Personality Rights: Legal Presence in India

Personality rights
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Overview

Celebrity endorsements are one of the most common of all. Many companies can be seen featuring celebrities or famous personalities in their advertisement to limelight themselves. CRED’s association with gold medalist Neeraj Chopra is a recent most example. However, companies sometimes are found violating the rights of celebrities. There is unscrupulous use of any famous person’s identity without proper approval. This is what brings us to ‘Personality Rights’ or much commonly termed ‘right to publicity.

Advertisement is one of the crucial elements of marketing. Over the decades its importance has grown exponentially. The growth in advertisement ways and methods is diverse. The code for Self regulation of advertisement content in India defines advertisement “ as a paid-for communication, addressed to the public or a section of it, the purpose of which is to influence the opinions or behavior of those to whom it is addressed.”

Introduction

Personality right means a person’s right or control over his identity to control the commercialization of his identity. The person’s image, likeliness, social admiration, fan following or some unique presence in the minds of the public are the elemental parts of his identity. Right to publicity can be branched out of right to privacy. Although contrasting in their sounds, right to privacy is about the protection of personal liberty.

Right to publicity was first coined by Judge Jerome Frank in 1953. Right to publicity and personality rights are synonymous in use. Astonishingly, right to publicity is not a realized right in India. Yet, cases do knock the courts where the Supreme Courts and High Courts have given judgement. It is worthy to quote from the R RajaGopal V. State of Tamil Nadu where the court was found mentioning right to publicity which follows as  

The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised.

And further went to lay out
The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent as explained hereinafter.

Many such cases observe upon celebrity rights.

Concept and laws

Right of Publicity is a wide concept within. The first question which comes to mind is who hold these rights. Well, anyone can have those rights but the elements of the right come with a celebrity person. The celebrity is not defined in any law. In the case of Titan Industries Ltd. V. Ramkumar Jewellers High court of Delhi defined a celebrity as – ‘ a famous or a well-known person and is merely a person who ‘ many’ people talk about or know about.

Also the judgement of ICC Development (International) ltd. V. Arvee Enterprises  is referable.

The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual’s personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc.

In the absence of any specific law on right to publicity, it completely vests upon article 21 of the constitution. Some laws have provisions that help a person to enforce their right.

Trademark Law is also one such law that grants protection of image and name. The name can be registered under the law against the misuse of the public image of the name.

Section 2(m) of Trademark Act reads “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof

The code for Self-regulation of advertisement in Chapter 1,1.3  mentions
Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute.

Cybersquatting

Digital media is an important platform for advertisement.  The internet has an immense public outreach from every corner of the world. The protection of celebrity rights become more important and also challenging.
Cybersquatting is registering, selling or using a domain name with the intent of profiting from the goodwill of someone else’s trademark.
In the Arun Jaitely case of cybersquatting court laid down

The domain name is usually an address given to the website so that the person intending to visit the same may visit the website of the identified person. the domain name does not merely remain as an address but rather performs the function of a trade mark as the prospective customers or other known persons visit the webpage and are able to immediately connect with the source and identify the same with the particular company or the individual.”

Conclusion

This is the era of advertisement. As well said, You can’t buy engagement. You have to build engagement. It is significant to consider that advertisers sometimes cross lines. For the same, a more active law on personality rights is the dire need of the time. The courts’ practical approach have provided justice to the celebrities claiming for their rights law would bring uniformity in action.

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