Celebrity Semiotics

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 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.

Illustration

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 pointRitu 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.

Plain Packaging Woes

Chai-sutta is the usual Indian phrase for a small break, what if beloved sutta is no longer sold in the beautiful red and gold or blue and white packet and instead is sold in a box which has ghastly images of consequences of smoking too much? Will it discourage people from smoking or is it inconsequential?
In 2012 Australia became the first country in the world to adopt plain packaging laws i.e tobacco products can be sold in Australia in a standard packaging style which shows the brand name in a pre-decided format along with disclaimers of the harm caused by plain packaging. This move of the Australian government was challenged by the tobacco manufacturing companies on the premise that plain packaging laws were in violation of the principles of trade mark laws. Trade mark laws stand for encouraging distinctiveness in trade dress, trade name etc. and the adoption of plain packaging simply makes every pack of cigarette look more or less the same thereby increasing the likelihood of confusion among the consumers. The Tobacco companies lost the suit in Australia on the grounds that the policy had been adopted in public interest which supersedes Corporate/private interests.

A WTO dispute was filed by Ukraine, Indonesia, Cuba, Honduras and Dominican Republic on that premise that the plain packaging laws of Australia were restrictive of trade i.e. it was causing monetary damage to the complainant countries’ tobacco manufacturing companies. This dispute hasn’t been settled yet but last year Ukraine withdrew its complaint.
Inspired by the Australian government’s take on plain packaging United Kingdom and EU countries also clamored for similar laws. EU lawfully adopted the Tobacco Directive of 2014 which dealt with plain packaging of tobacco product
This again was challenged by the tobacco companies before the court in U.K. On May, 2016 the UK court gave conclusive decision in the case of Tobacco Packaging [2016] EWHC 1169,  upholding the directive supporting plain packaging.

In the midst of all this, India has been actively moving towards plain packaging since 2001. The Indian Supreme Court had issued directives banning smoking in public places through its ruling in the case of Murli S. Deora vs Union of India and Others, following which the Cigarettes and other Tobacco Products ( Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003 was enacted and restrictions were imposed on the advertisement of cigarettes and smoking. Further, in the year 2013 the Allahabad High Court in the decision of Love Care Foundation vs Union of India showed an inclination towards encouraging adoption of plain packaging by Indian government. Currently almost 60-80% of the space of the packaging on cigarette boxes is covered with health warnings and pictures showing side effects of smoking. However there is no standardisation of color to be used on the boxes I.e. companies are allowed to retain their trade dress provided they depict the warnings as prescribed.
The common arguments by government’s across the globe has been that plain packaging is in public interest but the reality is how effective is it really? Plain packaging can have repercussions for instance, consumers will be unable to distinguish between cigarettes of one brand from the other which also implies that more consumers might end up purchasing cigarettes of a cheaper quality which is equally harmful ( I know ultimately all cigarettes cause damage to lungs but apparently the quality of filter in cigarettes differs based on brands, please correct if I am wrong.) The current Indian position of 60-80% space being covered without affecting the trade dress seems to be a relatively better stance than that adopted by Australia and now, EU. This is an instance of intersection between public health and IP rights and though it is a tough choice to make, public health definitely is more important (than private interests).

Therefore, rather than adopting an extreme of standardised packaging and font size it only seems just, to include disclaimers in the packaging to warn the consumers and deter smoking and at the same time allow the corporates to retain their trade dress.

Image from Here.

Coloring up a storm

 

Colors add life to a picture, but can anyone own a color exclusively? As surprising as it may sound, the answer is yes. Earlier this year artist Anish Kapoor was given the exclusive license to use ‘Vantablack’ –the blackest black for his artistic works by Surrey NanoSystem, the manufacturer of the color.

This has sparked discussion in the art and legal fraternity, colors are free for all to use but then Vantablack is not a paint, it is a carbon based substance that absorbs almost all the light that is reflected on it. Vantablack was created for use by military or space equipments to make them virtually invisible in the dark. The exclusive rights over ‘Vantablack’ in artistic works will be similar to Trademark since, the color will exclusively be associated with Anish Kapoor alone, it will act as a means of depicting the origin of the work. In the past colors have been registered as trademarks , for instance, purple for Cadbury chocolates, Tiffany Blue, Louboutin’s contrasting sole and shoes color etc.

It is unusual that this time the monopoly over a color has been claimed by an artist especially considering that colors are used as means of expressing oneself by the artists. It is also interesting that note that many artists have not taken kindly to this “exclusivity” granted to one artist. This just leads to one thought- are we now living in a world where we would prefer exclusivity over creativity? After all the fact remains that one color could be used in a different fashion by other artists so why restrict their expression?

Image from Here.

 

INDICATING THE ORIGINATION OF GEOGRAPHICAL INDICATION IN INDIA

As the term Geographical Indication suggests it’s an indication to identify the goods origination whether manufactured or produced from a specific region or territory. The IP (Intellectual Property) term Geographical Indication (G.I) is fairly new and is in nascent stages not only within IPR law but also with respect to common knowledge with the general public as compared to its predecessors such as Patents, Trademark, Copyrights and Designs, and is often misconstrued to be similar as Trademarks.

Some of the dissimilarities between Trademark and Geographical Indications are as follows:

  1. Trademark has 45 Classes.                      —   Geographical Indication has 34 classes.
  2. Territories cannot be trademarked.       —   Territories can have G.I’s
  3. TM’s can be assigned.                               —   G.I’s are prohibited from being assigned.

If referred historically the origins of G.I. as an IPR can be attributed to the French law of July 1824 which applied to wine and had criminal sanctions for fraud with reference to misleading appellations of origin. The formal recognition of Geographical Indication maybe traced back to the Sue Generis legislation that had resulted in the creation of the Geographical Indication and the Plant Varieties Act as formal IPR’s. However the inclusion of G.I’s in India didn’t have much of an impact or bear much excitement with multi-national corporate houses or research institutions but rather had a positive impact with village artisans, ethnic craftsman or farmers giving the impression that the inclusion of G.I’s was specially brought in for the protection of the rural poor and their crafts and to prevent them from any form of exploitation.

The whole essential purpose of Geographical Indications is to provide protection to those producers and their goods that have a true and fair association with the territory of which G.I has been claimed in turn resulting in protection for final consumers from being deceived as to the source of the goods.

Names of geographical regions are not permitted to be trademarked for exclusive purposes by a single producer or manufacturer. The reason for this rule could be attributed to the fact that all producers have the right to derive benefit from the reputation of the territorial location that they conduct business from. Protection from Geographical Indication is also a method to protect traditional knowledge with respect to a product or service and registration is generally to an association of the territorial location.

As an established fact any producer/manufacturer can make use and derive benefits from the registered G.I as long as their conducting their business activity from that region, but the question that arises from this rule is ‘Can any producer come and establish its business activity in the registered G.I territorial region and thus immediately start deriving benefits for its own goods from the G.I status?’

An ideal example for explaining this question would be from the BIKANERI BHUJIA Geographical Indication status. The Bikaner Bhujia Udhyog Sangh had applied for G.I status from the registry on 28th October 2008 and received approval on 28th May 2010 thereby allowing every Bikaneri Bhujia producer in Bikaner to use its locations reputation and name for their benefits. Soon after RELIANCE RETAIL LIMITED enters the market and establishes a manufacturing station in Bikaner and produces the same line of goods in bhujia and starts using the registered G.I ‘Bikaneri Bhujia’ name on its products packaging for its own benefit since 31st January 2011. As Reliance has a production unit in Bikaner thereby legally they have all rights to derive benefits from the G.I status. Previously Reliance Retail Ltd has attempted to trademark the term Bikaneri bhujia for its own exclusive use and purpose resulting in it being objectified by the Registry.

Thus leaving the question unanswered whether if its legally correct for any producer to just come into a geographic region after its been declared with the G.I status and set up business activity and immediately start deriving benefits off of  it ?

WWE OWNS THE NAME SINCE IT’S THEIR GAME

The world of professional sports has always been an enamoring place; it holds the capability for showing a single simple athlete as something more than a mere human being, based on its ability in physical sports. One such area of sports is the world of ‘Sports Entertainment’ better known as the WWE (World Wrestling Entertainment) that actually relies on stories and physical attributes of the human body i.e. the Wrestlers, to show its product.

The WWE began as a wrestling company in 1980, known as WWF (World Wrestling Federation) back in its “Golden Era” which later transitioned into the “Attitude Era” now today recognized under the “PG Era”. WWE started as a private family owned company headed by Vincent Kennedy McMahon and today while the company has transitioned into a Public limited company trading its stock option in the US market, one can’t help but wonder, that was it solely through the wrestling avenue that WWE garnered its wealth or were there more channels involved.

It’s an undisputed fact that the major avenue of WWE’s source of income is through its talent i.e. the wrestlers and the characters they portray. Some of WWE’s best known and highly recognized characters would be ‘The Undertaker’, ‘Triple H’ and the most well-known of them all would be ‘THE ROCK’ better known and recognized now as the highest grossing Hollywood actor of 2015 Dwayne Johnson.

It a basic practice in WWE that once the wrestlers are employed and are under contract with the WWE, they would be termed as “Talent”, in some occasions the wrestlers are even referred to as the product. The characters that each individual wrestler portrays in front of the live audience and for TV taping purposes are to be developed by the wrestlers itself, right from the way how they walk to the way how they talk. However, a fact that most people don’t know is that the wrestlers who enact these characters for the WWE apparently hold no Trademark and/or Copyright or any form of right with the character.

The wrestlers who portray these characters in the WEE don’t even hold performance rights in respect of the performance that delivered while portraying their character. However, there have been exemptions in the forms of ‘John Cena’ and ‘Brock Lesnar’ the characters names portrayed by them in WWE are in fact their real names and as a result of which WWE holds no right whatsoever to restrain the aforementioned characters should they ever leave the company and join a rival.

Let us take an example to understand this: Let’s Assume that TRIPLE-H aka Paul Levesque, leaves WWE today and joins TNA (Total Non-Stop Action), then in such a case Paul Levesque would no longer hold the rights to portray himself as TRIPLE-H and/or even wear the same gear (clothes) as his character would in the WWE. This would be so, since WWE owns all the rights in respect of the portrayal of the character that is TRIPLE-H.

However, there have been exceptions at times as well like in the case of Dwayne Johnson, as most WWE/Hollywood fans would remember; Dwayne Johnson had left the WWE and embarked on a career in Hollywood. During his initial career in acting, some of his early movies showed the name “Dwayne THE ROCK Johnson” during credit roll of the film. Now most people would assume is that this is a simple practice for Dwayne Johnson in order to garner some of the good will that he had generated at WWE and have it transferred to his Hollywood career and that’s exactly what it was. Nevertheless, in order to do so Dwayne Johnson had to enter into a Licensing agreement with the WWE in order to use his wrestling name for his Hollywood career as an actor and the rest as they say is history after that.
If it’s looked at from a business point of view it makes absolute sense that WWE would retain all rights in respect of the character since it was developed in the course of an employment of the wrestler who helped develop the WWE character. Now one argument that could surface would be that why would sports athletes need a performers right, they could simply just perform somewhere else and get that same amount of goodwill and reputation somewhere else.

This is exactly where most people are wrong because professional wrestlers aren’t exactly athletes, their more like half athlete and half actors, this is also the exact reason why the WWE is not a sports event company life the UFC (Ultimate Fighting Championship) but a “Sports Entertainment” Company. However, one has to help but wonder, is it fair to a wrestler-cum-athlete-cum-actor working with the WWE to lose on all his rights in respect of a character that was portrayed by them. The WWE earns a substantial sum of money through merchandise sales and various other channels based on those characters trademark and copyrights and while the talent is entitled to royalties, it’s only as long as their employed with the company. Now this is something that seems odd but such is the game since WWE owns the name.