Right To Publicity- An Analysis
India does not have any legislative provision protecting an individual’s right of publicity. This right has for the most part been enforced in India under the common law tort of passing off, to establish which it is necessary to show that the disputed mark possessed goodwill and reputation.
Section 2(1)(m) of the Trade Marks Act that defines ‘marks’ includes names within its ambit – the Act does not make any specific provision for Publicity or Personality Rights. Indian courts have so far had little occasion to answer and debate over the issue of publicity or personality rights, it is likely that discussions based on different fundamentals of the Right to Publicity will pave the way for its legal recognition. To show ‘reputation’, the enforcement of this right would, in most cases, unconsciously be dependent on commercial exploitation of the plaintiff’s mark – effectively justifying why all individuals may not be protectable under the tort of passing off.
The right to publicity forming a segment of the right of privacy was first recognized in India by the Supreme Court in R RajaGopal v. State of Tamil Nadu, where it was stated by the Court “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”.
Indian judicial analysis of right to publicity is at a embryonic stage, several questions are yet to be attend to by the courts. The ambiguousness and partisanship of the definition of the term “celebrity” itself, and the difficulty to determine what factors would lead to a conclusive determination of who falls within the ambit of a “famous or well-known person”. Secondly, it is not known as to whether this right continue to exist post death in India, and whether it is capable of being transferred before death? In United States of America, the states of California and South Carolina, both are acquainted with post mortem rights to publicity however California imposes a durational limit of 70 years after the person’s death
In ICC Development (International) vs. Arvee Enterprises and Anr – the court held
“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…”
Liability for infringement of the Right of publicity depended on proving the existence of two factors, stated the Delhi HC in Titan Industries Ltd. vs M/S Ramkumar Jewellers :
“Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.
Identifiability: The Celebrity must be identifiable from defendant’s unauthorized use. Infringement of right of publicity 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”.
Publicity rights issue has still not been deeply explored by the Indian Courts leading to ambiguity and uncertainty of the contents of it and its enforcement in concurrence with the Indian Laws.