Anaya Nolan
In India, celebrities have approached the court for the violation of their image and publicity rights. However, there is no specific provision in the Trademarks Act 1999 for publicity and image rights, and India has been lagging in regard to publicity rights, with no statute governing image or publicity rights of individuals. Celebrities can, however, protect their names and images by registering them as trademarks, and rely on the common law remedy of passing off to protect their rights. In the case of Sourav Ganguly v. Tata Tea Ltd., the court ruled in favour of Sourav, accepting that his fame and popularity are his intellectual property.
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What You'll Learn
- Celebrities can protect their names and images by registering them as trademarks
- The right to publicity and image rights are recognised as property rights
- The right to privacy is a key aspect of celebrity rights
- Celebrity endorsement advertising is a modern phenomenon that Indian law is struggling to keep up with
- The Delhi High Court has recognised the dignitary aspects of publicity rights
Celebrities can protect their names and images by registering them as trademarks
In India, the legal system is considered inadequate to deal with modern endorsement advertising. There is a lack of case law and statutes governing image and publicity rights for individuals, creating a need for a dual approach to protect celebrities' rights. While celebrities can take legal action for the misuse of their image and name under existing laws, there is no specific provision in Indian trademark law that protects publicity and image rights.
For example, celebrities can prevent the misuse of their names on inferior products, receive royalties from licensed goods, curb impersonators, and protect their future interests. They can also prevent cybersquatting, where cybersquatters register domains with famous names, intending to sell them back at inflated prices.
To obtain a trademark, celebrities must demonstrate the use of the mark in commerce and ensure it does not cause confusion with existing trademarks for similar goods or services. While celebrities have the same rights as anyone else in trademark law, they may face challenges in demonstrating actual use of the mark.
In summary, registering trademarks is a crucial step for celebrities to protect their names and images, providing them with legal rights to control and profit from their identities while preventing misuse and exploitation.
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The right to publicity and image rights are recognised as property rights
India has been lagging in terms of publicity rights, with no comprehensive legal framework that specifically protects an individual's personality rights. While some aspects of personality rights are protected under various laws in India, such as trademarks, copyright, and privacy laws, there is no single law that specifically addresses all aspects of personality rights. However, Indian courts have recognised the right to publicity as a subset of the fundamental right to privacy under Article 21 of the Constitution. This right allows celebrities to protect their name, likeness, and persona from unauthorised use.
The right to publicity in India has evolved from the right to privacy, and it can only be claimed by an individual or any indication of an individual's personality, such as their name or personality traits. The right to publicity, or the right to usage of one's name, likeness, or image rights, gives an individual the right to exploit their image for commercial purposes. This means that individuals have the exclusive right to profit from their identity or personal brand. For example, in the case of Sourav Ganguly v. Tata Tea Ltd., the court ruled in favour of Sourav Ganguly, accepting that his fame and popularity are his intellectual property.
While the right of publicity is not explicitly recognised as a standalone right in any specific statute in India, it has been protected through judicial decisions. The Delhi High Court has recognised the dignitary aspects of publicity rights, but there is a need for the legislature to also recognise the commercial and property rights aspects to keep up with the rapid commercialisation of personality and the development of the Internet. By recognising the right to publicity as a property right, individuals would be able to transfer and commercially exploit these rights for their benefit.
In terms of defences for alleged infringing parties, the defence of parody has been used in cases such as Tata Sons Limited v/s Greenpeace International & Anr. Additionally, the right to publicity must be balanced with the fundamental right to freedom of speech and expression, as protected under Article 19(1)(a) of the Indian Constitution. Overall, while the right to publicity and image rights are not explicitly recognised as property rights in India, there have been judicial pronouncements recognising their importance, and the need for a comprehensive personality rights law has been highlighted.
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The right to privacy is a key aspect of celebrity rights
India has been lagging in terms of publicity rights, with no statute governing image or publicity rights. However, celebrities in India have approached the courts for violations of their image and personality rights, with some success. The right to privacy is a key aspect of celebrity rights, as it grants individuals control over the commercial use of their identities and prevents misrepresentation.
The right to privacy is a fundamental right in India, recognised by the Constitution. It allows individuals to consent to the use of their personal information and ensures that data on public records is limited and accurate. This right protects individuals, especially celebrities, from having their names, photographs, or voices misused in advertisements without their permission. For example, in the case of Sourav Ganguly v. Tata Tea Ltd., the court ruled in favour of Sourav Ganguly, acknowledging that his fame and popularity were his intellectual property.
The right to privacy is also linked to the principle of human dignity, as outlined in Articles 19 and 21 of the Indian Constitution. This aspect of the right to privacy was recognised by the Supreme Court in R RajaGopal v State of Tamil Nadu, where the court observed that the unauthorised use of an individual's name or likeness for advertising or other purposes violates their right to privacy.
Publicity rights, which stem from the right to privacy, are recognised as property rights that can be assigned and licensed for commercial benefits. Celebrities can protect their publicity rights under the Trademarks Act, 1999, and the Copyright Act, 1957. For example, in Anil Kapoor v Simply Life India, the court ruled in favour of the plaintiff, a well-known Bollywood actor, whose personality rights and persona elements were being misused on merchandise.
In addition to the right to privacy, celebrity rights or personality rights encompass other aspects such as signature, image, likeness, voice, and other traits of an individual's identity. These rights are important to celebrities as they prevent the misuse or misappropriation of their identities. While there is no separate law specifically mentioning celebrity rights, they are protected under existing laws, including trademark and copyright laws.
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Celebrity endorsement advertising is a modern phenomenon that Indian law is struggling to keep up with
The right of publicity in India vests in an individual, and he alone is entitled to profit from it. This includes the right to privacy, which is the right to prevent the representation of one's personality without permission. The right to publicity also includes the right to the usage of one's name and image rights, i.e., the right to exploit one's image for commercial purposes. However, there is no specific provision in Indian trademark law that protects publicity and image rights.
Celebrities in India are highly sought after for endorsements, as they possess the power of persuasion and exploitation, drawing in consumers who buy products simply because a particular celebrity uses them. This is especially true in India, where people have always been in awe of celebrities. The use of celebrities in advertising is a successful technique, with celebrities making more money from endorsements than their actual careers.
However, celebrities often throw caution and ethics to the wind for a high fee. The Advertising Standards Council of India processed over 100 ads featuring leading celebrities that were deemed misleading in just one year. Celebrities rarely demonstrated that they had done any due diligence with respect to the products they endorse. While the new Consumer Protection Act holds celebrities accountable for misleading claims in ads, with fines or suspensions, celebrities continue to endorse dubious products without formal due diligence.
There is a need for a dual approach in India, recognizing property rights in one's personae, to keep pace with the rapid commercialization of personality.
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The Delhi High Court has recognised the dignitary aspects of publicity rights
India has been criticised for its lack of progress in the area of publicity rights. There is currently no statute governing image or publicity rights for individuals in India, and there is a limited body of case law on the matter. However, the Delhi High Court has recognised the dignitary aspects of publicity rights, marking a significant step forward.
The Delhi High Court has taken a strict approach to personality rights violations, particularly in the healthcare industry, where there has been an increase in the use of AI and deepfakes. In the case of Dr Naresh Trehan, a well-known cardiac surgeon, the court granted an injunction against those who violated his personality rights by creating and sharing misleading deepfake videos. The videos, which featured Dr Trehan appearing to give medical advice and promote natural remedies, were created using AI and Photoshop. This case highlights the dangers of AI and deepfake technology and the potential for abuse, especially as celebrity advertising continues to grow.
In another case, the Delhi High Court recognised Arijit Singh, a musician, as a celebrity performer and ruled that the defendants had used AI to recreate his likeness and voice to drive traffic to their websites for financial gain. The court granted an injunction prohibiting the use of any aspect of Singh's personality without his explicit consent, including his name, voice, images, signature, and persona. This injunction covered all media, including physical, digital, and the metaverse.
The Delhi High Court has also provided essential remedies for aggrieved parties whose images have been misused. In Amar Nath Sehgal v/s Union of India, the court outlined several options for seeking redressal, including a suit for violation of the right to privacy, claiming infringement or passing off, suing for breach of confidence, and taking action for defamation. These remedies demonstrate the court's recognition of the dignitary aspects of publicity rights and its efforts to protect individuals' rights to privacy and publicity.
While the Delhi High Court's recognition of the dignitary aspects of publicity rights is a positive step, there is still a need for a dual approach in India. Recognising property rights in one's personae is essential to keep pace with the commercialisation of personality and the development of the Internet. The legislature must balance public interest with the individual interests of celebrities and ensure adequate exceptions for freedom of speech while granting publicity rights.
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Frequently asked questions
Celebrities can protect their names and images by registering them as trademarks. This has been done by several Indian celebrities in the sports and film industries such as Kapil Dev, Amitabh Bachchan and Sachin Tendulkar.
The Right to Publicity is defined as "An exclusive right of a celebrity to the profits to be made through the exploitation of his fame and popularity for commercial purposes".
India has been lagging behind in regard to publicity rights, as there is no statute governing image or publicity rights of individuals. The law relating to publicity and image rights is still evolving, with no codified law governing this area.
In Sourav Ganguly v. Tata Tea Ltd., the court ruled in favour of Sourav, accepting that his fame and popularity are his intellectual property. In another case, a Bollywood actress took action against a cartoonist for violation of her image rights under intellectual property laws.
There is a need for a dual approach in India as opposed to the purely dignitary approach of the Delhi High Court. There is an urgent need for recognizing property rights in one's persona, as well as balancing between public interest and the individual interest of the celebrity.
