Publicity Rights in India

May 5, 2023

This article has been written by Ms. Udita Sharma, a 2^nd year BA LLB student at Delhi Metropolitan Education, affiliated to Guru Gobind Singh Indraprastha University

INTRODUCTION

Publicity rights is a legal concept that gives individuals the right to control the commercial use of their name, image, or other personal attributes. The purpose of publicity rights is to prevent others from profiting from an individual’s fame or personal identity without their permission. Sometimes these rights are also regarded as the celebrity rights for their association with the personality of an individual.

According to John Locke, the commercial value of an individual’s identity should be allocated to such a celebrity individual as such value in the first place is the result of the celebrity’s labours. The theory of unjust enrichment consideration treats identity misappropriation as equivalent to theft of goodwill. The publicity right is purported towards providing an economic incentive for an individual’s enterprise, creativity, and achievement.

In India, the concept of publicity rights is recognized under various laws and judicial decisions. The need for publicity rights came into light in ICC Development (International) Ltd v Arvee Enterprises. Publicity rights in India have mostly been dealt with in a manner falling within the ambit of Intellectual Property Rights. The Indian Constitution does not recognize the right of publicity. However, the Supreme Court of India has held that the right to privacy, which is enshrined in Article 21 of the Constitution, includes the right of an individual to control the commercial use of their name, image, or likeness. In K.S. Puttaswamy v. Union of India, there has been a little development of the right to publicity as a facet of Right to Privacy in India.

The right to control commercial use of human identity is the right to publicity. Once the actor Rajnikanth in 2015, sued Varsha Productions for their upcoming release ‘Mai Hoon Rajnikanth’, claiming that the film makers had copied his inimitable style of walking and dialogue delivery. He also claimed that the movie had some immoral visuals which could tarnish his image. Taking cognizance of Rajnikanth’s personality rights, the Madras High Court issued stay order on release of the film.

Under Indian law, publicity rights are protected under various laws, including the Trademarks Act, 1999, the Copyright Act, 1957, the Indian Penal Code, and the Consumer Protection Act, 2019.

Constitutional law

The right to privacy is guaranteed under articles 19 and 21 of the Constitution of India. The right may be enforced through a writ issued by the court against government invasion of an individual’s right to privacy. The right to publicity under the Constitution can be enforced only against the state and will be difficult to enforce against an individual.

The Trademarks Act, 1999

The Trademarks Act provides protection to registered trademarks, which includes names, logos, and other signs that are used to identify and distinguish the goods or services of one person from those of another. The act also provides protection to well-known trademarks, which are trademarks that are widely known and have acquired a reputation in India.

Section 14 of the act specifies that if an application is filed for registration of a trademark having a connection with any living person or with a person who died 20 years before the date of filing the application, the registrar of trademarks may require the applicant to provide the consent of such living person or the consent of the successors of the deceased and may refuse to register the trademark without such consent.

The Copyright Act, 1957

Section 38 and 57 of the Copyright Act provides protection to artistic works, including photographs, films, and sound recordings. The act gives the copyright owner the exclusive right to reproduce, distribute, and display the work. The act also gives the author the right to claim authorship of the work and to prevent any distortion, mutilation, or modification of the work that would prejudice the author’s reputation.

Although copyright ownership over a photograph may be an issue as the photographer will have the copyright over the photograph, they have clicked, other attributes, like an individual’s signature, may be protected under this Act.

In, Amar Nath Sehgal v UOI, the Delhi High Court had observed that many rights flow from a creation, which include the paternity right in the work, i.e. the right to have his name on the work. It may also be called the identification right or attribution right. The second one is the right to disseminate his work i.e., the divulgation or dissemination right. It would embrace the economic right to sell the work or valuable consideration. Linked to the paternity right is the third right, the right to maintain purity in the work. The Court further held that the right to assert authorship also includes a right to object to distortion, mutilation, or modification in a work, if it is prejudicial to the honour or reputation of the author. The contours, the hue, and the colours of the original work, if tinkered, may distort the ethos of the work. Distorted and displayed, the viewer may form a poor impression of the author. Plaintiff’s right to be compensated for loss of reputation, honour, and mental injury due to the offending acts of the defendants, was also upheld by the Court.

The Indian Penal Code

The Indian penal code provides criminal penalties for the unauthorized use of a person’s name, image, or likeness for commercial purposes. The act provides for imprisonment of up to two years and a fine for anyone who uses a person’s name or likeness without their consent.

The Consumer Protection Act, 2019, also provides protection to consumers against unfair trade practices, including the use of a person’s name or likeness without their consent.

The Emblems and Names (Prevention of Improper Use) Act 1950

This Act up to an extent rendered protection from the unauthorized use of the names of certain dignitaries of national significance and institutions specified under the Act, for commercial purposes, in absence of the governmental permission.

The Competition Act 2002

As per the provisions under this Act, any unauthorized use of an individual’s name or likeness suggesting to the consumer that such individual is associated with any product endorsement that is untrue or misleading and that can be restricted.

CONCLUSION

Because of the unique nature of the publicity right, it requires special attention. Thus, now that the judiciary has recognised the dignitary aspects of publicity rights, it is up to the legislature to statutorily recognise the commercial and property rights aspects of publicity rights to fill gaps in the law and keep up with the rapid commercialization of personality and the development of the Internet. While doing so, the legislature should strike an appropriate balance between the public interest and the celebrity’s personal interests. In other words, while granting the celebrity the right to publicity, the legislature should also make adequate exceptions for freedom of speech and expression and other legitimate uses, as the Copyright Act does. The statute should also reflect the importance of preserving human dignity and the need for efficient commercial use of property after a person’s death.

REFERENCES

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May 5, 2023