Celebrity rights in india

It is a general trend in India to find companies selling all sorts of products conveniently using
a celebritys face, or dialogue from a movie, or a gift hamper stating a chance to meet them,
spend a day with them, and all sorts of deals just to sell their products, and earn them big fat
profits. But such profits are justified when they are done with prior consent from such
personalities and their knowledge of such event happening, but not when its done without
their slightest knowledge.
Brook LJ in Douglas and Zeta Zones v. Hello Ltd 1 has defined the "Right to Publicity" as
"An exclusive right of a celebrity to the profits to be made through the exploitation of his
fame and popularity for commercial purpose"

These rights which indeed are the consent of the celebrities are broadly treated as a Celebrity
Rights which is a combination of Personality Rights, Publicity Rights and Privacy Rights.
1. Personality Rights: An individuals contribution to society is his right and such
personality rights are protected.
2. Privacy Rights: Celebrities try to keep their personal information as private as
possible in order to avoid embarrassment, also the Constitution under Article 21
recognizes this Right to Privacy as a fundamental Right. Celebrities may also find
recourse in an action of invasion of privacy.
3. Publicity Rights: The right to use the value of the fame of a celebrity is known as
publicity rights. In this regard, it would be pertinent to mention that fame is an act
projected to augment sales.

RR RajaGopal v State of Tamil Nadu2 was the first case to recognise the personality rights
in India. In that case, the court opined that: The first aspect of this right must be said to
have been violated where, for example, a persons name or likeness is used, without his
consent, for advertising or non-advertising purposes or for any other matter.

The doctrine of privacy put forth by Warren and Brandeis has played a pivotal role in
shaping celebrity rights. They opined that the basic concept of personal freedom extended to
every persons right to be let alone.3

1 [2005] EWCA Civ 595,

2 (JT 1994 (6) SC 514)
3 Louis Brandeis D & Warren Samuel D,The right to privacy, Havard Law Review, 4(5)(1890),
Who is a celebrity? The term celebrity comes from the Latin word celebritatem which
denotes the condition of being famous. Section 2(qq) of the Indian Copyright Act, 1957 (the
Act) defines a performer which includes actor, singer, musician, dancer, juggler,
conjurer, acrobat, a person delivering a lecture or any other person who performs. This
definition may be interpreted to include certain celebrities, for eg. actors. However, the
protection afforded to a performer under the Act relates mostly to performance rights and
to seek remedy, as such, for abuse of personality, may be a wide-stretch.

Whether the right extend to non living Entities :ICC Development (International) vs.
Arvee Enterprises and Anr4:-

The right of publicity has evolved from the right of privacy and can inhere only in an
individual or in any indicia of an individuals personality like his name, personality trait,
signature, voice, etc. An individual may acquire the right of publicity by virtue of his
association with an event, sport, movie, etc. However, that right does not inhere in the event
in question, that made the individual famous, nor in the corporation that has brought about
the organization of the event. 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 Constitution of India. No persona can be monopolised. The right of Publicity
vests in an individual and he alone is entitled to profit from it.

In this judgement only it was held by the honble court that this protection does not extend to
the non-living entities :-

I am unable to agree to the above. In my considered view, the non-living entities

are not entitled to the protection of publicity rights in an event, for more than one
reasons.
Firstly, the copyright law, trade-mark law, dilution law and unfair competition law
provide full protection against all forms of appropriation of property to such legal
entities.
Secondly, it would be against the basic concept of "persona". The "persona" is
defined in Black's Law Dictionary, seventh edition to mean "a person; an individual
human being". Most of the courts abroad have refused to grant publicity rights of
human beings to the non-living entities.

4 2003 (26) PTC 245 Del

 In this regard, it will be useful to refer to McCarthy's oh the Rights of Publicity
and Privacy {Second Edition} at page 460. It reads :
"The New York courts have unanimously refused to permit any legal entity other
than a human being to assert publicity or privacy rights under the New York statute.
The New York statute prohibits the commercial use of the name or picture of "any
living person", and this interpretation seems eminently reasonable. The meaning of
"living person" as restricted to a real human appears clear by the statute's listing of
those entities which are forbidden to make such unpermitted uses : "a person, firm
or corporation". Thus, the statute distinguishes a "person" from a "firm or
corporation.

.....What we cannot do is allow ourselves to be hypnotized by a label like "person".

It is superficial and quite dangerous to reason that : {1} rea, human persons have a
right of publicity and {2} the law pretends that corporations are "persons",
Therefore {3} corporations have a right to publicity in their identity. The danger
comes from expanding the right of publicity beyond its reason for being. Even the
most rational and fair legal concept can be so stretched out of shape that a backlash
develops, which can bring down the whole house, good and bad alike."

Remedies and defences available against violation of Publicity Rights.

The Protection of the Publicity rights has not been given statutory status by any of the Indian
legislatures specifically unlike UK legislations, but is governed under the common law of
passing off.

Although the definition of mark in Section 2(m) of the Trademarks Act 1999 does include
names, there is no specific provision in Indian trademark law, which protects publicity and
image rights.

In Amar Nath Sehgal v/s Union of India5, the Honble Delhi High Court has laid down the
following essential remedies that an aggrieved party can seek for the misuse of the image:

1. The party could bring in a suit for violation of tort of privacy and seek compensation/
injunction

5 2005 (30) PTC 253 Del

 2. The party can approach the court and contend that its an act of passing off or
infringement

3. The party can sue for breach of confidence with a request for injunction and damages

4. The party can bring in a suit for action of defamation under civil law or criminal law
and may seek injunction and damages

Whether there can be a case of Passing-Off for using the image of celebrity?
Passing off Action
The action of passing off is relevant in cases of personality merchandising where a persons
name, likeness or performance characteristics are misused.
In general, a passing off action is a remedy against the injury to the goodwill or reputation of
a person caused by misrepresentation by another person trying to pass off his goods or
business as the goods of another. An action in passing off may lie for any unauthorized
exploitation of a celebritys goodwill or fame by falsely indicating endorsement of
products by the celebrity.
In Erven Warnick v. Town end and Sons (Hull Ltd),6 Lord Diplock laid down five
elements necessary to establish the tort of passing off i.e. (a) misrepresentation; (b) made by a
trader in the course of trade; (c) to prospective customers; (c) which is calculated to injure the
business of another trader; and (d) which causes actual damage. Subsequent cases have
applied the action of passing off to cases wherein the person misrepresents the name and
likeness of an individual, more so in case of celebrities7
However, the likelihood of making a successful case for passing off basis the above two
claims would depend on whether the cartoon actually resembles the actresss image. The
attributes of likeness have to be considered for this purpose and likeness can be
established if only both the actresss image and the artistic piece are alike in the perception of
the relevant public.

Protection under trademark for Celebrity Rights: -

6 (1979) AC 731.
7 T Vidya Kumari, Celebrity Rights as a Form of Merchandise Protection Under the Intellectual Property
Regime, 9 J. INTELLEC PROP RIGHTS 120 (2004)
In the case of Mr. Arun Jaitley vs Network Solutions Private Limited & Ors.8, the court held
that
A necessary corollary which follows is that the right to use a personal name is superior
than that of the commercial right of using the trade mark and thus the entitlement to use it as
a trade mark or domain name vests with the person having its personal name. Afortiori it can
be conveniently stated that the name which besides being a personal name is also distinctive
due to its inherent distinctiveness and also by virtue of the popularity of the person specific
also fulfils the criterion of trade mark
So this case indirectly recognises the trademark rights in the publicity rights of any
individual.
Protection under Copyright for Celebrity Rights: -
In Sim v Heinz & Co Ltd9, the court said that copyright is neither granted to voice, likeness
nor other identifiers of a persona.
The Indian Copyright Act, 1957 provides protection to sketches, drawings, etc., which fall
within the category of artistic work. Section 14 of the Act grants exclusive right to authorize
others to reproduce the work in any form, including conversion of a two-dimensional work to
three-dimensional works and vice versa. The Courts have extended this protection to
fictitious characters which fall under the category of artistic work.
BUT
In the case of Raja Pocket Books v Radha Pocket Books10 a popular character of childrens
comic book, Nagaraj-the Snake King, was deemed to be protected under copyright law.
However, no copyright is granted to the name or image of the celebrity in India.

Matters under the Scope of Publicity rights which can be protected:

A. Performance :- In Fortune films v Dev Anand,11 it was said that acting in films does
not fall under any category of work. A performers right is expressly excluded under
Section 38(4) by stating that once a performer has consented to the incorporation of
his performance in a cinematograph film, the provisions of sub-sections (1), (2) and
(3) shall have no further application to such performance.

8 CS(OS) 1745/2009 & I.A. No. 11943/2009 & 17485/2010

9 [1959] 1 WLR 313 1959.

10 (1997) (40) DRJ 791.
11 AIR 1979 Bom 17
 B. Voice :- In Tom Waits v. Fritolay Inc.12 voice was considered as integral to the
personality of the celebrity and thus was protected by the courts against
misappropriation. In this case, singer Tom Waits voice was imitated in a commercial
of tortilla chips without his consent. Thus, he succeeded in an action of
misappropriation of his personality.

More Judicial Pronouncements on the scope of Publicity Rights :-

In Tolley v Fry,13 there was controversy relating to the use of a picture of a popular
amateur golf player to advertise Cadbury chocolates. Tolleys complaint was that the
defendants made it appear as if he had consented to appear in the advertisement for
gain or reward, and thereby misused his reputation as an amateur golf player for
advertising purposes. The court held that the conduct of the defendant was capable of
amounting to libel and awarded damages. However, this situation has changed
drastically and today, celebrities claim paradoxical rightsthe right of privacy along
with the right of publicity.{Personality Rights}
In Cohen v Herbal Concepts Inc,14 a picture of the plaintiff and her daughter was
used on the label of a cosmetic product without their consent. The defendants argued
that the faces of the two individuals were not identifiable in the photograph. The court
however, accepted the statement of the plaintiffs husband and awarded damages to
the plaintiff in recognition of her privacy rights.{Picture of Person}
In the case of Barber v Times Inc15, a photographer took pictures of Dorothy Barber
during her delivery. Ms Barber filed a suit of invasion of privacy against Time Inc for
unauthorized and forceful entry into her hospital room and for photographing her
despite her protests. {Picture of Person}
In Henderson v Radio Corporation Pvt Ltd16, the claimants were professional
ballroom dancers. The defendants produced a record Strictly for dance in which they
used a picture of the claimants in the cover illustration. The claimants argued that this
amounted to passing off. The court held it as wrongful appropriation of personality
and professional reputation of the plaintiffs.
12 978 2FD 1093, 9th circuit 1992
13 Tolley v Fry [1931] AC 333; (1931) 1 All ER Rep 131
14 Cohen v Herbal Concepts Inc (1984) 63 NY.2d 379.
15 348 Mo. 1199, 159 S.W.2d 291, 294
16 [1969 RPC 218]
 Haelan Laborotories v. Topps Chewing Gum 17
"A man has a right in the publicity
value of his photograph, i.e., the right to grant the exclusive privilege of publishing
his picture, and that such a grant may validly be made in gross, i.e., without an
accompanying transfer of a business or of anything else.
Titan Industries Ltd. vs M/S Ramkumar Jewellelrs, 18:- This right might be called a
right of publicity. For it is common knowledge that many prominent persons
(especially actors and ball- players), far from having their feelings bruised through
public exposure of their likenesses, would feel sorely deprived if they no longer
received money for authorizing advertisements, popularizing their countenances,
displayed in newspapers, magazines, busses, trains and subways. This right of
publicity would usually yield them no money unless it could be made the subject of
an exclusive grant which barred any other advertiser from using their pictures."19
The basic elements comprising the liability for infringement of the right of publicity :
Validity: The plaintiff owns an enforceable right in the identity or persona of a human
being.
Identifiability: The Celebrity must be identifiable from defendants unauthorized use
Infringement of right of publicity requires no proof of falsity, confusion, or deception,
especially when the celebrity is identifiable. The right of publicity extends beyond the
traditional limits of false advertising laws.20

17 202 F2d 866

18 CS(OS) No.2662/2011
19 Titan Industries Ltd. vs M/S Ramkumar Jewellelrs, CS(OS) No.2662/2011
20 Titan Industries Ltd. vs M/S Ramkumar Jewellelrs, CS(OS) No.2662/2011