Publicity Rights

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This article is divided into two parts. The first part of this article aims to explain the meaning of publicity rights and delve into the facet of legal recognition of publicity rights in jurisdictions other than India. In the second part of this article, the sole focus shall be on the legal position of publicity rights in India.

WHAT ARE PUBLICITY RIGHTS?

Publicity rights or privacy rights, simply put, are those rights which protect the interests of celebrities in their images and identities. In Douglas v. Hello! Ltd., (2006) the right to publicity was defined as an exclusive right of a celebrity to the profits to be made through the exploitation of his fame and popularity for commercial purpose.

The first case to explicitly recognise the right to publicity was Haelan Laboratories Inc v. Topps Chewing Gum. This case devised the traditional publicity rights, while recognizing the value of, and property right in, a baseball player's photograph used on trading cards. The Court held that in addition to, and independent of that right of privacy, a man would also have a right in the publicity value of his photograph. The Court finally held that the plaintiff had a valid claim against the defendant so long as the defendant used the player's photograph during the term of the plaintiff's grant and with the knowledge of the terms of the plaintiff's contract.

REOCGNITION OF PUBLICITY RIGHTS IN DIFFERENT JURISDICTIONS

USA

In the USA, New York was the first state that adopted a privacy right by statute which could be interpreted broadly enough to include publicity rights in New York in 1903. However, it was not until the 1953 that the courts first accepted the existence of a self-standing publicity right, in Haelan Lab. Inc v. Topps Chewing Gum Inc.

Later on, in the year 1977, the United States Supreme Court in the case of Zacchini v. Scripps Howard Broadcasting Co., recognised a common law right of publicity.This case led to development of the right to publicity as a property based doctrine and exclusive right of a celebrity to commercial use of fame acquired by him. In this case, the broadcast of a film of petitioner's entire act posed a substantial threat to the economic value of that performance. The act was the product of petitioner's own talents and energy, the end result of much time, effort, and expense. Much of its economic value lied in the right of exclusive control over the publicity given to his performance. If the public could see the act free on television, it would be less willing to pay to see it at the fair.The Hon'ble Court opined that the rationale for protecting the right of publicity is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay. In a nutshell, the US Supreme Court addressed the issue of unjust enrichment and economic value of right of publicity. It was held by the Court that media cannot be granted a licence to broadcast a unique performance without adequate remuneration to the performer.

It is pertinent to highlight that publicity rights are dealt with in the Restatement (Third) of Unfair Competition Act, 2005. Section 46 of the Restatement (Third) of Unfair Competition Act, 2005deals with the "Appropriation of the Commercial Value of a Person's Identity : The Right of Publicity" which essentially states "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 Section 48 and 49."

UK

The UK, in contrast to the USA, deals with the right to privacy and the right of publicity in a different manner. Unlike the United States, the law in the UK does not recognise a right of publicity. In fact, the rejection of privacy as right was expressly stated in Kaye v. Robertson in 1991. Earlier, due to the lack of a law protecting one's right to privacy, the courts took recourse to the law relating to breach of confidence. In Pollard v. Photographic Co., a photographer took a photograph of Mrs. Pollard, and without her permission, used the same on Christmas cards which he sold to the public. The court decided in favor of Mrs. Pollard based on the law of breach of confidence, holding that "the photographer who uses to negative to produce other copies for his own use, without authority, is abusing the power confidentially placed in his hands."

Now, image rights can be protected by way of registered trade marks or copyright and the law of passing off. Trade mark law has often been invoked to protect publicity rights of celebrities. An individual is entitled to protect his or her name, likeness or other attributes where it is capable of distinguishing his or her own brand goods and services from those of others.English law has always resisted the creation of a publicity right, and has instead emphasized freedom of speech and expression. The gradual development of the right of publicity is partly due to the country's commitment to international treaties such as the European Convention on Human Rights (ECHR).

In Douglas v. Hello! Ltd., the claimants, Catherine Zeta-Jones and Michael Douglas, both of whom were famous actors, had signed an exclusive contract with OK! Magazine, granting them sole rights to publish photos of their wedding. However, Hello! Magazine managed to obtain some photographs from a guest attending the wedding. The couple brought a claim of breach of privacy and sought damages from Hello!. The Defendant argued that the couple, by virtue of signing a contract with another magazine, had already exhausted their right of privacy. The Court did not agree with this view, holding that the couple still retained the editorial control that allowed them to choose or reject pictures; the use of any pictures other than those personally chosen by them invaded their privacy.

The case of Irvine v. Talksport was a giant leap towards protecting the image rights of celebrities. The High Court decision effectively recognised the value of sports image rights and conferred protection on them. The case centred on whether or not a famous sports celebrity had acquired a valuable reputation and if the goodwill in the star's name or likeness had been misrepresented to the market as being licensed by the celebrity concerned. Judge Laddie's ruling confirmed that the name and image of a sports star is constitutive of a brand, with all various economic rights associated with that status. It further confirmed that 'passing off' cases are maintainable even if the endorsements do not pertain to their field of expertise.

EUROPEAN UNION

Right of Publicity in the European Union evolved through Right to Privacy. The image of the person is accorded protection under the General Data Protection Regulation. Since the passing of the General Data Protection Regulation, the European Union has a stringent law on data protection because of which the image rights of a person can prevail over the copyright law. There are conflicting judgments in the European Union which makes the application of Publicity Rights on a case-to-case basis adventure. It is the discretion of the Court to determine if Publicity Rights will triumph over Freedom of Expression. A Spanish artist utilised his ex-girlfriend's explicit image to create a modern art. The girl challenged the use of the image asconsent was not obtained from her. The artist retorted that due to the applicability of Article 10 of the European Convention on Human Rights which provides for freedom of expression, he is allowed to use the image. The Court ruled in favour of the girl and the Right of Publicity preceded the freedom of expression. However, in another decision by the French Supreme Court, the Court held that when the model gave an explicit consent to be captured, further publication of her nude photograph will not amount to breach of publicity rights. It is pertinent to note that consent is the key when determining whether publicity rights or copyright law will prevail.

Since there are contradictory rulings inside the European Union, applying publicity rights becomes a case-by-case process. It is for the court to decide whether Publicity Rights will take precedence over Freedom of Expression. For instance, in one case a contemporary artwork was created by a Spanish artist using an explicit photo of his ex-girlfriend. Given that her permission was not sought, the girl objected to the image's use. Responding, the artist stated that he is permitted to use the image since it falls under Article 10 of the European Convention on Human Rights, which guarantees freedom of speech. After the girl's case was heard by the Court, it was decided that her right to publicity came before her right to free speech. Nonetheless, the French Supreme Court held in another ruling that thethat further distribution of a model's unclothed photographs would not violate her right to publicity because the model had expressly consented to be photographed in the first place. Consent is crucial in deciding whether copyright law or publicity rights will take precedence.

CONCLUSION

Laws pertaining to publicity rights are at a nascent stage in most parts of the world. Publicity rights have a long way to go. There is a lacuna in law due to the absence of any specific statute relating to publicity rights. The development and recognition of publicity rights differ in different jurisdictions and a harmony is yet to attained with respect to a consistent understanding of personality and image rights across the globe.

REFERENCES

  1. Image Rights of Famous Persons Vis-à-Vis Right to Privacy: an Analysis under the Intellectual Property Laws in India and other Countries, 5.1 RFMLR (2018) 1
  2. Titan Industries Limited v. Ramkumar Jewellers, CS (OS) No. 2662/2011
  3. Douglas v. Hello! Ltd., 2006 QB 125 : (2005) 3 WLR 881 : 2005 EWCA Civ 595.
  4. Emerging Trends in Publicity Rights in India : An Analysis Under the Intellectual Property Laws in India, 2 CMET (2015) 74
  5. Zacchini v. Scripps Howard Broadcasting Co., 53 L Ed 2d 965 : 433 US 5624 (1977).
  6. Publicity Rights and the Right to Privacy in India, 31.1 NLSI Rev 125 (2019)
  7. The 1709 Blog, Right of Publicity Trumps Artistic Freedom of Expression (Jan 23, 2013, 04 : 01 PM), (available at - http://the1709blog.blogspot.com/2013/01/right-of-publicity-trumps-artistic.html)
  8. Cour Cass, lérechambrecivile, 20 mars 2007, Bull. 2007, I, no. 125, pourvoi no. 06-10.305, https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXTooooi7826747.
  9. Publicity Right in India: A Misconception!, (2020) 3.2 JIPS 88

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.