Protection of Celebrity Rights in India

    A celebrity is a person who works hard all of their life to become well known and then wear dark glasses to avoid being recognized[1]. Celebrity’s right to privacy is continuously violated by misappropriation in many ways. There are constant breaches of publicity rights and of the right to commercial use of their name. Being in the eye of public domain constantly, their private lives are often encroached upon, leaking their private details to the public. We live in an age where media is omnipresent. Hence celebrities often find themselves in the midst of some news involving not only their public life but more so their private life. Misrepresentation or defamation is often popular by illustrations in the wrong light, photos in publicity without permission and tabloid stories linking them to improper behavior. Employers are intervening and invading their employee’s privacy with the help of hidden cameras, computer surveillance systems, emails, websites and other applications in the interests of avoiding fraud, abuse, etc. Hence it has become of utmost importance that celebrity rights are acknowledged under the ambit of IPR to protect them from further harm. 

    Who is a Celebrity?

    The key criterion for deciding whether an individual is a celebrity or not is, public perception. A substantial part of the population views the term ‘celebrity’ as an honor and a reward for success. India is a place where cinema, art and culture have always been given prime importance. Celebrities particularly movie actors are considered equivalent to gods owing to the massive impact of movies on the population. Contrary to this, there exist no laws in India to protect their publicity rights nor their privacy rights which have often been infringed. Indian Copyright Act contains no definition or concept of “celebrity.” However, the idea of who a performer is as given in Section 2 (qq) [2] can be referred to. Though a performer is not always a celebrity and vice versa. Therefore, the copyright act takes into account only two kinds of persons, writers and performers who have the ability to become celebrities and their associated rights. The Copyright Act is the last remnant of all Indian copyright provisions. In accordance with the relevant Provision, the Copyright Act grants certain rights for all ‘works’ under S. 2(y). These copyrights include mostly economic rights such as the right to reproduce and avoid unauthorized reproductions (S. 14) [3]. Such rights can be transferred (for example such rights in a film can be sold by the producer). The Copyright Act also establishes certain privileges to ‘performer’s rights (S. 38) but are applicable only where performers are concerned.

    Importance of Celebrity (Actor’s) Rights

    • Evidently, the public image that a celebrity carries is of immense value and the celebrity has the sole right to exploit this commercial value for his benefit. Furthermore, celebrity rights are assignable and commercially licensable. Recognizing this intangible asset as a property or a good means that, like any other intellectual property, it will be subject to taxes as a capital asset.
    • Secondly the celebrities’ descendants will prosper from the notoriety that the celebrity has generated during his lifetime.
    • Thirdly, to protect performers by: (i) prevent bootlegging; (ii) monitor the abuses of performers who cannot manage their own circumstances and (iii)reduce insecurity among performers by fear of “technological unemployment” such as the substitution of musicians by recorded music.

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    Types of Celebrity Rights 

    Privacy Rights

    People like to personalize celebrities and take an interest in every aspect of their life. Celebrities, on the other hand, tend to keep their personal details under wraps because disclosing it could result in embarrassment or humiliation, as well as a sense of insecurity. In the U.S case of Barber v Times Inc it was established that “In publishing details of private matters, the media may report accurately and yet at least on some occasions may be found liable for damages. Lawsuits for defamation will not stand where the media have accurately reported the truth, but the media nevertheless could lose an action for invasion of privacy based on a similar facts situation. In such an instance, the truth sometimes hurts”. This very well hints towards the need to implement privacy rights for the celebrities and take the breach seriously.

    Publicity rights

    Publicity right is the right to regulate the commercial use of one’s identity. The ability to benefit from the economic value of a person’s name and fame is also known as merchandising rights. The right to publicity comes from the right to privacy, which can only be inherent in the name, characteristic of a personality, signature, expression, etc. or some other indication of the person’s personality. The Delhi High Court in the case of ICC Development v. Arvee Enterprises, said that the right to publicity can be obtained by a person through his participation in a certain case, sport or movie. That right, however, does not belong to the event that made the person famous, nor does it belong to the company that organized the event. Any attempt to transfer the right of publicity from individuals to the event’s organizer, a “non-human body,” will be considered as a violation of Article 19 and Article 21 of the Indian Constitution. There is no such thing as a monopolized character. Individuals own the right to publicize themselves, and they are the only ones who can benefit from it.”

    Personality and Moral Rights

    Personality is a feature that makes it possible to remember one person. The personality of a person is the image of him/her and his or her anticipated social behaviour.. ‘Moral rights’ are specified in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (Paris Revision, 1971), to which India is a signatory. As a result, S57 of the Copyright Act, which confers these rights on authors, has been incorporated into Indian law. The right to integrity and the right to paternity are two examples of ‘moral rights.’  The right to integrity refers to the right to avoid vandalisation or contortion of an author’s work, whereas the right to paternity refers to the right to be recognized as the work’s author. These privileges are not transferable. For eg, even after selling his painting to the government, the artist Amar Nath Sehgal could prevent it from being mutilated.

    Are Celebrity Rights Protected Under Indian IP Laws?

    The answer is no. India lacks in having sufficient case laws and statute governing celebrity rights per se. 

    Trademark

    Some trademark rights may be given to celebrities and commercial partners in India, but such protection may be constrained. The Indian Trade Marks Act, 2000 calls for the registering of a trademark as a sign “which can differentiate one individual from the others’ products and services, any word (including personal names)..Indian courts have granted trademark rights to movie names, characters, and their names. Star India Private Limited v Leo Burnett India (Pvt) Ltd was the first case in India to deal with character merchandizing, but jurisprudence is still developing and character merchandizing is a field in India that has yet to evolve.

    Copyright

    Actors in films do not have any protections under the Copyright Act. The Copyright Act only allows for three different types of rights to be issued:

    i)Acting in a film will be entitled to a copyright (under S13(1)) if it counts as a ‘work’ ( mentioned in S2(y) of the Copyright Act). However, in Fortune Films v Dev Anand, the Bombay High Court division bench held that acting in a cinema does not come under any of the catalogued categories of ‘works,’ and hence is not entitled to a separate copyright 

    (ii) As an artist, an actor should be entitled to such privileges. S38 of the Copyright Act also gives ‘performers’ such ‘performer’s rights.’ Actors in cinematograph films, unlike singers, dancers, and theatre actors, do not have access to this. This is due to the fact that S38(4) expressly prohibits performers who have ‘sanctioned to their appearance’ in films from being granted any performer rights.

     (iii) The Copyright Act grants ‘writers’ special protection or ‘moral rights’ (S57). If an actor is classified as a ‘author,’ he is entitled to certain ‘special rights,’ also known as ‘moral rights.’ Actors, on the other hand, are not included in the definition of “authors” (defined in S2(d)).  It is thus clear that the framers of the act did not confer ‘authorship’ on actors.

    Thus actors cannot make use of the right to copy, the specific rights of the author (moral rights) or of the rights of the artist. It is therefore clear that actors are not entitled under the copyright law and that Indian law’s stance is unequivocally explicit in this respect.

    Need to Confer Moral Rights to Actors/Celebrities

    There are two main reasons to confer moral rights to celebrities:

    The first is part of the very reasoning or the grund norm behind copyright: to protect individuals’ creativity and to offer financial incentives for creativity. It is evident that in most major Bollywood movies actors contribute creatively to character growth. As a part of the artistic elements in a film, it is only fair to conclude that separate rights must be granted to them . S13(4) of the Copyright Act recognizes the options by providing for an independent existence of the copyright for any work for which the film is produced. The Supreme Court has reiterated this conceptual possibility in Indian Performing Rights Society vs Eastern India Motion Pictures Association that a copyright can be vested in creative components of films. The Copyright Act curiously denies actors such rights.

    The second explanation for copyrights to actors is one of need. The theory of equity calls for the protection of a commercially viable picture on a computer. Conferring ‘moral rights’ on actors shall make sure that their on-screen view is not ‘distorted, changed’ and that the actors’ ‘honor or credibility’ will be prejudiced by this (S57(b)).

    Conclusion

    Celebrity rights are an essential feature of an artist or person and fall under the scope of IPR. Taking into consideration the impact of celebrities on a common man’s life and developing law in our country. The author believes that it is time that the legislators enact clear legislation regarding the rights of the celebrity that will create, demonstrate and protect the rights of celebrated persons from misuse and at the same time provide them with privacy. In an era in which a ‘name’ has a value, creatively must be protected by a myriad of laws. The amendment of S57 of the Copyright Act and the conferral of ‘moral rights’ is therefore urgently needed. 

    REFERENCES

    1. Fred Allen.
    2. Tabrez Ahmad, Satya Swain: “Celebrity Rights: Protection Under IP Laws”, 16 Journal of Intellectual Property Rights, 7, 7-16,  (2011).
    3. Provisions of Copyright Act and Copy Right Rules, available at: https://isracopyright.com (accessed on 14 May 2021)
    4. Copyright Rules, 1957, available at: https://copyright.gov.in/Documents/CopyrightRules1957.pdf  (accessed on 14 May 2021).
    5. Ibid.
    6. Tabrez Ahmad, Satya Swain: “Celebrity Rights: Protection Under IP Laws”, 16 Journal of Intellectual Property Rights, 9, 7-16,  (2011).
    7. Ibid.
    8. Keller Bruce P, “Condemned to repeat the past: The reemergence of misappropriation and other common law theories of protection for intellectual property”, Harvard Journal of Law & Technology, 11 (2) (1998) 401.
    9. Tabrez Ahmad, Satya Swain: “Celebrity Rights: Protection Under IP Laws”, 16 Journal of Intellectual Property Rights, 9, 7-16,  (2011)
    10. 2003 VIIAD Delhi 405, 2003 (26) PTC 245 Del, 2004 (1) RAJ 10.
    11.  (1077 ) 433 US 562.
    12. Berne Convention as Revised- Article 6bis, available at: https://www.law.cornell.edu/treaties/berne/6bis.html (accessed on May 14, 2021).
    13. Vinay Ganesh Sitapati: “Conferring Moral Rights On Actors: Copyright Act and Manisha Koirala Cas, 38”, Economic and Political Weekly, 1360, pp 1359-1360, (2003).
    14. MANU/DE/0327/20.
    15. Tabrez Ahmad, Satya Swain:“Celebrity Rights: Protection Under IP Laws”, 16 Journal of Intellectual Property Rights, 10, 7-16,  (2011).
    16. (2003) 2 B C R 655.
    17. AIR 1979 Bom 17.
    18. Copyright Rules, 1957, available at: https://copyright.gov.in/Documents/CopyrightRules1957.pdf  (accessed on 14 May 2021).
    19. Ibid.
    20. Vinay Ganesh Sitapati: “Conferring Moral Rights On Actors: Copyright Act and Manisha Koirala Cas, 38”, Economic and Political Weekly, 1360, pp 1359-1360, (2003).
    21. AIR 1977 SC 1443.
    22. Vinay Ganesh Sitapati: “Conferring Moral Rights On Actors: Copyright Act and Manisha Koirala Cas, 38”, Economic and Political Weekly, 1360, pp 1359-1360, (2003).

    BY SAVNIE SHERKAR, SIDHANT SOMANI, MAHARASHTRA NATIONAL LAW UNIVERSITY NAGPUR

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