s
right and autonomy to permit or not permit the commercial exploitation of his
likeness or some attributes of his personality……An individual claiming false
endorsement must prove that the use of the identity likely misled consumers
into believing the concerned personality endorsed the product at issue……it
amounts to a clear dilution of uniqueness of such personality and gives rise to
a false belief that, plaintiff has either licensed or the Defendants have some
connection with them…to use its exclusive right to market images of the artist.”
Quite interestingly, the court in this case brings in the concept of trademark
dilution to assess personality rights infringement. However, this raises the
question as to whether a person’s name, voice, likeness can be covered within
the purview of trademark law. Another issue left untouched by existing Indian
case law is the threshold to be met to be able to exercise personality rights,
i.e., how famous must one be to be able to prevent third parties from using
their likeness for commercial gains? In the age of advertisements by social
media influencers and ever-expanding number of ways of gaining celebrity, it is
important that personality rights be well delineated. The existing judgements
in India leave the basis and scope for protection of personality rights
in ambiguity, fail to provide rationale necessary for appellate review, and
provides little guidance to lower courts and future benches of the High Court
who may be called to adjudicate similar issues, stunting the development of
sound jurisprudence.
IV.
Individual as Trademark: The Scope
of Protection of Image Rights as Trademarks
The principal function of a
trademark is one critical to the identification of its origin. A trademark
tells a consumer that the quality and attributes of a product bearing the mark
are under the control of the same person. For this reason, the consumer can
infer that a product bearing the trademark will have the quality and attributes
he has come to be associated with the product. Thus a trademark communicates
information to the consumer and allows a producer to build up and exploit the
reputation of his products. The law of trademark infringement prohibits
deceptive use of the claimant's registered trademark.As far as images are
concerned, trademarks have important functions which go beyond the
communication of information to consumers. A trademark can acquire an 'image'
through advertising. The image embodies attitudes or feelings or values that
the producer has managed to get associated with the trademark. If a trademark
has such an image, consumers may be influenced to purchase the product by their
attraction to the image or their desires to associate themselves with it. This
image based function can be described as the advertising or merchandising
function." On the other hand, the protection of trademark for the purpose
of identification of origin has a different justification from protecting the
trademark for this merchandising function. The unauthorised use of the image
cannot in itself be deceptive because its purpose is not to convey information.
In practice modern trademark law protects the merchandising function along with
the origin function, i.e., it supports trademark owners in developing and
exploiting the image of their trademarks. The function of image of the
trademark does not take into account deceptiveness which is the essence of
trademark law and that is the reason for not conferring protection to it in
various jurisdictions. But recent developments have shown that the law of
registered trademarks gives increasing support to the protection The attempt to
recognise image rights has been successful in many jurisdictions which are
discussed in the following parts. Thus right to publicity is nothing but
merchandising rights of celebrities in their image. The argument for right of
publicity based on law of trademarks and goodwill is firmly gaining ground with
the growth of merchandising and endorsements by celebrities." After having
analysed the concept of image rights and examining its connection with
intellectual property laws, it is now important for us to foreground the
purpose, status and scope of image rights in India and also other
jurisdictions.
V.
IMAGE RIGHTS IN INDIA
The jurisprudence of publicity and
image rights is in its nascent stages in India. As compared to the global
scenario, India has been lagging behind in recognising the right of publicity
and image. There is neither a considerable body of case law, nor any
comprehensive statute governing image or publicity rights of celebrities. It is
only the Emblems and Names (Prevention of Improper Use) Act, 1950, which to a
limited extent, protects unauthorised use of few dignitaries' names by
prohibiting the use of the names given in its schedule." Thus the Indian
legal system is underequipped in dealing with the modern phenomenon of
celebrity endorsements and merchandising. With exorbitant sums riding on
celebrities, the advertisers and market forces often find ways and means to
abuse celebrity images. The only authoritative case on publicity rights comes
from the Delhi High Court, in ICC Development (International) Ltd. v. Arvee
Enterprises[8]."
The court held that the right to publicity has evolved from the right to
privacy and can inhere only in an individual or in any indicia of the
individual's personality like his name, personality trait, signature, voice
etc." An individual may acquire a right to publicity by virtue of his
association with an event, sport, movie etc. However, the right does not inhere
in the event in question, that made the individual famous, nor in any
corporation that has brought about the organisation of the event. Any effort to
take away right of publicity from the individual, to the organiser/ non-human
entity would violate Article 19 and 21 of the Constitution of India" This
case shows that development of publicity rights in India flows from rights of
human dignity and liberty as enshrined in Articles 19 and 21 of the
Constitution. It is rather a tussle between an individual's right to privacy
and the interest of the larger public to know. The development of this right as
a commercial property is quite restricted if analysed in the intellectual
property regime.
VI.
Protection under Right to Privacy
The right to privacy protects
individuals against unlawful government invasion. The Indian Constitution does
not grant in express or specific terms, any right to privacy as such. It is not
enumerated as a fundamental right in the Constitution. However such a right has
been carved out by the Supreme Court in the corpus of Article 21. In R
Rajagopal v. State of TamilNadu[9]
Supreme Court asserted the significance of right to privacy as a constitutional
right implicit in the right to life and liberty guaranteed to the citizens by
Article 21." A citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child bearing and education
among other matters. None can publish anything concerning the above matters
without his consent - whether truthful or otherwise and whether laudatory or
critical. If he does so, he would be violating right to privacy of the person
concerned and would be liable in an action for damages[10].
Although right to publicity comes
under the extended view of Article 21 but this right is not absolute;
reasonable restrictions can be placed thereon in public interest under
Articlel9(5). Freedom of press is embedded under Article 19 of the Constitution
also the expression of 'freedom of speech and expression' used in Article
19(1)(a) has been held to include the right to acquire information and
disseminate the same[11]
. The Supreme Court has given a broad dimension to Article 19(l)(a) by laying
down the proposition that the freedom to receive and to communicate information
and ideas without interference is an important aspect of freedom of speech and
expression[12].
This has been consistently challenged by the celebrities on the ground that
media has misused their freedom under the guise of giving news in 'public
interest'." There have been alternative arguments that celebrities have
dedicated their lives to the public and no longer command the protection of law
of privacy. But this waiver is not absolute and the celebrity has a right to
maintain the privacy of his non-professional and other parts of professional
life. It is clear that a right to privacy is a treasured possession of every
individual; it should be respected and should not be exploited by the media on
the pretext of public interest. The statutory provisions in India pertaining to
protection of image rights are prevalent in the intellectual property regime
but they are inadequate. The next part evidences the treatment of image and
publicity rights in other jurisdictions, drawing inspiration from the forward
thinking contained in foreign laws.
VII.
AN APPOSITE LEGAL REGIME FOR INDIA
Publicity Right have travelled a
long way from the era of being an offshoot of privacy right to an independent
standalone right. The significance and the impact of the commercial aspect of
the celebrity's personality can be gauged by the ever increasing instances of
their personality traits. As the value of the celebrity increases, so do
instances of misuse of her persona. Therefore, they have time and again
expressed their desire for protecting various aspects of their personality.
This no doubt, leads to commodification of celebrities and challenging the very
ethos of our Constitution which enshrines the principle of human dignity in
Articles 19 and 21. But the contemporary trend of generating economic value
through celebrities definitely deserves special attention and can in no way be
diluted by these provisions. The evasive attitude to confer property rights on
one's personae was observed by the Delhi High Court in ICC Development,"
the only pertinent case law which discusses publicity rights. The need of the
hour is to recognise the property rights of celebrities in their persona in
addition to human dignity rights which are in any case available to all
individuals and are the bulwark of our Constitution. The limited protection to
a celebrity's image is provided under the provisions of trademark and copyright
law. Section 14 of the Trade Marks Act 1999 prohibits use of personal names
where an application is made for the registration of the trademark, which
falsely suggests a connection with a living person, or a person whose death
took place within 20 years prior to the date of application of the registration
of the trademark. Therefore, the legal heirs of the celebrities can also
prevent the misuse of their names. The intent of recognising the transferability
and licensing of the particular right can be interpreted from the statute. Thus
the property right in one's name is granted to celebrities in the trademark
law. But the lacuna of not outlining the rules on assigning and licensing such
a right needs to be addressed. The Copyright Act poses a challenge in case of
recognition of publicity rights. The voice of celebrities which is often
misused by advertisers cannot be copyrighted as it does not come within the
ambit of literary, dramatic or musical work. There is a separate category of
performers' rights which grants economic rights to performers." But these
rights also subsist in a particular performance and not in a general image of
the artiste or a celebrity. Therefore, the copyright act also is inadequate to
confer image rights on celebrities. The inadequacies in the current framework
of intellectual property laws are quite alarming, seeing the blatant misuse of
various aspects of the celebrity persona. It should be noted that performers
are only conferred with economic rights and there is no provision to accord
moral rights. The incorporation of assigning property rights can solve a part
of the problem. However, the dynamics of public vis-a-vis private interest
needs to be worked out. The celebrities offer themselves to public domain and
their activities evoke everyone's interest. Therefore, conferring on them
special rights so as to put them at a higher pedestal might be a dangerous
proposition. It also might cause hindrance to creativity by curbing the art of
imitating artistes who are performers in their own right. These concerns surely
need to be addressed before any statutory framework is enabled to protect their
rights. The freedom of speech and expression and freedom of the press granted
through our Constitutional principles to every individual should in no way be
undermined while conferring any special status to celebrities. Most of the
countries like U.S. as studied in the previous sections have given utmost
importance to free speech and always held the exception in high regard despite
of having a self-standing publicity right. Also in case of Germany, the healthy
and sophisticated mix of human rights and publicity rights can be an example
for the Indian regime to follow. These legislations have always tried to
balance the principles of free speech with the image rights and the same should
also be attempted by the Indian regime.
VIII. CONCLUSION
Publicity right is a unique one.
The dual dimension of recognising human dignity and property approach can solve
the dilemma of where to place the publicity right. As the human dignity
approach is already recognised by the judiciary, the pure commercial aspect,
like transferability, licensing and succession can be competently addressed
within the property approach. The balance between public interest in general,
i.e., the ideals of free speech and freedom of press and the private interest
of the celebrity is important. None of these rights can be undermined. Any
statutory provision to protect celebrities should strive to attain this
balance.
[1] 3rd Year
B.A. LL. B student at CHRIST (Deemed to be University) Delhi NCR
[4] Supra note 2 at 2
[9] 1994 SCC 632
[10] Id. at 634 (Any publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public records including
court records. This is for the reason that once a matter becomes a matter of
public record, right to privacy no longer subsists and it becomes a legitimate
subject for comment by the press and media.).
[12] In State of Uttar Pradesh v. Raj Narain., AIR 1975 SC 865, 884, the
apex court held that Art 19(1)(a) not only guarantees freedom of speech and
expression, it also ensures and comprehends the right of citizens to know, the
right to receive information regarding matters of public concern. Similar ratio
was drawn in cases like Secretary, Minister of Information and Broadcasting,
Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236 and
Association of Democratic Reforms v. Union of India, AIR 2001 Del 126.
Article Information
NAVIGATING THE INTERSECTION OF CELEBRITY PERSONA RIGHTS AND INTELLECTUAL PROPERTY IN THE DIGITAL AGE
Authors: HIMANSHU RANJAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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