Privacy and publicity Privacy and publicity: the two facets of personality rights hyperbole. In this context, personality In this age of endorsements and rights encompass the “right of privacy”, tabloid gossip, famous people which prohibits undue interference in need to protect their rights and a person’s private life. In addition to coverage in the media, reputations. With a growing number images of celebrities adorn anything from of reported personality rights cases, t-shirts, watches and bags to coffee mugs. India must move to develop its This is because once a person becomes legal framework governing the famous, the goods and services that he or commercial exploitation of celebrity she chooses to endorse are perceived to reflect his or her own personal values. By Bisman Kaur and Gunjan Chauhan, A loyal fan base is a captive market for Remfry & Sagar such goods, thereby allowing celebrities to cash in on their efforts in building up Introduction a popular persona. Intellectual property in India is no longer Unfortunately, a large fan base is a niche field of law. Stories detailing also seen by unscrupulous people as an trademark infringement and discussing opportunity to bring out products or the grant of geographical indications services that imply endorsement by an routinely make their way into the daily individual, when in fact there is no such news headlines. From conventional association. In such cases the individual’s categories of protection such as patents, “right of publicity” is called into play. trademarks, designs and copyright, IP laws The right of publicity extends to every have been developed, often by judicial individual, not just those who are famous, innovation, to encompass new roles and but as a practical matter its application areas of protection. One such role forms usually involves celebrities, since it is their the premise of this article – the unique names and images that help to hype and realm of “personality rights”. sell products. Personality rights are rights that In addition, celebrities are often made individuals have over their name, image, the subject of parody and ridicule – most reputation, likeness or other unequivocal of which is in good humour, but some of aspects of their identity, as well as which can involve malicious intent. In such information connected with them. In the latter cases the celebrity would be entitled event that an unauthorised third party to bring an action for defamation, which seeks to benefit commercially from such may be categorised under the “moral aspect” reputation or information, a case may of personality rights. be made for rights violation. The relevance of personality rights is Trajectory of growth evident from the multitude of newspaper Recognising individuality and protecting it and magazine articles that are published from intrusion is not a recent phenomenon about the lives of celebrities. The public – it dates back to ancient European history. appetite for gossip and scandal is limitless, Long before the term was even coined, an and even a small incident involving a artist’s works were considered an famous person can become the subject of expression of his or her individual www.iam-magazine.com Brands in the Boardroom 2009 35 Privacy and publicity personality. This idea is also embodied in could not recover damages under New the law of intellectual property, which York’s statutory privacy law, but ruled in recognises a deep bond between a creator favour of the plaintiff based on a new and his or her artistic or literary works. common law right that it dubbed the “right The earliest development of privacy law of publicity”. With Haelan, a fully alienable took place in the United Kingdom with the economic right which allowed damages to establishment of protection against the be claimed in addition to injunctive relief physical interference with life and property. came to the fore. Thereafter, privacy rights expanded to Explicit recognition of such rights include a “recognition of man’s spiritual came much later in the United Kingdom nature, of his feelings and his intellect”. with the case of Irvine v Talksport [2003]. Eventually, the scope broadened further to Eddie Irvine, a successful Formula 1 driver, include a basic “right to be left alone”. By objected to the unauthorised use of his the late 19th century, interest in the right image in an advertisement for a radio to privacy grew rapidly in response to the station. The court held that he had a growth of print media, especially property right in the goodwill attached newspapers. to his image and was entitled to Across the Atlantic, in 1890 an article compensation on the basis of a reasonable appeared in the Harvard Law Review by endorsement fee. Samuel Warren and Louis Brandeis. They called on courts to recognise the right of Different experiences on both sides individuals “to be left alone”. Such a privacy of the Atlantic right would redress the harms that private Recent decisions in the United States on individuals suffered from invasions of their the right of publicity have often involved privacy and also put an end to the impersonations. Film star Bette Midler downward spiral in the content and quality declined to lend her distinctive voice to of US journalism in the wake of recent an advertising jingle. Undeterred, the technological developments, including advertisers simply found a sound-alike those in photography. Warren and Brandeis performer who could duplicate her vocal declared that information which was timbre and styling. However, Midler previously hidden and private could now prevailed on right of publicity claims and be “shouted from the rooftops”. was awarded high monetary damages. In The other aspect – publicity rights – another case involving mere evocation, grew concurrently. Curiously enough, before an advertising campaign which involved the late 19th century, individuals had little a robot dressed and presented so as to recourse against the unauthorised use of evoke the plaintiff – a popular game show their names or images, with the exception presenter – was held actionable. Clearly, of cases involving libel or trademark the old saying that “imitation is the best infringement. The right to publicity form of flattery” needs to be taken with a originated as a subset of the right to privacy pinch of salt. when the latter expanded to include the Meanwhile, in the United Kingdom, the right against false endorsements, which Hello! case caused a stir with regard to the was made available to celebrities and non- right of privacy. The claimants, film stars celebrities alike. It was only decades later Catherine Zeta-Jones and Michael Douglas, that the courts moved from protecting the had chosen to commercialise images of their integrity of an individual’s identity to wedding by contractually granting exclusive safeguarding the economic value of rights to OK! to take and publish photos of celebrity as an alienable economic right. the event. To their dismay, Hello! managed The term “right of publicity” comes to obtain some photographs from a guest. from the seminal judgment in Haelan The couple sued Hello! for damages for Laboratories Inc v Topps Chewing Gum Inc. breach of privacy. By some arguments, they This 1953 case involved competing chewing had already exhausted their right of privacy gum manufacturers that used baseball by entering into a contract with OK!; trading cards to help to sell their gum. however, the appeal court judge disagreed While Haelan had obtained exclusive and said that under the contract, they had licences from a number of players insisted on a veto over what photos were authorising the use of their images on its to be used so as to maintain their baseball cards, Topps sold its own gum professional and personal image. By with photographs of these same players. retaining that editorial control, the use of Understandably, Haelan sued for violation any pictures other than those personally of its “exclusive rights” to the players’ chosen by them invaded their privacy. images. The court held that the plaintiff However, the right of freedom of speech 36 Brands in the Boardroom 2011 www.iam-magazine.com Privacy and publicity and expression often prevents celebrities any third party that causes injury to the from being able to control what information business, goodwill or reputation of a about them reaches the public. The test celebrity by trying to pass off its goods or applied to protect free speech is usually business as those of the celebrity. However, whether the information to be released for such action to be successful, all three regarding the celebrity is newsworthy (ie, classic elements of a passing off action whether there is any public interest in the must be proven: damage to reputation, receipt of the information). Public interest misrepresentation and the resultant is judged using the standard of a reasonable irreparable damage. man; however, given that celebrities often Furthermore, the Indian courts have willingly court the media, in their case the recognised the name of a celebrity as having line is usually drawn only when such trademark significance, and have restrained interest can be categorised as morbid third parties from misappropriating such prying. names for use as domain names. Copyright Even so, standards differ across law also allows for protection of a specific jurisdictions. French law grants broad legal image in the form of, for example, a protection to a person’s portrait and name photograph or painting. However, seeking against unauthorised use based on recourse to IP laws has limitations – for provisions in the Civil Code. When the example, copyright law may protect a Duchess of York sought advice on blocking specific image in the form of a photograph; the publication of topless pictures in the however, protection would not extend to the UK tabloids, she was firmly told that there likeness of the celebrity’s name or image.