INTRODUCTION
Celebrity rights or Personality rights essentially refer to rights associated with the personality of an individual. This is intrinsically related to the right to privacy and property of a person. As per Leggatt LJ, "The theory of the right is that a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity. The famous have an exclusive legal right during life to control and profit from the commercial use of their name and personality."
The technique of using the influence celebrities have on their audience, is used by a lot of entities in marketing and the increase in sales proves the efficiency of such a technique. Celebrity endorsement is a common market technique that calls for a serious reconsideration of rights that are vested with a celebrity’s persona.
SCENARIO IN INDIA
Before 2017, personality rights were mostly derived from the common law principle of the tort of "passing off", as is followed in the United Kingdom. Indian jurisprudence had not developed to an extent of providing celebrity rights as a spate right. However with the landmark judgement of Justice K. S. Puttaswamy (Retd.) v. Union of India[1], the position of these rights was elevated. Constitutional legitimacy was granted to these rights. This is evident when we look at the following extract from the judgement by Justice Sanjay Kishan Kaul who stated:
"Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control the commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent".
However, this isn’t the first case which has discussed the concept of celebrity and/or personality rights and their protection thereof. Prior to this, there have been several exclusive personality right cases involving various celebrities. An example of this would be the case. Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Production[2]wherein the plea of the defendant, that the plaintiff's case should be dismissed on the grounds that "Personality Right" has no definition per se in any of the statutory laws of India was rejected by the Court. It was stated that "though there is no definition for the personality right under any statute in India, the Courts in India have recognized the personality right in the name, in various judgments." An injunction was thus passed by the Court against the defendants which prevented them from using the plaintiff's name/image forthcoming project. It is important to take into consideration the judgement on which the Court relied i.e that ICC Development (International) Ltd., Vs. Arvee Enterprises and another[3]in which it was held that:
"The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual's personality like his name, personality trait, signature, voice, etc., An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event. Any effort to take away the right of publicity from the individuals, to the organiser (non-human entity) of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolised. The right of Publicity vests in an individual and he alone is entitled to profit from it."
In India, there exists a test for determining the liability for infringement of the right of publicity, The case was the Titan Industries[4]case, in which the Court upheld that "No one was free to trade on another's name or appearance and claim immunity." The test, as mentioned in the judgement, is as follows:
"Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.
Identifiability: The Celebrity must be identifiable from the defendant‟s unauthorized use Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws."
Latest cases involving the right to publicity, and a question of celebrity/personality rights have relied on it. There still isn't any statute in India regarding Personality Rights, however, they have been constantly tried to be protected by the Courts in their various decisions.
CONCLUSION
The ‘right to privacy’ was conceptualized by Warren and Brandeis, who defined the right as the “right to be left alone,” a phrase they adopted from Judge Cooley’s famous treatise on torts of 1880. According to them, personhood and the right to protection from invasion of privacy is an intrinsic right that belongs to all human beings. There is a need to legally link the right to privacy with the ‘right to publicity.’ There is a certain value attached to the name and personality of a celebrity and this commercialisation of parts of their image must be theirs to control. Using a celebrity’s name or photograph without their consent to earn profits is essentially commodifying them which goes against the fundamental rights provided under article 19 and 21 of our constitution. Even though celebrities put themselves in front of the public eye, their privacy rights must be protected. The challenge here is to create a safe space for celebrities without infringing upon anybody's freedom of speech and expression. Most countries like the U.S. have given utmost importance to free speech. In the case of Germany, the legal system provides a healthy and sophisticated mix of human rights and publicity rights that can be an example of the Indian regime to follow. The Indian legal system needs to create a balanced law that allows for creativity and freedom of speech while also maintaining human dignity and right to privacy of celebrities as given to every human being.
BIBLIOGRAPHY
[1] Justice K. S. Puttaswamy (Retd.) v. Union of India Writ Petition (Civil) No. 494 of 2012 (Sup. Ct. India Aug. 24, 2017)
[2] Shivaji Rao Gaikwad (aka Rajinikanth) v. Varsha Production 2015 (62) PTC 351 (Madras)
[3] ICC Development (International) Ltd., Vs. Arvee Enterprises and another 2003 (26) PTC 245
[4]TITAN Industries vs. M/s Ramkumar Jewellers2012 (50) PTC 486 (Del)
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