CELEBRITY RIGHTS: A LEGAL OVERVIEW
Arindam Datta
3rd Year, Dept. of Law,
In the contemporary age the media is having
growing importance in various sectors of our economy and especially with regard
to mobilizing the public opinion. We have regular interface with the media in
the form of newspapers, TV, Internet etc. Therefore, presently it is absolutely
impossible to imagine a life without the role of media. Hence, we see that
media has become an important part of our society and therefore, there is an
urgent need to regulate the affairs of the media through effective laws. One
such law which, has got huge significance in
regulating media is the Intellectual Property Law, since most of the creation
and the services provided by the media is in intangible form and is a result of
the intellectual creation of the human intellect. Therefore, a major chunk of
the media related activities are regulated by the Intellectual Property Law regime.
Celebrity Rights
This is one of the contemporary
issues in the media which is sought to be protected by the IP law regime. The
concept of celebrity rights though protected by the IP law regime, it is an
important area in the field of media because:-
a)The regular interface of the celebrities with the media.
b)The media more often then not provides the medium through
which the various rights of the celebrities are exploited.
Celebrity is sought by many as honour. In a democracy it is normally a reward for success.
Sportsmen and artist earn it by skill. Businessman and TV personality earn it
by wit. Politicians earn it by votes. Anyone can aspire to it. It is the public
that confer celebrity. The public are stipulated by the media. But in the end
celebrity is conveyed by the public's choice as the consumer and electors.
There is also a class of celebrity which is more or less involuntary. Princes
and princesses acquire it by birth or by marriage. Other acquire by their
chance involvement in newsworthy events.
Along with the celebrity status they also earn a
few rights and the scope of these rights would be the subject matter of
discussion in this chapter. These diverse rights of the celebrities are
frequently encroached upon by the media. These rights which, are encroached by
the media frequently, can be classified under three major categories:-
1)Moral/ Personality Rights:-
An individuals personality is a means by which one individual
recognizes other and identifies his place in the society. Through the creation
of one's personality an individual creates an expectation of himself in the
eyes of other and the way in which he is expected to behave in the society.
Each of these personalities contributes differently to the society according to
their individual talents. Such personality rights are also justified by the
Hegelian Meta-physical concept of property which says that - "An
individuals property is the extension of his personality" similarly an
individuals contributions in the society is also an extension of his
personality.
2)Privacy Rights:-
Since, the
celebrities have a popular image in the society, people generally tend to
personalize them as their friends and become curious about every personal aspects of their lives ranging from their personal affairs
in lives to something as trivial as to the clothes that they wear, the
cosmetics that they apply, the places they visit. However, the celebrities
don't know the public and hence there is no natural exchange of information.
Therefore, the celebrities try to control their personal information since the
disclosure of the same might put them in a situation of embarrassment,
humiliation and thus make them feel insecure.
One of the most popular judicial opinions has
been given in the case of Barber vs. Times Inc wherein a
photographer took pictures of Dorthy Barber giving a
pregnancy delivery to a baby boy. Ms. Barber had filed a suit of "Invasion
of Privacy" against Time inc. for unauthorized and forceful entry in to
her hospital room and for photographing her despite her protests. Ms. Barber
was successful in her suit and the court while awarding damages of 3000$
opined:-
"In publishing details of private
matters, the media may report accurately and yet -
at least on some occasions – may be found liable for damages. Lawsuits for
defamation will not stand where the media have accurately reported the truth,
but the media nevertheless could lose an action for invasion of privacy based
on similar facts situations. In such instances the truth sometimes hurts.".
Therefore, in this case also we see that there
has been a remedy available to the celebrities either in the form of an action
of "invasion of privacy" or in the form of assertion of the
fundamental right of "Right to Privacy" as a part of Article 21 of
the constitution.
3)Publicity/ Merchandising Rights:-
The right to
exploit the economic value of the name and fame of an individual is termed as
publicity right. To claim this right it is necessary to establish that fame is
a form of merchandise i.e an act intended to promote
the sale/ popularity of a commodity or an activity. Hence, if someone uses the
fame of a celebrity to promote his goods it would be termed as an unfair trade
practice, misappropriation of the intellectual property of the celebrity, an
act of passing off etc. .
Instances of such cases in the media world are
very common. Taking as an instance the case of Sourav Ganguly
v. Tata Tea ltd. wherein Sourav
Ganguly who returned form Lords after scoring
magnificent centuries found himself extremely disturbed when he realized that Tata Tea Ltd., in which he was employed as a manager, was
promoting it's 1 kilo tea packet by offering the consumers a chance to
congratulate Sourav through a postcard which was
there inside each packet of tea. In a way indirectly what the company intended
was to promote the sale of its tea packet in the Indian market where Sourav had earned considerable amount of popularity. The
court ruled in favour of Sourav
by accepting that his fame and popularity is his intellectual property.
However, the law with this regard i.e publicity/ merchandising rights of the celebrities is
still not fairly developed, especially in
Thus in this context we should understand the
theory of The right to publicity.
The "Right to Publicity"
:
Brook LJ in Douglas and Zeta Zones v. Hello
Ltd has defined the "Right to Publicity" as –
"An exclusive right of a celebrity to the
profits to be made through the exploitation of his fame and popularity for
commercial purpose"
Therefore, such a right is distinct from the right against
"invasion of privacy" and also a right against the "adverse
portrayal of one's personality" or in other words the moral rights of the
celebrities over his personality . In the same case Sedley
LJ. opined that the damage to the reputation of an individual (or intrusion of
privacy) is not normally understood to be a form of financial or economic loss.
In this case the plaintiff would suffer loss in the sense that their reputation
would be of lesser value as commodities to be exploited by licensing and
assignment. Hence, the publicity right concerns with an intangible or
non-physical harm and ownership of intangibles. It is in the form of a
proprietary right with an individual as different from a right against harm.
The importance of the recognition of this right
in the favour of celebrity is to secure them a form
of Intellectual Property which is meant not for protecting them against any
harm but to secure him some financial benefits to be gained from the use of the
property, and this is generally understood to be justified as a reward or incentive
for the claimant's work in creating the intellectual property. Apart from this
the right is important because it is assignable and licensable to the players
in the media world for commercial gains and benefits. Thirdly, the right to
publicity is inheritable therefore; the descendants of the celebrity could also
gain from the popularity which the celebrity has created during his lifetime.
Thus we see that right to publicity becomes an integral part and parcel of
celebrity rights.
But our effort of trying to define the celebrity
rights would not be complete if the emergence of the most significant
instrument for infringement in celebrity rights- The Internet arena is not
taken in consideration. Thus taking into consideration the increasing and menancing effect of the necessary evil ; the Internet in
the field of "Encroachment in celebrity rights".
Importance of
Celebrity Rights in the Era of Internet:
In the age of internet and other faster and
developed means of communication the theory of celebrity rights has gained
added relevance and subject matter of discussion. The people of the country are
interfacing with the media like never before. The media has become faster and a
celebrities' image can be used for publicity, invasion of privacy or for moral
defamation much more easily and quickly.
An instance would be the case of Julia Roberts
(A recent ruling given by WIPO Complaint and Arbitration Centre) wherein
the defendant ran a website named Julia Roberts.Com and through the same
website the defendant used to run an online auction programme
to sell his goods. Julia Roberts claimed that the defendant used her fame to
promote his auction through the Internet since the public would be inquisitive
to know greater personal details of the celebrity and would visit the website
from across the globe and hence his auctions would be popular in the entire
world in a very short duration.
Therefore, we see that in the present age the
concept of celebrity rights has become much more contextual and relevant because
of the following reasons:-
a)Increasing
popularity of the media – hence more creation of celebrities.
b)Faster and
easier global communication through the Internet.
But while
enumerating the characteristics of Celebrity Rights ,we see that Celebrity
Rights limits the purview of the Fundamental rights enshrined in the Article 19
of the Constitution of India. Also a confusion arises whether to treat
the celebrity rights as a commercial property of the individual devoid of
the concept of human dignity.
Thus we face the
following problems while envisaging the characteristics of celebrity
rights:
A)The inherent
conflict between the Celebrity Rights and The Fundamental rights enshrined in
Indian Constitution.
B)The conflict
between Right to Human Dignity and Commercial Property Rights.
A) The
Inherent Conflict: Celebrity Publicity Rights v/s. Part III of the Constitution
Enumerating further,lets try to depict the scenario of the inherent
conflict between celebrity Rights and the Fundamental rights as enshrined in
the Indian constitution. To understand the Theory of Conflict better we will
take into consideration the landmark judgements of
some international jurist on this topics.
The media
considers that it is their fundamental right to publish and inform the public
about all the matters that are of "public interest" or "public
concern" under Article 19 of the constitution wherein the "freedom of
press" is embedded. At the same time the citizens have the "Right to
Information" or "Right to Know" under Art 19. This freedom has
been consistently been challenged by the celebrities on the ground that the
media has misused their freedom and under the guise of giving news "in the
public interest" has interfered with the privacy of the celebrities. The
courts have however, restricted the right of privacy of the celebrities in case
the event reported is newsworthy or if the public has got legitimate interest
in the event.
For instance, in Montano v. San Jose
Mercury News ; Montano's suit against the newspaper for the
invasion of privacy and misappropriation of the celebrity persona failed on 1 st Amendment Grounds, with the California Court
of Appeal, concluding that:-
"…. The first amendment protects the
posters complained about for two reasons: First because the poster themselves
report newsworthy items of public interest, and second because a newspaper has
constitutionally protected right to promote itself by reproducing its
originally protected articles or photographs. Our conclusion on the First
Amendment makes it necessary to discuss …..the claim that the applicable
statute of limitation bars recovery."
Again in another case Ann Margaret v. High
Society Magazine wherein the plaintiff who was a super cine star sued the
defendant who used to publish the popular High Society Magazine. The contention
was that the defendant used her photo in the "celebrity skin"
publication, without her consent, was for the purpose of trade and invaded her
right to publicity.
Judge Goetell held as
follows:-
"…Ann Margaret who has occupied the
fantasy of many movie goers over the year, choose to perform unclad in one of
her films; that was the matter of public interest."
The court further went on to express the meaning
of "newsworthiness" as a defence generally
useful in "privacy actions" against the media by the celebrities by
stating that:-
"….and while such an event may not appear
overtly important, the scope of what constitutes a newsworthy event has been
afforded a broad definition and held to include even matters of
"entertainment and amusement", concerning interesting phases of human
activity in general"
Therefore, we see that the "publicity right" of a celebrity is limited and subservient to the larger public interest and the right of the citizens to know. As a result, closer to home Amitabh Bachhann would be unsuccessfully in bringing about a suit for invasion of privacy, if the newspaper has reported about his ill health and the fact of hospitalization. Nor would Sachin Tendulakar be successful in bringing about a suit for using his face on the cover page of a sports magazine.
B) Right to Human Dignity v/s. Commercial
Property Right:
A brief survey on publicity rights in different
jurisdictions of the world has reveal that in common law countries like U.K.,
Australia and common law provinces of Canada, publicity rights are based on the
concept that such rights are commercial property of the individual devoid from
the concept of human dignity. Indeed, the jurisdictions treat cases of
violation of publicity rights analogously to the doctrine of passing off. We
also saw that in U.S.A., publicity rights emerged from the concept of privacy
and human dignity but later got transformed into a concept of separate
intellectual property. Even today some states of U.S.A. consider publicity
rights as property while others derive it from human dignity.
There are certain inherent problems in an
approach, which treats publicity rights as mere property. These are:-
i) It does not take into account the inherent uniqueness of the human personae.
ii)
The second major dilemma of the publicity right
is its transferability. By definition a commercial property right even in the
nature of an intellectual property right can be licensed or transferred. This
might lead to conflicts between licensor and licensee in fundamental areas of
personality. For instance, if a former porn actor embraces religion at a later
point in his life, dignity and commerce will battle over the remaining in force
of the publication rights in his old movies.
Thus, the approach taken by the Delhi High Court
is laudable as it has kept in mind the constitutional imperatives and
interpreted publicity rights as "flowing from human dignity in Arts. 19
and 21.
However, merely holding publicity rights as a
facet of privacy and human dignity may also be problematic for the following
reasons:-
i) The first problem would be that fundamental rights are generally only enforceable against the state within the meaning of Art.12 of the Constitution. Even though a liberal approach has been followed in this regard a citizen might find it difficult to enforce his publicity rights against private entities.
ii)
Secondly, fundamental rights cannot be waived.
So, a person would find it difficult to engage in commercial transactions with
his publicity rights.
iii)
Thirdly, it has been held that the rights under
Art. 19 and 21 are extinguished once a person dies.One's
personae may be a valuable property that a person
might wish his successors to protect and commercially exploit just like any
other intellectual property.
However, under
the present regime based on dignity rather than property right, such a case
would not be possible.
This dilemma can
be solved by taking a dual approach.thus lets
enumerate the possible solution of dual approach.
The Dual approach:
At the outset it
has to be realized that publicity rights are a confluence of both dignitary
aspects as well as property rights aspect. One cannot be applied in the absence
of the other. In this regard the approach of the civil law countries is the
most advanced. All the civil law countries accept publicity rights as emerging
from the right to human dignity in their constitutions but also have separate
statutory provisions for protecting and regulating these rights. This solves
the problem of succession of the rights. For instance, California enacted
seventy years and Germany ten years for continuance of publicity rights after
death just like copyright. Further recognizing the property aspects would allow
transfer and commercial exploitation of the rights for the benefit of the
owner. On the other hand a dual approach based on property and dignity would
ameliorate the problems associated with pure commercial concept of publicity.
Now lets depict the Indian scenario in matter of publicity rights and the stance taken by Indian
jurist while dealing with the Celebrity rights.
THE INTERNATIONAL SCENARIO:
In a world rapidly changing itself
into a consumer driven global market where consumers
are bombarded with information and
"inspiration" at an unprecedented level through the audio-visual
media. In the process, publicity has a very high value and a famous person has
the potential to earn big bucks by exploiting his image and publicity. Therefore, globally the concept of
publicity rights has emerged in different jurisdictions through a gradual
process of evolution. Where accepted, so-called "publicity rights"
allow for the exclusive commercial use of a persona's publicity values. A tradable worth can be found in many personal
characteristics such as voice, signature or pseudonym.The
present section is an attempt to study publicity rights as they have emerged in
different jurisdictions and finally comes back to India to highlight the urgent
need for a suitable legal regime to govern publicity rights.
1)"Publicity Rights" in
U.S.A:- In the
During the opening decades of the
Twentieth Century, a confluence of new technologies such as radio and motion
pictures converged with popular magazines and newspapers to "commodify" celebrities. However, the common law
principle of privacy was found to be inadequate to deal with this modern phenomenon.
Unlike the relatively unknown plaintiffs in
Roberson and Pavesich, who simply wanted to be left
alone, celebrities consciously put themselves in the public ' s eye and had
already achieved a certain degree of recognition.
Courts interpreted the right of privacy narrowly and rejected any contention that a celebrity suffered from indignity
or mental distress as a result of an unauthorized use of his identity.
Thus, courts effectively precluded celebrities from claiming that a
misappropriation of their identity invaded their "right to be left
alone".
Finally, a few
years later, a court in Georgia characterized publicity as a property right
based on commercial considerations, thus separating it from the dignity-based
concept of privacy.Today in the U.S. , twenty-eight
states currently recognize the right: eighteen by statute, eighteen by
common law , and eight by a combination of the two.
2. Publicity
Rights in U.K. :- However, the decisions were based on the law of breach of
confidence and contract. English law has strongly resisted the creation of a
concept of publicity rights. This is mostly because of the importance placed
on freedom of speech and expression. It was considered that publicity rights
lead to private benefits with little tangible benefits to the public.
However, there has been a gradual
evolution of the concept of publicity rights. In the case of performing
artists, English law was compelled to develop by international treaty. This was
because of the European Convention on human rights. In a series of cases the
Court at Strasbourg has recognized that the taking of photos without consent
was an interference with Art 8 rights under the ECHR. This was held to be so,
even if the photographs were taken for police purposes, or for journalistic
purposes.
Further judicial developments took
place after 2000. By a decision made in June 2000 in the case of Sports Club plc vs Inspector of Taxes,
the UK tax court, decided that the money paid under contracts for the promotion
of image rights of international footballers should be recognized as reflecting
their image rights and not as salaries. Next, the possibility for a claim for
substantial compensation was recognized when photographs taken of the wedding
of Michael Douglas and Catherine Zeta-Jones, were published by Hello! magazine
without their consent.In a recent decision award of
compensation of £3,500 was made under the Data Protection Act to Naomi Campbell
for a publication of her photograph in a story about her drug therapy.
Finally, the concept of publicity
rights may he considered to be settled in U.K. in the case of Irvine v Talksport. In the case a successful Formula I
driver, Edmund Irvine, saw his image used without his consent in an
advertisement for a radio station. The court held that he had a property right
in the goodwill attached to his image, and he was entitled to compensation on
the basis of a reasonable endorsement fee.
However, there is no statute to
regulate the celebrity rights in U.K.
3. Personality Rights in Civil Law
Jurisdictions:- In
contrast with common law jurisdictions most jurisdictions have specific
statutory provisions that protect an individual's image, personal data and
other generally private information. Exceptions have been carved out of these
general, broad privacy rights when dealing with news and public figures.
In France personality rights
are protected under Article 9 of the French civil code. While publicly known
facts and images of public figures are not generally protected, use of
someone's image or personal history has been held actionable under French law.
In Germany personality rights
are protected under the German civil code. The concepts of an "absolute
person of contemporary history" which allow the depiction of individuals
who are part history but still gives them some protection of their rights of
privacy outside the public sphere.
A succinct statement of the German
law can be found in the following judicial statement from the Marlene
Dietrich case :
"The general right of
personality has been recognised in the case law of
the Bundesgerichtshof since 1954 as a basic right
constitutionally guaranteed by Arts 1 and 2 of the Basic Law and at the same
time as an "other right" protected in civil law under S. 823 (1) of
the BGB (constant case law since BGHZ 13, 334, 338 - readers' letters). It
guarantees as against all the world the protection of human dignity and the
right to free development of the personality. Special forms of manifestation of
the general right of personality are the right to one's own picture (Ss. 22 ff.
of the KUG) and the right to one's name (S. 12 of the BGB). They guarantee
protection of the personality for the sphere regulated by them."
There are certain provisions on rights in the new civil code of cubec
that enshrines the right to privacy as an attribute of personality. This right
is set forth in Article 3:-
"Every person is the holder of
personality rights, such as the right to life, the right to the inviolability
and integrity of his person, and the right to the respect of his name,
reputation and privacy. These rights are inalienable."
The chapter in the new Code dealing
with respect of reputation and privacy defines the invasion of privacy in
article 36:
The following acts, in particular,
may be considered as invasions of the privacy of a person:
(1) entering or taking anything in
his dwelling;
(2) intentionally intercepting or
using his private communications;
(3) appropriating or using his image
or voice while he is in private premises;
(4) keeping his private life under
observation by any means;
(5) using his name, image, likeness
or voice for a purpose other than the legitimate information of the public;
(6) using his correspondence,
manuscripts or other personal documents
THE INDIAN SCENARIO:
India has been lagging behind in
regard to publicity rights, as neither is there a considerable body of case
law, nor any statute governing, image or publicity rights of individuals. Thus,
the legal system in India at present is quite inadequate to deal with the
modern phenomena of endorsement advertising. But the market has its own forces
and does not wait for the law to catch up. The rate at which advertising using
celebrities has increased as well as an increase in the amount of money
involved in the entire process, possible abuses are likely to arise in the near
future. A beginning has been made by the Hon'ble
Delhi High Court, in ICC Development (International) Ltd. v. Arvee
Enterprises,and
it's statement on publicity rights is the only authoritative discussion of
publicity rights in Indian case law:
"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 organizer /non-human entity of the event would be violative of Articles 19 and 2l of the Constitution of
India - No persona can he monopolised. 'The right of
Publicity' vests in an individual and he alone is entitled to profit from it.
For example if any entity, was to use Kapil Dev or Sachin Tendulkar's name persona/
indicia in connection with the World Cup without their authorization they would
have a valid and enforceable cause of action."
The Image Rights in India as conceived by the Delhi High Court arises from
the right of privacy which has emerged through a case-by-case development in
India and flows from human dignity as enshrined in articles 19 and 21 of the
Constitution. This approach has to be contrasted to the approach of treating
publicity rights as commercial property.
But there is a need for a dual approach in India
as opposed to the purely dignitary approach of the Delhi High Court .There is
an urgent need in India for recognizing property rights in one's personae.
The right to property is a creature of the law
and anything is property so long as law gives to a particular item, the status
of property. Thus, after the Hon'ble Delhi High Court
has taken the laudable step of recognizing the dignitary aspects of publicity
rights, it rests with the legislature to statutorily recognize the commercial
and property rights aspects of publicity rights to fill up the lacunae in law
and keep in pace with the rapid commercialization of personality and the
development of the Internet. While doing so the legislature should also
adequately balance between the public interest and the individual interest of
the celebrity. In other words the legislature while granting the celebrity the
right to publicity should also make adequate exception for freedom of speech
& expression and other bona-fide uses as done by the Copyright Act . The
statute should also reflect the need of preserving human dignity and the need
for efficient commercial utilization of property beyond a person's lifetime. In
fact, true heroes live on beyond their lives.
There are further
reasons for recognizing publicity as a statutory property right for the
following advantages:-
i) Nowadays publicity involves immense amounts of money and the public image of a celebrity is of tremendous value. Recognizing this valuable asset as a property would mean that the same would be subject of taxation as a capital asset just like any other intellectual property.
ii)
This gives economic incentive to the public for
carrying out socially enriching activities.
iii)
The celebrities are adequately rewarded for
their moral claim over any money flowing from their fame which they have crated
by putting in enough time and efforts.