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Home , Personality rights, Privacy, Privacy law, Public records

and publicity

Privacy and publicity: the two facets of personality

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 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 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 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 , 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. , 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 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 , 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 under New the law of intellectual property, which York’s statutory , 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. 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 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 , in 1890 an article compensation on the basis of a reasonable appeared in the Harvard Law Review by endorsement fee. Samuel Warren and . 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 on individuals suffered from invasions of their the right of publicity have often involved privacy and also put an end to the impersonations. 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 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 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 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

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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 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 . 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. was no law of privacy that could help her. The code of the Advertising Standards By contrast, in , a magazine that Council of India, a self-regulatory body, published the pictures not only had to provides that advertisements must not pay the duchess damages for infringing contain references to any individual without her privacy, but was also fined in the due authorisation. The Standards of criminal courts. Practice for Radio Advertising and the Code This discussion would be incomplete for Commercial Advertising on without mentioning that personality rights contain similar provisions. now transcend the life of the celebrity. For In the event that the reputation of a example, the US state of celebrity is intentionally maligned by any recognises the right for another 10 years person, a defamation suit can be filed. In after the individual’s death, while India, defamation is both a civil wrong and a does so for another 70 years. In , criminal offence. However, truth published a decision pertaining to actress Marlene in the public interest is a valid defence and Dietrich put a 10-year limit on personality the threshold of permissible intrusion into rights after the death of a celebrity. the lives of famous personalities is generally considered to be higher than that applicable The Indian experience to an ordinary individual. India does not formally recognise the right Publicity rights were also discussed by of personality. Nonetheless, the twin the Delhi High Court in ICC International v concepts of privacy and publicity are slowly Arvee Enterprises [2003]. The court noted taking shape in the courts. that the right of publicity had evolved from In R Rajagopal v State of Tamil Nadu the right of privacy and could inhere in an [1994] the Supreme Court held that the individual or in any aspect of an individual’s right to privacy is implicit in the personality (eg, in his or her name, fundamental – it is a right personality trait, signature or voice). “to be left alone”. The court held that the Furthermore, an individual may acquire the Tamil magazine Nakkheeran did not require right of publicity by virtue of his or her to publish the life story of the association with, for example, an event, sport serial killer Auto Shankar, insofar as it was or film. However, contrary to the plaintiff’s based on . However, if it went claim, publicity rights vest only in a living beyond such records, it might be “invading person and not in an event or a his right to privacy”. Fundamental rights can behind the organisation of an event. be enforced only against the state; however, Thus, in principle, the right of publicity the court recognised that in the private is recognised in India. An example of the sphere, an action would lie in for assertion of personality rights came in 2003 breach of privacy as a common law right. when the actor Rajnikanth issued legal In terms of publicity rights, as in the notices in leading daily newspapers before case of misappropriation of trademarks, the release of his film Baba. These notices a “passing off” action is available against prohibited the imitation of his screen www.iam-magazine.com Brands in the Boardroom 2011 37 Privacy and publicity

persona, as well as the use of the character Edition 241” and “Mahatma Gandhi Limited Remfry & Sagar Baba for commercial gain, including by way Edition 3000”, which were engraved with Remfry House at the Millennium Plaza of advertisement and imitation. This is Mahatma Gandhi’s portrait on the nib. Sector 27, Gurgaon - 122 009 perhaps one of the first examples of a Tushar Gandhi (Gandhi’s great-grandson) New Delhi National Capital Region celebrity laying public claim to his or her had given his prior approval; however, the India persona. launch was met with immediate opposition Tel +91 124 280 6100 Another instance involved Sourav on account of the Protection under the Fax +91 124 280 6101 Ganguly, a hugely popular cricketer and Emblems and Names (Prevention of www.remfry.com former Indian captain, who returned from improper use) Act 1950. Under this act, a tour of England to find a well-known unless the permits it, names brand of tea cashing in on his success by and images of nationally important offering consumers a chance to congratulate personalities cannot be used for any trade, the cricketer. The offer implied that the business or professional purpose. As a cricketer had associated himself with the result, Montblanc was forced to withdraw promotion, which was not the case. its advertisements and the pens in question Ultimately, a compromise was reached from the market. and the promotion was withdrawn. While the aforesaid act was brought In another case the characters from into force to ensure that people of Mahatma a popular soap opera were depicted in an Gandhi’s stature are not treated with advertisement for a washing detergent. It disrespect, it allows for the inference that was contended by the creators of the soap personality rights have long been recognised opera, which was a household name, that in India. any use or representation of the characters would wrongly indicate a connection Conclusion between the characters they had created The law pertaining to personality rights and the goods being endorsed. The creators is still at a nascent stage in India; however, contended that they had been denied if the recent increase in reported cases merchandising profits. Although these involving personality rights is anything to arguments were rejected, the case was go by, awareness is quickly growing. significant on account of the court’s Merchandise and advertising deals for comments that character merchandising products endorsed by celebrities generate could involve the exploitation of fictional billions of dollars, and magazine and tabloid characters who had acquired sufficient sales further add to these revenues. In an reputation to be called commodities in age of globalised , powerful their own right. economic factors drive the cult of stardom; In a different but pertinent case, in late therefore, the legal framework governing 2009 Montblanc released luxury pens in its commercial exploitation is also India called “Mahatma Gandhi Limited guaranteed to evolve.

Bisman Kaur is a senior attorney with Remfry & Sagar. She holds Bisman Kaur degrees in history and law from the University of Delhi and has been Senior Attorney in the profession for nine years. Well-acquainted with all aspects [email protected] relating to trademarks, Ms Kaur has particular expertise in the finer nuances of assignment and licensing. She has also authored several Remfry & Sagar articles on diverse subjects. India www.remfry.com

Gunjan Chauhan is an attorney with Remfry & Sagar. She holds degrees Gunjan Chauhan in history and law from the University of Delhi and joined the firm not Attorney long after graduating in 2009. Her main area of work is trademark [email protected] prosecution and she has a keen interest in contemporary issues in trademarks and copyrights. Remfry & Sagar India www.remfry.com

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