INTRODUCTION

Media has always been a leader in communicating with the people, regardless of any particular form of media. Media should be careful in evaluating before posting the news on the public domain and should leave no question as to its truthfulness. It is the media’s moral duty to serve the nation with accurate and truthful news. If malafide information or the slightest doubt arises from the telecasted information, it would have an adverse effect. The media finds it their constitutional right to report and inform the public about all issues of ‘public interest’ as envisaged in Article 19 of the Constitution under which the ‘freedom of the press’ is incorporated. On the other hand, the people under Article 19 have the ‘right to information’ or ‘right to know’.

Celebrities’ right to privacy is being persistently violated of misappropriation by others in many respects. With the exponential growth of media, consumerism, and celebrities, the protection of celebrity rights in India needs additional focus and relevant legislation. This article also deals with remedies available to prevent such misuse of celebrities’ names, work, signature, etc.

MEDIA

The word media, which is the plural of medium, refers to the means of communication by which we disseminate news, music, films, education, promotional messages, and other content. This comprises of newspapers, journals, tv, radio, mobile, twitter, fax, etc. It describes the different ways in which we communicate within society. Media can be divided into two categories –

        i.        Print Media includes many kinds of media like newspapers, magazines, journals, articles, and records. This is the oldest form, and a significant proportion of the population still uses it in spite of deprivation after the advent of the Internet.

      ii.         Broadcast Media applies to radio and tv, which joined the picture in the early and mid-20th centuries respectively. Many viewers now collect their news from tv and radio outlets- but it won’t be long until internet media seize control.

The media plays a critical role in establishing molding and relating the public opinion of every democratic society. Today the media affects almost every part of our public life. Media plays a key and really significant function in enlisting and informing the population. Knowledge of numerous rural development schemes, the usage of the media could propagate the dissemination of family planning. Media has a great job of bringing social change from entertainment to all the ongoing issues in whatever topic it covers.

In Romesh Thappar v. The State of Madras, it was held that the freedom of speech and expression includes freedom to propagate ideas, and the same is ensured by the freedom of circulation.[1] Therefore, freedom of speech and expression under Article 19 include freedom of media as well. But this right is not an absolute one and thus, reasonable restrictions under Article 19(2) can be imposed by the law.[2]

CELEBRITIES

“A celebrity is someone who works hard all his life to be known, and then wears glasses to avoid being recognized.” – Fred Allen.

A celebrity may be described as ‘an individual who has become a popular figure through his success, popularity or manner of life, or by taking up a profession that gives the public a genuine interest in his acts, affairs and character’.[3] A celebrity is an individual that has achieved substantial popularity over the course of his life and is well recognized to the public and the media. The term celebrity has been derived from a Latin word ‘celebritatem’ which means ‘the conditions of being famous’. Public opinion is the principal criterion for deciding whether or not an individual is a celebrity.

CELEBRITIES RIGHTS

Celebrity rights as the name implies, apply to freedoms linked to an individual’s personality. This is intricately linked to a person’s right to privacy and properties. This is especially important to celebrities, as different businesses may easily exploit their names, pictures or even voices in numerous commercials to raise their profits. Celebrity rights are an issue that has not earned the recognition it needs in our country. With exponential development in the country’s electronic media over decades, it has become possible to introduce an individual’s private life into the public domain. There has been a significant rise in cases where celebrities’ privacy rights have been compromised and breached by the general public and the media. The rights enjoyed by celebrities are a bundle of rights including rights of personality, rights of publicity, and rights of privacy.

       I.            Personality or Image Rights

Personality Rights imply a person’s right that relates to his/her personality. The personality of an individual is a way by which one person recognizes another and determines his or her position within society. This may be covered under a person’s right to privacy or as a property of a person. This is important for celebrities because people use their name or a photograph to advertise their trade and this influences their sales. In India, there is no legislation or regulation per se that protects the freedom of personality. Nevertheless, India has already started to recognize such rights by several significant decisions nowadays.[4]

Till the Supreme Court issued the judgment of Justice K. S. Puttaswamy (Retd.) v. Union of India[5] in 2017, personality rights were largely drawn from the common law concept of ‘passing off’, similar to that of the UK. Now, such rights have been raised to the status of constitutional rights with the 2017 decision of Justice Sanjay Kishan Kaul provided this rights fundamental validity by stating:

“Every individual shall have the right to exercise control and protection on their own life and reputation as presented to the world and monitor the commercial usage of their name. It also ensures that an individual will be allowed to prevent anyone from using his/her photograph, name and other personal information for commercial usage, without his / her permission.” (Para 477)

Further, in ICC Development (International) Ltd. v. Arvee Enterprises and Anr.,[6] it has been held as follows

“The right to publicity arises from the right to privacy which may be in an individual or in the personality of an individual such as his name, personality attribute, signature, voice, etc. No person can be monopolized. The right to publicity vests in a person and he alone has the freedom to benefit from it.” (Para 14)

Thus, while there is no law related to the right of personality in India, but the Court’s purpose has always been to recognize and preserve these rights. Thus, only the unlawful and illegal use of personality rights with unjust intent is punishable by law. 

   II.            Privacy Rights

In sharp comparison to the right to publicity, the right to privacy is the right to be left alone and not to have one’s identity reflected openly without consent. What a right empowers a public figure to claim for privacy infringement, to obtain damages and injunction against someone who violates the personality rights of the public figure. The right to privacy is based on the principle of individuality. Celebrities try to keep their personal life as a secret. Indian constitution acknowledges the right to privacy as a constitutional right under Article 21. The said right is not expressly mentioned anywhere in the Constitution. The four separate freedoms protected by the right to privacy rubric are[7]:

1.      The right to avoid public disclosure of private rights.

2.      The right to intrude upon a person’s isolation and to prevent some sort of prying in a person’s private affairs.

3.      Avoid fake light publicity, and

4.      Curb misappropriation of the name and likeness of an individual.

Perhaps the Court accepted the Right to privacy of celebrity for the first time under in

R. RajaGopal v. State of Tamil Nadu[8], the court held that no one could publish anything regarding families, marriage, procreation, motherhood, childbearing, and schooling among others without the individual’s permission. If he did so, he will breach the individual concerned right to privacy, and will be liable for compensation in an action (Para 28). This is the first case in which the court ruled that the right to privacy will be infringed whether, for example, the identity or appearance of an individual were used without his permission, for advertisement or non-advertising purposes or for some other matter. (Para 9)

The right of celebrities to make choices about the exposure levels they wish to accept and to take advantage of exposure if they choose to is a well-recognized concept in the West. However, in India, the right to privacy resulting from declarations of judicial pronouncements is not equipped to protect the rights of celebrity.[9]

In the landmark case of Justice K. S. Puttaswamy (Retd.) v. Union of India[10] in 2017, the hon’ble Supreme Court held that-

“The right to privacy is protected under Article 21 as an essential component of the right to life and personal liberty and is one of the freedoms secured under Part III of the Constitution.”

People of high profile, dignitaries, persons in authority, celebrities, etc. are sometimes at the receiving end due to reckless allegations, mostly made anonymously, which could mar their respective careers and wipe out their unnecessary involvement in cases.[11] The scrutiny of public figures by media should not also reach a point where it leads to harassment to the public figures and their family members and they must be allowed to live and lead their life in peace.[12]

“It must be acknowledged that the freedom of the press and the common law right to the privacy to protect personal information represent fundamental civilized principles. Neither can be allowed full effect without constraining the other. The right to privacy that sits at the epicenter of an abuse of trust action must be weighed against the freedom of the media to supply the public with information. Contrary to that, the media’s freedom to transmit knowledge to the public must be weighed against the dignity that must be accorded to private life.”[13]

“When a balance is to be found between the freedom of the press and an individual’s right to privacy, when one is put against the other, the issue as to what can be of supreme arises. While considering the right to freedom of expression and speech pursuant to Article 19(1)(a), the Apex Court held that such right should not be abolished unless the situations created by allowing for freedom are pressing and the interests of the community are at stake. The court also ruled that it is not necessary to reconcile the two priorities as though they are of equivalent weight.”[14] (Para 159)  

III.            Right to Publicity or the Merchandising Rights

The International Trademark Association defines the Right to Publicity, as “a form of intellectual property right that protects against the misuse of a person’s name, likeness and perhaps other personal identification for commercial benefit.”[15]

The right to use the economic value of the fame and name of a celebrity is known as publicity rights. Publicity right is the ‘natural right of every human being to regulate the commercial use of his/her identity’.[16] The right to exploit the economic value of an individual’s name and fame is referred to as the right of publicity for claiming this right, it is necessary to establish that fame is a form of merchandise and any act that impedes those rights considered to be unfair commercial practice.

In Titan Industries Ltd. v. Ramkumar Jewellers[17], the Delhi High Court observed that-

“When a celebrity’s image is used in advertisements without their consent, the argument is not that no one can commercialize their image but that the power to decide when, and how their identity is used should be vested in the celebrity. The right to regulate the commercial use of human identity is the right to publicity.” (Para 14)

In the case of Ali v. Playgirl, it was held that “a distinctive feature of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or persona.”[18]

Sourav Ganguly v. Tata Tea Ltd., where Sourav Ganguly found himself extremely disturbed when he learned that Tata Tea Ltd., where he was appointed as a manager, was marketing the 1-kilo tea packet by giving consumers the opportunity to compliment Sourav with a postcard placed inside each tea box. This was done to encourage the selling of its tea packet on the Indian market where Sourav had gained significant prominence. The court ruled in Sourav’s favor, accepting his prestige and popularity as his own intellectual property.[19]

Moreover, the Labour Theory as propounded by John Locke provides that a thing (res) is the property of the person who produces it or brings into existence.[20] Similarly, a celebrity deserves all the rewards he could earn because he worked hard, and created a worthy persona.

However, the law with this regard is still not fairly developed, especially in India, i.e. advertising /merchandising rights of celebrities. Courts in the various international countries have taken a different approach to support this right, but no universal justification has yet been crystallized.

STATUTORY FRAMEWORK

Certain legislations where celebrities can seek refuge are-

1.      Trademark: A trademark is a mark which can be depicted graphically and which can differentiate one person’s products or services from those of others as provided under Section 2(1)(zb) of the Act.[21] The name and likeness of it can also be conveniently registered and used as a trademark by the celebrity.[22] In this way, trademark protection allows the celebrity to control its name, image and similarity. Many celebrities have started to register their name and likeness as trademarks to avoid misappropriation by others. The names of Akshay Kumar, Amitabh Bachan, Sachin Tendulkar, Kajol, Shahrukh Khan, A.R. Rehman, Sanjeev Kapoor and many others were registered as trademarks.[23] Further, under Section 2(m) the definition of mark includes names as well. Celebrities may also invoke Section 14 of the Trademarks Act to prevent illegal use of their names. Section 14 of the said acts forbids the registration of a mark which falsely indicates a relation with a living individual or a person who died to register the mark within 20 years of the date of application.

The laws grant the registered trademark holder enough protection. Will this mean that those who have not declared their trade mark have the right to do so? Actually, that is not true. Those that have not registered a trade mark can also prohibit the other individual from using the same or equivalent trade mark through the Doctrine of Passing Off.

2.      Passing Off:Pursuant to common law, the passing off rule in India is specifically designed to protect the goodwill linked to unregistered trademarks. One should not profit from another person’s work and this is based on the basic concept of law. Passing off is covered under section 27(2), 134(1)(c) and 135 of the Trademarks Act. The remedies available as regard to Passing off are Injunctions, Damages and Compensation or Account of Profits.

In July 2008, a legal notice released by BCCI  to Kothari Products Ltd for illegal and unauthorized usage of Indian cricket images and photos in its Pan Parag commercial.[24]

Rajat Sharma v. Ashok Venkatramani, the advertisement clearly takes digs on famous TV journalist Rajat Sharma in the guise of introducing the ‘anchor-less’ news channel Zee Hindustan It refers to Rajat Sharma, India TV’s chairman and editor-in-chief, and suggests that people will no longer watch his popular long-running show Aap Ki Adalat. Such advertisements prompted Mr. Sharma to file a case against Zee Media for a permanent injunction. The Court affirmed well-known principles of celebrity rights and their right to publicity. The finding was that the aforementioned advertising was prima facie unconstitutional and that the balance of convenience was in the plaintiff’s favor. The court restrained Zee Media from publishing any advertisements in the print media bearing Rajat Sharma’s name.[25]

3.      Copyright: A copyright grants the owner an exclusive right to reproduce, issue, perform, adapt, translate and store the work so protected by copyright any forms. Copyright can be done to protect Original literature, dramatic, musical and artistic creations, videos for the cinematography, and sound recordings.[26] The Copyright Act does not directly define the term ‘Celebrity’, but it does define a ‘Performer’ under section 2(qq) of the Copyright Act, 1957. Further, section 38 and 57 of the said act provide for the remedy to the plaintiffs. All the manifestations of a celebrity in the context of an original literary, dramatic, musical and artistic work; or in cinematograph/ sound recording receive automatic protection under the copyright law. A famous fictional character may generate immense economic profits if appropriated into a merchandising commodity.

4.      Defamation: When celebrity information is included in a story or image in such a way as to portray the celebrity in a false light, this can be defamation. It is a criminal offence under section 499 of the India Penal Code, 1860.  The law gives every individual the right to uphold and protect his reputation in a community. The right to reputation is recognized as a personal right inherent in any individual.

The appellant Sampat Pal lodged a complaint seeking a permanent injunction and damages in Delhi High Court claiming violation of privacy and defamation of the claimant. The suit was filed to restrain Sahara One Media & Entertainment & Ors. for which she claimed her life story was adapted into a film. She said she was defamed and humiliated by the depiction of the characters in the film along with the other leaders of the organization. She further alleged the film defamed her and portrayed her work with swords and sickles in a bad light and horrifying manner. The Delhi High Court issued an order restricting the release of the film until the next hearing. The film was published with a notice explaining that it has little to do with Sampat Pal’s life and activities and with her organization.[27]

Practicing Delhi High Court Advocate, Mohit Singh has placed a defamation legal notice on India Today Group Chairman, for ‘demeaning’ the Indian Cinema artist’s tragic death of Sushant Singh Rajput. India Today Group’s Aaj Tak news channel flashed a Headline, supposedly comparing the actor’s death to a “hit-wicket” during a cricket match. “According to the words used, the act of committing suicide is a shameful act and one that should be looked down on. Such acts of public platforms, particularly those with a high profile, have the potential to inflict unimaginable pain to a large part of the Indian community”, the notice said.[28]

Media intrusions into the personal life of individuals near to celebrities, i.e. spouses, children, parents, and other friends and family, have also expanded privacy violations to the celebrities.[29] 

The Press Council of India’s Norms of Journalistic Conduct

Media serves as a bridge between people and government, as well as a very strong instrument able to make and destroy public opinion. It can change expectations, or elicit emotions. That is why it won popular trust. Press is what governs the hearts and minds of citizens by the diverse forms of magazines, media, and movies.

1.      Caution against defamatory writings

Newspaper should not print information that is defamatory or libelous, also there should be ample reason/evidence to conclude it is accurate and its publishing should be for the greater interest, following due diligence. Freedom of the press does not grant a publication a license to malign a government figure or to print fraudulent and defamatory writings.

2.      Criticism of Public Figures

An actor or musician performing on a public stage submits his work to the audience’s judgment and as such the remarks of the audience with strong relations with the performance of artists cannot be deemed defamatory. The writers, however, should refrain from writing something that could be viewed as throwing a cloud on the personal reputation of the artist remotely.

3.      Privacy of Public Figures

Right to privacy is a fundamental right and is inviolable. The degree of privacy also varies. The public person who works under the public eye as a public official cannot assume the same degree to be given, as provided to a private individual. His acts and behavior as they are of public interest can be brought to public attention via the media. However, the press has a reciprocal obligation to insure that knowledge regarding these activities and the public person’s actions of public interest is collected by reasonable means, is duly checked and then correctly published.

4.      Right to Privacy

The public figure family is not a legitimate journalistic subject, more so if the children are included in its coverage. The Press shall not intrude or violate an individual’s privacy unless it is outweighed by legitimate public interest. Also, the principle of PRIVACY includes subjects pertaining to a person’s residence, family, identity, religion, health, orientation, personal life and private affairs.

5.      Right to Privacy – Public Figures and the Press, 1998

There is a conflict between the privacy of the public person and the right of the public to learn about his/her personal actions, behavior, and traits characteristics, impeding or harming the public interest, the latter being forced to give in. The specific guidelines described above may strike a compromise between the freedom of the press to obtain information and the right to privacy of public persons.

INTERNATIONAL CONVENTIONS

1)      Articles 9 to 14 of the TRIPS Resolution, 1994, deals with copyright and related protections. In specific, Article 14 provides such freedoms for phonogram producers, broadcasting rights for live performances and protects the freedom to restore, replicate, transmit and re-broadcast through electronic means and to communicate to the public. India is a signatory to the 1994 TRIPS Agreement and incorporates all the features of the above privileges in its copyright laws.[30]

2)      Another big move in securing allied artist rights was the WPPT, 1996. The WPPT concentrated mostly on preserving the interests of performers and phonogram manufacturers against violating their privileges throughout the digital age, because there was a legislative void throughout this area. The treaties also acknowledged the fixation of output on the visual media and its dissemination and communication. In respect to the privileges of performers, other economic rights were bestowed on performers, that is, the right to duplication, sale and leasing as well as moral rights.[31]

CONCLUSION

The laws in effect do not authorize a celebrity’s identity to be used without express permission from the celebrity. The same was reaffirmed by different courts. Protection is obtained under legislation pertaining to privacy, tortuous liability and intellectual property rights. A celebrity’s name, face, and appearance has a market meaning that is connected to him because of his work. The commercial exploitation that derives an economic benefit is his right and no unauthorized person can misappropriate the same and benefit unjustly from it. I think it is important for legislators to enact new celebrity rights legislation that would enforce, explain and include safeguards against the abuse of celebrity rights and at the same time grant them privacy. Also, the best way for companies to protect themselves against legal actions is to get properly written approvals from celebrities before using their public images, names, likeness and the like. In the absence of these signed permissions, it is strongly advisable to incorporate adequate legal disclaimers with a view to reducing liability in the case of legal disputes.