Furlenco is a business that rents furniture, beds, etc. Their website claims quick setup, free home delivery, and affordable furniture. The business has been advertising extensively on radio and other forums.
On hearing the advertisement, you cannot help, but associate the voices that form part of the advertisements with personalities like Arvind Kejriwal, Chief Minister of Delhi, Arnab Goswami , renowned news reporter, and Amitabh Bachchan, a leading film star. There is no doubt that these personalities are celebrities in India, and hold celebrity or publicity rights. Now, the question is whether the use of likeness to their voices amounts to violation of their publicity rights?
The question of course has no relevance if the said celebrities have endorsement contracts with Furlenco. But, assuming that they do not have any such contracts, is Furlenco allowed to use any likeness to their voice? It is well accepted that a celebrity’s persona includes her/his image, likeness, voice, etc. That means that a celebrity’s voice, or its imitation cannot be used for commercial endorsement without permission, unless the use amounts to fair use, parody, free speech, etc, exempted uses.
Furlenco is surely using a likeness to the voice of Amitabh, Arnab etc. and that surely amounts to violation of their publicity rights. Now, the question is whether such use is parody, criticism or free speech. On its face, the advertisements are directly related to Furlenco’s business, and amount to commercial use. It is well settled under the law that commercial use is permitted within the parameters of the exemptions.
Assessing fair use, parody, free speech, etc, has never been very easy, and is often a subjective enquiry. Having said that, on hearing the advertisements, one can argue that the advertisements are not trying to make fun of a celebrity, or even criticize any element of their persona, they are primarily aimed at advertising Furlenco’s services. The voices are merely used as tools to promote their commercial interests, and the particular manner/mode of use might not amount to free speech or expression. On the other hand, it can be argued that the ads are making fun of the celebrities by exaggerating specific traits, and are therefore parodies.
The issue is of course not before any Court at this point, and for academic purposes, these advertisements are good examples to discuss. It will in fact be interesting to think about different variations of the ads to arrive at what might be, and might not be violation of publicity rights.
Daler Mehndi, Sonu Nigam, and Kajal Aggarwal cases will be instructive in the matter.