Publicity Rights in India: Room for Speculation in the Law?

A cartoonist of a well known national daily newspaper sketched a character describing the acting skills of the modern day actresses in Bollywood. One of the popular Bollywood actress found the featured images to be identical with her and got offended because of the derogatory projection by the cartoonist. The actress can take action for violation of her image rights under the intellectual property laws.

It is not just film actors but well-known celebrities in any other field should be aware of their rights.

camera

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.

Publicity rights: lawful shield for celebrities

The concept of publicity rights has emerged from the genesis that any person must have a control over the commercialization of his or her personality. The same has been reiterated by the Hon’ble Delhi High Court in the case of ICC Development (International) vs. Arvee Enterprises and Anr[1]:

“The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s 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.”

There are two sides to the concept of “celebrity rights”

  1. Right to privacy (The right to be left alone and prevent representation of one’s personality without permission) – The first aspect of the publicity right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising – or non-advertising – purposes or for any other matter.[2]
  2. The right to publicity, i.e. the right to the usage of one’ name, likeness; or image rights, i.e. the right to exploit one’s image for commercial purposes

Remedies and Defense

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 India[3], the Hon’ble 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
  2. The party can approach the court and contend that it’s 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

For Celebrities: A case for passing off?

Passing off is the remedy which is available when there is a misuse of an image, name of an individual even though the mark, name, likeness or the image of the person is not registered.

In the instance mentioned at the beginning of this post, the actress is a person who has a celebrity status and has two claims:

  • The cartoonist used her image without her consent, and
  • Her image is shown in bad light

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 actress’s image. The attributes of “likeness” have to be considered for this purpose and “likeness” can be established if only both the actress’s image and the artistic piece are alike in the perception of the relevant public.

For alleged infringing parties: Defense of parody

It is already a fact that the celebrities can and have approached the court for violation of their image on the grounds mentioned above. But what about the defense available to the alleged infringing parties? The defense of parody can be one of the ways to go about it. Defense of parody came to the forefront in the case of Tata Sons Limited v/s Greenpeace International & Anr.[4]:

The primary issue before the court was a violation under the Trademark Act, 1999 on the part of Greenpeace for designing an online game by the name Tata v/s Turtle, in which the Tata group official logo was emulated and symbolized as demonic. Tata group wanted to build a port in joint and equal collaboration with Larsen & Toubro. Greenpeace, which works for the protection of the environment in India, openly objected to the construction as it would lead to an extinction of the turtles in the water body nearby.

Tata group filed a petition in the Delhi High Court for defamation, trademark infringement and sought damages for Rupees Ten Crores from Greenpeace India. The court after hearing the arguments by both the parties stated that:

Greenpeace cannot be held liable for the following reasons:

  • Free speech includes caricature, lampoon, mime, parody, drama, poem and other manifestations of wit and, therefore, the game, which parodied Tata’s trademark, was an exercise of free speech;
  • Context was of the essence in cases of defamation, and since the trademarks were used in the context of a game to raise awareness regarding the endangerment of Olive Ridley turtles, it was not defamatory;
  • Reasonable comment, ridicule or parody of a registered trademark can be made if the intention of the maker is to draw attention in some activity of the proprietor of the mark;

As such, Tata Sons Limited v/s Greenpeace International & Anr. can be used as a precedent. One can argue that to the intention behind an alleged infringing act pertaining to celebrity rights is to spread awareness. However, this argument falls away when an alleged act of infringement of celebrity rights caters to any commercial motive.

Overall, it may be said that although the Indian legislations have room for the protection of publicity, celebrity and image rights, the laws need to be more direct and codified in this field. The need becomes more acute in the context of ever-increasing social and digital media which gives an infringer ever more opportunities to misuse one’s celebrity status and right to personality.

[1] 2003 (26) PTC 245 Del

[2] RR Raja Gopal v State of Tamil Nadu (JT 1994 (6) SC 514)

[3] 2005 (30) PTC 253 Del

[4] 178 (2011) DLT 705

Advertisements