The ‘right of publicity’ is a relatively nascent personal right in the Indian context. It is infact a right of an individual to exercise control over the commercial use of the individual’s name, image, likeness or other distinctive features that relate to an individual such as voice, signature, nickname, sobriquet, etc. The right of publicity also gives rise to ‘image rights’, which are an individual’s proprietary rights in and to the individual’s personality, giving each individual the right to prevent unauthorized use of personal attributes such as physical or stylistic characteristics, name, photographs and other personal representations.
The right to exploit the economic value of the name and fame of an individual is termed as publicity right. To claim this right it is necessary to establish that fame is a form of merchandise i.e an act intended to promote the sale/ popularity of a commodity or an activity.
Generally Publicity and Image Rights are akin to celebrities who capture the imagination of the public at large and the purses of advertisers. They also generate economic value, be it news stories and gossip items about their personal and professional lives or lucrative market for celebrity merchandise and endorsements. There is no doubt that celebrity personality is an intangible and valuable asset. A celebrity enjoys what are known as rights of publicity or image rights which enable them to commercially exploit the goodwill associated with their star status.
The importance of the recognition of this right in favour of an individual is to secure him a form of Intellectual Property which is meant not for protecting them against any harm but to secure him some financial benefits to be gained from the use of the property, and this is generally understood to be justified as a reward or incentive for his work in creating the intellectual property. Apart from this the right is important because it is assignable and licensable to the players in the media world for commercial gains and benefits. If someone uses the fame of a celebrity to promote his goods it would be termed as an unfair trade practice, misappropriation of the intellectual property of the celebrity, an act of passing off etc.
However, the law with this regard i.e publicity/ image rights of individuals is still not fairly developed, especially in India. Courts in the various foreign countries have adopted different approach to justify this right and no uniform justification has crystallized yet. India has been lagging behind in regard to publicity rights, as neither is there a considerable body of case law, nor any statute governing, image or publicity rights of individuals. Thus, the legal system in India at present is quite inadequate to deal with the modern phenomena of recognizing and enforcing publicity and image rights. But the market has its own forces and does not wait for the law to catch up. The rate at which advertising using celebrities has increased as well as an increase in the amount of money involved in the entire process, possible abuses are likely to arise in the near future.
The Image Rights in India arises from the right of privacy and flows from human dignity as enshrined in articles 19 and 21 of the Constitution. This approach has to be contrasted to the approach of treating publicity rights as commercial property.
In the age of internet and other faster and developed means of communication the theory of Publicity and Image rights has gained added relevance and subject matter of discussion. The media has become faster and a celebrities' image can be used for publicity, invasion of privacy or for moral defamation much more easily and quickly.
We see that in the present age the concept of Publicity and Image rights has become much more contextual and relevant because of the following reasons:-
a) Increasing popularity of the media – hence more creation of celebrities.
b) Faster and easier global communication through the Internet.
But while enumerating the characteristics of Publicity and Image Rights ,we see that these Rights tend to limit the purview of the Fundamental rights enshrined in the Article 19 of the Constitution of 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 recognizing the right of publicity and image. There is neither a considerable body of case law, nor any comprehensive statute governing image or publicity rights. It is only the Emblems and Names (Prevention of Improper Use) Act, 1950, which to a limited extent, protects unauthorized use of few dignitaries’ names by prohibiting the use of the names given in its schedule. Thus the Indian legal system is under equipped in dealing with the modern phenomenon of protecting Publicity and Image Rights.
There is no specific provision under the trademark law to protect Publicity and image rights although the definition of mark as defined in section 2 (m) of the Act includes names in its defination. In the absence of any statue for protection of Publicity and Image Rights an individual having recognition which can be misused may resort to an action of passing off in order to protect his or her publicity and image rights. However an action of passing off requires proof of: reputation of the individual, some form of misrepresentation and irreparable damage to the individual.
The Indian copyright Act, 1957 does not define or whisper about the concept, ambit and scope of public and image rights pertaining to an individual. But reference can be made to the definition of a performer as given under section 2(qq). The performer includes an actor, singer, musician, dancer, acrobat, juggler, snake charmer, a person delivering a lecture or any other person who makes a performance. There is not much clarity as to what aspects of publicity and image rights of an individual rights may be protected under Copyright Law.
Although the Indian Copyright Act,1957 provides protection of specific image in the form of a photograph, painting or other derivative works in order to pursue an action of infringement individual must show ownership of copyright in the image or photograph and copying of that image.
There are, however, some noteworthy similarities between the Right of Publicity and trademark law. Theoretically, the Right of Publicity is of the same genus as unfair competition and, more precisely, the doctrine of misappropriation–two hallmarks of trademark law. Like a trademark, the Right of Publicity can function as a quality assurance to a consumer, especially if a celebrity, or his or her estate, maintains self-imposed quality standards and exercises discretion in licensing publicity rights. Also, proprietors of both trademark and publicity rights seek to prevent others from reaping unjust rewards by appropriation of the mark or fame.
Individual may apply for protection of their name, likeness and nicknames, among other things, with the Indian Trademarks Registry in order to obtain statutory protection against misuse. Such kind statutory recognition is of strategic importance to celebrities who intend to use their image and likeness to identify their own or an authorized line of merchandise. Increasingly celebrities are becoming aware of their image rights. Some noteworthy examples are Mallika Sehrawat, yoga guru Baba Ramdev and chef Sanjeev Kapoor, who have sought protection under trademark law by applying for registration of their names and images as trademarks.
There have been few judicial pronouncements wherein the court have recognized and protected the Publicity and Image rights of an individual. Some noteworthy decision of courts are enumerated herein below -
R.R. RajaGopal v. State of Tamil Nadu, (JT 1994 (6) SC 514):-
In this case the Supreme Court recognized right of publicity in the form of right of privacy as follows: “the first aspect of this 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”.
Phoolandevi Vs Shekar Kapoor & others.
In this case Phoolan Devi herself protested that the film made by the respondent had distorted the facts. She sought an injunction as she had given up her past criminal activities & had started her life afresh. The court held that issue needs to be thoroughly examined and the implications of such exhibition on the private life of an individual be scrutinized before permitting release of such films. Thus, a celebrity can protect his /her name & image as a constitutional right.
ICC Development (International) Ltd. v. Arvee Enterprises, (2003 (26) PTC 245 Del)
Right of publicity as an independent right, was first time recognized by the Delhi High Court in this case where the Delhi High Court held that the right of publicity does not extend to events and is confined to persons.
DM Entertainment v Jhaveri (Case 1147/2001)
In this case, Daler Mehndi, a famous Indian composer and performer, brought an action against the defendant following the registration of the domain name ‘dalermehndi.net’. The Delhi High Court restrained the defendant from using the trademark DALERMEHNDI, thus recognizing the fact that an entertainer’s name may have trademark significance.
(Tata Sons Ltd v Ramadasoft (Case D2000-1713, February 8 2001)
Another case involving an Indian citizen was that of Ratan Tata, the chairman of Tata who lodged a complaint in Word Intellectual Property Organization (WIPO) arbitration panel seeking the transfer of domain names comprising the name Tata.
Sourav Ganguly vs Tata Tea Ltd [CS no. 361 of 1997]
Sourav Ganguly who returned from Lords after scoring magnificent centuries found himself extremely disturbed when he realized that Tata Tea Ltd., in which he was employed as a manager, was promoting its 1 kilo tea packet by offering the consumers a chance to congratulate Sourav through a postcard which was inside each packet of tea. In a way indirectly what the company intended was to promote the sale of its tea packet in the Indian market where Sourav had earned considerable amount of popularity.
Mr. Arun Jaitely vs Network Solutions Provate Limited & ORS [CS(OS) 1745/2009]
Indian Political leader Arun Jaitley sought a permanent injunction to restrain the defendants from misusing the domain name ‘arunjaitely.com’, and to order the immediate transfer of such domain name. Jaitley wished to register the domain name ‘arunjaitley.com’, which the defendants had already registered. An order of injunction was granted by the court restraining the transfer, alienation or offer for sale of the domain name ‘arunjaitley.com’ to any third party and the creation of any third-party interest there in.
Titan Industries Limited v Ramkumar Jewellers([CS(OS) 2662 of 2011]),
In this case the plaintiff had hired Amitabh Bachchan and Jaya Bachchan to endorse and advertise its range of diamond jewellery sold and marketed under the brand name Tanishq. The couple had assigned all the rights in their personality to the plaintiff to be used in advertisements in all media, including print and video. The plaintiff had invested huge sums of money in the promotional campaign. The defendant, a jeweler dealing in identical goods to those of the plaintiff, was found to have put up a hoarding identical to the plaintiff’s, including the same photograph of the celebrity couple displayed on the plaintiff’s hoarding. As the defendant had neither sought permission from the couple to use their photograph, nor been authorized to do so by the plaintiff, the court held it liable not only for infringement of the plaintiff’s copyright in the advertisement, but also for misappropriation of the couple’s personality rights. The court thereby granted an interim injunction in favour of the plaintiff while specifically recognizing the couple’s rights in their personalities.
In India although Publicity Rights and Image rights have traveled a long way from the era of being an offshoot of privacy right to an independent standalone right but they are yet to be recognized by way of a statue.
Although there have been a few judicial decisions which have accorded protection to celebrities publicity and image rights through intellectual property laws, it has proved to be insufficient. There has arisen a strong need of separate regime of publicity rights and protection under the Statue.
The Copyright Act poses a challenge in case of recognition of publicity rights. The inadequacies in the current framework of intellectual property laws are quite alarming, seeing the blatant misuse of various aspects of the publicity and image rights.
While the right of publicity is slowly finding recognition under Indian law, the remedies for infringement are limited. An action for “passing off” would be available against any third party that causes injury to the business, goodwill or reputation of an individual by trying to pass off its goods or business as those of the individual. However, for such action to be successful three elements would need to be established, damage to reputation, misrepresentation and that these have caused irreparable damage. While the Indian legal framework surrounding publicity and image rights lacks some level of certainty at present, it is an area in which new developments are inevitable given the growth of professionals and celebrities in all strata’s and leagues in the country.