Decoding IPR

INTRODUCTION

Name, identity and likeness are the unique identifiers that encompass a person’s attributes. The right to control the commercial use of a person’s attributes is known as “publicity rights” or “personality rights”. It refers to the legal protection of an individual’s name, personal identity, or some recognizable characteristics, such as the person’s appearance, image, voice, or distinctive mannerisms. The privacy right, being a personal right, dies with the person owning such a right. This is based on the legal maxim actiopersonalismoritur cum persona. For example, civil wrong or tort action based on defamation is in personam and does not survive the death of the complainant.In K.S. Puttaswamy v. Union of India, where the right to privacy was declared a fundamental right under Article 21 of the Constitution of India, the Supreme Court reflected upon personality rights also and observed that: “25. Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control the commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name, and other aspects of his/her personal life and identity for commercial purposes without his/her consent….”

Celebrity Rights

In Titan Industries Ltd. v. Ramkumar Jewelers, it was held that a celebrity is defined as a famous or well-known person. A celebrity is a person who many people talk about or know about. The Court noted the basic elements comprising the liability for infringement of the right of publicity as follows:

• Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.
• Identifiability: The celebrity must be identifiable from the defendant’s unauthorised use.

The right of an individual, especially a public figure or celebrity, to control the commercial value and exploitation of his name, pictures or likeness or to prevent others from unfairly appropriating that value for their commercial benefit, has come to be known as a “right of publicity”. This right is said to have evolved from the “right of privacy”, though the right of privacy itself is described as distinct from the right of publicity as it has come to be evolved. The reported judgments do not indicate any uniformity about the nature of this right.

In R Rajgopal v. State of Tamil Nadu & Ors, Justice Narula noted that undoubtedly the concept of celebrity rights is well recognised on account of judicial pronouncements. “They are essentially a compendium of the other rights accrued by a person upon attaining the status of a ‘celebrity’, comprising of a bundle of rights which include certain intellectual properties rights, publicity, personality and privacy rights.” As explained by The Delhi High Court in the case of ICC Development (International) Ltd. v. Arvee Enterprises ,the right of publicity has evolved from the right of privacy and can inhere only in an individual for any indicia of an individual’s personality like his name, personality trait, signature, voice etc. This right vests in an individual and he alone is entitled to profit from it. Also, Madras High Court in the case of Shivaji Rao Gaikwad v. Varsha Productions accepted the proposition that personality rights vests in persons, who have attained the status of a celebrity. Any infringement of such right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable, and no one can make unauthorised use of the persona or any indicia of the individual’s personality. It was seen in Germany in 1999, the daughter of Marlene Dietrich sued for damages because of the illegal use of her mother`s image in the advertisement of a musical about Marlene Dietrich`s life. The court ruled in favour of the claimant in the case, allowing post-mortem protection of the right of publicity. However, the term of protection is limited to 10 years, during which an individual`s picture or other characteristics of that person cannot be used for commercial purposes without prior permission of the heir. In 2007, the case of Makkal Tholai Thodarpu Kuzhumam Ltd. v. V. Muthulakshmi (Veerappan case) came up for a revision petition before the Madras High Court. The case pertained to an injunction brought by the wife and daughter of Veerappan restraining the producers from publishing, broadcasting or telecasting the tele serial in the name of “Maveeran Veerappan” or “Santhana Kadu”, that related to the life story and events of Veerappan, without the prior consent of the family. Late Veerappan’s wife and daughter contended that telecasting the serial would affect their right to privacy. The Court held that the right to privacy does not subsist beyond Veerappan’s death and regarding the right to privacy of the wife and daughter, the Court took an undertaking from the producers that the family’s right to privacy would not be affected 

In Deepa Jayakumar v. A.L. Vijay
The Madras High Court held as follows: “.After the death of a person, the reputation earned  cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality rights, reputation, or privacy enjoyed by a person during his lifetime comes to an end after his or her lifetime. Therefore, we are of the opinion that “posthumous right” is not an “alienable right” and the appellant-plaintiff is not entitled to an injunction on the ground that the “posthumous right” of her aunt is sought to be sullied by the respondent-defendants by reason of the release of the film titled as “Thalaivi”..”The High Court of Delhi confirmed that the publicity rights of individuals are not inheritable and extinguished with the death of the individual/celebrity.

Contrasting View

In contrast, the Gujarat High Court in Kirtibhai Raval v. Raghuram Jaisukhram Chandrani upheld the trial court’s injunction on the depiction of the life of late Shri Jalram Bapa. He was known for his philanthropic work during his lifetime. The injunction suit was filed by a direct descendant of the late Jalram Bapa, restraining the defendant from presenting any literary or artistic expression in respect of the life of the late Jalaram Bapa and/or his family members without their prior consent. The defendant in the present case proceeded to make the film despite the plaintiff’s legal objections to anyone from making, releasing, publishing, exhibiting, publicly or privately selling, promoting, or advertising in any format in respect of the life of late JalramBapa. Upholding the injunction order of the trial court, the Gujarat High Court held that no one could make a film on the life of such an iconic figure as the late Jalaram Bapa and exploit them commercially without the consent of the individual concerned or the legal heirs.

If the author dies intestate, then the copyright is passed on to his heirs or legal representatives as a part of his estate and is divided amongst his legal heirs in accordance with the relevant law. However, if the author creates a will, then the testamentary mode of succession along with the relevant laws will be followed. However, the moral rights associated with the copyright are not transferred by such means. The moral rights of a copyright cannot be transferred unless the original author of specifically transfers the moral rights to someone by assignment, when no such transfer is made, the rights which are transferred are the economic rights and the ownership of the copyright.

Jurisprudence Regarding Publicity Rights in Other Countries

US – Lugosi v. Universal Pictures was one of the earlier rulings of the California Supreme Court on celebrity publicity rights. The Court had then determined that a dead person had no right to their likeness, and any right that existed did not pass to the heirs. The aftermath of the judgment was the recognition of posthumous publicity rights in 1984 under the California Civil Code Section 3344.1. The post-mortem rights extend for 70 years. The most recent legislation on posthumous publicity rights was introduced in New York in 2020.16 the new law recognises two type of deceased individuals — a “deceased personality” and a “deceased performer”. Any person who uses the deceased personality’s name, voice, signature, photograph, or likeness on products, merchandise, advertising, or soliciting purchases of products without prior consent from the person/s to whom the publicity rights are transferred, shall be liable for damages sustained by such person or persons injured as a result thereof. The law provides a mechanism for owners of the deceased person’s rights to register their claim with the New York Secretary of State to be able to bring a claim. The term of protection under the law is 40 years after death. The law further makes it explicit that the deceased individual must have been domiciled in the State at death or, at a minimum, have resided there at death, for the posthumous publicity rights to apply. 

UK – In contrast to the United States, UK law does not explicitly acknowledge a right of publicity or a specific protection for an individual’s name, image, and likeness against unauthorized use. However, intellectual property rights and tort law offer limited safeguards for publicity rights, including actions for passing off or copyright infringement. In terms of posthumous publicity rights, the estate of deceased individuals lacks the authority to pursue claims for perceived damage to the deceased’s reputation. Nevertheless, individuals seeking to use copyrighted material or well-known marks associated with a deceased person, such as photographs or footage, must obtain prior consent from the estate before engaging in commercial exploitation.

France recognizes and safeguards the right to one’s image, known as “droit à l’image.” Typically, living persons can enforce their right to image throughout their lifetime. Following their death, this right persists for twenty years, during which legal heirs can assert these rights. An individual’s image may be utilized with prior consent for specific purposes such as display, reproduction, or communication. French law also acknowledges tacit permission, granted when a person has consented to the taking, display, or reproduction of their image. In the case of minors, parental or legal guardian consent is necessary. For public figures like singers or athletes, permission for image capture, display, and reproduction is presumed, particularly when images are captured during public activities. France’s Copyright Law permits the use of images for parody purposes, provided it serves informative and non-offensive objectives. Publicity rights in France encompass elements of moral rights of authors, privacy rights, protection of honor and reputation, and control over image usage. A notable case illustrating posthumous publicity rights in France is the 1998 Raimu case. In this instance, the actor’s widow sued a company for utilizing her late husband’s image in an advertising campaign. The Court awarded compensatory damages, recognizing the inheritable aspect of image rights if the descendant’s image had garnered economic value during their lifetime.

Opinion

The courts strongly believe that publicity rights are rooted in privacy rights, so if privacy rights extinguish upon the death of the person, then publicity rights too gets extinguished. But there is a grave difference between the two rights- one is a personal right, and the other is a commercial right. Celebrities own their persona, since they can license it for commercial value. Thus, their persona should be seen as their property. In fact, the Gujarat High Court ruled that reputation is a property that is transferable and heritable. Further, the Delhi High Court while defining personality rights mentioned that a celebrity’s persona assumes tremendous significance as a quasi-property right meant to protect the economic value associated with the identity. Celebrities can also find recourse in IPR. 

Conclusion

In conclusion, the concept of personality rights, also known as publicity rights, plays a crucial role in safeguarding an individual’s name, identity, and likeness from unauthorized commercial use. These rights are based on the legal principle that individuals should have control over how their persona is portrayed and exploited for commercial purposes. The Madras High Court’s assertion that posthumous rights are not inheritable emphasizes the finite nature of personality rights and reputation, which cease to exist after an individual’s lifetime. Overall, while personality rights serve as a vital legal protection for individuals during their lifetime, it’s essential to recognize their limitations, particularly regarding inheritance and posthumous rights. The right of publicity is particularly crucial for public figures and celebrities, whose personas hold significant commercial value. Courts have consistently upheld this right, emphasizing that any infringement does not require proof of falsity or confusion, when the celebrity’s identity is unmistakable. Overall, the right of publicity serves as a crucial legal instrument for safeguarding individuals’ commercial interests and preserving the integrity of their identities in an increasingly commercialized and digital world .Indian legislators  can consider amending  the existing IP laws to explicitly recognize and protect posthumous publicity rights. This legislation could outline the duration of protection, mechanisms for registration of claims, and provisions for damages in case of unauthorized use. India should explore extending the duration of copyright protection for individuals’ names, images, and likenesses beyond their lifetime. This would prevent unauthorized commercial exploitation of these assets and provide legal recourse for heirs or legal representatives.