PERSONALITY RIGHTS UNDER COPYRIGHT AND TRADEMARK LAW BY - PARV GUPTA
PERSONALITY RIGHTS UNDER COPYRIGHT AND TRADEMARK LAW
AUTHORED BY - PARV GUPTA
University – Amity law school, Noida
Current year – 2nd
Course – BBA-LLB (h)
Introduction
There is a pioneered principle of common law which expresses that remedies
arise from the foundation of rights, that is, ‘Ubi Jus Ibi Remedium’ which interprets into “where there is a right, there
is a remedy “. Whenever an individual endeavours for human rights,
it extends beyond just the right to freedom of speech. Celebrities and other
sportsperson especially in a representative or democratic country like India,
are frequently at the receiving end of certain misappropriation and violations
of their personal rights. This development has given rise to an
important or you may even say a vital concept known as "Personality rights”,
which highlights the pressing need to protect an individual’s identity and
dignity. Personality rights are crucial for safeguarding
the identity of individuals within the realm of private property, privacy
rights and personal freedom. With the advent of digitalization of all forms of
media, the rights of celebrities, including their name, voice, signature, and
persona, are increasingly vulnerable to infringement these days. Celebrities
place great importance on these rights, as they may get exploited in
advertisements without their consent. Interestingly, these rights, also in a
way associate themselves with the Article 21 of the Constitution of India,
which protects an individual's right to life and personal liberty. They are
often recognized in various other jurisdictions across the globe and frequently
serve as a defensive safeguard, ensuring that individuals have a control over
the commercial use of their name, image, voice and other distinctive personal traits
or attributes. This blog emphasizes the troubling actions of
paparazzi, who frequently violate the rights of celebrities by capturing photos
and videos of them without their permission for commercial gain and also explores
the intricate landscape of personality rights, highlighting the fine balance
between the rights of public figures and the public's demand for information
and amusement, while also dwelling into the complex laws associated with it.
A brief
overview on copyright and trademark law
Before
diving right into the intricacies of personality rights, it's important to first
understand the laws accompanying it. In India, copyright law grants the creator
an exclusive right to their original literary, artistic, musical, and dramatic
works. These rights include the limited and private right to reproduce, adapt,
distribute, perform, and communicate the work to the public. Copyright
protection is automatically granted upon the creation of a work in a fixed
form. Registration with the copyright office is highly recommended as it offers
valuable legal benefits. Copyright protection typically lasts for the lifetime
of the creator plus 60 years after their death. In instances of joint
authorship, it extends for 60 years from the death of the last surviving author and for anonymous or
pseudonymous works, copyright protection extends for 60 years from the date of
publication.[1]
Creators or performers also have moral rights, including the right to claim
authorship of the work and the right to object to derogatory treatment of their
work and only they have the right to profit from it. On the other hand, a
trademark is a sign capable of distinguishing goods or services of one entity
from those of others. Its key function is to give an “Identification” to a
particular entity. A registered trademark offers monopoly rights in a
particular territory, whereas unregistered trademarks do not possess such legal
benefits. However, the owner of an unregistered trademark can prevent use by
another party pursuant to common law tort of passing off (no one has the right
to represent his/her goods in the name of another person).[2]
Therefore, copyrights and trademark laws are crucial for safeguarding the
personality rights of individuals and fostering a sense of safety for them.
What are personality rights and their types
We
frequently encounter deceitful online ads promoting unhealthy products like pan
masala and tobacco. Moreover, some ads exploit famous celebrities' images or
voices without permission to draw more views and generate profits. In India,
the concept of personality rights gained fame along with the right to privacy.
In 1995, the emergence of personality rights was catalysed by one prominent
case which is known as R. Rajgopal v. State of Tamil Nadu, more famously
recognized as the auto Shankar case.[3]
In this case, the Supreme Court of India recognized a person's right to
control the commercial use of their identity. This marked a significant shift which
established that individuals, including celebrities and sports persons, possess
a legitimate interest in controlling the exploitation of their “Persona” for
commercial or financial gain. The primary idea behind personality rights is to
grant the individual entity, the exclusive right to derive economic benefits
from these distinctive features. Exclusivity is a very critical factor in enticing
commercial opportunities for celebrities, so unauthorized use by third parties
can result in tangible financial losses. There are two noticeable aspects when
a celebrity wants to protect their personality rights: first, the right to
protect one's image from being commercially exploited without permission by
treating it as a tort of passing off, mainly termed as publicity rights which
comes under the ambit of IP laws, and second, the right to privacy, which
entails one's right to be left alone. The primary right is the most noteworthy
among personality rights because using an actor's image on a specific product
without their consent would violate their right to publicity. This right is not
only about compensation but also about maintaining the individual's brand value.
Although unlike some of the western countries which have an organised or
explicit laws prevailing personality rights, our country, India lacks a legal
structure committed solely for these rights. However over the years, our
judicial system has played a substantial role in upholding personality rights
by passing favourable judgements and has established certain precedents
revolving around these rights.
Cases which concern personality rights and their outcomes
The notion
of personality rights is explained with the help of various High Court and
Supreme Court judgments, which lead to the formulation of a much more developed
concept. In 2015, the Madras High Court in Shivaji Rao Gaikwad, also known as
Mr. Rajnikanth v. Varsha Productions, opined that the personality rights vest
in those persons who have attained the status of celebrity.[4]
It further added that infringement of the right of publicity requires no
proof of falsity, confusion, or deception, especially when the celebrity is
identifiable and adjudicated that prima facie the plaintiff is liable to
receive an order in its favour. Another question came before the Honourable
Delhi High Court regarding whether the personality rights shall be vested in a
corporation or not. In a landmark case of ICC Development (International) Ltd
v. Arvee Enterprise, the court stated that the right to publicity emerged from
the right to privacy and only pertains to a specific person or any indication
of their personality.[5]
Hence, non-living things do not come under the ambit of publicity. It also
stated that any attempt to transfer a person's right to publicity to the event’s
organizer would be a violation of Articles 19 and 21 of the Indian
Constitution. Also, in the famous case of the Bollywood actor Anil Kapoor, who
appeared as a plaintiff in the case of Anil Kapoor v. Simply Life India &
Ors before the High Court of Delhi,[6]
the court examined the areas which were not discussed before, which consisted
of a person's name, sound, voice, image, manner of speaking, etc. According to
the Delhi High Court, although the media have an inherent right under Article
19 of the Indian Constitution’s “Freedom of the Press” to gather and publish
any material on celebrities that is related to “public interest” or “public
concern”, the court ruled in favour of the plaintiff (Anil Kapoor) carefully
and diligently, stating that a person’s reputation and fame, particularly of a
celebrity, can transcend into damaging various rights of that person, in particular,
including his right to livelihood, right to privacy, right to live with dignity
within a social structure, and various other fundamental rights. As earlier
stated by the High Court of Delhi, free speech in respect of a well-known
person is protected in the form of the right to information, news, and parody,
but if that line is crossed by the people or media, then it can severely
tarnish or defame a person's personality or identity.
Conclusion
I
would like to conclude by stating that personality rights have been gaining
importance day by day as they have been recognized in many countries. It is a
right of every citizen of a country to prevent the financial exploitation of
their persona, as personality rights are not just about legal protection, but
also include a person’s respect, self-esteem, and personal autonomy. Certain barriers
have to be put against the paparazzi, and laws should be made and enacted to
ensure that if someone tries to interfere in another's life, there will be a strict
course of legal action. It is time for our country to make the required laws to
protect these rights and also recognize the fact that they are an integral part
of intellectual property. Such a legislative tactic would also promote
awareness and significance of these rights.
[1] Copyright Act, 1957
[2] Trade mark Act, 1999
[3] R. Rajgopal v. State of Tamil
Nadu (1994) (6SCC 632)
[4] Mr. Rajnikanth v. Varsha
Productions (2015) (62) PTC 351 (Madras)
[5] ICC Development (International)
Ltd v. Arvee Enterprise (2003) (26) PTC 245
[6] Anil Kapoor v. Simply Life India
& Ors CS (COMM) 652/2023 and I.A. 18237-18243/2023