THE EXTENT OF PUBLICITY TOLERATED BY PERSONALITY RIGHTS:  PROTECTION OF CELEBRITY RIGHTS UNDER INTELLECTUAL PROPERTY LAW

Individuals who are qualified to be popular by public opinion are often termed as celebrities or influencers. Artists, politicians, athletes, business tycoons and everyone who dreams of becoming famous, including those with huge followers in social media are celebrities in today’s world. The identity of these individuals who are categorised as celebrities have certain rights which fall under three heads namely, privacy rights, personality rights and publicity rights. These rights form intangible property of the celebrity over which he/she can exercise monopoly and thereby gain profit by commercial exploitation of their name and personality.

Commercial endorsement or the popular “influencer technique” is one such example of commercial exploitation of celebrity rights, in which a celebrity’s popularity is used to promote a brand or to raise awareness about an issue. This technique allures the general public, who are conditioned for years to hero worship into buying the product or using the service which their favourite celebrity is endorsing and this way celebrities and the concerned brand makes great deal of profit. However, when a marketing agency associates a particular celebrity with a product or service and depicts as if they are endorsing or promoting their brand, the celebrity rights of that individual is said to be abused. It is also pertinent to note that, such instances of violation of one’s celebrity rights which encompasses the personality, publicity and privacy rights of that individual are not new in our society.

In 2020, an Edtech company used a caricature of Mr. Shashi Tharoor without his consent to promote their English Coaching classes offered online. This matter was taken up by Mr. Tharoor’s lawyers as he considered this matter deplorable and the advertisements were taken down. In addition to this, Mr. Tharoor required a public apology and a legally binding commitment to cease and desist from such practices by the start-up company. An online coding platform also faced similar issues when their ads about becoming the next Bill Gates, Elon Musk, Sundar Pichai etc. were noticed by the Advertising Standards Council of India. These advertisements were considered misleading and as such was asked to be removed by the Authority. Though not explicitly addressed, the issue of violation of celebrity rights can be restricted using the relevant principles of intellectual property law.

Under Trade Marks law, celebrities get added advantage, considering the fact that, registration of any aspect of his/her personality would indicate that the same is open to authorised use and would also be able to defend any unauthorised use. Similar circumstances arose in the case of Mr. Arun Jaitley v. Network Solutions Private Limited[1] where in the court recognised the popularity of Mr. Arun Jaitley and held that “the said name due its peculiar nature/ distinctive character coupled with the gained popularity in several fields whether being in politics, or in advocacy, or in part of emergency protest, or as leader or as debator has become well known personal name/ mark under the trade mark law which ensures him the benefit to refrain others from using this name unjustifiably in addition to his personal right to sue them for the misuse of his name.”  In the case of Sourav Ganguly v. Tata Tea Ltd,[2] also the court relied on the popularity of Sourav Ganguly and ruled in his favour refraining the defendants from using his name to promote their products.  Though limited, appropriate legal action is also available under Copyright law. If a celebrity’s photograph is used by any person or if his/her name is used in a literature work without authorisation, celebrities have a legitimate right to prohibit such use. In the case of Shivaji Rao Gaikwad v. Varsha Productions[3], actor Rajinikanth filed a lawsuit for prohibiting the respondent from using his name and other personal characteristics in an upcoming film in any way. The plaintiff alleged that such use violates his personality rights. The Court found that the film’s title and caricature of Rajinikanth used in the film, degrade his reputation.

In view of the above it is rational to say that the legal system concerning the unique set of rights held by celebrities in India have evolved from various decisions of the Judiciary. However, the jurisprudence to appropriately deal with violations of celebrity and personal rights are still unclear, as to various aspects. The practice of unauthorised use particularly by the marketing and advertising agencies should be condemned. Additionally proper awareness regarding the importance of these celebrity rights needs to be advocated.

By Renjana R

[1] CS(OS) 1745/2009 & I.A. No. 11943/2009 & 17485/2010

[2] CS no. 361 of 1997

[3] Civil Suit No.598 of 2014