Social Media and Intellectual Property (IP): Part V – Publicity Rights and Celebrity Rights

Social Media can make or break a personality. Most public figures from film stars like Amitabh Bachchan, Will Smith, Aishwarya Rai, etc., to political leaders like Narendra Modi, Barack Obama, etc., are very active on Social Media. While on one hand, Social Media enables celebrities gain popularity, on the other hand, a celebrity’s activities on Social Media platforms makes it possible for extensive misuse and abuse of a celebrity’s persona. Over the years, several instances of passing off, false endorsement, misappropriation and publicity rights violations on Social Media have been reported.

Publicity Rights in India

Unlike states like California in USA, India does not have a publicity rights statute, and the concept of publicity rights is a figment of judge made law. The Daler Mehndi case, where legal action was taken against sellers of dolls of the famous Indian singer, was the first case to comprehensively discuss the ingredients of publicity rights.

The right of publicity, which springs from public recognition, enables a person to control the commercial exploitation of his/her persona, including name, likeness, signature, or any other identity. In other words, no person can use any trait of a celebrity to promote commercial products without authorization. Celebrities earn substantial revenues by permitting the use of their persona with commercial products, and publicity rights play an important role in preventing false endorsement and the tort of passing off.

To hold the right of publicity, a person must be well recognized among the general public in such a manner that the public can identify the person based on one or more aspects of his persona. By virtue of acquiring publicity rights, a person acquires the right to prevent commercial use of his persona without permission. Publicity rights will be considered misappropriated if the person’s persona or identity is used in an unauthorized manner for commercial benefit. Despite the existence of publicity rights, a person cannot curtail another person’s freedom of speech and expression. Activities such as caricature, lampooning, and parody, all of which qualify as free expression, are permitted and are not considered as violations of publicity rights.

Publicity Rights on Social Media

The structure and functioning of Social Media and the enabling technologies on Social Media platforms encourage publicity rights violations, directly and indirectly. For example, the share feature allows people to share image, likeness, etc. of a celebrity. Tools allow people to modify facets of a celebrity’s image, identity, and so on. Other tools allow users to adapt a celebrity’s persona for promoting a product. All activities can be performed so easily that the temptation to use a celebrity’s persona is very high.

It is therefore not surprising that several instances of publicity rights violations happen on a daily basis on Social Media. In one instance, basketball super star, Michael Jordan, sued a food store Jewel Food for running a congratulatory campaign on Twitter, after he was inducted into the basketball Hall Of Fame. Though Jewel Foods argued that it was commercial speech, the Appeals Court held that the action of the food store amounts to publicity rights violation.

In another case, Ranveer Singh, an Indian star sent a notice for violation of his publicity rights to an organization, youcustomfreak, for using his image and the name of his film for selling slippers on Facebook. Realizing its mistake, the organisation immediately took down the infringing content.

Facebook has enabled even an ordinary person attain celebrity status. When Facebook launched a program of sponsored stories for advertising products and services, a group of users sued Facebook. Among other claims, they argued that the use of their names and images amounts to violation of their publicity rights. The Court agreed with them, thus giving users of Facebook celebrity status to initiate publicity rights actions.

Handling Publicity Rights Issues on Social Media

It is important for businesses and corporates to be aware of publicity and celebrity rights issues while designing their advertising, marketing and promotional programs on Social Media. A seemingly harmless act on Social Media may sometimes give rise to a publicity rights cause of action. Most celebrities sign very high value endorsement contracts, and an action for false endorsement, publicity rights violation or misappropriation can prove to be very costly.

A business may take the following steps to handle publicity rights issues:

• Review and analyze advertisement and promotional campaigns for potential publicity rights issues;
• Run the advertisement through a legal expert when in doubt;
• Acquire permission of celebrities and users, if required. Most users are happy to permit an organisation to use their name, image, etc.;
• Take quick remedial steps as soon as a notice is received; and
• Design use of persona of celebrities strategically to avoid issues. For example, parodies, lampooning, etc., can be done without permission of a celebrity.

Contributed by Social Media Law Team of BananaIP

If you have any further questions on the subject, write to [email protected]

BananaIP’s reputed Social Media Law experts will revert at the earliest.

Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011)
Michael Jordan V. Jewel

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