Recognizing rights when a person is the brand

By Shabnam Khan, Lall Lahiri & Salhotra
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Personality rights is a colloquial term for the right to publicity. It refers to the right of individuals to control the commercial use of aspects related to their identity. The basis of these rights is that a famous person has a right over their image and reputation, and is entitled to reap the fruits of their labour.

Shabnam Khan Associate Lall Lahiri & Salhotra
Shabnam Khan
Associate
Lall Lahiri & Salhotra

The right to publicity can be seen as an extension of intellectual property rights for a commercially marketable image must be viewed as a product created by the famous person through sustained effort in a chosen field. A third party who tries to benefit commercially from a famous person’s reputation without permission or by not adequately compensating the person is guilty of violating that individual’s personality rights.

Among the many unique legal issues affecting famous people, the most important arise from the right to publicity. The term was coined in 1953 in the US by Justice Jerome Frank in Haelen Laboratories v Topps Chewing Gum, one of the first cases that recognized the economic interest of a celebrity in their personality.

What lies within

Personality rights, which are a mix of privacy and publicity rights, have economic and moral aspects. The publicity aspect of personality rights aims to protect the economic value of a person’s reputation in the same way as the protection of a trademark. As a famous person has an exclusive right to exploit their personality commercially, any unauthorized links to a famous person that may harm their reputation would amount to a violation of their rights.

The privacy aspect of personality rights does not allow celebrities to completely control information about themselves and there are limits on what can be done to prevent information from entering the public domain. A delicate balance needs to be maintained between personal information and public interest in the dissemination of information relating to celebrities. This balance is maintained by determining whether the information is worthy of any public interest before such an interest is seen as an unnecessary invasion into someone’s personal life.

Gaining recognition

In the US, the right to publicity is a widely accepted right, which arose as an offshoot of the right to privacy. The courts gradually recognized that there could exist a separate right pertaining to a person’s commercial interest in their personality.

Initially, attempts were made to bring the right to publicity under the ambit of the laws on privacy, trademark and unfair competition. Since then, US courts and state legislatures have recognized the need for a separate legal basis for the right to publicity and several US states have some form of statutory or judicial recognition of personality rights.

In India, personality rights are almost unheard of. There is no major judicial precedent recognizing or rejecting personality rights, or any legislation expressly granting such rights. However, a defamation suit can be filed against someone who makes an imputation concerning a celebrity, knowing that such imputation will harm the person’s reputation.

Further, a passing-off action can be filed against a third party who attempts to create a false association between a celebrity and certain products by making unauthorized representations that the celebrity endorses the product. As the celebrity’s personality and the goodwill it commands can be treated as a commodity, it can be argued that the marketing of a wrongful association has adversely affected the celebrity’s brand value.

Initial attempts

In 2003, an iconic south Indian actor, Rajnikanth, issued a legal notice before the release of his film Baba to prevent anyone from using the character, pictures and accessories used in the film for commercial gain. Owing to Rajnikanth’s popularity in south India, his mannerisms and dialogues have often been replicated and by issuing such a legal notice, he was attempting to assert his personality rights.

In the recent Montblanc luxury pens case in India, the launch of pens with Mahatma Gandhi’s image on the nib was met with opposition based on the protection under the Emblems and Names (Prevention of improper use) Act, 1950. Montblanc was forced to withdraw its pens from the market.

While the 1950 act was brought into force to ensure that people of Gandhi’s stature are not treated with disrespect, it also indicates that personality rights have a long history in India. With the US, UK and several other jurisdictions providing explicit recognition of personality rights, it is time for India to provide judicial and legislative recognition to this new type of intellectual property.

Shabnam Khan is a managing associate at Lall Lahiri & Salhotra, which is an IP boutique based in Gurgaon.

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