FAME AND ITS PRICE: A CASE FOR CELEBRITY RIGHTS

Introduction:

Ever wondered if these actors performing arts and playing a role, singers, cricketers, television personalities, and other personalities who are known among the public at large perform at various concerts and also at times endorse various brands have to at times sacrifice and/or lend their names, identity and personality. Though such promotional activities by the endorsement of a brand and performing at various concerts do highlight them in public at times, such acts may also lead to a situation where their identity, likeliness, personality, pictures etc., for some fraudulent activities or to create some commercial gains or at times only for promotion. It is here where Intellectual Property Rights come into action to safeguard and protect the rights of these celebrities from being exploited in any manner. To understand this concept in a much larger sense, let’s discuss the literal meaning of the term celebrity and get to know who all are included within the meaning of Celebrity.

People classified under the category of Celebrity:

The term celebrity is derived from the Latin term “Celebritatem”, which refers to a state of becoming popular and famous among the public. This category includes all the actors, writers, politicians, models, athletes, singers, musicians, television personalities, writers, business executives and every person who, in some or the other manner, inspires people or the public at large and aspires to be famous, this also includes the persons appearing on various reality television shows. Public opinion is one of the foremost indicators of whether a person is to be included under the category of Celebrity. A single Judge bench of the Hon’ble Delhi High Court in the matter of Titan Industries Ltd. v. Ramkumar Jewellers [2012 (50) PTC 486 (Del) it was observed that “a celebrity is defined to be a famous or a well-known person. A “celebrity” is merely a person who ‘many’ people talk about or know about.” Therefore, the essential ingredients of it are ‘validity’ and ‘identifiability’ which need to be established to make a case for infringement of Celebrity Rights. Have you ever wondered if these people categorized as celebrities have any rights that need to be protected from being exploited or misused? The answer to this question is yes; despite being public figures, celebrities retain some rights. Celebrity rights, one of the contemporary issues, includes and is referred to as a bundle of rights that any person being a public figure has and enjoys being a personality. Such rights include within it a number of rights like advertising, reproduction, distribution, leasing, lending, personality, and privacy rights. However, fundamental or primary rights that a person being a celebrity possesses are personality rights, privacy rights and publicity rights.

Celebrity Rights:

The work a personality or a celebrity does, the way they portray themselves, their way of acting, dialogue delivery and everything that makes them uniquely identified and distinct from every other personality is bound to be protected from being exploited in all manners from being made use of by anyone not authorized to do so. As already dealt with above, celebrity rights is a bundle of rights and have many within it; however, it comprises mainly three categories of rights, namely;

a) Personality Rights: Personality rights are the rights vested in the Celebrity itself and refer to the rights of any person concerning their personality. Celebrities work hard to form their character and likeness among the people, which some people use to bring a hike in their trade or for any other purpose in the form of Celebrity’s photograph or their name. Since such usage is likely to happen, the stars have absolute right to protect their reputation or photographs, barring people from using the same without their consent.

The Hon’ble Delhi High Court in the case of Arun Jaitley vs Network Solutions Private Limited CS(OS) 1745 of 2009 & I.A. No. 11943/2009 & 17485/2010, laid down that “Arun Jaitley” being a celebrity, has complete right to shield off his name from being used by others, and that the defendants were wrong to use his name and create the website under his name.

Further, in the case of Titan Industries Ltd. vs M/s Ramkumar Jewellers 2012 (50) PTC 486 (Del), Defendant used images of Mr Amitabh Bachchan and Mrs Jaya Bachchan to advertise diamonds of his outlet. Consequently, Plaintiff filed a suit for injunction, passing-off and infringement of personality rights. The Hon’ble Court observes that “When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality.”

Likewise, in the case of Sourav Ganguly vs Tata Tea Ltd. (CS) 361 of 1997 wherein Sourav Ganguly, on returning from Lords after scoring magnificent hundreds, was troubled to learn that Tata Tea Ltd. was promoting its tea packets by allowing customers to congratulate the cricketer through a postcard that was included inside each packet of tea. In a roundabout way, the company hoped to encourage selling its tea packets in India, where Sourav had amassed a sizeable following. The Hon’ble Court held that fame and popularity constitute intellectual property rights. Thus, the victim of moment marketing can directly approach the court on the grounds of violating personality rights and seek relief.

b) Privacy Rights: In today’s digital era, the media considers its legal right to capture anything and everything and publish the same to let the people be informed whether it refers to any personality, Celebrity or any random person. However, even though celebrities are public figures, that doesn’t make their lives open to the public. There are certain matters related to them which are a matter of their “personal concern” or “private”, but this has been a great challenge for them to keep it personal or up to themselves only and/or protect their right to privacy as the media lets every single detail about them out in public.

In the very recent matter Krishna Kishore Singh Vs Sarla A Saraogi FAO(OS) (Comm) 88/2021, wherein Krishna Kishore Singh being the father of the deceased actor Late Sushant Singh Rajput, filed a suit for the protection of his right to privacy and reputation of his son, in the Hon’ble Delhi High Court. Krishna Kishore Singh stated before the court that any book, movie or series should not be made on his son’s life without his consent. Although the court dismissed the suit, they did review similar relevant cases and precedents. They stated that celebrity rights could not be granted or recognized without relevance to the concept of the Right to Privacy, and such rights originate from Article 21’s right to privacy.

In such situations, the celebrities have an absolute right and opportunity to approach the courts to protect their right to privacy in the form of action of “invasion of privacy” or in the form of an assertion of the fundamental right of the “right to privacy” as part of Article 21 of the Indian Constitution.

c) Publicity Rights: These rights are also a part of celebrity rights. They are vested with the Celebrity, which gives them complete right to protect their name from being used for any commercial gain by any person, ultimately leading to the misappropriation of that Celebrity’s rights.

Like, in the matter of Shivaji Rao Gaikwad v. Varsha Productions 2015 (62) PTC 351 (Madras) a suit was filed by the Plaintiff against the Defendant for using the Plaintiff’s name/images/caricature/dialogue delivery style in the upcoming project titled “Main Hun Rajnikanth” in any manner whatsoever amounting to infiltration of the Plaintiff’s personality rights. It was clearly observed by the Hon’ble Madras High Court that the personality rights vest with the personality itself, i.e., the one who has achieved the said status. Therefore, if the Celebrity is well-known, no stringent proof of violation of publicity rights is required. The court further observed that where the name, identity, personality or likeliness of any celebrity/personality is used without permission, the Celebrity possesses the proper right to approach the court and report such usage. Further, on making a momentary assumption that the impugned movie is not a biopic of Plaintiff, however, since the name of the Celebrity is easily identifiable, Defendant is not entitled to use the said name without Plaintiff’s permission. Therefore, the court passed a refraining order barring the Defendant from using the title as proposed.

Legislations governing these rights:

In India, no law governs or protects celebrities’ rights from exploitation. However, some laws have provisions that act as a shield to the rights of these personalities. Some of these statues include the following:

1. The Trade Marks Act, 1999

The term “mark”, as mentioned under Section 2(n) of the Act, refers to and includes “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, the shape of goods, packaging or combination of colours or any combination thereof”. Since it includes any signature, names etc., making it easy for the public to identify and demark, these can be used by people for the purpose or as a means of commercial gain or exploitation; it is, thus, essential to secure them. Therefore, such aspects belonging to an individual can be safeguarded and can be kept protected from being exploited as a trademark under the Trade Marks Act of 1999.

2. The Copyright Act, 1957

As per the Indian Copyright Act, the term “Performers” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. As per the provisions of the said Act, any personality or public figure whose identity or name is used by any third party for commercial gain or publicity in any form, then the said celebrity/personality has a complete right to approach the court and stop such usage.

Like in the matter of Sonu Nigam v. Mika Singh and Ors, both parties were invited to visit the Mirchi Awards 2013 and were photographed for the event’s official posters with their permission. Mika Singh used hoardings and posters that were not official event hoardings and posters to promote himself, including big images of him alongside smaller pictures of other artists, including Sonu Nigam. The Hon’ble Bombay High Court restrained the defendants from displaying the Plaintiff’s images without consent and ordered the Defendant to pay a sum of Rs. 10 lakhs for damages towards specified charities as consented by the parties. Without their consent or permission. It was argued that the hoardings and posters gave the public an unjustified and incorrect perception of Mika Singh’s popularity compared to the other artists.

3. Constitution of India

There are no specific statutes for the protection of celebrity rights, so it becomes a challenge for them to protect their name, identity, personality and likeliness from being exploited and misused by people for any commercial gain or defamation of any kind. However, the Constitution of India protects these rights of the Celebrity from being exploited in any manner. Like in the matter of ICC Development (International) .v. Arvee Enterprises & Anr, 2003 VIIAD Delhi 405, 2003(26) PTC 245 Del, 2004 (1) RAJ 10 it was held by the Hon’ble High Court of Delhi that “Any effort to take away the right to publicity from the individuals, to the organizer (non-human entity) of the event would be violated of Article 19 and Article 21 of the Indian Constitution.”

Conclusion:

The said situation contradicts one of Shakespeare’s famous phrases from his most famous play Romeo and Juliet, “What’s in the name?”. Although the said lines are much applicable however when there occurs a condition of such sort where the name, identity, personality and/or likeliness of any known person/public figure is made use of without taking consent would be contrary and eventually lead to violation of various provisions of the law. This is also contrary in the present digital time, where any person’s name, personality and likeliness have taken a role of immense importance and significance. Any person’s identity is vital, and it becomes even more important when it comes to celebrities. Apart from their art, public figures’ image, personality, name, etc., can be easily commercialized and has taken the form of intangible property over the years. Though many laws indirectly protect the exploitation of all such rights of celebrities, there is a strong necessity for the enactment of any law which solely and directly protects the rights of a celebrity from being exploited in all manners.