Abstract-
It is said that famous persons have a charismatic appeal and have more influence on the people. More recognized and well known a person is, the more he has a center of attraction. Personality rights are moral rights that are attached to celebrities. These rights are in respect to their lifestyles, behavior and things they do in form of advertisement, marketing, performing in public space. Personality rights can be acquired when the courts grant them the recognition. But in other countries the law itself gives the statutory right of having personality rights attached. Often these rights are targeted and misused by many, prompting the celebrity to resort to courts to seek protection of their rights. The Scholar attempts to explain who all can be termed as celebrities, what rights that can be protected, and the need for having proper laws in India with the help of examples. This research paper attempts to highlight the legal challenges faced by celebrities and remedies available for them. The paper attempts to give a holistic view of celebrity personality rights to readers.
Keywords– Celebrity, Personality Rights, Publicity Rights, IP Protection, Trademarks
Introduction-
It is a common practice for a celebrity and well-known personalities to endorse the brand, doing paid promotions or performing at live concerts. For such purposes the celebrities have to lend their images, voice and names to carry out such promotions. While doing this can be a good source of earning the money, there arises cases where the rights to celebrity can get seriously affected. In order to prevent the misuse and exploitation, Intellectual Property Rights came as a helping hand to protect the rights of such distinguished personalities. Now the question arises who might be called a celebrity, what kinds of rights that are protected under the IP law, the need of protecting such rights, what are the advantages of doing so, all these questions shall be answered in this paper.
Research Methodology–
This paper is of descriptive nature and the research paper is based on the secondary sources for the better and thorough understanding on celebrity personality rights explained with the help of various examples. Secondary sources of information include newspapers, journals, and websites used for the research work.
Review of Literature–
“Richard B Hoffman defined the celebrity as – a person who, by his accomplishments, fame or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doing, his affairs, and his characters, has become a public personage. He is, in other words, a celebrity”. This is a well-defined definition of who a celebrity is and adapts perfectly in common parlance.
Under the Copyrights Act, 1957, the ‘definition of performer’ comes close to understanding who can be celebrity. “The act defines a performer as an actor, singer, musician, dancer, acrobat, juggler or any other person who makes a performance”. This definition is widely used by the students and scholars to analyze the non-existing definition of celebrity.
Rise of social media has resulted in anybody becoming an overnight sensation. In March 2022, Bhuban Badyakar went viral for his song “Kacha Badam” and gained lakhs of views and was trending for long time. Similarly, Aditya Kumar, a class 6 student from Bihar, gave amusing response of “Aayein Baigan” when asked about his favorite subject, thus giving birth to famous meme. 19-year-old Pakistani influencer Dananeer Mobeen attracted lot of attention when she created a video and said “yeh hamari pawri ho rahi hai”. Thus, it can be rightly said that even normal reactions and instances can help become overnight celebrities.
Who all can come under the ambit of “Celebrity”
There is no exact definition that can be found on celebrities under any specific statute. Celebrity can be understood as someone who is well-known, famous and commonly known to the general public. It is the public perception that affirms whether the person has acquired the distinctiveness or has achieved something so great that makes that person stand out. Celebrity status can also be either limited to specific regions or gain cross border reputation around the world. The tag of celebrity continues till the time people continue to associate the person. It means once the people stop talking about the person, the status of celebrity also diminishes over time. It is quite similar to the fame a person gets.
What are Celebrity Rights–
Once a person becomes famous and attracts the limelight and center of attention, the celebrity’s fame generates monetary value, has the potential to get commercial gains that boosts the business and means of celebrity earning profits. But as the saying goes, famous people are always at risk of getting played or duped by unauthorized exploitations of their rights. In order to safeguard the rights of celebrities there are certain rights that are guaranteed to protect themselves from such situations. These rights are broadly classified into “three main types- Publicity Rights, Personality Rights and Privacy Rights”.
Publicity Rights-
They are also called “Merchandising Rights”. Under such rights the popularity of the celebrity is channelized to make monetary benefits. However, the same rights can be exploited by the unauthorized use by a person in order to get the undue profits, it amounts to misappropriation of the celebrity’s right. It must be then proved by the celebrity that any such act affects rights and how he will suffer losses.
Personality Rights-
Also known as “Moral rights”, it aims to protect the identity of a person and restrict any kind of illegal or unaccounted use for commercial gains. In India, there is still no specific law that governs the personality rights of individuals, but the courts have been very instrumental in providing support to conserve such rights in the form of judgements in favor of celebrities. Personality rights have commercial value which can mobilize and influence the public at large.
Privacy Rights-
This right is one of sensitive rights that is available to the celebrity as it relates to day-to-day life of an individual. The public, especially the paparazzi, are always overly curious to get the glimpse of their favorite celebrity. In doing so they often break the privacy rights of celebrities, and sensitive information can come before everyone. Therefore, the privacy rights safeguard the celebrity from restricting unintended disclosures. “Right to Privacy is recognized as the Fundamental Right under article 21 of the Constitution”.
Protection Under Intellectual Property Rights Given to the Celebrities-
Since there is no specific statute that specifically governs the personality rights, there are certain provisions under the Intellectual Property that protects the rights of personalities.
Trademark-
Registering the trademark signifies multiple aspects. One, the celebrity is keen to diversify the trademark that was registered and is open to licensing or merchandising. Second, such registration also empowers the celebrity to protect their rights from any unauthorized usage. In India, Trademarks Act 1999 governs the framework of trademarks. Apart from the characters, film titles, the courts have granted protection to various celebrities themselves.
In 21st century the number of cases when celebrities have trademarked their names has increased multifold levels. It helps in navigating the deeper world of celebrity branding. The primary question that arises here is- “should a famous person be required to register his name, nickname, images, voice, catchphrase as trademark to protect their rights”? If any individual, even if not a celebrity wishes, has the desire to use their name and image for the commercial purpose, he should register the same as a trademark.
What about when the person did not wish to have the commercial gains, even then it is advisable for the celebrity to register their name, initials or things associated with them. This can be seen as a safe precaution that can be taken to avoid any infringement of rights. A famous example of this was related to famous basketball player Michael Jordan. In China various trade names and trademarks were found to be using the “Jordan’s name and translated name in Chinese characters”. It took a long battle for Jordan to prove that such names do in fact indicate his name and his reputation was being misused.
Therefore, it is highly recommended to a famous personality to register their name, images and act vigilantly otherwise they are at high risk of being infringed of their rights. While in India there is no specific law that relates to personality rights, In USA, the Lanham Act provides for the robust and comprehensive protection against any illegal exploitation of the “personality rights under section 43(a) of the act”. However, registering the name for “Defensive Purposes” in the US has its own difficulties as it mandates bonafide intent and actual commercial use.
In order to register the image of the person, “the image or photo should be distinctive enough to be recognized by the general public as the indication of goods or services associated with the person” and be able to differentiate from others.
Registering the name, nickname or image of the celebrity is not that quite easy task, it has its own set of challenges. It requires a considerable amount of money and resources to register and maintain the trademark. Also, it is important to note that if the registered trademark is yet to be used within three years of registration it stands at risk of getting canceled on account of no-use.
Registering a name that is “too generic, common and lacks distinctive features” is a daunting task. For example, a trademark for JENNIFER for cosmetic products cannot be ascertained to one individual because there are multiple celebrities whose name is Jennifer. Therefore, if a celebrity wishes to register their name, such name should be unique in order to get registered.
The challenge is not limited to registering, even if the name has been registered, it won’t stop the infringers from violating the rights of celebrities. This becomes even more problematic when both the parties have somewhat similar names on grounds of descriptively fair use. Thus, no matter how much effort a celebrity has undertaken to register their name, the perpetrators always find a way to get associated with the trademark.
In the era of social media, e-commerce, digital marketing and advertising, protecting the rights become even more important. It is especially essential in today’s time because advertising and marketing teams largely depend on the name and image of a celebrity to build their brand.
The bigger issue is not whether the celebrity registers the name, the main cause of concern remains how effectively to deal with abusive registration before the celebrity realizes the great power of commercial value. “A trademark registration without enforcement is a piece of paper with a shiny seal”. Hence the celebrity should cash on opportunities to protect their rights.
Real Life Examples where the Celebrities have tried to Trademark the Names
Outside India Scenario–
Celebrities outside India have been more vocal, aware and proactive when it comes to protecting their celebrity rights. This can be because in their country they have a specific law that deals with personality rights, unlike India where the celebrities only have to rely on court interpretation.
The application of the celebrity’s name and brand has wide scope and it can be utilized for various purposes. In building a brand reputation a celebrity leaves no stone unturned and aggressively markets goods or services in various sectors like clothing, perfumes, sports equipment, entertainment services, fitness etc.
There are various attempts made by celebrities to trademark certain things. Let’s look into detail-
Paris Hilton’s catchphrase “That’s Hot” became popular and it received the registration in 2006; Taylor Swift registered the lyrics of her 1989 Album which include “this sick beat, cause we never go out of style and party like it’s 1989”.
Enforcement of Rights-
Apart from trademark application and registration, celebrities also try to enforce their proprietary rights on such marks and have taken action when someone violates.
Personality rights first gained prominence when Actors “Catherine Zeta-Jones and Michael Douglas sued Hello! Magazine for publishing their marriage photos in the magazine without permission”.
Famous Portuguese Football player and Icon Cristiano Ronaldo has trademarked “CR7” which is his initials and jersey number. In 2013 he in partnership with JBS textile Group launched ‘CR7 underwear brand’. When they decided to enter the US market, they found out that “CR7” had already been taken by another person. The company contested that the “mark was so close to the fame and reputation of Ronaldo that the connection with the football player would immediately be presumed by the people”. However, the application before the USPTO by Ronaldo for trademark was later suspended.
Argentinian Football Maestro Lionel Messi was successful in his appeal before the General Court of the European Union for registration of trademark “MESSI”. This was requested by Messi for Sports, footwear, gymnastic clothing and equipment in the European Union Office for Intellectual Property (EUIPO). However, the dispute arose when one Spanish company named MASSI who operated in cycling gear manufacturing opposed the registering of Messi claiming it was phonetically similar with Massi. The EUIPO initially dismissed the appeal filed by Messi. It was challenged and the court found that “Mr. Messi is a well known public figure and popular across the globe and especially in Spain given he plays for club in the country”, the court said the football player “fame counteracts the phonetic similarities between his tradename and Massi”.
Rihanna, the pop star and fashion icon, successfully sued ‘Arcadia Group Brand Ltd’ for selling T-shirts bearing her image. She contended that her image was used without her permission. She argued the sale of merchandise with her image violated her rights of passing off since people would assume it is an official sale of Rihanna. “The court recognized the proprietary rights of Rihanna and said if this continues it would amount to damage to the goodwill of the singer and loss of sales to her”.
French Footballer and World Cup winner Kylian Mbappe is already ahead of Messi and Ronaldo when it comes to IP protection. Aware of the immense commercial power, Mbappe has acquired seven EU Trademarks, most for any footballer. The list includes “his iconic crossarm celebration pose in white, black and grey, his name including surname, and logo of his company”. Mbappe also registered his two iconic “quotes Le Football, il a change (Football has changed) and Moi, tu m’parles pas d’age (You don’t talk to me about age) for a wide range of products”. Mbappe’s celebration became widely famous as he often posed after scoring a goal. Once granted, Mbappe will have a trademark in eight categories in Nice Classification.
Renowned Athlete Usain Bolt “signature celebration style pointing to the sky” application is pending before the US Application office.
Registering for a trademark is not restricted just to players. In Europe several big clubs own multiple trademark protections. Real Madrid, often called as Kings of Europe, leads the “most number of EU Trademarks with 33 and 24 designs” including the shape of their stadium- Santiago Bernabeu. FC Barcelona has “22 EU trademarks and 7 designs”, Bayern Munich, Manchester United and PSG roundup top 5 in most trademarks.
Indian Scenario-
In India, the celebrities were less proactive when it came to registering the personality rights. But the situation is changing now as several A list stars are coming to courts for granting them the trademark and getting protection.
Shah Rukh Khan leads the actors in most classes of trademark registration with 45 classes of Nice Classification. It covers almost every aspect of protection that can be granted. Thus, he has covered all his bases.
Kareena Kapoor has registered her signature in relation to goods falling under the category of Fashion, clothing, beauty products, footwears, leather goods, travelling accessories. Katrina Kaif also has similar categories of protection.
Filmmaker Rohit Shetty applied for trademark for “Rohit Shetty Picturez” in related to entertainment class under Nice Classification.
Delhi HC passed an order in favor of Bollywood Megastar Amitabh Bachchan which stated “No person can use the name, image, voice and other personality attributed to Mr. Bachchan without his consent”. The actor also sought to restrain the publishers, vendors to stop using his image in an illegal manner. The actor who hosts popular reality show “Kaun Banega Crorepati” has faced the challenge of infringers mimicking his voice to thug the innocent people.
Veteran Actors Anil Kapoor and Jackie Shroff also had to seek courts to grant them the appropriate power to protect their personality rights. Anil Kapoor whose famous dance move step from his movie Ram Lakhan has been recreated numerous times. The Actor wished to protect his personality rights and seek to refrain from people using his name, voice or image without any proper permission in any advertisement or merchandising. Jackie Shroff who popularized the Marathi Slang “Bhidu” said to Delhi HC that “many persons are using his name, images and earning huge money by doing defamatory stuff online making jokes and memes”. Unlicensed use of his name and personality amounts to breach of his rights. Such adequate protection must be granted so that people are not misled into buying things believing it to be genuine. His lawyers argued that the actor is well known and has goodwill to his name. The Court granted the rights to the actor refraining anyone who is found to be using his rights without prior consent.
Shuttler PV Sindhu, fresh after winning the Bronze Medal in Tokyo Olympics 2021, took cognizance of several brands trying to use her image in order to congratulate her for the win, and took action against such brands for associating her image without her consent. This becomes very essential to protect the rights of sports persons.
“Singer Kumar Sanu is all set to become the First Indian Singer who will be granted protection in his personality rights”. The ‘Baritone voice’ of singer is quite popular and often copied by people. In such cases, the singer does want his voice to be used for wrong reasons. The rise of technology, especially Artificial Intelligence, can be very dangerous as it can create the duplicate voice of any person. Once the right is granted to Kumar Sanu, it will pay the road for fellow singers as well to seek Court’s help in getting protection.
Copyright-
Copyright gives the protection to individuals who seek to protect their Original Literary, Artistic, Dramatic, Musical, live performance, work. If the person met the criteria of getting Copyright to a given work, the person acquires the copyright rights and can sue any person who is found to be infringing his rights. In India, the Copyright Act of 1957 governs the law related to copyright.
Taking latest example to show how the celebrities copyright rights is infringed-
Scarlett Johansson and Open AI Controversy–
Open AI model Chat GPT introduced a new version “Sky”. It has special features where the AI bot talks with humans in sultry voice to enhance the engagement between human and machine. The point of controversy erupted when Hollywood Actress Scarlett Johansson said the voice of Sky was “eerily similar to her voice she lent for her 2013 movie Her, where she played the character of AI girlfriend”. While the Sam Altman CEO of Open AI has denied using the voice of actor, this case resembles the issue of copyright infringement of the actor. The performer right is getting affected for unwarranted use. This is not the first time Open AI has been accused of copyright infringement as The New York Times also accused OpenAI of copying input and output models of OpenAI.
Suggestions-
Celebrity fight for IP protection is Double edge sword-
Celebrities are increasingly approaching the courts to seek protection of their rights. While protecting IP rights is crucial, there needs to be a balanced approach to support creativity and innovation in the digital age. Clear legal understanding and effective communication helps in mitigating the problem. Celebrities also have to consider when dealing with memes, satire humor in light hearted manner.
Calls for Specific Law-
In India there is no specific law to deal with personality rights unlike the USA. This calls for having laws that exclusively deal with the topic. This will result in less burden on courts who already faced a workload of cases. Having the law would be a deterrent and helpful for celebrities. Such rights are necessary today and the legislature must act upon this soon.
Debate of AI and IP Rights
AI is set to become an essential part of our lives. It possesses both advantages and adversaries to people. Technology evolves much faster and law is left far behind. In India, law needs serious overhaul to keep check of AI waves. The law needs to be amended so that it covers all bases properly.
Provide efficient remedies in case of infringement-
Celebrities must be made aware of what all remedies they can have in case their rights are affected. A uniform and comprehensive guidelines must be provided to assist them in such cases.
Need awareness-
In India, most celebrities fail to understand the true potential of the rights that are available to them. They ignore the basic rules and ultimately face damage to reputation and goodwill. While some celebrities have secured rights, many are now expected to follow the same suit.
Conclusion-
Intellectual Property Rights is the field of law which continuously evolves and changes. While India still lacks behind, it has serious potential to rise and match the other countries. There is scope of making the amends now to implement either new laws or to revamp the existing ones, either way change is inevitable. If India manages to make the changes it has a chance to show and lead the world when it comes to intellectual property rights. Until then the celebrities will have to go through the conventional method of restoring to courts for enforcement of their rights.
Nandan Bharat Rathi,
Hidayatullah National Law University, Raipur