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Right to publicity & possible contracutal breach

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Right to publicity & possible contracutal breach

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Right to publicity & possible contracutal breach

  1. 1. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com RIGHT TO PUBLICITY & POSSIBLE CONTRACUTAL BREACH By Ponkavitha.A Trademark Dept.
  2. 2. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com RIGHT TO PUBLICITY • The right of publicity, often called personality  rights,  is  the right of  an  individual  to  control  the commercial use of his or her name, image,  likeness, or other unequivocal aspects of one's  identity. •  It is generally considered a property right as  opposed to a personal right, and as such, the  validity of the right of publicity can survive the  death  of  the  individual  (to  varying  degrees  depending on the jurisdiction
  3. 3. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com INDIAN LAW India,  like  the  UK,  does  not  have  an  independent  legislative provision protecting an individual’s right  of publicity. This right has largely been enforced in  India under the common law tort of passing off, to  establish which it is necessary to show that  i) the personality has reputation,  ii) there  was  misrepresentation  of  the  personality  creating likelihood of confusion and  iii)there was actual damage or likelihood of damage. 
  4. 4. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com THE TRADE MARKS ACT,1999 Although Section 2(1)(m) of the Trade Marks Act  that  defines  ‘marks’  also  includes  names  within  its  ambit  –  the  Act  does  not  make  any  specific  provision  for  Publicity  or  Personality  Rights.  While  Indian  courts  have  so  far  had  little  opportunity  to  debate  over  the  question  of  publicity or personality rights, it is expected that  discussions  based  on  different  elements  of  the  Right to Publicity will pave the way for its legal  recognition.
  5. 5. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com PERSONALITY RIGHTS • In India, personality rights, often called Right of Publicity or Image Rights, have developed primarily through case laws. • But personality rights are generally invoked through the Right to Privacy guaranteed by Article 21 of the Constitution or through the Right to Publicity inferred from Article 19. • These rights usually allow for claims of injunction and damages. • Movie named Main Hoon Rajinikanth was about to hit the theatres, and the real Rajinikanth was quick to obtain injunction from Madras High Court saying it violated his “personality rights”. The actor contended that the film could defame him and upset his fan base. He also stated that the producer neither approached him nor got his consent — either written or oral — to use his name/ caricature/image/ style of delivering dialogue.
  6. 6. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CASE LAWS • One of the earliest instances where a celebrity successfully sued those who tried to profit from his personality was when singer Daler Mehndi went to court against gift shops that were selling dolls resembling him. This was in 2001, when his song Tunak Tunak Tun became a huge hit and Mehndi became wildly popular. The Delhi High Court observed that his personality was infused in the dolls and used for commercial gain, which amounted to publicity rights violation.
  7. 7. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CASE LAWS • In 2012, in the Titan Industries Limited vs M/s Ramkumar Jewellers case. • FACTS : Ramkumar Jewellers made unauthorised use of a picture of Amitabh Bachchan and Jaya Bachchan on their billboards. The very same picture that showed the celebrity couple endorsing the diamond jewellery brand owned by Titan. The defendant had neither sought permission from the couple nor from the plaintiff to use the image. • JUDGMENT : The Delhi High Court ruled that it had not only infringed the latter’s copyright but also misappropriated the couple’s personality rights. The court said: “When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialise their identity but that the right to control when, where and how their identity is used should vest with the famous personality.”
  8. 8. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CASE LAWS • Singer Sonu Nigam won a case against another singer, Mika Singh, for the violation of his personality rights. Singh had put up hoardings with pictures of himself and other artistes, including Nigam, performing at an awards function. What irked Nigam was that the hoardings contained an enlarged image of Singh while the images of the other artistes including Nigam were several times smaller. Since Nigam’s picture had been used without his consent, the Bombay High Court ruled that Singh had to pay a compensation of Rs 10 lakh to Nigam for infringing his personality, publicity and image rights. • Actress Sridevi slapped a legal notice on filmmaker Ram Gopal Verma for using her name in a movie with risque content.
  9. 9. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CASE LAWS • Amitabh Bachchan spoke out against the unethical use of a deep baritone like his own in the voiceover of an advertisement for gutkha — an association, he claimed, was detrimental to his image. Clearly, celebrities have become very aware of their personality these rights are not absolute and that there are reasonable restrictions on them. In other words, a person will not be liable for publicity rights violation if his or her use of a celebrity’s persona amounts to free speech and expression, which includes news reporting, caricature, lampooning, parody, films, songs and so on.
  10. 10. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com POSSIBLE CONTRACTUAL BREACH • There is a breach of contract when in the entertainment industry when a model or actor enters into a license agreement, permitting the licensee to use her image in advertisements for a certain period of time, and the licensee ends up using her image past the term, but in the same manner to which she had previously consented. • The purpose of the lawsuit is to simply protect a right to payment for defendant’s use of a quasi-intellectual property right and intellectual property claim for economic damages. This scenario implicates contract law, as the court has to interpret the conditions and terms of the license agreement to determine what the licensee’s obligations are after the contract term expires, i.e., does the licensee have a contractual duty to destroy or recall previously published advertisements and the permitted scope of use of the celebrity’s image after the contract expires.
  11. 11. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Youth • Pan Bahar’s new advertisementfeaturing Pierce Brosnan was met with much incredulity, leading to his ridicule on social media. • Brosnan reacted that he was “deeply shocked and saddened” about his alleged endorsement of pan masala. He apologised, explaining that it was Pan Bahar’s “unauthorized and deceptive use of his image to endorse their range of pan masala products”. • Brosnan revealed that his contract with the company was only to advertise a breath freshener/tooth whitener, which had been presented as “all natural, containing neither tobacco, supari, nor any other harmful ingredient.” , and claimed that they had “grossly manipulated” the advertisement and violated their contract to make him out to be the brand ambassador for their entire line of products.Pan Bahar has stated that it did not violate the contract with Brosnan, as their product “does not contain any nicotine or tobacco”. There are efforts to resolve the confusion between the
  12. 12. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CONCLUSION NEED FOR A STATUTE FOR PROTECTION OF PUBLICITY RIGHTS : i) Publicity involves immense amounts of money and the public image of a celebrity is of tremendous value. Recognizing this valuable asset as a property would mean that the same would be subject of taxation as a capital asset just like any other intellectual property. ii) This gives economic incentive to the public for carrying out socially enriching activities. iii) The celebrities are adequately rewarded for their moral claim over any money flowing from their fame which they have crated by putting in enough time and effort.
  13. 13. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com

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