You must have heard about some of the well-known personalities like Shri. Amitabh Bachchan (Actor), Virat Kohli (Indian Cricketer), and Arijit Singh (Singer) endorse brands or perform at live concerts. Do you know that such celebrities need to lend their names or even images to make such promotions? Yes, it has got its own merits but at the same time, there may arise a situation wherein the rights of such celebrities may be exploited or may be used fraudulently. This is exactly wherein Intellectual Property Rights (IPR) comes into the scene which protects the rights of such celebrities. Now, there may arise a question as to who may be termed a celebrity or what are the different kinds of rights that will protect the interests of such celebrities from misappropriation of their Intellectual Property.
Who may be termed as a “Celebrity”?
Celebrity is a state of being well known. In simple terms, it is used to describe a person who is known by the public. It is the public who discerns whether or not an individual is a celebrity. However, there is no specific definition of the term celebrity under any specific statute. The Delhi High Court has defined the term celebrity in the case of Titan Industries Ltd. v. Ramkumar Jewellers (2012)
A celebrity’s fame generates value and has the potential to make certain commercial gains that can boost businesses and also it is one of the means through which a celebrity can earn profits. But the same can be exploited by unauthorised commercial use and hence, certain rights safeguard the rights of such celebrities. There are various celebrity rights and such rights can be classified into 3 main categories namely, Personality Rights, Publicity Rights and Privacy Rights.
The above-mentioned rights are discussed below:
- Personality Rights
These rights are also known as Moral rights which protect the identity of an individual and restrict any kind of unauthorised use for commercial gains. In India, there is no such statute that protects personality rights but the judgement which has recognised personality rights is discussed in the case of Shivaji Rao Gaikwad v. Varsha Productions, in which Actor Rajnikanth alleged there was an unauthorised use that violated his personality rights and filed a lawsuit and contended for an injunction to prohibit the respondent from using his name, caricature, style of delivering the dialogues and other personal characteristics in an upcoming film called, “Main Hoon Rajnikanth”. He further expressed his views on the scenes of the film which he found to be unethical and how the respondents have tried to benefit and make profits out of his name in an unauthorised manner. The court in this case observed and understood that Intellectual Property Rights are valuable rights and also considered taking into account Article 21 of the Indian Constitution. After taking into consideration all of the available materials of the film, the court held that the film’s title and other aspects would degrade the reputation of the said actor and hence restrained the respondents from using the title, “Main Hoon Rajnikanth”.
- Publicity Rights
Also popularly known as the merchandising rights wherein, the fame of the celebrity is utilised to make monetary benefits. When the same is done by an individual for unfair use of his trade, it will ultimately amount to the misappropriation of the rights of such a celebrity. In the case of ICC Development (International) Ltd. v. Arvee Enterprises, the Hon’ble Court declined to grant an interim injunction in favour of the Plaintiff because “World Cup” is a dictionary term for an event or tournament in which several countries participate and that the term is generic and non-exclusive.
- Privacy Rights
These rights are one the most sensitive rights as a day in the life of a celebrity is full of surprises. The reason behind making such a statement is that the public is always curious to know the whereabouts of celebrities and in the haste of the moment there might be a disclosure of sensitive information which might not be appreciated be shared publicly by the celebrities. Hence, Privacy rights safeguard celebrities from unintended disclosure. One of the most popular judicial opinions has been given in the case of Barber v. Times Inc, in this case, it was pretty evident that the remedy available to the celebrities can be in the form of an invasion of their privacy or the form of a fundamental right of right to privacy as a part of Article 21. In this case, what had happened was that a photographer captured pictures of Dorthy Barber while she was delivering in a hospital which was unauthorised and was done against her will. She filed a suit for “Invasion of Privacy’ against Times Inc. and the court awarded damages amounting to 3000$.
Protection under Intellectual Property Rights to the Celebrities
Since there is no specific statute that protects celebrity rights, there are provisions under the Intellectual Property that protects the rights of such personalities such as Trademarks, Copyrights and also the provision under the Indian Constitution.
Registering a Trademark reflects two aspects. Firstly, the celebrity is open to merchandising or licensing of the trademark that was registered. Secondly, such registration also protects their personality from any kind of unauthorised use. Taking into consideration the protection guaranteed by the Indian Law, it is the Indian Trademarks Act 1999, which protects the rights under Section 2(1)(e). Courts in India have granted protection to Characters, names and film titles under trademark laws. One such example with regards to Trademark of names is that of the Indian Actress Kajol’s Twitter Controversy 2010. A Twitter handle named, “Kajol Nysa” had made some belittling remarks on Twitter and the news channels caused chaos in such a manner as if it was done by actress Kajol herself. She cleared the air that she does not own any Twitter account and had initiated several applications to Trademark authority in her name to check the misuse which could arise in future terms.
Copyright gives protection to the celebrities for the work that was so authorised by them. If there arises a need to file for a copyright infringement, it is necessary that the ownership of the copyright needs to be established in the first place and that it was not original but copied. According to the Copyright Act of 1957, a “performer” is described as an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, or any other person who performs in India. In the case of Star India (P) Ltd. v. Piyush Agarwal & Ors., the Delhi High court stated that the agreement between the plaintiff and the BCCI was held impractical since the same cannot be protected as copyright protection cannot be availed for the information in the public domain.
- Protection under the Indian Constitution
There being no specific statute that protects the rights of celebrities makes it very difficult to protect their rights from getting exploited. Having a specific statute and strict laws is the need of the hour. Talking the rights which are guaranteed by the Indian Constitution to such celebrities were discussed in a very famous judgement, that is in the case of ICC Development (International) Ltd. v. Arvee Enterprises in which it was stated that “Any effort to take away the right of publicity from the individuals, to the organiser (non-human entity) of the event would be violative of Articles 19 and 21 of the Indian Constitution.”
Upon understanding the fact that there is no specific statute that otherwise could have done a lot better to tackle the complications faced by the celebrities calls for a specific law that will provide protection and solves the issues about the rights and up to what extent such rights may be granted. It is also necessary to understand why other countries like the U.S.A are considered the most advanced in terms of protecting the rights of such celebrities. Such rights form an important aspect of the lives of the celebrities and respecting their privacy and restraining the offenders from making wrongful use of their fame to make personal gains needs to be put to an end by bringing in stricter laws. There are high hopes from the Legislature to come up with advancement and recognise the rights through a separate statute which will assist and act as a tower of strength.
Author(s) Name: Raj N. Pankar (V.M.Salgaocar College of Law)