This post was first published on 23rd June, 2014.<\/p>\n
Intellectual Property (IP) has been continuously evolving. It is now not restricted to just categories like Patents, Trademark, Designs and Copyrights. Judicial\u00a0activism has widened\u00a0the scope of IP to cater to new forms of\u00a0protection, one such addition is “Personality Rights”.<\/p>\n
Personality Rights are made up of two kinds of rights: the Right to publicity and the Right\u00a0to privacy. The Right to publicity which is usually attributed to\u00a0celebrities or famous people is of great importance to the entertainment and\u00a0media field. Right to Publicity means the right to control commercial\u00a0exploitation of one’s successful personality and prevent others from riding\u00a0on the fame associated with his\/her persona. This right stems\u00a0from the Right to privacy and vests only in individuals who are ‘famous’ or\u00a0those who might be understood by the public as having a reputation or\u00a0goodwill that is capable of being commercially exploited. A person’s persona includes\u00a0his\/her name, photograph, signature, voice or any other mark of identity.<\/p>\n
For example, in the UK, when Topshop, without Rihanna’s permission, featured a\u00a0photo of her taken during a video shoot in 2011, she successfully sued Topshop’s\u00a0parent company Arcadia for $5 million (\u00a33.3 million). Justice Birss, while\u00a0deciding the matter held that a substantial number of buyers were likely to\u00a0have been deceived into buying the T-shirt because of false belief that it had\u00a0been approved by the singer. This proves that the public needs to identify\u00a0or associate an identity to a person. If such an association cannot\u00a0be established, the Right of publicity does not come into existence.<\/p>\n
Use of a person’s persona for commercial gain in an unauthorized manner amounts to the violation of the Right to publicity of the person. Any person must, therefore, seek permission of a celebrity before using his\/her persona for commercial gain. Such authorization for commercial use forms one of the primary revenue sources for most celebrities. By virtue of their capability to influence minds of the public, celebrities endorse commercial products for a fee and generate substantial revenues. So what is this Person’s image?<\/p>\n
Grand Chamber judgment of 7 February 2012, \u00a7 96) in Von Hannover v. Germany\u00a0(no. 2), has observed “[A] person’s image constitutes one of the chief\u00a0attributes of his or her personality, as it reveals the person’s unique\u00a0characteristics and distinguishes the person from his or her peers. The\u00a0right to the protection of one’s image is thus one of the essential\u00a0components of personal development. It mainly presupposes the individual’s\u00a0right to control the use of that image, including the right to refuse\u00a0publication thereof …”<\/p>\n
A celebrity acquires his celebrated status through intellectual, emotional and\u00a0physical efforts. Hence, only a celebrity can authorize the manner in which\u00a0his\/her name, goodwill and reputation can be used and successfully exploited\u00a0commercially. This exclusive right needs legal protection from being\u00a0encroached upon by people willing to ride on the fame of famous persons.<\/p>\n
In\u00a0India, Personality Rights per se, are not recognized as distinct legal rights but have been recognized through the Right to privacy and the Right to publicity. The jurisprudence for\u00a0Right to\u00a0publicity is in its nascent stages when compared to the global scenario. The only authoritative case on\u00a0Right to\u00a0publicity comes from the Delhi High Court, in ICC Development (International) Ltd. v. Arvee Enterprises.<\/p>\n
The court held that the Right to\u00a0publicity evolves from the Right to privacy and can inhere only in an\u00a0individual or in any indicia of the individual’s personality like his name,\u00a0personality trait, signature, voice etc. Any effort to take away the Right to publicity from the individual, to the organizer\/non-human entity would\u00a0violate Article 19 and 21 of the Constitution of India.<\/p>\n
Further, in India,\u00a0actor Rajnikant’s claim was the first public claim regarding the Right to\u00a0publicity. Rajnikant sought to protect his particular signature styles.<\/p>\n
Personality rights are\u00a0considered as property as opposed to Personal rights, and hence courts in India recognize the Right to license and sell the Right to publicity. The Right of publicity protects all persons’ rights from birth until death and in perpetuity. When the Right to publicity extends after death, it is\u00a0called post-mortem Right to publicity. There are significant differences\u00a0between countries in recognizing post-mortem Right to publicity. In India,\u00a0news about the movie, The Dirty Picture that was challenged by the kin of the\u00a0deceased actress Silk Smita, claiming that the movie did\u00a0not depict her\u00a0personality in the right light, was the first of its kind and showed that India belonged\u00a0to the category of countries recognizing post-mortem Right to publicity.<\/p>\n
Right to publicity actions are generally accompanied by pleas of false\u00a0endorsement and passing off. Enforcement of Right to publicity will be dealt\u00a0in Part II.<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
This post explores personality rights in India, focusing on the right to publicity and its legal development. It discusses how these rights are recognized through privacy and case law, with special emphasis on celebrities.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"iawp_total_views":33,"footnotes":""},"categories":[6,7],"tags":[426,6649,5,7439,3400,9976,7182,6009],"class_list":["post-13378","post","type-post","status-publish","format-standard","hentry","category-intellectual-property","category-media-and-entertainment-law","tag-celebrity-rights-2","tag-indian-law","tag-intellectual-property","tag-legal-protection","tag-personality-rights","tag-post-mortem-rights","tag-privacy-rights","tag-right-to-publicity"],"_links":{"self":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/13378","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/comments?post=13378"}],"version-history":[{"count":2,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/13378\/revisions"}],"predecessor-version":[{"id":139542,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/13378\/revisions\/139542"}],"wp:attachment":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/media?parent=13378"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/categories?post=13378"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/tags?post=13378"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}