This article has been written by Ms. Vaaghdevi, a student studying B.A.LLB from Damodaram Sanjivayya National Law University, Visakhapatnam. The author is a 1st-year law student.
Introduction
Be it an inexpensive daily-use item like an energy drink promoted by Indian cricketer Virat Kohli or an expensive good like gold or diamonds promoted by prominent Indian actors like Amitabh Bachchan or Aishwarya Rai, people in India are greatly affected by celebrity-endorsed items, and their usage in regular families is nothing to be astonished about. In a nation like India, where people revere celebrities like actors, cricket players, and even politicians as “bigger than life” individuals, their likenesses are frequently exploited by swindlers who take advantage of the impoverished, like in the case of Amitabh Bachan. In the guise of false schemes such false Kaun Banega Karodpati, etc., his voice was utilised to deceive people. The Delhi High Court recently passed an interim order to prevent the unlawful use of Bollywood star Amitabh Bachchan’s name, image and voice. The court, through its order, restrained persons at large from infringing the personality rights of the actor.
Personality rights
Personality rights are people’s legal rights to their name, likeness, reputation, and other parts of their identity. These are also known as the Right to publicity. Such rights give a person the ability to file a claim for a violation of rights in the event that an unauthorized third party tries to make money out of his reputation or other information. The right to privacy served as one of the earliest examples of personality rights. The right to privacy eventually gave rise to celebrity rights or the right to publicity. This right emerged from common law jurisprudence. The term “publicity rights” or “celebrity rights” doesn’t have any special provisions in Indian legislation. However, certain portions of these rights may be asserted as intellectual property rights under specific legislative provisions, such as the Trademarks Act and the Copyright Act of 1957. Personalities and celebrities are not defined under the Indian Copyright Act. Nevertheless, the Hon’ble Delhi High Court interpreted the term “celebrity” as a person who is famous or simply a person that many people talk about or know in the case of Titan Industries Ltd. versus M/S Ram kumar Jewellers in 2012. According to the pertinent articles of the Copyright Act of 1957, Authors or Performers have the right to be acknowledged for their work or to assert authorship of it. They also have a negative right that forbids others from inflicting any damage on their work that would harm their reputation. Moreover, “Performer’s right” is defined in Section 38 of the Copyright Act, which also specifies that it will be valid for 50 years starting on the first day of the calendar year following the year in which the performance was performed. Moreover, Section 38A establishes the performer’s exclusive right and forbids anybody from recording the performance in sound or image, reproducing it in any form, transmitting it, or otherwise making it available to the public without the performer’s express permission.In addition to the performer’s previously indicated exclusive right, a personality also has rights under Sections 17, 39, and 52 of the Copyright Act.
Curiously, the Hon’ble Delhi High Court has discussed personality rights and the provision under Section 1711 of the Copyright Act, which says about determining the initial owner of copyright, in the case of Titan Industries Ltd. vs. M/S Ramkumar Jewellers. In this case, the plaintiff aimed to stop passing off, theft of personality rights, and copyright infringement. The plaintiff claimed that it had a contract for services with Amitabh and Jaya Bachchan, a super celebrity couple, for the promotion of its Tanishq brand. Nevertheless, the Plaintiff thereafter learned that the Defendant was using the photos of the aforementioned celebrities for commercial purposes without authorization on hoardings (jewellery). While preventing the Defendant from using or stealing Tanishq’s and the star couple’s rights, the Court noted that when a celebrity or famous personality’s identity is advertised without permission, the right to control when, where, and how their identity is used should vest with the famous personality only. Hence, the right to publicity includes the ability to restrict the commercial use of one’s identify. The Court listed the two fundamental components of “validity” and “identifiability” while taking into account the issue of misappropriation of “right to publicity,” i.e., that Plaintiff’s enforceable right in identity or persona of a human being and that the Celebrity must be identifiable from Defendant’s unauthorised use of right of publicity.
According to Section 17(b) of the Copyright Act of 1957, the plaintiff is the initial owner of the copyright in the ad, and the endorsement agreements, which expressly specify that ownership of the copyright is with the plaintiff, confirm this fact, according to the court.
Personality Rights are understood in the framework of intellectual property law to be the property of well-known public personalities that cannot be utilised or misappropriated by anybody. Additionally, the rules of Section 14 of the Indian Trademarks Act, 1999, which forbids the use of personal names, can be used to safeguard personality rights to some extent.
Scope of the right
Validity and enforceability are two essential elements for the exercise of the right to publicity.
Validity is the possession of an enforceable right in a person’s perceived or actual self as a human being. The individual in question must be well-known, or a celebrity, for this enforceability to occur. While providing a broad definition of “celebrity,” the Court claims that a “celebrity” is a renowned person about whom many people discuss or are familiar.
The right is not extendable to businesses, events, or deceased people; it is only actionable with regard to living people.
Cricketer Gautam Gambhir asserted personality rights in his name in the fascinating case of Mr. Gautam Gambhir vs. D.A.P & Co. & Anr after learning that the defendant was operating restaurants with the slogan “by Gautam Gambhir” even though he had no relation to the aforementioned eateries. The cricketer claimed that the defendant had wrongfully infringed upon his “Personality Rights.” The High Court of Delhi, however, held that the Defendant had not marketed the Plaintiff’s name based on the facts presented in the case. According to the Court, there was no evidence to support any harm suffered by the Plaintiff in his area of cricket as a result of the Defendant operating the restaurants with the tagline “by Gautam Gambhir.”
Conclusion
Undoubtedly, throughout the past several decades, the problems with personality rights violations have grown in a number of states. Concerns about violations of personality rights on print and electronic media, including newspapers, magazines, television, and radio stations, have mostly been brought before the courts. However, the recent amazing usage of social media platforms, the cyber age, and the penetration of technology have further amplified and exposed the challenge of protecting personality rights. While celebrities are protected against having their name and reputation used for commercial gain, there have also been cases when customers have been duped by fake advertising or endorsements made by such individuals. The government has realised the urgent need to safeguard the general public from fraudulent and deceptive advertising of items supported by such persons, even if Indian courts have on one hand explored recognising personality rights. Due to this, the Consumer Protection Act Amendment of 2019 was passed to strike a balance by imposing penalties on endorsers as well as regulating deceptive consumer goods marketing and endorsements.
Aishwarya Says:
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