PROTECTION OF PUBLICITY RIGHTS IN INDIA
Publicity rights, generally referred to as personality rights or celebrity rights, in its most fundamental sense is the right to preserve, monitor, and benefit from one's image, name, or likeness. There are two distinguishable facets of publicity rights: first, by approaching it as a tort of passing off, the right to protect one 's image from commercial use without the permission of the rightful owner; and second, the right to privacy enshrined under our Constitution which is one's right to be left alone. Publicity rights are usually associated with a person. It is the right of every individual to estop others from using their name and identity for any kinds of gains monetary or otherwise.
NEED TO PROTECT PUBLICITY RIGHTS
Many individuals and entities in the marketing sector use this approach for endorsing their products and the effects of improved sales have indeed been confirmed by applying the said approach. Celebrity endorsement is a popular market strategy that calls for strong consideration of these rights. This also involves a huge amount of income for celebrities as most of them tend to earn more through endorsements and advertisements than the money earned through their normal course of income. When someone without authorization associate celebrities with their product, they make use of their hard earned recognition for their own benefit rendering the efforts of such celebrities/personalities useless.
Secondly, the concept of privacy comes into play. As celebrities constantly attract a lot of public traffic especially in the realm of social media, this aspect is used by other individuals for their benefits. The public's attention can therefore contribute to a situation where the 'paparazzi' makes it impossible to be out in public in a normal way for those celebrities in their normal course of life. It is an undeniable fact that there is a right available to all the individuals to access information in our democracy, but these rights should not be made accessible to individuals when the personality/ celebrity does not wish to make their private information accessible to the general public. The courts have explicitly recognized this problem pertaining to the privacy of celebrities & popular personalities and on many occasions have stated that "The media may accurately report information of private matters and still, on certain occasions, could be held liable for damages. Defamation cases would not stand where the media have accurately reported the facts, but the media may still lose an argument there for infringing the right to privacy." Such instances are supposed to be avoided in all possible manner. In existence of these views, along with recent developments in our jurisprudence through right to privacy judgement, it is time to consider the celebrity rights more seriously in our country.
STATUS IN INDIA, USA & UK
The right to publicity developed at the same time as privacy rights and emerged in the United States of America as a component of the right to privacy.
In India, the protection offered under personality rights is not particularly clear, as there is not any independent statute or body governing it. There have been efforts to recognize publicity rights as an independent right. However, the aspects of a person’s identity that finds protection in India depend upon various statutory provisions. For instance:
· The constitutional (Article 19 and 21) recognition of the right to privacy allows individuals to assert their consent for use of any information pertaining to the individual including home, family, marriage, procreation, parenthood, child-bearing and education, which is not available as a matter of public record;
· information and aspects of personality that are available in public records are subject to the limitation that their reporting must not be with reckless disregard for the truth;
· the Trade Marks Act 1999 (which also recognises common law principles) extends protection over one’s name, image, likeness, taglines, mottos, unique and exclusive characteristics, etc; and
· the Copyright Act 1957 provides for protection against one’s artistic, literary, dramatic, photographic, musical works, etc. If a claim can be brought to show that the wrongdoer has not only infringed copyright, but also violated one’s personality and publicity rights, then protection can be afforded to such categories as well.
The Apex court in the case Justice K. S. Puttaswamy (Retd.) v. Union of India, held that "Each citizen must be entitled to exert authority over his / her personal life and image as presented to the society and to control the public use of his / her identification. This alternatively means that an individual must be allowed to prohibit anyone else from using his / her image, name and other facets of his / her personal life. In addition to the economic arguments for such a right, the defence of human autonomy and dignity is also justified. The right preserves the free, personal creation of the "self" of a human. The publicity rights implies the interest of a person in autonomous self-definition, which prohibits others from interfering with the definitions and values associated with it by the public, as seen in Rajat Sharma vs. Ashok Venkatramani & Anr.
B. United Kingdom
Like India, the United Kingdom also does not recognise any specific publicity rights because of which celebrities are forced to choose legal remedies from various legal routes. There is no specific provision in the Trade Marks Act of 1994 that protects these rights. As only registered trademarks are protected under the Act, if their names are not registered as trademarks, celebrities become powerless. "Although celebrities try to register their names as trademarks, they are disappointed because" the more famous the celebrities are, the less distinctive their names are. The court in Re: Elvis Presley Trademarks, Inc refused to register the name "Elvis Presley" because it was so commonly known that it possessed no distinctive quality to identify goods. The Copyrights, Designs and Patent Act of 1988 (CDPA) may allow individual to protect their likeness when it is fixed in a photograph or film. However, this protection can only be claimed if that individual "commissioned" his/her work. In addition, even if the celebrity in a photograph or film owns the copyright, the law only prevents an infringer from copying all or a "substantial part" of the original work. This makes it difficult for the individual to claim his rights because it becomes difficult to prove that a significant part of the original work has been copied by an infringer.
C. United States of America
When it comes to publicity rights in the USA, celebrities can resort to two alternatives; first, the Lanham Act of 1946, which is a federal law regulating trademark laws in the USA, and second, the states own legislated publicity rights laws. The Lanham Act provides for a civil action against a person who uses any word, term, name, symbol or device or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which can cause confusion or mistake or deceive as to the affiliation, connection, or association of him with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.This implies that civil actions are taken against any individual who intends to mislead individuals by portraying their association or affiliation with any other individual.
Either a claim of false endorsement or a claim of infringement of an unregistered mark can be filed by people affected by such misuse. While the primary purpose of the Lanham Act is to protect consumers, the broad scope of the Act assists celebrities to safeguard their publicity rights through it. Thus, in a certain false endorsement case, a complainant was successfully able to argue that in a Tom Waits parody song, defendants used an imitation of his voice. Although some celebrities have been able to claim the protection of publicity rights under the Lanham Act successfully, the Act does not offer a success in all cases. This is because the measurement of breaches and infringements is based on the reaction and confusion of the consumer and the possibility of establishing celebrity fans as customers.
Publicity rights were a sub-category of privacy rights under the common law practice. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc was the first case to separate publicity rights from privacy rights where the courts stated that individuals had a right in "the publicity value of their photographs".
Therefore, although the approach of the United States on the Right of Publicity it isn't perfect, celebrities can effectively handle the commercial use of their personalities through the liberal interpretation of the Lanham Act by the courts and states willingness to address the right directly.
In recognizing the publicity rights, India has lagged much behind as compared to its western counterparts. The jurisprudence of publicity right is not that developed in India due to lack of any concrete ruling by the Supreme Court on the subject. It is because of an absence of jurisprudence that law on this subject is not available. Even the celebrities and well known personalities have been very reckless to safeguard their publicity right. However, a few lawsuits have come to shed light on publicity rights of such famous individuals. In order to avoid the unauthorized use, few dignitaries' names and symbols are protected against unauthorised use by prohibiting names granted in the schedule of the Emblems and Names Act of 1950, which was passed through the Parliament. However, only celebrities and icons of national significance are protected under this statute. To conclude, in India the publicity rights are available only through certain Intellectual Property Rights due to the lack of reference in any active and codified law. Thus, India lacks adequate protection of individuals for the right of publicity.
Publicity rights are unique rights and in the years ahead will only get more relevant, because a large number of popular celebrities and famous personalities are getting familiar with the term. The Indian judiciary acknowledged these rights as component of the right to privacy, although it is time for the legislature to acknowledge and develop a legislative law that fills the void between these rights and the trade and property rights. The module is reasonably welcoming in the United States and India should follow its lead in ensuring that the rights are properly secured by the individuals in this country.