This post was first published on 26th June, 2014.
Justification for Publicity Rights is based on the Lockean Labor Theory, which essentially says that the fruits of one’s labor are one’s own. Therefore, Publicity Rights permit the exploitation of one’s persona by oneself. Unauthorized use of a person’s identity, including the person’s name, voice, image and likeness for commercial gain may give rise to a successful cause of action against the infringing party.
Since Publicity Rights are one of the two parts of Personality Rights, let us now look at the relevant law for the protection of Personality Rights:
1. The Apex Court of India has, time and again, expanded the scope of Article 21 to include various other essential fundamental rights and the Right to Privacy has been incorporated into this list of fundamental rights by the passing of the landmark judgment in the R. Rajagopal vs. State of Tamil Nadu case.
2. Tort of defamation against injury to a person’s reputation, profession etc.
3. Trademark Act, 1999: Trademark Act, apart from providing for registration of name, also provides for registration of sounds, signature etc. These other forms of Intellectual Property Rights have been not been exploited to a great extent by celebrities. Voices of celebrities can also be a subject matter of registration under the Trademark Act.
4. Copyright Act: Moral rights to an extent, protect the Personality of a celebrity.
5. Passing- off action against the injury to a business or goodwill or the reputation of a person caused by misrepresentation by another person trying to pass-off his goods or business as the goods of another, acts as a guardian protecting a person’s persona. This common law right of passing off has been actively protecting against attempts to impersonate.
6. Publicity Rights actions are generally accompanied by pleas of false endorsement and passing off. The tort of passing off is well recognized under the Trademark law. Any misrepresentation of a mark to consumers in the course of trade, which injures the trademark owner and causes damage is said to be liable for passing off. Celebrities’ names and personalities are given a higher pedestal than famous trademarks and their misappropriation or misrepresentation is said to amount to passing off. For example, a leading case to explain the concept of Publicity Rights in the UK is the case of Irvine vs. Talksport. A successful Formula I driver, Edmund Irvine’s image was used by a radio station for promotion of its talk show without the consent of the driver. Edmund Irvine successfully sued the radio station for such unauthorized use. The court held that he had a property right in the goodwill attached to his image and people were likely to be deceived that the successful Formula 1 Driver has endorsed the talk show. He was entitled to compensation on the basis of a reasonable endorsement fee. This case clearly explains how courts acknowledge the existence of Personality Rights in famous celebrities.
7. Further, along the same lines in India, Daler Mehndi’s case clearly expounded Publicity Rights. Daler Mehndi’s song Tunak Tunak Tun from the album Bolo Tara Ra Ra, when released became a rage on the Internet and was declared a cult hit by BBC. Certain gift shops started selling dolls that looked like Daler Mehndi, moved like him and also sang a few lines of his songs. Daler Mehndi successfully sued these gift shops for passing off. Considering the artist’s popularity in India, the court had no hesitation in enforcing his Publicity Rights. The court observed that his personality was infused in the dolls and used for commercial gain, which amounts to publicity right violation. The court also held the gift shops liable for false endorsement and passing off.
From these examples, we see that action for passing off originates in the context of merchandising real persons to gain from their personality. Although the courts have held that any usage of a person’s persona without his authorization constitutes infringement, Free Speech and Expression act as an exception to this rule. Usage which could be proved for Legitimate Interest of Public can succeed while facing an action for infringement of Publicity Right. Nevertheless, this exception applies if the interest of the general public outweighs the right of privacy of the person concerned, only.
Right to Personality provides a famous person a right to protect his privacy from publication of private facts, and property right provided by publicity right to protect his or her identity. These rights, like all other rights are not absolute. Legitimate public interest may act as an exception, taking away a person’s right to exploit his or her own personality.
Source 1, Source 2, Source 3, Source 4, Source 5, Source 6, Source 7
