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Celebrity Rights: Protection under Intellectual Property Rights

The definition of Celebrity in Oxford lexicon is A famous person, especially in entertainment or sport.[1] This can be acquired by an individual through birth or his faculty or intelligence. The word has been derived from a Latin term "celebritatem"[2] it means a condition of being famous.[3]

We all know now the interpretation of the word celebrity has a wider connotation, it includes noted and ignominious personalities like actors, politicians, sports persons, magicians, songsters, cotillion, all form of artists and also includes defamed, cons, terrorists etc., In India as we can't see the term 'celebrity' anywhere but the word 'performer' is defined under section 2(qq) of the Copyright Act 1957.

It says all artists who make performance are "performers"[4]. The term celebrity isn't yet registered in our law or any Act and isn't clear till now whether imitators are celebrities. It's pronounced at multitudinous times imitators may not be a celebrity or a celebrity may not be an imitator.[5] The Indian Copyright Act Section 38 narrates the rights of the celebrities but that doesn't include multitudinous coincident rights of a celebrity or personality.

The personality right is the right of being a person in which he/she may not be a celebrity but his donations to the society is an asset. The reach of personality or celebrity rights is wide in real sense. The rights include the right to sequestration and puffery rights for being a public figure. The celebrity wants his/ her private space and puffery not to be exploited.

The notion behind the rights is that he/she is a natural being apart from being a celebrity and he/she wants the liberty that a common man enjoys. It's justified that the cost of being a celebrity shouldn't be the exploitation of his private space and commercialization of his/her genius or intelligence.

Celebrity Rights can be classified under three different categories:
  1. Personality or Moral Rights,
  2. Privacy Rights, and
  3. Publicity Rights.

Personality Rights
Personality is a means by which one entity is feted by another. Through the creation of one's personality, an individual creates a picture of himself and his slated demeanour in society. Each personality, per se contributes differently to society conforming to their unique geniuses. An object's personage is a means by which one individual recognizes other and identifies his locus in the society.

Through the creation of one's personage, an individual creates an expectancy of himself in the eyes of others and the roadway in which he's awaited to demean in the fraternity. For example, members of the society will possess distinct unique personage. Anticipations from a sportsperson, actor, a spiritual high priest, a politician, a manager with respect to their benefactions waited towards the society.

Each of these personalities contributes differently to the society according to their unique gifts. Such personage prerogatives are also justified by the Hegelian Meta-physical concept of property which says that-" An individual's property is the extension of his personality"[6] likewise an individual's contributions in the society is similarly an drawing out of his personage.[7]

There's no suspicion that in creating similar personality an individual has to put in lot of labours and sentient care. An individual's personality involves a great quantum of passionate, dignitary and moral values affixed to it. This personage might be really close to the celebrities' heart.

Notwithstanding, the media much violates these personality rights of an individual celebrity by associating them with products/ exertion that run fully polar to the image created by them in the society and thereupon sometimes it's against the class of the celebrity. For example, a big-name spiritual high priest who has consistently been against the consumption of tobacco and liquor and has been sermonizing the same to the society, his 'personality/ moral rights would be seriously violated if someone puts his photo on Biri or Khaini packs to promote the same amongst his acolytes.[8]

Privacy Rights
Since, the celebrities hold a popularized image in the society, people commonly tend to manifest them as their amigos and grow inquisitive about every private side of their lives classifying from their private romances in lives to something as little as to the clothes that they wear, the cosmetics that they refer, the places they visit. Notwithstanding, the celebrities don't know the public and thus there's no natural trade of information. So, the celebrities try to regulate their private data since the revelation of the same might lay them in a scene of embarrassment, abasement and so make them feel insecure.

An uncountable spells back rainbow MMS scandals concerning multitudinous celebrities have been subject theme of immense vogue amongst the public. Amongst the fresh popular ones were the videotapes involving teenage sensation Sania Mirza changing her clothes in the washroom and cine star Kareena Kapoor getting into some intimate moments with Shahid Kapoor, the latter one being put out in an online Blog.

These tape recording clips were subject topic of extreme interest amongst the common members of the society but were extremely discomfiting, mentally traumatic for these celebrities and gave them a feeling of instability about their activities even in their closed private apartments. Even Supreme Court, while acting on an appeal by Hindu, regarding the Constitutional validity of Section 499 of IPC, observed that the Kareena-Shahid photograph wasn't in good taste.[9]

The Court further alluded at the need to bring equilibrium between public interest and blackening so that the freedom of expression of the newspaper wasn't stretched beyond boundaries. Following Prosser, it can be argued that even newspaper reports can be held to be foraying privacy, if it intrudes upon one's insulation or if there has been a 'public divulgence of discomfiting private which would be obnoxious and offensive to a reasonable man of common sensibilities'. Notwithstanding, in that case the more effective remedy would be vilification rather than protection through intellectual property rights.

No doubt it's a serious raid of the celebrity's privacy, which, every human being is entitled as natural rights.[10] Fortunately, there lies a legal remedy in the form of an action for 'invasion of privacy' of an individual wherein truth is no defence unlike in the cases of defamation.

Publicity Rights
The right to exploit the remunerative value of the title and fame of an individual is titled as publicity right. To claim this right, it's compulsory to substantiate that fame is a form of wares i.e. an act intended to promote the trade/ vogue of a individual or an activity. Hence, if someone uses the renown of a celebrity to elevate his merchandise it would be named as a foul trade practice, misappropriation of the intellectual property of the celebrity, an act of passing off etc.

The publicity right is also a form of intellectual property right, which can be justified by the Lockean Labour hypothesis which says that an object created by the labour and skill of an individual belongs to that individual and that individual alone has got the right to exploit the object created by him for any profitable purpose which he likes. Likewise based on this proposition it can really well be said that the fame and vogue that a celebrity has created is his property since, he has put in enough hard work, conscious expenditures, time and expertise to crop such an image and vogue in the society.

Hence, the celebrity is at complete discretion to abuse his image for marketable benefits and forestall others form doing it. It would be really foul if someone else is allowed to exploit this fame or favour for benefits which would accrue to him rather than the celebrity. Such an approach was visible in, Edison v. Edison Polyform Mfg. Co[11], where the Court held that if a man's name is his own property, there's no reason for not understanding that the cast of one's differentia is also his property, as well as the financial benefit that can be extrapolated from it.

"Notwithstanding, the law in this regard, i.e. publicity and business rights of a celebrity is yet to be adequately evolved, especially in India. Courts in the prismatic foreign countries have espoused different approach to justify this right and no undeviating plea has shaped yet. So, the authors would seek to break down this particular right of the celebrity and would seek to hand suggestions to the coming up consequences."[12]

Celebrity Rights- Indian Perspective
The law of publicity and image rights is in its evolving stage in India. When compared with the worldwide scene, India has been dragging forward in perceiving the honour of publicity and image rights. Though Constitution of India under Article 21 i.e. Right to life and liberty includes the protection of publicity rights of an integer being part of privacy rights.

As right to privacy is ennobled under Article 21 of the Indian Constitution through judicial illustration in the landmark cases like; Kharak Singh v. State of U.P.[13], Rajagopal v. State of T.N.[14] and Justice K.S. Puttuswamy (Retd.) v. Union of India[15] etc. but similar protection in respects to protection of celebrity personality traits has substantiated to be scarce as enforcement of essential rights has its own necessaries which couldn't be satisfied by celebrity rights claim for instance doctrine of quitclaim, enforcement of rights majorly against the state only, extinguishment of rights on death of personality etc.[16]

The celebrity rights stands as personalized and impalpable property rights. It's a combination of dignitary as well as cooperative interest of celebrity and the ingrain right only protects the dignitary aspect of celebrity. Right to hype isn't absolute though it comes under the vibrant range of Article 21 of the Constitution of India. For the protection of public interest reasonable restrictions can be placed on ditto right under Article 19 of the Constitution.

The right to acquire information and circulate the same has been held to be included under the Article 19(1) (a) within the range of 'freedom of speech and expression'.[17] The limited protection to a celebrity's image is given under the viands of Trademark Laws. Under the Trademarks Act, 1999 there's no specific provision to grant protection to image and puffery rights. Though, the Act under Section 2(m) supplying the description of 'mark' does include names.

Passing off is the common law remedy on which celebrities depend to shield their image and publicity rights. To utility the remedy from passing off action the voucher of the persons' report, misrepresentation caused and so unredeemable damage to the substance is wanted in association to the goods or services.[18]

The Indian Trademark Act, 1999 takes into consideration the protection of single specific of personality, i.e., names under Section 14 but it doesn't state anything about the rules of assigning and authorizing parallel rights. The trade mark law furnishes confined insurance with no clarity of idea that makes it harder to enforce the said law by courts.[19]

Further, Copyright Act, 1957 nonetheless includes actors as entertainers to deliver them with the entertainers' right but has failed to fete acting in cinematographic flickers as the subject matter of entertainer's right protection as it only talks about the live performance made by the actors. Though entertainer's right protects the fat, moral and impalpable rights of entertainers but the same is capped in relation to the specific performance made by the entertainer and not beyond that so yea if sports persons falls under the delineation of entertainer their impalpable right protection will be only limited in regard to contortion, mutilation or alteration of their performance not beyond it.[20]

Conclusion
In India, the sole right to authorize public performances and broadcast them doesn't subsist. There's provision, simply, for secondary rights to forestall public performance or broadcasting or recordings framed without the trouper's clearance and to admit dispassionate remuneration. So, though economic rights are available, moral rights don't subsist. No protection is given against 'substantial similarity' which is a compulsory element in protection of celebrity rights.[21]

It's simply through proceeding; this growing problem can be chastened. Award of huge penalty and multi-million bone bargains, may stop contravention or violation by those who have in the past failed to appreciate the privacy of celebrities and employers. Whereas, the bench has hourly feted corporality of varied aspects of the celebrity rights, it rests with the legislature to statutorily fete corporate aspects of celebrity rights to stuff up the deficits in law and keep pace with flying commercialization of celebrity status.[22]

The legal status of the rights of publicity is considerably fuliginous for the lack of internal recognition of such a right. In the absence of a enactment or a firm decision of the Supreme Court, the law relating to alike exclusive rights is coached by the kinks and fancies of the several High Courts operating in the different lands.

The result is utmost confusion. The need of the hour is necessary codification of the law. Once assurance is added, the growth of publicity rights vis--vis the Indian network will be set in the right direction. With rights specified, mysteriousness will be demolished and resort to the torts of passing off and false signature for the enforcement of such publicity rights will no longer be duress.

Bibliography
Articles:
  1. Hughes J, The Philosophy of Intellectual Property (1988) 77 Georgetown Law Journal 287, 330-3509
  2. Lukose P and Pandey S, Protection of Celebrity Rights a Comparative Analysis of Relevant IPR Laws in US, UK and India (2019) 14 The Journal of Intellectual Property 101
  3. Pareek A and Majumdar A, Protection of Celebrity Rights- The Problems and the Solutions (2006) 11 Journal of Intellectual Property Rights 415
Book
  1. Jain MP, Indian Constitutional Law (5th edn, Wadhwa and Co. 2008)
Cases
  1. Edison v Edison Polyform Mfg Co [1907] 73 NJE 136 (NJCh)
  2. Justice K.S Puttuswamy (Retd) v Union of India [2012] Writ Petition (Civil) No 494
  3. Kharak Singh v State of UP [1964] 1 SCR 332 (SC)
  4. Rajagopal v State of TN [1994] SCC 632 (SC)
Legislations
  1. European Convention on Human Rights 1950
  2. India Penal Code 1860
  3. International Convention on Civil and Political Rights 1966
  4. The Copyright Act 1957
  5. The Trademark Act 1999
  6. Universal Declaration of Human Rights 1948
Websites
  1. Celebritatem (2021) <https://worldofdictionary.com/dict/latin-english/meaning/celebritas> accessed: 16 October 2021
  2. Celebrity (Meaning & Definition for UK English Lexico.com) (2021) <https://www.lexico.com/definition/celebrity> accessed: 16 October 2021
  3. Georg Wilhelm Friedrich Hegel (Stanford Encyclopedia of Philosophy, 9 January 2020) <https://plato.stanford.edu/entries/hegel/> accessed: 16 October 2021
  4. Protecting Celebrity Rights under IP Law Regime (2021) <https://1library.net/document/z3enl0dq-protecting-celebrity-rights-under-ip-law-regime.html> accessed: 18 October 2021
End-Notes:
  1. Celebrity (Meaning & Definition for UK English Lexico.com) (2021) accessed: 16 October 2021
  2. Celebritatem (2021) accessed: 16 October 2021
  3. Protecting Celebrity Rights under IP Law Regime (2021) accessed: 18 October 2021
  4. Copyright Act 1957, s 2(qq).
  5. Ibid.
  6. Georg Wilhelm Friedrich Hegel (Stanford Encyclopedia of Philosophy, 9 January 2020) accessed: 16 October 2021
  7. Justin Hughes, The Philosophy of Intellectual Property (1988) 77 Georgetown Law Journal 287, 330-350.
  8. Anurag Pareek and Arka Majumdar, Protection of Celebrity Rights- The Problems and the Solutions (2006) 11 Journal of Intellectual Property Rights 415
  9. Ibid 416.
  10. Universal Declaration of Human Rights 1948, art 3; International Convention on Civil and Political Rights 1966, art 6 and 9(1); European Convention on Human Rights 1950, art 10(2).
  11. [1907] 73 N.J.E. 136 (N.J.Ch.).
  12. Majumdar (n 7) 417.
  13. [1964] 1 SCR 332 (SC).
  14. [1994] SCC 632 (SC).
  15. [2012] Writ Petition (Civil) No. 494.
  16. Lisa P. Lukose and Shilpika Pandey, Protection of Celebrity Rights a Comparative Analysis of Relevant IPR Laws in US, UK and India (2019) 14 The Journal of Intellectual Property 101.
  17. M.P. Jain, Indian Constitutional Law (5th edn, Wadhwa and Co. 2008) 988.
  18. Lisa P. Lukose (n 15) 102.
  19. Ibid 102-103.
  20. Ibid 102.
  21. Ibid 118.
  22. Majumdar (n 7) 422.
Written By: Saathi Mukherjee

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