MANGALAYATAN UNIVERSITY, JABALPUR

DISSERTATION
PROGRAM: LLM CORPORATE LAW ONE YEAR
SEMESTER: 2ND SEMESTER

“LAWS SCRUTINIZING PROTECTION OF CELEBRITY RIGHTS: AN

INT’L PARALLEL APPROACH THROUGH IPR CONCEPTIONS”

SUBMITTED BY: SHREY MAHAJAN

ENROLLMENT NO.: 220601046004
Roll No.: 2220460004

SUBMITTED UNDER GUIDANCE OF:

MR. AISHWARYA SHARMA
(ASSISTANT PROFESSOR, LAW DEPARTMENT
MANGALAYTAN UNIVESITY, JABALPUR)

1
 DECLARATION/UNDERTAKING OF ORIGINALITY

I, Shrey Mahajan having Enrolment No.- 220601046004; Roll No.- 2220460004 declares that
the Dissertation titled- “Laws scrutinizing Protection of Celebrity Rights: An Int’l Parallel
Approach through IPR conceptions” is the outcome of my original work conducted under the
supervision of Mr. Aishwarya Sharma at Law Department, MANGALAYTAN UNIVESITY,
JABALPUR.

I undertake full responsibility of the contents of this Dissertation complying with the ‘Academic
Integrity’ policy of Mangalaytan University and I understand that if this work is found in
violation of the same, this may result in rejection of Dissertation and entail appropriate
disciplinary proceedings as per Rules of the University.

Word Count of Dissertation- 17500 words

Signature
Shrey Mahajan
Date: 14/07/2023
Place: Jabalpur

Endorsement by the Mentor:

Date of final Submission: ……………
Antiplagiarism Check /Similarity found: ...........
Late Submission........................................

Signature
Mr. Aishwarya Sharma
Date: ………….

2
LLM SUPERVISOR’S CERTIFICATE:

MANGALAYATAN UNIVERSITY, JABALPUR

___________________________________

CERTIFICATE

This is to certify that the dissertation work entitled- “Laws scrutinizing Protection of Celebrity
Rights: An Int’l Parallel Approach through IPR conceptions”, submitted to the Department
of Law at MANGALAYTAN UNIVERSITY, Jabalpur in partial fulfillment for the award of the
degree of Master of Law in Corporate Law is a record of bona fide work carried out by Mr.
Shrey Mahajan, Enrolment No.- 220601046004; Roll No.- 2220460004 under my supervision
and guidance.

All help received by him from various sources have been duly acknowledged.

Mr. Aishwarya Sharma

(Assistant Professor, Department of Law
MANGALAYTAN UNIVERSITY, Jabalpur)

Place: Jabalpur
Date: 14/07/2023

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 Acknowledgement

I would like to express my sincere gratitude to Mangalaytan University, Jabalpur

for letting me fulfill my dream of being a student here. I would also like to thank
Department of Law for providing me with an opportunity to write a dissertation
paper.

It is with immense gratitude that I acknowledge the support and help of my

mentor- Mr. Aishwarya Sharma, Law Department, MANGALAYTAN
UNIVESITY, JABALPUR who provided me with his invaluable guidance
throughout this research. He is a very lively soul who continuously conveyed a
spirit of adventure when it comes to research and excitement in regard to teaching.
Without his guidance and persistent help this dissertation would not have been
possible.

Further, I owe my deepest gratitude to my Professor, Ms. Shivangi Sharma

(Department of law), who provided me with essential knowledge on Protection of
Celebrity Rights. Her supportive attitude and knowledge over this topic helped me
clear a number of doubtful questions and helped me form a basic structure in order
to carry out my research in a rightful direction.

I would also like to thank Professor, Ms. Pratisshta Mishra (Department of Law),
who showed a keen interest on my topic and supported me throughout research
activity. She with her deep knowledge provided my research work with a unique
perspective and helped me enhance my knowledge and carry out my research in
consideration to these unique factors.

4
I am grateful to my ‘University’ friends, who never stopped challenging me,
always supported me in my low and continually helped me develop my ideas.

I also would like to acknowledge author David S. Welkowitz and Tyler T. Ochoa
for their creation- “Rights of Publicity and Related Rights in the United States and
Abroad” which provided me with knowledge regarding international laws for
Protection of rights of publicity. This book helped me a lot in development of my
comparative analysis.

Finally, I would like to acknowledge with gratitude, the support and love of my
family. They all kept me going and this paper would not have been possible
without their moral support.

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 TABLE OF CONTENT

CONTENT PAGE NO.

Chapter I: INTRODUCTION 9-12

A. STATEMENT OF PROBLEM 12
B. REVIEW OF LITERATURE 12-15
C. RESEARCH OBJECTIVES 16
D. KEY RESEARCH QUESTIONS/HYPOTHESIS 16
E. RESEARCH METHODOLOGY 16
Chapter II: CELEBRITY RIGHTS AND NEED FOR THEIR 17-22
PROTECTION

Chapter III: PROBLEMS RELATING TO PROTECTION OF 22-26

CELEBRITY RIGHTS

Chapter IV: COMPARATIVE STUDY APPROACH FOR CELEBRITY 26-40

RIGHTS

Chapter V: COMPARATIVE ANALYSIS TO ENHANCE INDIAN 40-43

LAWS

Chapter VI: LEGAL NATURE OF RIGHT OF PUBLICITY: 44-53

INTERACTION WITH TRADEMARKS AND
COPYRIGHT

Chapter VII: LIMITATION OF RESEARCH 53

CONCLUSION AND RECOMMENDATIONS 53-55

REFERENCE AND BIBLIOGRAPHY 55-59

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 TABLE OF CASES

INDIAN COURT CASES:

1. Amar Nath Sehgal v/s Union of India, 2005 (30) PTC 253 (Del)
2. DM Entertainment v. Jhaveri
3. Gautam Gambhir vs D.A.P & Co. & Anr CS(COMM) 395/2017
4. ICC Development (International) v. Arvee Enterprises and Anr., 2003 (26) PTC
245 Del
5. Jaitley v Network Solutions Private Limited 2011 (47) PTC 1 (Del)
6. Justice K. S. Putt Swamy (Retd.) v. Union of India AIR 2017 SC 4161
7. Phoolandevi Vs Shekar Kapoor & others.
8. Raja Pocket Books v Radha Pocket Books (1997) (40) DRJ 791
9. RR Raja Gopal v State of Tamil Nadu (JT 1994 (6) SC 514)
10.Sonu Nigam v. Amrik Singh (alias Mika Singh), SUIT NO. 372 of 2013 Bom
bay High Court (Civil Original Jurisdiction), MANU/MH/0517/2014.
11.Sourav Ganguly v. Tata Tea Ltd., CS no. 361 of 1997
12.Titan Industries Ltd. vs. Ramkumar Jewelers 2012 (50) PTC 486 (Del)

UNITED STATES CASES:

1. Ann Margaret v. High Society Magazine 498 F. Supp. 401 (S.D.N.Y. 1980)
2. Barber vs. Times Inc. 348 Mo. 1199 (Mo. 1942) 159 S.W.2d 291
3. Haelan Laboratories v. Topps Chewing Gum, Inc. 202 F 2d 866 (2nd Cir.),
1953.
4. Hirsch v. S.C. Johnson & Son, Inc. (1979) 90 Wis. 2d 379
5. Montano v. San Jose Mercury News, No. H012004. Sixth Dist. May 3, 1995.
6. Motschenbacher v. R.J. Reynolds Tobacco Company (1974)
7. Roberson v. Rochester Folding Box Co. 1902, 171 NY 538

7
8. Shaw Family Archives Ltd. v. CMG Worldwide, Inc. 486 F. Supp. 2d 309
(S.D.N.Y. 2007)
9. The Martin Luther King, Jr. Centre for Social Change, Inc., et al. v. American
Heritage Products, Inc., et al., 250 Ga. 135, 296 S.E.2d 697 (1982)
10.Vanna White v. Samsung Electronics America, Inc. (1992) U.S. App. LEXIS
19253 (9th Cir. Aug. 19, 1992)
11.Zacchini vs Scripps- Howard Broadcasting Organization, 433 U.S. 562 (1977),
was an important U.S. Supreme Court case concerning rights of publicity

UNITED KINGDOM CASES:

1. Douglas and Zeta Zones v. Hello Ltd [2005] EWCA Civ. 595
2. Irvine v. Talksport, Ltd. (2003) Id. at 2378-79
3. Lyngstad v. Anabas

EUROPEAN COURT CASES:

1. Baglioni v. Eretel and Disco Spring
2. Dalla v. Autovax Pret., 18 aprile 1984, Giur. it. 1985, I, 2, 544 (It.)
3. Papillon case Helling, 2005, p. 43
4. Raimu case, Logeais & Schroeder 1998, p. 537
5. the Gades case, Barnett, 1999, p. 575
6. Vitti v. Doimo
7. Von Hannover v. Germany (2012)

8
 LIST OF ABBREVIATION

Abbreviation Definition

1. Retd. Retired

2. V./ Vs. Versus

3. U.S. United States

4. U.K. United Kingdom

5. IP Intellectual Property

6. HC High Court

7. SC Supreme Court

8. EU European Union

9. Anr. Another

10. Or. Other

11. Inc. Incorporation

12. UOI Union of India

13. Ltd. Limited

14. M/s Messrs

15. CDPA Copyright, Design and Patents Act, 1988

16. Co. Company

17. UDRP Uniform Domain Name Dispute

Resolution Policy

18. TRIPS The Agreement on Trade-Related Aspects

of Intellectual Property Rights

19. WPPT The WIPO Performances and

Phonograms Treaty, 1996

9
 Chapter I: INTRODUCTION

Nowadays, due to constant limelight lives of celebrities have become so public that
we sometimes forget that these celebrities too have their own personal lives. This
boundary between their public and private life goes thinner due to constant influence
of media around them. As a result of which their public and personal rights are at
constant peril. Let us consider a real-life scenario, when we walk down a path in our
local market, we find a number of companies selling their products like socks,
clothes, cosmetics or any electronic item etc. with a celebrity face on their product
or a dialogue from their movie and in some cases any gift hamper providing you
with chance to meet these celebrities and spend a day with them. These companies
opt for these options just to earn them good profit margin over their products. When
done with prior consent of these celebrities such use of their photos, dialogues etc.
is justifiable otherwise it is just breach of their celebrity right which is mainly
formulated by combination of personality rights, public rights and privacy rights.

Celebrity rights are distinctive in nature and differ from other legal rights in certain
manner. These kinds of rights can be exclusively enjoyed by celebrities only.
Celebrity rights being a property are always prone to illegal trespassing. Illegal
trespassing in case of celebrity rights takes place typically in two ways- 1. When for
some profit of money compromise is made with intimate life of celebrity. 2. When
there exists illegal use of publicity rights of celebrities. Here, in both cases in order
to avoid illegal trespassing it is essential to commence appropriate laws and ensure
justice by judicial intervention. Now, the term ‘Celebrity’ in a general way refers to
those people who have created their own identity along with name and fame in
society. In other words, these celebrities are easy to recognize in society and have
honor in form of success amongst large public segments. Further, there is no denying

10
that such person must have putted in an immense amount of efforts along with
conscious care in order to establish himself the status of ‘Celebrity’. This another
prominent reason that formation of legal statutes in order to provide protection to
their celebrity status and rights arising out of it is a topic of concern. Speaking of
current circumstances in India there exist no definite legal remedy which provide
explicit protection against infringement of celebrity rights.

In order to feed curiosity of common masses, media frequently encroaches diverse

rights of celebrities. As per Leggatt LJ, celebrity rights are important as- "The theory
of the right is that a celebrity's identity can be valuable in the promotion of products,
and the celebrity has an interest that may be protected from the unauthorized
commercial exploitation of that identity. The famous have an exclusive legal right
during life to control and profit from the commercial use of their name and
personality." Adding to it, nowadays celebrity endorsement is growing out to be an
influential marketing technique and so, serious concerns for protection of such rights
is necessary. With development in domains of technology, scientific research and
art there has been subsequent development in domain of Intellectual Property Rights
as well. Considering contemporary circumstances to safeguard modern rights which
includes ‘right to publicity’ being corollary to ‘right to privacy’ some expansions
have been made to the extents in the fields of Intellectual Property Rights. However,
a deep-rooted approach for celebrity right protection still has to be made and adapted
universally. Additionally, in India till today ingredients to excess celebrity rights are
still a matter of confusion as, no per se understanding of who can be considered to
be a 'celebrity' is certain or mentioned in any statute. ‘Authors’ and ‘Performers’ are
considered to be potential celebrities as per The Copyright Act but, it is not necessary
that only such persons can be celebrities. So, in order to clearly define word celebrity
and rights associated to it, reference to other jurisdictions must be made.

11
Supporting the commencement of celebrity rights authors have provided several
reasons for protection of celebrity rights. Out of all reasons most prominent one is
that of related to Locke’s Labor Theory. As we already know celebrities put in an
immense amount of efforts along with conscious care in order to establish
themselves the status of ‘Celebrity’. Thus, fame earned by them is a fruitful result
of their labor. Additionally, as a consequence commercial value of their personality
amidst public becomes one of their major sources of livelihood. Market forces
approach them for advertisement and work related to similar nature as they have
established a goodwill and reputation in market. From the perspective of business
tycoons’ celebrities are being seen as an effective advertising element to attract
public to make them buy their products.

Further, chief rationale provided by author in support for protection of celebrity

rights is to safeguard consumer interest. According to them, like a trademark build
its goodwill in market in a very similar manner celebrities also strives hard to build
their name as goodwill amongst public. A large number of consumers get attracted
to products when they get advertised utilizing goodwill of celebrity. This boost in
sale of product in name of celebrities understandably establish the fact that
celebrities have a trustworthy image in market and amongst public. Keeping in view
this aspect it becomes very important to protect goodwill of celebrities from being
susceptible to its unauthorized usage. This illegal use of a celebrity’s goodwill or
persona not only diminishes his commercial value but also harms his trustworthy
image amongst public. Celebrities not only gain monetary profits from their
commercial value of goodwill but also acts as a motivational force in mindsets of
large number of people because of their perseverance and hard work in their
respective fields. Illegal use of celebrity’s goodwill in some case not only harms
celebrities in many ways but also destroy this motivational force created by him in
public. Over a decade with increase in importance of celebrities in society

12
exploitation of their image by unauthorized use has also grown rapidly. Mainly
exploitation of goodwill of celebrity is committed by media, manufacturers,
producers and local vendors for sake of some monetary profit. These are some
logical reasons which explains need for acknowledgement of celebrity rights and
helps us understand above situations in relation to ‘doctrine of privacy’.

First case to have acknowledged celebrity rights and give celebrity’s name and
likeness significance beyond right to privacy is the case of Haelan Laboratories v.
Topps Chewing Gum, Inc.1 In this case it was held that prominent people of society
in addition to and independent of their right of privacy, have a ‘right in publicity
value of their photographs’. However, in India publicity rights are still at developing
stage and have their ambit in privacy rights. In case of Justice K. S. Putt Swamy
(Retd.) v. Union of India2, it is understandably determined as publicity rights being
a part of privacy rights.

Acknowledgment has been given to celebrity rights in US and further some states of
US also have enacted statutory provisions specifically related to protection of
celebrity rights. In Europe, “image rights” is the preferred term for such rights.
Though, their lacks unified regulation in European Union for it as, most of the
countries recognize “image rights” of certain type as a part of the personality rights.
Objective of researcher is to adopt comparative approach for protection of these
celebrity rights in contrast of different jurisdictions, to strengthen them and adapt a
clear approach for its recognition in India and also, to provide design for formulation
of specific legislation regulating protection of celebrity rights. As a consequence of
this study India will get an insight of precautions to be taken in order to eradicate
limitations over celebrity rights when drafted.

1
202 F 2d 866 (2nd Cir.), 1953.
2
AIR 2017 SC 4161

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 A. STATEMENT OF PROBLEM:

Celebrity earn their fame as a fruitful consequence of their hard work, perseverance,
skills and time involved. Its upon them how they wish to utilize their goodwill and
how they want to exploit their commercial value in order to make monetary profits.
Now, with increase in status of celebrities in society their always exists susceptibility
for exploitation of their goodwill by media, market forces, manufacturers and local
vendors. This exploitation not only may result in diminishing his commercial value
but also can damage his trustworthy image amongst public. These certain rationales
provided by literatures and approved by authors indicate towards necessity of
commencing specific statute legislation for protection of celebrity rights in India.

Now, main objective of this research is to identify domestic approaches taken by

jurisdiction for protection of celebrity rights and adopt precautions with respect to
limitations faced by jurisdictions of different countries for celebrity right protection
while drafting. Further, objective is to provide strength to laws protecting celebrity
rights by adapting features of different jurisdictions up to the ambit possible.

B. SURVEY OF EXISTING LITERATURE:

1. “PROTECTION OF CELEBRITY RIGHTS A COMPARATIVE ANALYSIS

OF RELEVANT IPR LAWS IN US, UK AND INDIA” BY- Dr. Lisa P. Lukose
& Shilpika Pandey

This research paper deals with study of different approaches adopted by US and UK
for protection of celebrity rights. This paper is based on the evaluation of multi-
jurisdictional regime of protection granted to celebrity rights, with the analysis of
precautions undertaken for balancing the public and private interest while protecting
celebrity’s persona and identity.

14
2. “PROTECTION OF CELEBRITY RIGHTS – THE PROBLEMS AND THE
SOLUTIONS” BY- Anurag Pareek and Arka Majumdar

This research paper provides with well explained concept of celebrity rights and its
importance in India. It identifies merits and demerits of various approaches, which
protect the publicity rights of a celebrity and recommended appropriate legal regime
suited to India. This paper scrutinizes identifiable problems with celebrity rights and
suggests for its solutions in a pretty well- structured manner possible.

3. “RIGHTS OF PUBLICITY AND RELATED RIGHTS IN THE UNITED

STATES AND ABROAD” BY- David S. Welkowitz and Tyler T. Ochoa

This book is mainly related to emerging field of intellectual property law: the rights
of individuals to govern the use of their names, likenesses, and personas. This book
provides for an in-depth course in Rights of Publicity, with far more extensive
coverage than can be accomplished within the limitations of traditional courses, such
as Trademarks or Copyright. Additionally, unique among materials in this area, this
book includes comparative study from around the globe, enabling students and
teachers to compare the similarities and differences in approaches to this issue
among a variety of jurisdictions and courts of various parts of countries.

4. “STARDOM AND CELEBRITY” BY- Sean Redmond and Su Holmes

This book is a study for important interventions which have organized the
development of star/celebrity studies, while crucially combining and situating these
within the context of new essays which address the contemporary, cross-media and
international landscape of today's fame culture. At the core of the collection within
this book is a desire to map out a unique historical trajectory - both in terms of the
development of fame, as well as the historical development of star/celebrity studies.

15
5. “INTELLECTUAL PROPERTY RIGHTS CRITICAL CONCEPTS IN LAW
· VOLUME 4” BY- D. Vaver

This volume of book relates to the law relating to the misappropriation of intangible
values including the rights of publicity that celebrities may have over unauthorized
commercial use of their name, voice or image.

6. “INTELECTUAL PROPERTY LAW AND INTERACTIVE MEDIA FREE

FOR A FEE” BY- Edward Lee Lamoureux, Steven L. Baron and Claire
Stewart

This book provides for short- term overview which is taken from this informative
and accessible preliminary text, written for students of media and communication
and further consists of a comprehensive overview of the complex legal landscape
surrounding new media and intellectual property rights. The authors present
theoretical backgrounds, legislative developments, and legal case histories in
intellectual property law. Copyright, patents, trademarks, trade secrets, personal torts
(including rights of publicity, defamation, privacy) are scrutinized within boundaries
of this book in U.S., international, and virtual contexts.

7. “CELEBRITY AND ROYAL PRIVACY- THE MEDIA AND THE LAW” BY-
Robin Callender Smith

This book revolves around legal prospects which is in regards to- celebrity, privacy
and the media. It inspects how English law has, and has not, adjusted big names'
lawful assumptions for instructive and seclusion security against the press and the
media's privileges to advise and distribute. Apart this creation covers a number of
significant cases which revolutionarily changed law in this field. It includes all the
key judgements of recent years, from Mosley and Van Hannover to Google Spain
and the Ryan Giggs case. Author with help of this book has well- explained
prominent concepts of ‘celebrity’ and ‘privacy’. Also, author with this book

16
 enlighten us with concepts of breach of confidence and different classes of protected
information. Further, it comprises of understanding of laws governing misuse of
information in this age of social media. The author also acknowledges about how
celebrity can utilize copyright as a security cure and covers the Protection from
Harassment Act 1997, and the criminal offenses under it. Information regarding use
of data protection for privacy remedy and prominent cases relating to the Defamation
Act, 2013 are also given light upon.

8. “THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC

WORLD” BY- Jennifer E. Rothman

In order to portray challenges, we are facing in context of right to privacy’s

emergence, development and justification, Rothman conveys how it actually
transformed people into an intellectual property, prompting an odd world in which
you can lose responsibility for own character. The right of Publicity traces its origin
back during emergence of right to privacy in the late 1800s. The main objective for
adoption of privacy laws back then was to safeguard people from ‘wrongful
publicity’. This privacy protection law was limited to famous personalities like actor,
athlete or politician. Moreover, no protection under this law was granted to
anonymous private citizen. This book is majorly a retrospective study of events
relating to privacy and publicity rights, through which Rothman proposes to return
these rights to their origin and in the process reclaiming of privacy for public world.

9. “EMERGING CHALLENGES IN PRIVACY LAW COMPARATIVE

PERSPECTIVE” BY- David Lindsay, Moira Paterson, Normann Witzleb and
Sharon Rodrick

This assortment of articles investigates current improvements in privacy law,

including change of data protection laws, privacy and the media, social control and
surveillance, privacy and the Internet, and privacy and the courts. It puts these

17
 advancements into a more extensive global setting, with a specific spotlight on the
European Union, the United Kingdom, Australia and New Zealand. Receiving a
relative methodology, it makes a significant asset for understanding global patterns
in the change of privacy and data protection laws across an assortment of contexts.
This book therefore, provide an insight of challenges being faced by policy makers
while formulating privacy and data protection laws in Europe and in common law
world.

10. “PUBLICITY RIGHTS AND IMAGE EXPLOITATION AND LEGAL

CONTROL” BY- Gillian Black

The book includes a detailed exploration of the justifications advanced in favor of

publicity rights and those that are advanced against. Removing the analysis from any
one jurisdiction the book examines current academic and judicial perspectives on
publicity rights in a range of jurisdictions, drawing out similarities and differences,
and revealing a picture of current thinking and practice which is intellectually
incoherent. The book includes a careful consideration of possible limits to any right
of publicity, the potential for assigning publicity rights or transferring them after
death, and whether defenses can be offered. The author concludes by arguing for a
publicity right which provides a degree of protection for the individual but which is
significantly curtailed to recognize valid competing interests.

11. “CREATE, COPY, DISRUPT INDIA's INTELLECTUAL PROPERTY

DILEMMAS” BY- Prashant Reddy T. and Sumathi Chandrashekaran

This book unravels the development of India’s intellectual property law and policy
in modern times, through chapters focusing on different industries and sectors such
as pharmaceuticals, book publishing, cinema, music, internet intermediaries,
basmati rice, religion and traditional knowledge. Each chapter features a lively
narrative that has been constructed on the basis of parliamentary debates, expert

18
committee reports, interviews, archival research and cases. Aimed at a non-specialist
audience, the book focuses on the politics and history of IP policy, rather than the
black letter of the law.

C. RESEARCH QUESTIONS:

1. What domestic approaches are being taken by jurisdiction for protection of

celebrity rights in contemporary circumstances?

2. What precautions should be adopted with respect to limitations faced by

jurisdictions of different countries for celebrity right protection while drafting?

3. Whether it is possible to strengthen laws protecting celebrity rights by adapting

features of different jurisdictions up to the ambit possible or not.

D. RESEARCH OBJECTIVE:

Research has been conducted with following objectives in mind:

1. To study domestic laws adopted by jurisdiction for protection of celebrity rights.

2. To analyze importance of celebrity rights in legal perspective.

3. To analyze contemporary problems relating to celebrity rights protection in India.

4. To study precautions need to be adopted with respect to limitations faced by

jurisdictions of different countries for celebrity right protection while drafting.

E. RESEARCH METHODOLOGY:

The methodology adopted in this research paper is comparative legal research

methodology involves critical analysis of different bodies of law to examine how the
outcome of a legal issue could be different under each set of laws. In this research
paper comparison is being made between different jurisdictions of various countries
specifically dealing with celebrity protection rights. This method is preferred above
others as it can be used as a critical analytical tool to distinguish particular features
19
of a law. Apart from this we can also better understand our home jurisdiction by
analyzing how other jurisdictions handle the same issue.

Chapter II: CELEBRITY RIGHTS AND NEED FOR THEIR

PROTECTION

The term ‘Celebrity’ in a general way refers to those people who have created their
own identity along with name and fame in society. In other words, these celebrities
are easy to recognize in society and have honor in form of success amongst large
public segments. Further, there is no denying that such person must have putted in
an immense amount of efforts along with conscious care in order to establish himself
the status of ‘Celebrity’. However, apart from this there exist no rule or clear
essential elements to clarify the status of ‘Celebrity’ globally.

Celebrity Rights are mainly formulated by combination of- personality rights, public
rights and privacy rights.

PERSONALITY RIGHTS:

A person's commitment to society is his privilege and such character rights are
secured.

PRIVACY RIGHTS:

Celebrity attempt to keep their own data as hidden as conceivable to evade shame,
likewise the Constitution under Article 21 perceives this Right to Privacy as a
fundamental right. Hence, celebrities may also opt for protection in any action of
invasion of their privacy.

20
PUBLICITY RIGHTS:

The right to utilize the value of the popularity of a celebrity is known as public rights.
In such manner, it is relevant to specify that fame is a demonstration projected to
increase deals.

Furthermore, Brook LJ in Douglas and Zeta Zones v. Hello Ltd3 has defined the
"Right to Publicity" as "An exclusive right of a celebrity to the profits to be made
through the exploitation of his fame and popularity for commercial purpose"

CERTAIN CASES RELATING TO CELEBRITY RIGHTS:

Supreme Court in case of- RR Raja Gopal v State of Tamil Nadu4 initially
recognized Publicity rights in the form of the right to privacy. In this case, the court
opined that: “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 any other matter.” This further resulted in
forming many such rulings since then, by numerous Courts.

Further, ambit of right to publicity in compliance with right to privacy was discussed
in case of- ICC Development (International) v. Arvee Enterprises and Anr.5, where
Delhi HC observed that- " 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. However, that right does not inhere in the event in question, that made the
individual famous, nor in the corporation that has brought about the organization of

3
[2005] EWCA Civ. 595
4
(JT 1994 (6) SC 514)
5
2003 (26) PTC 245 Del

21
the event. Any effort to take away the right of publicity from the individuals, to the
organizer {non-human entity} of the event would be violation of Articles 19 and 21

of the Constitution of India. No persona can be monopolized. The right of Publicity

vests in an individual and he alone is entitled to profit from it. For example, if any
entity, was to use Kapil Dev or Sachin Tendulkar's name/persona/indicia in
connection with the 'World Cup' without their authorization, they would have a valid
and enforceable cause of action."

Another renowned case was of Barber vs. Times Inc.6 In this case, a photographic
artist took pictures of Dorothy Barber without her prior consent when she was
hospitalized for a dietary problem. As a consequence, Ms. Barber filed a suit of
‘Invasion of Privacy’ against Times Inc., for unapproved and forceful entry into her
clinic room and for capturing her in spite of her protests. Ms. Barber was success in
this suit and court while granting compensation for $3000/- alongside gave a
rationale 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 similar facts situations. In such instances the truth sometimes hurts.”

In case of Justice K. S. Puttaswamy (Retd.) v. Union of India7, court opined that-

"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 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

6
348 Mo. 1199 (Mo. 1942) 159 S.W.2d 291
7
AIR 2017 SC 4161

22
commercial purposes without his/her consent". "Aside from the economic
justifications for such a right, it is also justified as protecting individual autonomy
and personal dignity. The right protects an individual's free, personal conception of
the 'self.' The right of publicity implicates a person's interest in autonomous self-
definition, which prevents others from interfering with the meanings and values that
the public associates with her."

Also, in a very recent case of Sourav Ganguly v. Tata Tea Ltd.8, where Sourav
Ganguly who returned form Lords after scoring magnificent centuries ended up
amazingly upset when he understood that Tata Tea Ltd., where he was utilized as an
administrator was advancing it's 1 kilo tea bundle by offering the shoppers an
opportunity to praise Sourav through a postcard which was there inside every parcel
of tea. Here, company intended to promote sale of its tea parcel by utilizing fame
earned by Sourav for sake for their big fat profit. Ultimately, the court ruled in favor
of Sourav by accepting that his fame and popularity were his Intellectual Property.

NEED FOR CELEBRITY RIGHTS:

Need for protection of celebrity rights arises due to certain logical reasons put
forward by sagacious legal personalities out of which one of the most prominent was
Leggatt LJ according to him- "The theory of the right is that a celebrity's identity can
be valuable in the promotion of products, and the celebrity has an interest that may
be protected from the unauthorized commercial exploitation of that identity. The
famous have an exclusive legal right during life to control and profit from the
commercial use of their name and personality."

Also, according to rationale contended by certain authors these celebrity rights are
suited fit to Locke’s Labor Theory, this is because celebrities put in a colossal

8
CS no. 361 of 1997

23
measure of efforts alongside conscious care to build up themselves the situation with
'Celebrity'. Hence, fame procured by them is a productive aftereffect of their work.
Furthermore, as a result business estimation of their character in the midst of public
gets one of their significant wellsprings of vocation. Market influences approach
them for promotion and business related to comparative nature as they have set up a
goodwill and reputation in market. From the viewpoint of business investors'
superstars are being viewed as a compelling promoting component to draw openly
to make them purchase their items.

Another significant reason provided by author for protection of celebrity rights is for
fortification of consumer interests. As indicated by them, similar to a brand name
construct its goodwill in market in a very much like way famous people additionally
endeavors hard to fabricate their name as goodwill among public. Countless
customers get pulled in to items when they get publicized using goodwill of
celebrities. This lift in sale of item in name of superstars justifiably build up the way
that famous people have a reliable picture in market and among public. Keeping in
sight this viewpoint it turns out to be vital to shield goodwill of celebrities from
being vulnerable to its unapproved utilization. This illicit utilization of a celebrity's
fame or persona reduces his business esteem as well as damages his reliable picture
among public. Celebrities not just addition money related benefits from their
business estimation of goodwill yet additionally goes about as an inspirational power
in attitudes of huge number of individuals on account of their persistence and
difficult work in their particular fields. Illegal use of celebrity’s goodwill in some
case not only harms celebrities in many ways but also destroy this motivational force
created by him in public. Over a decade with expansion in significance of celebrity
in the society, misuse of their picture by unapproved use has likewise developed
quickly. Prominently exploitation of goodwill of celebrity is majorly committed by
media, manufacturers, producers and local vendors for sake of some monetary

24
profits. As a result, it becomes very important to acknowledge celebrity rights and
formulate necessary laws for their protection.

Furthermore, influence of internet and other developed means of communication is

also an additional reason for putting an emphasis on celebrity rights and their
protection. As a consequence of these advanced means of communication nowadays,
people can connect with media in an instant. This has also resulted in swift work rate
of media, which as a further consequence may amount to illegal use of celebrity
image for publicity, encroachment of their private life or moral defamation at much
quicker rate than before.

The common law right of publicity recognizes the commercial value of a photograph
or representation of a prominent person and protects his proprietary interest in the
profitability of his public reputation or persona. The courts in India, by applying
common law right of publicity in various instances, have been able to adjudicate
upon cases wherein the Personality Rights of public figures have been in question or
have been incidental to the case. Since the terms such as “Celebrity”, “famous
Personality” or “publicity rights” have not been defined under any statute, the
question of who is a celebrity and whether the said person in question is entitled to
get his/her publicity rights enforced is subjective that depends on case to case basis.
Personality Rights, being a very wide concept have been interpreted by courts in
different scenarios to enforce the rights of celebrities. In Shivaji Rao Gaikwad vs.
Varsha Productions, the Madras High Court dealing with a case filed by the reputed
Indian Actor Mr. Rajinikanth observed that although there is no definition of
“Personality Right” under any Statute in India, courts in India have recognized the
same in various judgements, which are further dealt as under.

25
 In Titan Industries Ltd. vs. Ramkumar Jewelers9, the Delhi High Court in 2012
defined a celebrity as “a famous or a well-known person and is merely a person who
"many" people talk about or know about” and further went on to lay down that "The
right to control commercial use of human identity is the right to publicity.” In the
Instant case, the photograph of Indian actors Mr. Amitabh Bachchan and his wife
Ms. Jaya Bachchan which was exclusively captured with respect to endorsement of
Plaintiff’s jeweler product, was used unauthorizedly by the Defendant for his jeweler
product. The Court while granting a permanent injunction against the Defendant
elucidated that identity of a famous personality or celebrity can be used in
advertisement for commercial purpose, but subject to the respective personality’s
consent and approval regarding the time, place and nature of usage.

For an instance here we can discuss the case of Julia Roberts wherein the defendant
ran a website named Julia Roberts.Com and through the same website the defendant
used to run an online auction programmer to sell his goods. Here, prosecutor Julia
Roberts claimed that defendant wrongfully utilized her fame in order to promote his
auction via internet. In order to feed their curiosity people from across the globe used
to visit his site in order to know more about Julia Roberts and thus, as a consequence
his auction also gained a huge popularity in a very short interval utilizing her public
image.

So, in this developing age of internet the concept of celebrity became much more
relevant cause of following reasons-

a) Increasing popularity of the media – hence more creation of celebrities.

b) Faster and easier global communication through the Internet.

9
2012 (50) PTC 486 (Del)

26
Hence, in order to give better protection to these emerging celebrities from online
fraud, defamation and continuous encroachment of intimacy strengthening of
protection of celebrity right laws has become a major necessity.

Chapter III: PROBLEMS RELATING TO PROTECTION OF CELEBRITY

RIGHTS

While scrutinizing significant factors of celebrity rights it becomes very clear that
celebrity rights limits the domain of the Fundamental rights cherished in the Article
19 of the Constitution of India. Further, a major dilemma arises while treating
celebrity rights as a commercial property of an individual as again it violates with
the concept of human dignity.

Thus, we face the following problems while predicting the characteristics of

celebrity rights:

1. The inherent conflict between the Celebrity Rights and The Fundamental rights
enshrined in Indian Constitution.

2. The conflict between Right to Human Dignity and Commercial Property Rights.

THE INHERENT CONFLICT: CELEBRITY RIGHTS V/s FUNDAMENTAL

RIGHTS:

To comprehend the Theory of Conflict better we will mull over the milestone
decisions of some worldwide legal adviser on this subject. The media thinks about
that it is their fundamental right to distribute and illuminate the general population
pretty much about every one of the issues that are of "public interest" or "public
worry" under Article 19 of the constitution wherein the "freedom of press" is
embedded. Also, in a very similar citizens are also granted with ‘Right to
27
information’ and ‘Right to know’ under Article 19 of Indian constitution. Though,
this opportunity has been reliably been tested by the celebrities on the ground that
the media has abused their opportunity and under the appearance of giving news "in
the public interest" has meddled with the security of these celebrities. The courts as
of now have, confined the privilege of privacy rights of the celebrities on the off
chance that the occasion revealed is newsworthy or if the general population has
genuine interest in the occasion.

As in the case of Montano v. San Jose Mercury News; Montano's suit against the
newspaper for the invasion of privacy and misappropriation of the celebrity persona
failed on 1st Amendment Grounds, with the California Court of Appeal, concluding
that: -

"The first amendment protects the posters complained about for two reasons: First
because the poster themselves report newsworthy items of public interest, and
second because a newspaper has constitutionally protected right to promote itself by
reproducing its originally protected articles or photographs. Our conclusion on the
First Amendment makes it necessary to discuss the claim that the applicable statute
of limitation bars recovery."

Moreover, in another case of Ann Margaret v. High Society Magazine, plaintiff who
was a cine star sued the defendant who used to publish the popular High Society
Magazine. Plaintiff’s contention here was that respondent utilized her photograph in
the "superstar skin" distribution, without her assent, was with the end goal of
exchange and infringed her right to publicity. Judge Goetell held as follows: “Ann
Margaret who has occupied the fantasy of many movie goers over the year, choose
to perform unclad in one of her films; that was the matter of public interest.” Also,
court further explained the meaning of term ‘newsworthiness’ by stating that- “and
while such an event may not appear overtly important, the scope of what constitutes
a newsworthy event has been afforded a broad definition and held to include even
28
matters of "entertainment and amusement", concerning interesting phases of human
activity in general.”

Hence, referring to above cases we can say that the "publicity right" of a celebrity is
restricted and docile to the bigger public interest and the privilege of the residents to
know. Subsequently, nearer to home Amitabh Bachchan would be fruitlessly in
achieving a suit for invasion of privacy, if the paper has revealed about his medical
affliction and the reality of hospitalization. Nor would Sachin Tendulkar be effective
in achieving a suit for utilizing his face on the cover page of a sports magazine.

RIGHT TO HUMAN DIGNITY V/s. COMMERCIAL PROPERTY RIGHTS:

Publicity rights are considered as commercial property of an individual in common

law countries like U.K., Australia and common law provinces of Canada, arising a
conflict between commercial property rights and right to human dignity. In fact, the
jurisdictions treat instances of infringement of publicity rights comparably to the
precept of passing off. When it comes to U.S.A, publicity rights found its origin
within the concept of privacy and the concept of human dignity but later on with
evolving ideology these publicity rights got transformed into concept of specific
intellectual property. As an impact, some states of U.S.A treats publicity rights as
property while certain other states consider it in view of concept of human dignity.

Certain problems arising out of an approach considering publicity rights as property

are as follows-

1. It doesn't consider the natural uniqueness of the human personae.

2. The second major problem arising out of this approach is dilemma regarding
transferability of these publicity rights. By definition a commercial property right
even when to be considered as a part of an intellectual property right can be licensed
or transferred. As a consequence of this concept these continually arise disputes
between licensor and licensee while considering fundamental areas of personality.
29
For instance, if a former adult actor starts embracing religion at later point in his/her
life then again dispute between commerce and dignity will emerge over the excess
in power of the distribution rights in his old movies.

Hence, the methodology taken by the Delhi High Court is praiseworthy as it has
remembered the constitutional imperatives and deciphered publicity rights as
"flowing from human dignity in Arts. 19 and 21.”

On other hand, dealing with publicity rights in complete compliance with right to
privacy and concept of human dignity also give birth to certain other problematic
approaches such as-

1. The very first problem emerging out of it would be that of fundamental rights are
by and large just enforceable against the state inside the importance of Art.12 of
the Constitution. Despite the fact that a liberal methodology has been continued
in such manner a resident may think that it’s hard to implement his publicity
rights against private elements.

2. Second problematic approach is that no matter what but fundamental rights cannot
be waived off. This has made it difficult for masses to carry on with their
commercial transactions in parallel to their publicity rights.

3. Also, rights granted within purview of Article 19 and 21 of Indian constitution

gets extinguished once a person dies. Though, one’s personae may hold value even
after his death and due to this reason, his successor would not be able to protect
and commercially exploit this value just like any other intellectual property.

Therefore, under the current system dependent on dignity as opposed to property

right, such a case would not be conceivable.

30
THE DUAL APPROACH:

So, in order to resolve this chaotic situation in regards to these publicity rights we
may opt for dual approach. For this it has to be realized that publicity rights are a
conversion of both dignitary angles as well as property rights viewpoint. That is why
one cannot be implemented taking in consideration the other. In this regard, civil law
countries have more enhanced approach than compared to common law countries.
All the civil law nations acknowledge publicity rights as arising out of the privilege
to human dignity in their constitutions yet in addition have separate legal
arrangements for protecting and directing these rights. In this way, a solution to
succession problem of these rights can be resolved. For instance, California enacted
seventy years and Germany ten years for continuance of publicity rights after death
just like copyright. Moreover, perceiving the property perspectives would permit
transfer and commercial abuse of the rights to serve the proprietor. Then again, a
double methodology dependent on property and dignity would improve the issues
related with unadulterated business idea of publicity. Considering in view these
merits of dual ideology and stance taken by Indian jurist while dealing with the
Celebrity rights we should formulate a well- structured law for conduct of publicity
rights when it comes to Indian scenarios.

INTERNATIONAL APPROACH: PUBLICITY RIGHTS

In this rapidly growing world, publicity has a high worth and celebrities can possibly
acquire oodles of cash by misusing his picture and public image. Accordingly,
around the world the idea of publicity rights has arisen in various jurisdictions
through a steady cycle of advancement. So, "publicity rights" consider the exclusive
commercial utilization of a personae's publicity esteems.

31
Hence, A tradable worth can be found in numerous individual qualities like voice,
mark or nom de plume. Due to these main reasons it has become very important to
study publicity rights as they have arisen in different jurisdictions and ultimately to
develop well- structured legal norms for their governance and growth in Indian
scenarios.

Chapter IV: COMPARATIVE STUDY APPROACH FOR CELEBRITY

RIGHTS

Individual’s right to have control over utilization of his/her persona as part of

publicity rights has been at constant peril and as a result is receiving a larger amount
of attention lately. Though, receiving recognition as an important issue, publicity
privileges of celebrity is still in its incipient phase of advancement. Celebrity rights
being a property are always prone to illegal trespassing. Illegal trespassing in case
of celebrity rights takes place typically in two ways- 1. When for some profit of
money compromise is made with intimate life of celebrity. 2. When there exists
illegal use of publicity rights of celebrities. Here, in both cases in order to avoid
illegal trespassing it is essential to commence appropriate laws and ensure justice by
judicial intervention. For various judicial approach these celebrity rights need to be
settled in various different ways. As of, acknowledgment has been given to celebrity
rights in US and further some states of US also have enacted statutory provisions
specifically related to protection of celebrity rights. In Europe, “image rights” is the
preferred term for such rights. Though, their lacks unified regulation in European
Union for it as, most of the countries recognize “image rights” of certain type as a
part of the personality rights. A portion of the state like California accommodates
even post- mortem rights to celebrities and nations like England doesn't even

32
perceive the publicity rights. Further, trying to systematize the publicity rights a few
states have taken up conflicting and variation principles to accommodate extension
and nature of the publicity right. Different purviews by one way or another
exclusively depend on precedent-based law for assurance of publicity rights.

The study of various jurisdiction for celebrity rights security addresses the pattern
followed to how the rights are perceived and given legal order thinking about
significance of insurance of person's persona.

As per the investigation in various jurisdictions superstar is characterized as the

character which has business esteem in his/her persona. However, the degree of
insurance varies like time span of assurance, topic of insurance and move of rights
and so forth however thought behind giving the security is the equivalent for
example to ensure people persona as considered to be his/her own property.

PROTECTION OF CELEBRITY RIGHTS IN INDIA:

The governing laws of publicity and image rights is in its nascent stage in India.
When contrasted and the overall circumstance, India has been lagging behind in
seeing the advantage of publicity and image rights. In spite of the fact that
Constitution of India under article 21 grant Right to life and freedom incorporates
the insurance of publicity rights of an individual being some portion of privacy
rights. Despite the fact that Indian law have not created to a stretch out of giving
celebrity rights as a spate right, certain perceptions from the court show the prospects
of their improvement in future. While considering the publicity rights in Titan
Industries Ltd. V. M/S Ramkumar Jewelers10, court has given two factors that ought
to be considered essentially: "Validity: The plaintiff owns an enforceable right in the
identity or persona of a human being and Identifiability: The Celebrity must be
identifiable from defendant's unauthorized use. Infringement of right of publicity

10
2012 (50) PTC 486 (Del)

33
requires no proof of falsity, confusion, or deception, especially when the celebrity is
identifiable. The right of publicity extends beyond the traditional limits of false
advertising laws." The court subsequently allowed an interim injunction directive
for the offended party while explicitly perceiving the rights in characters.

Supreme Court in case of- RR Raja Gopal v State of Tamil Nadu11 initially
recognized Publicity rights in the form of the right to privacy. In this case, the court
opined that: “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 any other matter.” This further resulted in
forming many such rulings since then, by numerous Courts.

Further, ambit of right to publicity in compliance with right to privacy was discussed
in case of- ICC Development (International) v. Arvee Enterprises and Anr.12 ,
where Delhi HC observed that- " 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. However, that right does not inhere in the event in question, that made the
individual famous, nor in the corporation that has brought about the organization of
the event. Any effort to take away the right of publicity from the individuals, to the
organizer (non-human entity) of the event would be violation of Articles 19 and 21
of the Constitution of India. No persona can be monopolized. The right of Publicity
vests in an individual and he alone is entitled to profit from it. For example, if any
entity, was to use Kapil Dev or Sachin Tendulkar's name/persona/indicia in
connection with the 'World Cup' without their authorization, they would have a valid
and enforceable cause of action."

11
(JT 1994 (6) SC 514)
12
2003 (26) PTC 245 Del

34
In Sonu Nigam v. Amrik Singh (alias Mika Singh)13, the parties to the case were to
appear at the Mirchi Awards 2013, and were shown through photographs on the
official posters of the event, with their due consent. Mika Singh, in order to promote
himself displayed hoardings and posters, which were different from official
hoardings and posters of the event, carrying huge pictures of himself along with
smaller pictures of the other artists, including Sonu Nigam, without their consent
and permission. It was contended that the said hoardings and posters gave an
unjustified and incorrect impression to the public about the prominence given to
Mika Singh as compared to the other artists. The Bombay High Court restrained the
defendants from displaying the pictures of the Plaintiff without consent and ordered
the defendant to pay Rs. 10 Lakhs as damages towards specified charities, as
consented by the parties.

Phoolandevi Vs Shekar Kapoor & others., in this case Phoolan Devi herself
protested that the film made by the respondent had distorted the facts. She sought an
injunction as she had given up her past criminal activities & had started her life
afresh. The court held that issue needs to be thoroughly examined and the
implications of such exhibition on the private life of an individual be scrutinized
before permitting release of such films. Thus, a celebrity can protect his /her name
& image as a constitutional right.

Also, another prominent Indian case is of Justice K. S. Puttaswamy (Retd.) v. Union

of India , wherein court opined that- "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 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

13
SUIT NO. 372 of 2013 Bom bay High Court (Civil Original Jurisdiction), MANU/MH/0517/2014.

35
without his/her consent". "Aside from the economic justifications for such a right, it
is also justified as protecting individual autonomy and personal dignity. The right
protects an individual's free, personal conception of the 'self.' The right of publicity
implicates a person's interest in autonomous self-definition, which prevents others
from interfering with the meanings and values that the public associates with her."

Right to publicity isn't absolute however it goes under the lively ambit of article 21
of the Constitution of India. For the assurance of public interest sensible limitations
can be put on such right under article 19 of the Constitution. The option to procure
data and course the same has been held to be incorporated under the article 19(1)(a)
inside the ambit of 'freedom of speech and expression’14.

The restricted protection to a celebrity's picture is given under the arrangements of

trademark laws. Under the Trade marks Act, 1999 there is no particular arrangement
to concede insurance to picture and public rights. However, the Act under section
2(m) giving the meaning of 'mark' incorporates names. Passing off is the common
law cure on which famous people depend to secure their picture and publicity rights.
To benefit the cure from passing off activity the verification of the people's standing,
distortion caused and accordingly hopeless harm to the individual is needed in
relationship to the merchandise or administrations.

Also, section 14 of Trademark Act, 1999 provides that when an application is being
filed for any registration of trademark which misleadingly suggest any connection
with a living person or any person whose death took place within twenty years prior
to date of application for registration of trademark the registrar may, before he
proceeds with application require applicant to furnish him with consent in written of
such living person or as the case may be, of legal representative of deceased person

14
Jain, M. P., Indian Constitutional Law, Fifth edition, Wadhwa and Co., 2008, p.988.

36
to the connection appearing on trademark. Therefore, no unauthorized use will be
possible.

Further, Copyright Act, 1957 however incorporates entertainers as performers to

give them the performer's privilege yet has neglected to perceive acting in
cinematographic films as the topic of performer's right protection as it just discusses
about the live execution made by the entertainers. In spite of the fact that performer's
right secures the monetary, moral and intangible rights of performers however the
equivalent is confined according to the particular exhibition made by the entertainer
and not past that so regardless of whether sports people falls under the meaning of
entertainer their intangible right insurance will be just restricted with respect to
contortion, mutilation or alteration of their presentation not past it.

Moreover, section 38 of copyright act, 1957 provides for recognition to performers

rights and this can be used in a well- mannered way to prevent unauthorized
utilization of marketing of an individual’s performance. This circumstance can be
well understood after referring to the case of Zacchini vs Scripps- Howard
Broadcasting Organization15, wherein plaintiff, Zacchini objected unauthorized
portrayal of his human cannon ball act by a cameraman. Here, in this case, plaintiff
was awarded with remedy.

Section 57 of copyright act, 1957 provides for recognition to moral rights of author
and further can be used to protect reputation of author. In Amar Nath Sehgal v/s
Union of India16, which was first case involving the issue of moral rights in India,
wherein an interim injunction was awarded in favor of the petitioner. Further, court

15
433 U.S. 562 (1977), was an important U.S. Supreme Court case concerning rights of publicity.
16
2005 (30) PTC 253 (Del), is a landmark Indian case decided by the Delhi High Court, which for the first time upheld
the moral right of an author under the Indian Copyright Act and awarded damages. The government was also
asked to return his mural

37
in this case examined at length the national and the international framework for
protection of the moral rights of the Author. The Court was of the opinion that it is
a narrow view the derogatory treatment of the creative work would mean deletion
to, distortion, mutilation or modification to, or the use of the work in setting which
is entirely inappropriate. The broad view is that mutilation is nothing but the
destruction of the work as to render it imperfect and is therefore prejudicial to the
reputation of the author. Here, The Court passed mandatory injunction against the
Union of India directing it to return the mural to Mr. Sehgal within two weeks from
the date of judgment. Court passed a declaration transferring all the rights over the
mural from Union of India to Mr. Sehgal and an absolute right to recreate the mural
and sell the same. The Court also granted damages to the tune of Rs.5 lacs and cost
of suit to Mr. Sehgal against Union of India.

PROTECTION OF CELEBRITY RIGHTS IN U.S.:

The emergence of right of celebrity in U.S. can be followed from the actual presence
of right to privacy. The privacy right doctrine in the USA is customarily associated
with the names of Samuel Warren and Louis Brandeis, who distributed the article
named ‫׳‬The Right to Privacy' in Harvard Law Review in 189017. Since then the right
to privacy has transformed into the right to be left alone. A famous American
scientist, William Prosser, further enunciated the following categories, included
within the personal right to privacy: protection against intrusion into one‫׳‬s private
affairs; avoidance of disclosure of one`s embarrassing private facts; protection
against publicity placing one in a false light in the public eye; and remedies for
appropriation, usually for commercial advantage, of one`s name and likeness18 . The
first state to recognize the protection of one‫׳‬s name and likeness was New York, in

17
(Krasilovsky, et al., 2007, p. 306), This business of music: the definitive guide to music industry (10th ed.), Billboard
Books, NY (2007)
18
(Biederman, et al., 2011, p. 186), Law and business of the entertainment industries Westford: Praeger Publishers
(2011)

38
1903 enacting what are now Sections 50 and 51 of the New York Civil Rights Act19.
One of the significant U.S. case where the term ‘right of publicity’ was coined is of
Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., in this case the court
clarified that the privilege of publicity was autonomous from the privilege to
privacy. Further, the court noted that ‘this right might be called a “right of publicity”.
For it is common knowledge that many prominent persons… far from having their
feelings bruised through public exposure of their likeness, would feel sorely
deprived if they no longer received money for authorizing advertisements,
popularizing their countenances, displayed in newspapers, magazines, busses, trains
and subways. This right of publicity would usually yield them no money unless it
could be made the subject of an exclusive grant which barred any other advertiser
from using their pictures’20.

Some American states have effectively built up the legal system controlling the
privilege of publicity, while in certain states it is as yet ensured as a typical right.
Currently, at least 18 states have enacted statutes, protecting the right of publicity,
including California, Florida, Illinois, Indiana, Kentucky, Massachusetts, Nebraska,
Nevada, New York, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah,
Virginia, Washington, and Wisconsin21. A profound examination has also conveyed
that there establishes no stable approach between these states when it comes to
understanding of the right of publicity, its port-mortem availability, and
transferability.

19
(Weiler & Myers, 2011, p. 220), Entertainment, media and the law: text, cases, and problems (5th ed.), St Paul:
West Academic Publishing (2011)
20
(Simensky, et al., 2011, p. 443), Entertainment law New York: LexisNexis (2011)
21
(Biederman, et al., 2011, p. 231) Law and business of the entertainment industries Westford: Praeger Publishers
(2011)

39
The scope of protection under the right of publicity may vary from state to state. As
section 391.170 of the Kentucky Revised Statutes (1999) mentions that, the general
assembly distinguishes that a person is liable to have property rights in his/her name
and likeness which are entitled to protection from commercial exploitation.
Similarly, in accordance with the section 3344 of the California Civil Code (1951),
it is the name, voice, signature, photograph, or likeness, in any manner, that is
protected under the right of publicity. A much larger scope of protection is granted
to right of publicity when it comes to the common laws of different states of U.S.

In the case Motschenbacher v. R.J. Reynolds Tobacco Company (1974), the court
ruled that the usage of the identifiable race car of a well-known race-car driver in a
television commercial violates the right of publicity of this driver.

In the case of Roberson v. Rochester Folding Box Co.22 for the first time right to
be let alone was invoked by the plaintiff on the basis of proclamation that likeness
of plaintiff as decoration on flour bags was used by the defendant. The issue involved
was “whether the commercial appropriation of somebody’s appearance required a
license.23” In this case the issue had its existence as dur to unauthorized use of image
of plaintiff in disregards to all her prospective commercial interest rather than typical
cases which are based on cause of action on the grounds of privacy rights violation.
Though, the claim was rejected but dissenting J. Gray recognized plaintiff had “a
property right to protection against the use of her image for commercial purposes.24”

In another case, Hirsch v. S.C. Johnson & Son, Inc. (1979)25 the court recognized
that the usage of the nickname of a famous football player (‘Crazy Legs’) on the
packaging of a shaving gel for women violated his right of publicity.

22
1902, 171 NY 538
23
Weber, Olaf, “Human Dignity and the Commercial Appropriation of Personality: Towards a Cosmopolitan
Consensus in Publicity Rights?”, SCRIPT-ed, Vol.1 No.1 (2004), p.161.
24
Supra note 11.
25
90 Wis. 2d 379

40
However, In the landmark case Vanna White v. Samsung Electronics America, Inc.
(1992)26 , the court ruled that usage of a robot dressed like the hostess of the famous
show Wheel of Fortune, is not a violation of her right of publicity, because the
plaintiff in the case did not show proof that consumers confused the robot with her
identity, hence the robot was not a likeness of Vanna White.

Post-mortem grant for protection under the right of publicity was raised in a
significant U.S. case of Shaw Family Archives Ltd. v. CMG Worldwide, Inc.27 ,
here in this case, the Shaw Family Archives were selling T-shirts with the image of
Marilyn Monroe and were running a web-site allowing the customers to purchase
licenses for the use of Monroe`s picture, image, and likeness on commercial
products. Marilyn Monroe, LLC and CMG Worldwide, Inc. alleged that these
actions had violated the right of publicity for Monroe under the Indiana Statute. The
parties raised the question that the statute of the state, where Monroe was domiciled
at the time of her death, should be applied. The parties discussed whether Monroe
was a New Yorker or California domiciliary at the time of her death. At the time of
the case`s consideration, New York limited the rights of publicity to living persons,
while the right was recognized in Indiana and California. The court ruled that at the
time of Monroe`s death, the right of publicity was not recognized by any of the
abovementioned states, making it impossible for her to transfer through a will a right
she did not have at the moment28.

Another case worth citing in this context is The Martin Luther King, Jr. Centre for
Social Change, Inc., et al. v. American Heritage Products, Inc., et al.29, where the
Supreme Court of Georgia was addressed several questions on the right of publicity,

26
U.S. App. LEXIS 19253 (9th Cir. Aug. 19, 1992)

27
486 F. Supp. 2d 309 (S.D.N.Y. 2007)
28
(Burr, 2011, p. 354–360), Entertainment law. cases and materials in established and emerging media St Paul,
MN: West Academic Publishing (2011)
29
250 Ga. 135, 296 S.E.2d 697 (1982)

41
including whether the right of publicity survives its owner and whether the right is
inheritable and devisable. When answering this question, the Supreme Court of
Georgia held that ‘the right of publicity survives the death of its owner and is
inheritable and devisable… If the right of publicity dies with the celebrity, the
economic value of the right of publicity during life would be diminished because the
celebrity`s untimely death would seriously impair, if not destroy, the value of the
right of continued commercial use’30.

Further, the modern view of the scope of the right of publicity is expressed in Section
46 of the Restatement (Third) of Unfair Competition31:

“One who appropriates the commercial value of a person’s identity by using without
consent the person’s name, likeness, or other indicia of identity for purposes of trade
is subject to liability for the relief appropriate under the rules stated in Sections 48
and 49.”

The Restatement provides the option to each person to ensure their own personality
and guarantee the commercial esteem that accumulates from the utilization of their
name, likeliness and other indica with the end goal of trade. The cure recommended
for the infringement of the privilege of publicity incorporates injunctions and
monetary relief. These Restatements are often quoted by the lawyers, academic
community and the courts as well.

PROTECTION OF CELEBRITY RIGHTS IN U.K.:

The United Kingdom has traditionally offered wide protection to free speech,
resulting in the refusal to develop a specific legal framework or tort for protection
of the right of publicity. Currently the right of publicity may be protected by using

30
(Biederman, et al., 2011, p. 216–226)
31
The American Law Institute, “Restatement (Third) of Unfair Competition 1995, s. 46-49”, available at:
http://rightofpublicity.com/statutes/restatement-third-of-unfaircompetition-s46-49, last visited on Jan. 22,
2019.

42
already existing torts, like malicious falsehood, false endorsement, infringement of
IP rights, defamation, libel, etc32. The most recent British court practice shows that
the encroachment of the privilege of publicity is currently ensured by outlining the
case in the torts of breach of confidence and passing off.

Also, another reason there is no recognition of right of publicity in U.K. is because

the judiciary and politicians both have supported the right of publicity to come into
existence but the same has been continuously opposed by the public33.

In U.K., intellectual property rights provide relief to celebrity through three specific
mechanisms which are mainly as follows- 1. Copyright, Designs and Patents Act of
1988 (“CDPA”),39), 2. The Trade Marks Act,40) and 3. The common law cause of
action for passing off. Apart, a plaintiff must establish British citizenship and
ownership of the work that was “allegedly reproduced, published, or infringed upon
in the United Kingdom in order to pursue a copyright infringement claim.34
Celebrities are not protected where their “artistic talents do not fit within the confines
of the definition of a copyrightable work.”35 Further, the Trade Mark Act is also
unlikely to grant any protection to celebrities in U.K. as it provides “protection of
names, letters, designs, or symbols that distinguish the trade mark owner’s goods
from the goods of a competitor.”36

The Douglas V/s Hello case is a case of the tort of breach of confidence. Here, the
famous couple Michael Douglas and Catherine Zeta Jones gave exclusive right to
publish their wedding photos to OK! Magazine. Despite anti-paparazzi measures
used at the ceremony, the rival magazine Hello managed to get the photos from the

32
(Helling, 2005, p. 32), Protection of “persona” in the EU and in the US: a comparative analysis (LLM thesis and
essays), University of Georgia Law (2005)
33
Basil and Markesinis et al., “Concerns and Ideas About the Developing English Law of Privacy”, American Journal
of Comparative Law, Vol.52, No.1(Winter, 2004), pp. 133-208.
34
Id., s.154
35
Id., s.1.
36
Supra note 39 at s.1 (1).

43
wedding and published them. Both the Douglases and OK! Magazine sued Hello for
breach of confidence. The court ruled in favor of the claimants, stating that the
Douglases arranged the ceremony so as to impose an obligation of confidence and
to control the information37. This tort shows the impact of the European Convention
for the Protection of Human Rights and Fundamental Freedoms in the UK. It ought
to be noticed that this case safeguard individual and dignitary parts of the privileges
of public people.

Another concept, for protection of commercial rights in U.K. is by controlling the

usage of one`s personality limiting the chances for passing off. The action of passing
off has been recently recognized in U.K. for receiving relief by celebrities when their
reputation or image is oppressed in relation to any goods or services. Some of
essential elements in order to succeed in a passing off claim is by proving following:
misrepresentation, the goodwill of the claimant, and damages caused to the claimant.
This approach does not unanimously apply to all the cases of infringement of the
right of publicity. For instance, in Lyngstad v. Anabas case the acclaimed Abba
musical group was not effective in asserting that their privileges were encroached
when their name and pictures were utilized on memorabilia. The court in this case
ruled that Abba was not itself arranged into a likewise business activity in the UK
and was not eligible for protection. Almost 30 years later, this practice was
challenged in the case of Irvine v. Talk sport, Ltd. (2003). In this case a picture of
an acclaimed Formula1 driver was utilized in ad materials for a radio broadcast. In
this case later, the passing off relief was granted to plaintiff on the ground of
unauthorized appropriation of his goodwill or reputation. The court appropriately
recognized “celebrities seek to exploit their personality and image commercially.38”

37
Cantero, et al., 2010, p. 5–6, Exploiting Publicity Rights in the EU. Zurich.
38
Id. at 2378-79.

44
Hence, celebrities are eligible to recover when any third- party attempts to falsely
portray their endorsed products or administrations.

PROTECTION OF CELEBRITY RIGHTS IN OTHER EU NATIONS:

European Court of Human Rights do not directly portray any cases where the
involvement of right of publicity was directly mentioned. The right to one`s own
reputation for a well- known person is protected under the right to privacy which is
in accordance with Article 8 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (1950). In Europe, “image rights” is the preferred term
for such rights. Though, their lacks unified regulation in European Union for it as,
most of the countries recognize “image rights” of certain type as a part of the
personality rights.

~ GERMAN LEGAL SYSTEM:

In the Von Hannover v. Germany (2012) case the photos of the plaintiff, who were
the elder daughter of the late Prince Rainier III of Monaco and her husband, were
published in German magazines without their prior consent. They considered that
the rejection by the German courts to grant them with an injunction against any
further publication of their photos is leading to violation of their rights to the demand
for private life. In this case the European Court of Human Rights formulated the
criteria which is relevant for balancing the right to the respect for private life and the
right to freedom of expression. However, Because the photos in question did
contribute to a debate of general interest which is- showing the illness of Prince
Rainier and the attitude of his family members towards his health, the court found
no violation of Article 8 of the Convention for the Protection of Human Rights and
Fundamental Freedoms.

A different approach originated in Germany. After the Second World War, the
German Federal Supreme Court developed the notion of general right of personality,

45
based on Art. 1 and 2 of the German Constitution and section 823 of the German
Civil Code. The scope of this right is very broad and is identified by the courts on a
case-by-case basis39. However, two aspects of the right of personality that are being
protected by distinct statutory provisions and these includes- right to one`s name and
image. The right of publicity is not recognized as a right per se in Germany.
However, in court practice, the broad scope of a person`s identity is protected,
including protection of person`s likeness, voice, signature, and other personal
characteristics40. Also, Because the right of publicity falls under ambit of a personal
right, it is not transferrable, voidable, and descendible in Germany. However, an
individual may consent to the usage of some characteristics of his/her identity for a
remuneration, allowing this right to be marketable for a profit gain. In the opinion
of Bergmann, German Law has moved towards the American approach by
recognizing the ability to consent through licenses41.

In 1999 the daughter of Marlene Dietrich sued in order to get compensation for
damages because of the unlawful use of her mother’s image in the commercial of a
musical record about Marlene Dietrich`s life. The court ruled in favor of the claimant
in the case, allowing post-mortem protection of the right of publicity42. This term of
protection is time limited to 10 years, during this period any third person cannot use
an individual’s picture or other characteristics in order to obtain any commercial
profit out of it without prior permission of that individual’s legal heirs43.

~ FRENCH LEGAL SYSTEM:

The concept of ‘personality rights’ has advanced in the French legal system,
comprising the right to image, right to privacy, freedom of speech, religious

39
Cantero, et al., 2010, p. 10
40
Welser, 2014, p. 50
41
Bergmann, 1999, p. 44
42
Helling, 2005, p. 53
43
Welser, 2014, p. 50

46
freedom, family relations, and intimacy44. The privilege to one’s image is currently
to some degree independent, having its underlying foundations in the right of
privacy. The French legal doctrine differentiates the right to one`s image, meaning
that an individual has an exclusive right to use his/her image and prevent third parties
from such usage (a positive right) and the right on one`s image, allowing the person
to commercially exploit his/her image45. This dualistic approach results in
distinguishing of the personal and commercial aspects of one’s image, making it
difficult to introduce a fully united right of publicity in France. Today the image
right in France protects not only the sound image of the person, but also other aspects
of the personality, e.g. voice, etc.46

Considering an instance in France, at the end of nineteenth century an artist drew the
famous actress Rachel on her deathbed and sold these images despite the allegations
of the family, who sought protection from such usage in court. The court ruled that
no one could recreate and sell the pictures of a deceased individual without the
unequivocal assent of the family.47

Another remarkable court decision in France is the Papillon case, where the
publication of the life story of a former criminal having the nickname ‘Papillon’ was
at question. The court ruled that the publication of the criminal’s image on the book
cover was a violation of his image rights.48

While the option to financially abuse one’s, image is explicitly perceived in French
lawful practice, the circumstance with descendibility of the privilege isn't so clear.

44
Cantero, et al., 2010, p. 7, Exploiting Publicity Rights in the EU. Zurich
45
Logeais & Schroeder- The French right of image: an ambiguous concept protecting the human persona, 1998, p.
517
46
Helling, 2005, p. 42, Protection of “persona” in the EU and in the US: a comparative analysis (LLM thesis and
essays), University of Georgia Law (2005)
47
Logeais & Schroeder- The french right of image: an amiguous concept protecting the human persona, 1998, p.
514
48
Helling, 2005, p. 43, Protection of “persona” in the EU and in the US: a comparative analysis (LLM thesis and
essays), University of Georgia Law (2005)

47
In the early cases French courts ruled that the right of image was a personality right
terminating upon the person`s death.49 The first court decision to recognize the post-
mortem availability of the image right was the decision in the Raimu case, where
the widow of the famous French actor tried to prevent an advertising company from
using the image of her husband. The court ruled in favor of the claimant, stating that
the patrimonial aspects of the right of image are descendible.50

~ SPANISH LEGAL SYSTEM:

In Spain the right to one`s image is seen as an autonomous personal right,

independent from the right of honor and the right to privacy.51 These personal rights
are laid down in accordance to the Constitution of Spain and the Organic Law of
May 5, 1982. In accordance with Article 7 of the latter, the use of the name, voice,
or picture of a person for the purpose of advertising, business, or a similar nature is
illegal in Spain.52

One remarkable Spanish case involving the name of a famous actor is the Gades
case. In this case promotional material about the Spanish actress Laura del Sol
mentioned Antonio Gades as the actor with whom she completed her most recent
movie. The Supreme Court of Spain ruled that this material contained an illegal
usage of Mr. Gades’s name and hence he should be compensated by defendant. 53

Descendibility of the rights to one`s image is also allowed in Spain. Pursuant to

Organic Law, a right may be enforced by family members who were alive at the time

49
Logeais & Schroeder- The french right of image: an amiguous concept protecting the human persona, 1998, p.
535
50
Logeais & Schroeder- The french right of image: an amiguous concept protecting the human persona, 1998, p.
537
51
Cantero, et al., 2010, p. 13, Exploiting Publicity Rights in the EU. Zurich
52
Barnett, 1999, p. 565 [S. Barnett- The right to one`s own image: publicity and privacy rights in the United States
and Spain, American Journal of Comparative Law, 47 (1999), pp. 555-582]

53
Barnett, 1999, p. 575 [S. Barnett- The right to one`s own image: publicity and privacy rights in the United States
and Spain, American Journal of Comparative Law, 47 (1999), pp. 555-582]

48
of his/her death. In the case of the absence of legal heirs, the Ministry of Justice is
entitled to enforce a person`s image right for 80 years after the death of celebrity.54

~ ITALIAN LEGAL SYSTEM:

In Italy legal doctrine distinguishes between- typical rights (directly provided by the
statute) and ‘precedential rights’ (those not specifically mentioned in the legislation,
but deriving from the court decisions).55 One of the typical rights in Italian law is of
the right of an individual over his/her image and it is protected by both the Civil
Code (Art. 10) and the Copyright Law (Art. 96, 97).56

The right of publicity was first recognized in the Dalla v. Autovax case in 1984. In
the case of Dalla v. Autovax, an Italian District Court found that the
misappropriation of a celebrity’s persona wrongfully evoked an association between
a celebrity and a product.57 The case concerned a popular Italian pop star, Lucio
Dalla who brought an action against Autovax an Italian producer of auto radios and
stereos. Here, in this case The Court found contended Dalla and held that Autovax
misappropriated his persona, not through the use of an image, but of distinctive
indicia of his identity.

Similarly, in 1997, the Italian Supreme Court found that the personality rights of the
famous actor Totò had been infringed by a chocolate manufacturer’s use of a
drawing and graphic in an advertisement, showing some characteristic elements of
Totò’s appearance and the formation of the word Totò. The Supreme Court held that,

54
Savare, M. (2013). Image is everything. Intellectual Property Magazine
55
A. Helling- Protection of “persona” in the EU and in the US: a comparative analysis (LLM thesis and essays),
University of Georgia Law (2005)
56
Verducci-Galetti, S. & Grazioli, S. (2008). The Italian approach to publicity and Image Rights. World Trademark
Review,
57
Pret., 18 aprile 1984, Giur. it. 1985, I, 2, 544 (It.); see also Trib. 26 ottobre 1992, Diritto dell’informazione e
dell’Informatica [Dir. Inf.], 1993, 942 (It.) (stating that the use of a lookalike of the Italian actress Monica Vitti to
advertise living room furniture was unauthorized)

49
Totò’s special facial features - the crooked chin and the almond eyes - could evoke
the image of the famous actor in the public’s mind.58

In further cases the courts seem to follow the recognition of the right of publicity,
using it as an extension of the right to one`s image or name. For example, the court
has extended protection against unauthorized usage of a singer`s image and signature
(Baglioni v. Eretel and Disco Spring) and against the usage of a look-alike of a
famous person (Vitti v. Doimo).59

Though, A possibility to transfer the right of publicity or pass it to legal heirs is still
undecided by Italian legal practice and jurisprudence.60

Chapter V: COMPARATIVE ANALYSIS TO ENHANCE INDIAN LAWS

After going through comparative study between India, U.S., U.K. and other EU
Nations, it can be clearly seen that celebrity protection rights in U.S. states like
Indiana, New York, Washington and California are way too advanced and also make
us aware about sad status of these rights in other nations especially India and U.K.
From one viewpoint where such U.S. states have explicit authorizations for security
of publicity rights, in contrast India then again is battling to give appropriate
acknowledgment to rights of celebrity. Statutory protection for publicity rights in

US state of Indiana is so enhanced that it extends its scope of protection to

personality attributes such as appearance, gestures and mannerism etc. also.

58
Cass., sez. un., 12 marzo 1997, n. 2223, Dir. inf., 1997, 542 (It.).
59
S. Martuccelli- The right of publicity under Italian civil law, Loyola Marymount University and Loyola Law School
(1998)
60
Savare, M. (2013). Image is everything. Intellectual Property Magazine.

50
Now, discussing of post mortem rights, in Indiana recognition to rights of celebrity
and even non- celebrity with an extension of post mortem rights is provided where,
in both cases time limit ranges for 100 years after death. However, state of New
York does not protect these post mortem rights. Washington code gives recognition
to these post mortem rights but term for such protection varies from that of Indiana.
In Washington this term for providing protection to post mortem rights are of 75
years for celebrity and 10 years for non- celebrity. California also acknowledges
these post mortem rights and provide for protection to any natural person till 70 years
after death under them.

Also, when it comes to remedies under these laws New York and California provides
for civil and criminal remedies for violation of such publicity rights but Indiana and
Washington provide only civil remedies.

Under US jurisdiction defenses available under protection for right to publicity

includes dissemination of information for public interest, news worthy items,
promotional material for news reporting, original work of fine arts etc. In US each
state provides for a combination of defenses in order to limit the rights of publicity
of celebrity and even a non- celebrity for balancing the public and private interests.
Some of these defenses are best suited for Indian scenarios also, and can be adopted
to an ambit in order to serve in both public and private interest of nation.

Similar to India, status of U.K. regarding protection of these celebrity rights is not
in much good shape. In U.K. celebrity rights protection is provided with very
minimal recognition from judiciary and chief reason for this is due to large
opposition of these rights by general public. According to common masses there,
these rights limits dissemination and access to information by limiting conducts of
media. In U.K. these right of privacy for celebrities are only accessible under Human

51
Rights Act of 1988 and that too sometimes fall short to provide them with adequate
protection possible. Further, British court practice shows that the encroachment of
the privilege of publicity is currently ensured by outlining the case in the torts of
breach of confidence and passing off.

Under passing off also, celebrity is granted relief only when they succeed in
establishing that their reputation is somehow attached to goods or services which
they never consented to be part of, though such action only provides for very nominal
remedies. Remedies provided for such action is not justifiable when being compared
to profits to the other party and dilution of goodwill of celebrity.

Though, India lacks in providing solid protection to right of privacy of an individual

when role of press and media comes into play but when it comes to recognition of
celebrity rights, India stands at better footing in comparison to U.K.

In India the main concern is to establish a balance between the right of publicity for
celebrity and freedom of press and media. Whereas, in U.K. concerns are regarding
non- recognition of celebrity rights and major reason for such non- recognition at
large is fear of excess limitation over rights of press and media.

The below chart represents a comparative analysis of celebrity rights protection in

different jurisdictions of nations-

52
Point of India New York Washingto Californi Indiana U. K
Comparison n a

Statutory No Civil law Section Section Indiana No specific

Protection Specific Rights 63.60.010 3344 code Statute limited
statute Sections to Section Californi Section protection
50 and 51 63.60. a 32-36-1- through
080. Civil 0.2 et Human
Wash. Code seq. Rights Act
Rev. controlling
Code press and
media

against
celebrity
Who is Not Any Any Any Person Celebrity
protected defined natural natural natural with
person person person commerci
but al
postmort value in
em identity
statute (Celebrit
requires y)
that the Ind. Code
person §
has a 32-36-1-
0.2 et

53
 “commer seq.
cial
value”

Remedy Civil Civil Civil Civil Statutory Civil

Actions (N.Y. (Cal. or Actions
Civ. Civ. actual
Rights Code § damages
Law § 51. 3344) awarded.
Action for and Ind. Code
Injunction Criminal §
and For

Damages) (Cal. 32-36-1-

and Penal 0.2 et
Criminal Code § seq.
(N.Y. 115.1)
Civ. both
Rights
Law § 50.
Right of
Privacy)
Both

54
Protects Not Name, Name, Name, Name; Not
use of defined portrait, voice, voice, voice, defined
picture or signature, signature signature,
voice likeness or , photogra
photograp photogra ph,
h ph, or image,
Section likeness likeness;
63.60.010 (§ distinctiv
Wash. 3344.1(a e
Rev. ) (1) appearan
Code ce,
gesture;
or
manneris
ms.

Kind of Constitu Statutory Statutory Common Statutory Indirect

protection tion of law and protection
India Statutory through
generali both Privacy right
zed under
insuffici Human
ent Rights acts
protecti by
on controlling
media and
press

55
Post Not Not The post Cal. Civ. Ind. Code Not
mortem defined protected mortem Code § § defined
rights period is 3344.1, 32-36-1-
ten Post 0.2 et
(10) years mortem seq., post
for rights are mortem
individual available rights
s for are
and seventy available
seventy- (70) for
five years seventy
(75) years after (100)
for death years
personaliti after
es. Wash. death

Rev. Code
§63.60.04
0
(2)
Statutory Article N.Y. Civ. Wash. Cal. Civ. Ind. Code Public
defenses 19(a) Rights Rev. Code § § Interest
Constitu Law § 51. Code § 3344) 32-36-1-1
tion of Action for 63.60.070
India Injunction (2) (2012).
and For
Damages

56
A detailed study of above- mentioned jurisdiction when done in a proper way for
sure is going to help strengthen Indian laws regarding protection of celebrity rights.
As for instance, the framework for limiting the rights of media in regard to celebrity
image exploitation as provided in U.K. can be taken into consideration to limit the
rights of press as provided under Indian Constitution, being the status that media
forms to be the foremost exploiter of the celebrity persona. The blend of best of the
reasonable laws from these various jurisdictions can assist India with having a
supportable authoritative system for celebrity rights assurance.

Chapter VI: LEGAL NATURE OF RIGHT OF PUBLICITY:

INTERACTION WITH TRADEMARKS AND COPYRIGHT:

The celebrity rights fall under ambit of both personal and intangible property rights.
The protection of personality traits of famous person and the goodwill attached to it
is intangible in nature. Celebrities not only gain monetary profits from their
commercial value of goodwill but also acts as a motivational force in mindsets of
large number of people because of their perseverance and hard work in their
respective fields. Further, there is no denying that such person must have putted in
an immense amount of efforts along with conscious care in order to establish himself
the status of ‘Celebrity’. Persona of an individual is developed by his/her intellect
and then after great amount of hard labour gets recognition in the society resulting
in becoming his personal property which he can both protect and flaunt as per his
wish. Therefore, in order to obtain the best understanding of the suitability to protect
celebrity rights under IPR the concepts of trade mark and copyright needs to be
understood in a detailed way.

57
was Leggatt LJ according to him- "The theory of the right is that a celebrity's identity
can be valuable in the promotion of products, and the celebrity has an interest that
may be protected from the unauthorized commercial exploitation of that identity.
The famous have an exclusive legal right during life to control and profit from the
commercial use of their name and personality."

Also, according to rationale contended by certain authors these celebrity rights are
suited fit to Locke’s Labor Theory, this is because celebrities put in a colossal
measure of efforts alongside conscious care to build up themselves the situation with
'Celebrity'. Hence, fame procured by them is a productive aftereffect of their work.

Furthermore, as a result business estimation of their character in the midst of public

gets one of their significant wellsprings of vocation. Market influences approach
them for promotion and business related to comparative nature as they have set up a
goodwill and reputation in market. From the viewpoint of business investors'
superstars are being viewed as a compelling promoting component to draw openly
to make them purchase their items.

TRADE MARK:

The law of trademark and publicity rights of celebrities share extraordinary

arrangement practically speaking like guaranteeing that proprietor of the privilege
should keep on controlling the job and importance of their personality. Trade mark
law endeavors to control such utilization of Trade mark which brings about the
disarray or uncertainty as respects to the association or wellspring of the great.
Individual may apply for protection of their name, similitude and monikers,
notwithstanding different things, with the Indian Trademarks Registry. The legal
assurance allowed assumes a huge part to superstars who intend to use their likeness
and picture to perceive an affirmed line of product or their own merchandise and
enterprises. With the changing pace celebrities are also getting aware of their name

58
and image rights. A recent example is of actress Mallika Sherawat who registered
her name as a trademark. Applying for enlistment of their names and images as
trademarks many other celebrities have sought a protection under Trademark laws,
which includes yoga guru Baba Ramdev, cardiologist Naresh Tehran, Chef Sanjeev
Kapoor and actress Kajol to name a few61.

Celebrity name can be registered as a trademark?

In order to prevent others from taking such undue advantage of their goodwill and
brand, there has been a growing trend amongst famous people to trademark their
names. The identity of an individual refers to all distinct, recognizable elements as
individual's physical appearance, image or likeness, name, voice, signature, style,
photograph, gestures, recognizable attire, look and facial features. However, one
needs to keep in mind that if the registered trademark remains unused for a period
of five consecutive years, then the mark may be removed from the trademark
register. This acts as a remedy against defensive registration.

To protect the brand value of a person trademark cannot be registered. Therefore, if

a celebrity is registering his/her name it should be with respect to a particular class
of goods or/and services. For instance, Paris Hilton got a trademark for her name for
sale of clothes and perfumes, whereas David Beckham has a trademark registration
for clothing, footwear and headgear. Shah Rukh khan has filed applications to
register trademark 'SRK', in almost all the 45 classes. Conventions such as Producers
of Phonograms and Broadcasting Organizations, 1961 (Rome Convention),

The International Convention for the Protection of performers and WIPO

Performances and Phonograms Treaty 1996 deals with the protection of celebrity
rights. Celebrities in India have begun to take pre-emptive measures, such protective

61
Thomas George, Celebrity-focused Culture Highlights Need for Statutory Right to Publicity, available at
: http://www.worldtrademarkreview.com/issues/article.ashx?g=1596958f-55a7-4b2b-a93c-66f887027801(last
visited on 2 Aug. 2017).

59
measures have greater prevalence in foreign countries like the United States. Many
celebrities have already registered names as trademarks; for instance, Beyoncé has
got a trademark registration for her daughter's name, Blue Ivory Carter, with respect
to baby products. Angelina Jolie was involved in a legal battle with fragrance
designer Symone Salim pour, when the latter decided to use 'Shiloh', which is the
name of Angelina's daughter, as the name of her new perfume. Kendall and Kylie
Jenner too have filed trademark applications for registering their name with respect
to hair accessories, clothing, and beauty products. Protecting Celebrity rights under
IP laws is a significant development in the field of IPR.

In 2017, in the case of Gautam Gambhir vs D.A.P & Co. & Anr, the famous Indian
cricketer had contended that his name which was protectable under the trademark
law owing to his well-known status in the public, was used as a tag line to the chain
of restaurants owned by the Defendants owing to which it was alleged that there was
confusion in the minds of the public as to the Plaintiff’s association with the said
chain of restaurants amounting to deception and personality rights of the Plaintiff
being illegally violated. The Delhi High Court while declining the injunction sought
by the cricketer, held that there was nothing on record to prove that the Defendant
was trying to pass-off his restaurant as one owned by the Cricketer as there was no
representation of the Cricketer to the public, be it his picture, photo or even poster,
both in the defendant’s restaurant as well in its social media pages, so as to cause
any confusion in the minds of the public. In-fact the Defendant has posted his own
pictures to associate his “own” identity to his restaurant. Hence the High Court held
that neither did the plaintiff cricketer’s name was commercialized, nor was there any
loss of goodwill in his field and thus dismissed the suits and the applications. This
case shows that although involving a famous personality and a widely known public

60
figure, unless unjust enrichment on a celebrity’s Personality Rights are proven, the
suit would fail to stand the test of “publicity rights”.

For an instance, we can see Relief was granted to senior batsman Sourav Ganguly
by the court in the recent case Sourav Ganguly v. Tata Tea Ltd., where Sourav
Ganguly who returned form Lords after scoring magnificent centuries ended up
amazingly upset when he understood that Tata Tea Ltd., where he was utilized as an
administrator was advancing it's 1 kilo tea bundle by offering the shoppers an
opportunity to praise Sourav through a postcard which was there inside every parcel
of tea. Here, company intended to promote sale of its tea parcel by utilizing fame
earned by Sourav for sake for their big fat profit. Ultimately, the court ruled in favor
of Sourav by accepting that his fame and popularity were his Intellectual Property.

The limited protection to a celebrity’s image is provided under the provisions of

trademark laws. Under the Trademarks Act, 1999 there is no specific provision to
grant protection to image and publicity rights. Also, the Act under section 2(m)
provides for the meaning of 'mark' which also incorporate names. Some well- known
personalities from India like Baba Ramdev, Sanjeev Kapoor, Kajol, Sachin
Tendulkar, Shahrukh Khan and Yuvraj Singh etc. have applied for the registration
of their name as trademark to have protection under the Act against its misuse. There
is great rise in the trend as regard to the use of name and image by the celebrity to
market goods or services.

Also, section 14 of Trademark Act, 1999 provides that when an application is being
filed for any registration of trademark which misleadingly suggest any connection
with a living person or any person whose death took place within twenty years prior
to date of application for registration of trademark the registrar may, before he
proceeds with application require applicant to furnish him with consent in written of

61
such living person or as the case may be, of legal representative of deceased person
to the connection appearing on trademark. Therefore, no unauthorized use will be
possible.

In the decision of DM Entertainment v. Jhaveri, the defendants registered the

domain name “dalermehndi.net” which is the name of a famous Indian music
composer, singer and performer. Therefore, Daler Mehndi filed a suit against the
defendants. The Delhi High Court in this matter gave a restraining order to the
defendants from using the trademark DALER MEHNDI stating that the name may
be a significant trademark.

In another case, in the year 2009 luxury pens were released by Montblanc in India
and the pens were called as “Mahatma Gandhi Limited Edition 241” and “Mahatma
Gandhi Limited Edition 3000”, and a picture of Mahatma Gandhi was also engraved
in the nib. These pens were released with prior permission of the great grandson of
Gandhi i.e. Tushar Gandhi. But the release was opposed on the grounds of protection
provided under the Emblems and Names (Prevention of improper use) Act 1950.

According to this Act names and images of nationally important personalities should
not be used for trade or any professional purpose unless and until. Government gives
the permission. Henceforth, Mont blanched to remove the advertisements as well as
pens from the market.
Moreover, A celebrity can protect his or her name from use as a part of a domain
name by exercising a court remedy in light of trademark encroachment ( if he or she
has acquired the registration for the mark) or by filing a passing off case in view of
his or her goodwill and reputation in his or her name. Under the Uniform Domain
Name Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned
Names and Numbers a complaint can be filed alternatively by him or her. In Jaitley

62
v Network Solutions Private Limited62, it was litigated that Jaitley wanted to
register the domain name ‘arunjitely.com’, but later on came to know that same has
been registered by the defendant beforehand. It was argued that once the domain
name registration got expired the defendant rather than deleting it or transferring it
to the plaintiff transferred the same to auction site for domain names (the third
defendant). Court here allowed the interim injunction for restricting the transfer,
discharge or offer available to be purchased of the domain name “arunjaitley.com”
to any outsider and the formation of any outsider intrigue in that.
In similar way Passing off is the common law cure on which famous people depend
to secure their picture and publicity rights. To benefit from this cure of passing off
activity the verification of the people's standing, distortion caused and accordingly
hopeless harm to the individual is needed in relationship to the merchandise or
administrations.

COPYRIGHT LAWS:

The Copyright Act represents a challenge in regard to acknowledgment of publicity

and image rights. There is very little lucidity with reference to what parts of celebrity
rights might be ensured under Copyright Act. Celebrities’ voice cannot be granted
protection under Indian copyright laws as it does not fall in the category of literary,
dramatic or musical work. Though, the voices of celebrities are frequently abused
by the promoters or advertisers. The economic or commercial rights to the performer
under copyright laws have been provided as a separate class of performer’s rights63.
But the problem which subsists is that these rights are provided in specific
performance and not in the artist or celebrities’ general image. In this way the
Copyright Act also proves to be insufficient to invest image rights on celebrities.

62
2011 (47) PTC 1 (Del)
63
Performers’ Rights are given under Sec.38 of the Copyright Act, 1957. It should be noted that performers are
only conferred with economic rights and there is no provision to accord moral rights.

63
Though, no protection has been accorded to the celebrity’s name or image in India.
In the case of Raja Pocket Books v Radha Pocket Books64, ‘Nagraj the Snake
King’ a well- known character of the youngsters’ comic was granted protection
under law of copyright. The Copyright Act, 1957 does not define the word
‘celebrity’. However, the definition of a ‘performer’ under section 2(qq) includes an
actor, singer, musician, dance, acrobat, juggler, snake charmer, lecturer or any other
person who delivers a performance. But a performer is not a celebrity always and a
celebrity may not be performer at all. For example, a teacher teaching in class or a
snake charmer performing his art are performers but not celebrity.

Moreover, section 38 of copyright act, 1957 provides for recognition to performers

rights and this can be used in a well- mannered way to prevent unauthorized
utilization of marketing of an individual’s performance. This circumstance can be
well understood after referring to the case of Zacchini vs Scripps- Howard
Broadcasting Organization65, wherein plaintiff, Zacchini objected unauthorized
portrayal of his human cannon ball act by a cameraman. Here, in this case, plaintiff
was awarded with remedy.

Section 57 of copyright act, 1957 provides for recognition to moral rights of author
and further can be used to protect reputation of author. The WPPT has expressly
denied ‘moral rights’ to audio-visual performers such as actors66, partly due to
India’s insistence during negotiations, leading several commentators to opine that
this was due to the powerful producer’s lobby in both Hollywood as well as
Bollywood which seeks to deny actors any rights67. In Amar Nath Sehgal v/s Union

64
Raja Pocket Books v Radha Pocket Books (1997) (40) DRJ 791
65
433 U.S. 562 (1977), was an important U.S. Supreme Court case concerning rights of publicity.
66
World Intellectual Property Organization, available at: www.wipo.org/pressroom/en/releases/2002/p 302.html
(last visited on 4 Aug.,2017)
67
Fiona Macmillan “The Cruel C: Copyright and Film”, 21 Eur IPR. (2002).

64
of India68, which was first case involving the issue of moral rights in India, wherein
an interim injunction was awarded in favor of the petitioner. Further, court in this
case examined at length the national and the international framework for protection
of the moral rights of the Author. The Court was of the opinion that it is a narrow
view the derogatory treatment of the creative work would mean deletion to,
distortion, mutilation or modification to, or the use of the work in setting which is
entirely inappropriate. The broad view is that mutilation is nothing but the
destruction of the work as to render it imperfect and is therefore prejudicial to the
reputation of the author. Here, The Court passed mandatory injunction against the

Union of India directing it to return the mural to Mr. Sehgal within two weeks from
the date of judgment. Court passed a declaration transferring all the rights over the
mural from Union of India to Mr. Sehgal and an absolute right to recreate the mural
and sell the same. The Court also granted damages to the tune of Rs.5 lacs and cost
of suit to Mr. Sehgal against Union of India.

Further, ambit of right to publicity in compliance with right to privacy was discussed
in case of- ICC Development (International) v. Arvee Enterprises and Anr.69,
where Delhi HC observed that- " 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. However, that right does not inhere in the event in question, that made the
individual famous, nor in the corporation that has brought about the organization of
the event. Any effort to take away the right of publicity from the individuals, to the
organizer {non-human entity} of the event would be violation of Articles 19 and 21

68
2005 (30) PTC 253 (Del), is a landmark Indian case decided by the Delhi High Court, which for the first time
upheld the moral right of an author under the Indian Copyright Act and awarded damages. The government was
also asked to return his mural
69
2003 (26) PTC 245 Del

65
of the Constitution of India. No persona can be monopolized. The right of Publicity
vests in an individual and he alone is entitled to profit from it. For example, if any
entity, was to use Kapil Dev or Sachin Tendulkar's name/persona/indicia in
connection with the 'World Cup' without their authorization, they would have a valid
and enforceable cause of action."

Also, another prominent Indian case is of Justice K. S. Puttaswamy (Retd.) v.

Union of India70, wherein court opined that- "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 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". "Aside from the economic justifications for such a right, it is also justified
as protecting individual autonomy and personal dignity. The right protects an
individual's free, personal conception of the 'self.' The right of publicity implicates
a person's interest in autonomous self-definition, which prevents others from
interfering with the meanings and values that the public associates with her."

Right to publicity isn't absolute however it goes under the lively ambit of article 21
of the Constitution of India. For the assurance of public interest sensible limitations
can be put on such right under article 19 of the Constitution. The option to procure
data and course the same has been held to be incorporated under the article 19(1)(a)
inside the ambit of 'freedom of speech and expression'71.

The restricted protection to a celebrity's picture is given under the arrangements of

trademark laws. Under the Trade marks Act, 1999 there is no particular arrangement

70
AIR 2017 SC 4161
71
Jain, M. P., Indian Constitutional Law, Fifth edition, Wadhwa and Co., 2008, p.988.

66
to concede insurance to picture and public rights. However, the Act under section
2(m) giving the meaning of 'mark' incorporates names. Passing off is the common
law cure on which famous people depend to secure their picture and publicity rights.
To benefit the cure from passing off activity the verification of the people's standing,
distortion caused and accordingly hopeless harm to the individual is needed in
relationship to the merchandise or administrations.

INTERPRETATION OF VARIOUS RIGHTS OF CELEBRITIES UNDER

DIFFERENT INTERNATIONAL CONVENTIONS AND LEGISLATION

Internationally, the evolution of celebrity rights and its concept is gradually

developing in different jurisdictions. While discussing about its interpretation in
different international conventions, legislations or treaties, it is pertinent to mention
that there are many such conventions, legislations or treaties which have dealt with
the protection of celebrity or performers rights. To mention some of the landmark
conventions/treaties, there are:

 The International Convention for the Protection of Performers, Producers of

 Phonograms and Broadcasting Organizations, 1961 (The Rome Convention).
 The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS).
 The WIPO Performances and Phonograms Treaty, 1996 (WPPT).

Rome Convention

This was the first international convention which dealt with the performer’s rights,
producers of phonograms and broadcasting organizations. According to Article 19
of the Rome Convention, performers are not provided or vested with the rights in
regard of the secondary use as in case of films. Equitable remuneration is the limit
for right to secondary use. However, Rome convention does not deal with the moral
rights and therefore it can be concluded that it does not protect the moral rights.

67
TRIPS

As per the requirements provided under the Article 14(1) of TRIPS, performers have
been granted “the possibility of preventing” the following acts:

 Fixation of their performance on a phonogram;

 Reproduction of such fixation; and
 Broadcasting of their live performances.

As per the provision of Article 14(5) of TRIPS, the extension of the term could be
provided from 20 years to 50 years. In comparison to various agreements on
Intellectual Property, TRIPS is that one agreement or instrument which has a very
efficient enforcement mechanism. And also, the Member states can be properly
regulated or disciplined through the World Trade Organization's dispute settlement
mechanism which is considered as the main and one of the crucial pillars of the
multilateral trading system in the global economy.

The WIPO Performances and Phonograms Treaty, 1996 (WPPT)

This Treaty of 1996 came into force with an aim to stabilize, develop and maintain
the protection of the performer’s rights and rights of producers of phonograms in a
manner which is as effective, efficient and uniform as possible. The need was felt
for the introduction of new and modern international rules so that they could provide
adequate solutions and effective answers to:

 the questions which were raised by the modern development;

 the profound impact of the development and convergence of information and
communication technologies on the production and use of performances and
phonograms;
 the need to maintain a balance between the rights of performers and producers
of phonograms; and

68
  the larger public interest, particularly education, research and access to
information.

According to the provision of Article 5 of the Treaty, it has been provided that
independent of economic rights, the performer shall have the right to claim to be
identified as the performer of his performance (moral rights) except under certain
conditions. Apart from moral rights, performers shall enjoy the economic rights
of performers in their unfixed performances (Article 6), right of reproduction
(Article 7), right of distribution (Article 8), right of rental (Article 9), and right
of making available of fixed performances (Article 10). The performer has as a
result the “exclusive right to authorize” than a mere possibility of preventing.

Chapter VII: LIMITATION OF RESEARCH

Limitation regarding study of protection of celebrity rights has arisen is certain

aspects as follows:

LIMITED ACCESS TO DATA:

This comparative method study includes detailed study of jurisdictions of varied

nations. Certain articles regarding study of varied nation’s jurisdiction were only
available on Internet and no accurate information was available regarding
amendment of these jurisdictions and problems arising out of them.

TIME CONSTRAINT:

The time available to study a research problem and to measure change over time is
constrained by the deadline. This topic requires a longitudinal study in order to well
formulate laws for strengthening of protection over celebrity rights.

69
 CONCLUSION AND RECOMMENDATIONS

From the above discussion, one can understand that a celebrity right is a unique right
which is of its individual kind. On one hand, it is the possessions of the celebrity,
who can exploit it in any ways, as he prefers, and the publicity rights are treated as
one’s individual property. The Indian legal system is lagging behind in dealing with
the contemporary phenomenon of celebrity endorsements and merchandising. With

exorbitant sums riding on celebrities, the advertisers and market forces often find
number of ways and means to abuse celebrity images. The amendment in the
copyrights or trade mark laws or even privacy rights is not adequate but an explicit
enactment with the amalgamation of all three perspectives is essential to be
undertaken by judicial authorities. The measured protections to personalities are
required to be granted to balance the personal and public interest of the individual
and the social order respectively.

The protection granted in U.S. for celebrity rights holds a great reputation as
supervisory foundation for emerging celebrity rights protection laws and regulations
in other nations too. Further, the dual approach doctrine is required to be surveyed
in the laws governing the fortification of celebrity rights. The concept of protection
of celebrity rights is very new in India but not unfamiliar. The understanding and
need of publicity rights for celebrities to protect their personality traits and goodwill
from mistreatment is growing among the nation. However, the effort of judiciary to
rationalize the protection for celebrity rights seems ineffective due to the lack of
support from regulation in form of jurisdictive enactment.

70
For strengthening of protection of celebrity rights, the Indian Judiciary needs to form
a new- fangled treaty. Following aspects are obligatory to be undertaken while
integrating this newly formed treaty or an agreement for publicity rights protection:

A. A criteria for individual protection must be mentioned in this provision in order

to make them eligible for grant for protection of publicity rights. Further, treaty
should comprise of essential definition of publicity rights and ambit for its protection
must also be very specifically mentioned under this provision or agreement. This
provisional treaty or agreement should be divided into diversional parts so as to
clarify the scope of protection- what precisely is protected, essential requirements to
qualify for this protection and ultimately the time period of protection.

B. It is significant in the provisional treaty to identify the publicity rights of celebrity

in a manner for acclimatizing the dual approach which comprises of the commercial
and dignitary aspect of rights violation. Moreover, under this Indian provision
certain moral rights should also be granted to these celebrities as mentioned under
Berne Convention article. Celebrity or a personality who has profitable value over
his or her personality traits should be treated as owner of his or her goodwill
established or image developed. Thus, celebrities should be provided protection even
when it comes to non- commercial aspects of misrepresentation of their personality
traits.

C. In order to strengthen this Indian provision, it must take care of the two different
interest of public and private and balancing of such interest should be encouraged
by defining certain duties and liabilities of celebrities against the misleading, fake or
immoral advertisements.

D. This Indian provision should also provide limitations and exceptions to right of
publicity for celebrity so that unjustified benefit of exclusive right cannot be taken

71
by the celebrity and further, it is also necessity that the interest of the general public
in regard to free speech and expression is protected.

This proposal will provide for a solution to the existing ambiguity created from the
lack of uniformity in a well- defined way that our nation can advance its laws
regarding treatment of these rights of publicity. This proposal is the most
advantageous because “legal certainty promotes commercial efficiency,”72 it will
promote public policy by protecting the fruits of labor of individuals with enhanced
protection of consumers, and it institutes a more efficient administrative system.

Most importantly, this proposal is a resolution to the harmonization and national

treatment issues that the right of publicity faces.

72
Goodman, Eric J., “A National Identity Crisis: The Need for A Federal Right of Publicity Statute”, DePaul Journal of
Art, Technology & Intellectual Property Law, Vol.9 Iss.2(Spring 1999), pp.227, 243.

72
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SOLUTIONS” BY- Anurag Pareek and Arka Majumdar

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73
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15. RR Raja Gopal v State of Tamil Nadu, JT 1994 (6) SC 514

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22. Sonu Nigam v. Amrik Singh (alias Mika Singh), SUIT NO. 372 of 2013 Bom
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24. Zacchini vs Scripps- Howard Broadcasting Organization, 433 U.S. 562 (1977),
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74
25. Amar Nath Sehgal v/s Union of India, 2005 (30) PTC 253 (Del), is a landmark
Indian case decided by the Delhi High Court, which for the first time upheld the
moral right of an author under the Indian Copyright Act and awarded damages.
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50. Jaitley v Network Solutions Private Limited, 2011 (47) PTC 1 (Del)

51. Performers’ Rights are given under Sec.38 of the Copyright Act, 1957. It should
be noted that performers are only conferred with economic rights and there is no
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52. Raja Pocket Books v Radha Pocket Books (1997) (40) DRJ 791

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79