“How Celebrities became Immortal”
Intellectual Property Right claims on the celebrity persona, proposes that the rising fame phenomenon in our society calls for a proportionate rise in the protection of our celebrities.
Celebrities have an economic stake in their personality rights which has also been recognized before in other jurisdictions, such as in the matter of Julia Robert’s case against Russel Boyd.
However, the Indian Judiciary recognizes “Right of Personality” and protects a person’s commercial interest in the value of his or her persona.
Personality rights are rights of a person who had acquired a celebrity status, and restraining others from commercially exploiting it has become highly important as celebrity or public figure have become a ‘brand’ in himself.
A result of judicial innovation, the right of personality comprise of two types of rights:
a. first, the right to publicity “to commercial exploit of one’s image without his or her permission or contractual compensation”;
b. and secondly, the right of privacy or, “i.e. not to represent one’s personality publicly without his or her permission” with economic and moral aspects.
In terms of publicity rights, the celebrity has the sole right to commercially use his or her personality. No third party can be economically benefited from the celebrity’s personality without his or her consent. As far as moral aspects of this publicity right is concerned, unauthorized association with the celebrity will harm the reputation of the celebrity resulting in defamation and violation of the celebrity’s rights.
Drawback of the right to publicity is that if celebrities are ‘personalities of history’ they fall under an exemption i.e. for example incidental or educational usage, as well as use in news, sports and public affairs programmes. If they are part of public life, they have to accept that publication of their photograph as part of the legitimate interest of the public.
The term ‘Right to Publicity’ was coined in the case Haelen Laboratories v. Topps Chewing Gum and Justice Frank recognized the economic interest a celebrity had in his or her personality.
In Auto Shankar case, the Supreme Court recognized that the right to privacy as a part of the fundamental right to life and the court recognized that if the violation was by a private person then the unwarranted interference could be treated as a civil wrong and the right to privacy could be enforced.
Lastly, a ‘passing-off’ action is available against any third party who causes injury to the identity or image of the celebrity by misrepresenting and trying to ‘pass-off’ his or her goods or business.
To conclude the Endorsement advertisers have to be careful of certain key points for celebrity endorsements like unauthorized appropriation of identity, violation of private rights, working within the scope of publicity rights.