All men are born free and are equals unless you are a celebrity –then you might have more share of rights. A celebrity is a public figure, denoting certain values, beliefs, and an era (in which they were active). Case in point, Audrey Hepburn, she was a stellar performer but apart from that she represented streaks of coming of age feminism, innocence, and philanthropy. This example highlights that a celebrity invokes multiple meanings associated with his/her personality.
Caution: Long post ahead
Personality rights in India
India does not have a statute explicitly protecting the personality rights of a celebrity but is branching out of right to privacy (a fundamental right under the Indian Constitution). The Indian courts have recognized personality/publicity rights in certain cases thus making it a precedent, and a sound position of law. In the Titan Industries Ltd. v. Ramkumar Jewellers case the court held that trading in the name of another would be equivalent to passing off thereby including it under Trademark law. The issue of personality rights was discussed in detail in the case of Shivaji Rao Gaikwad v M/s Varsha Productions involving the doyen actor Rajnikanth claiming personality rights infringement by the producers of the movie ‘Main Hoon Rajnikanth’. The court upheld the actor’s claim and ruled that a likeness to his identity, lifestyle, voice, style of delivering dialogue, likeliness or any other aspects of his persona, caricature without any parody would amount to an infringement. If one analyzes the personality of actor Rajnikanth an immediate recollection of gravity -defying stunts, a man wearing dark glasses, come to the mind of the audience. If the same name is used in the title of a movie with an individual doing similar stunts and copying the fashion sense of the superstar it could mislead people in to believing that there is some nexus between the actor and the movie containing his name in the title.
The impact that a celebrity’s association with a brand/movie/cause can have is quite strong for instance, popular actor Amir Khan was the brand ambassador of Incredible India for almost a decade for the simple reason that he became the face of the new generation; a new India which is slowly marching towards a cultural and social change. His works (Rang De Basanti, Dil Chahta Hai, Taare Zameen Par, and Satyamev Jayate to name few of his works) resonated with the views of the public and therefore he could be the brand ambassador for Incredible India whereby he would tell the audience to keep the cities clean, lend a helping hand to tourists etc. Earlier this year he was replaced by the veteran actor Mr. Amitabh Bachchan who is also extremely popular with the masses. However, on comparison it is obvious that both actors have different personalities; while Mr. Khan comes across as a youth icon Mr. Bachhan has a refined and mature reputation among the audiences. While Mr. Khan’s words will be taken as a friend’s advice, Mr Bachchan’s might be taken more seriously, as one from an elderly person.
Who all are covered within the ambit of celebrity to claim personality rights?
The term celebrity has not been defined under the Indian Copyright Act, 1957. A celebrity may be any individual who has gained recognition in the society through his/her actions/works/ presence etc. There are instances where people confuse a ‘performer’ with a celebrity. It is not necessary that every performer is a celebrity or that a celebrity is always a performer. A performer has been defined under Section 2(qq) of the Copyright Act, 1957, to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, person delivering a lecture or any performer who make a performance. It is necessary to know the difference between ‘celebrity’ and ‘performer’ else, it can have some serios consequences in a legal battle.
Case in point – Ritu Primalani v State of Karnataka where, Lady Thimakka filed a complaint alleging that the petitioner was infringing her “performer rights” by using her name without authorization for running her charitable trust. The complainant has gained popularity for her act of planting and tending to 384 banyan trees in Karnataka; the petitioner was using the name of Lady Thimakka for her charitable organization ‘Thimakka Resources for Environmental Education’ in California, U.S. One of the grounds of lady Thimakka’s complaint was that the petitioner had collected funds for the organization (being run using the name Thimakka) in Dollars which runs in crores of rupees and herself had profited from such activities whereas, the complainant had not benefitted at all (monetarily). The court assessed the personality rights claim and ruled that the same did not hold good. It was observed that the complainant was neither a literary person, nor an actor, a musician or an artist moreover, she was not involved in cinematograph film or sound recording. There was no basis for the claim of her performer rights being infringed.
Since the case was filed for ‘performer rights’ infringement the Court could not find any merit because obviously the complainant is not a performer under Section 2(qq) of the Copyright Act, 1957 but had the complaint been for infringement of personality rights, the outcome could have been different. The reason for saying so is that there is no doubt that the petitioner was using the name of Ms Thimakka for a noble cause, but the fact still remains that Ms Thimakka’s name was being used without her consent (this again was disputed before the Court, with the petitioner saying she had the consent, but here, we are just playing around with the idea of a personality right claim vs a performer rights claim.) Therefore, for advocates it is necessary to know the difference to guide their clients better in such suits.
Case in Point: Tata Sons Ltd & Anr V Aniket Singh where Tata’s chairman Cyrus Mistry successful brought an action of personality rights infringement against a domain name squatter using the domain name www.cyrusmistry.com and www.cyrumistry.co.uk . More on this case over here.
Reason for such protection
After reading all this it is most natural that the reader would like to know the importance of protecting personality rights, well the answer is simple –it is about obtaining the consent of the person who has worked hard/or accidentally created a unique identity for himself/herself; and also the money…
Personality rights are also a major source of revenue for celebrities, pasting a celebrity’s picture with a brand will naturally imply endorsement and may induce the celebrity’s fans to purchase the same thereby increasing the value and revenue of the brand. Actors like Robin Williams choose to protect their personality rights even after their death, in his will he declared that his image should not be used for the 25 years following his death. There are also actors who, as responsible citizens, choose not to endorse products which may be harmful to health such as alcohol, tobacco products etc. It is heartening to note that the Indian courts are warming up to the concept of personality rights, even though it is still covered under right to privacy (Article 21 of the Constitution). The right to privacy is an important right too, considering that the celebrities are hounded by paparazzi, often intruding in some personal moments of the celebrity. Being a celebrity does not imply that one no longer has the right to choose the manner in which his/her images/voice –in short, the manner in which their personality is being commercially exploited or presented (that would also attract a suit of defamation)
After all, not everything is commercial, a lot of things are personal and should continue to stay so.
Image from here.