Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness. 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 .
The right of publicity, or the right to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, is a personality right which is similar to the use of a trademark. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off.
In the Estate of Elvis Presley v Russen ; the court defined the ‘right of publicity’ as “…..the right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit.”
We are deluged by images of celebrities either promoting or endorsing almost every product imaginable; from food and drink all the way through to sportswear, electronics and even cosmetics. Over the years, sportsmen and celebrities have become increasingly aware of the value of their image rights in a world where product endorsement is common and perceived to be lucrative. Many companies recognise the attractive force of the reputation of a celebrity as an encouragement to buy products or use services, and fully understand that celebrities can create awareness, focus attention and transfer images and glamour to products that otherwise might remain anonymous. In addition to an attractive packaging and a respected trade mark, the limelight of a celebrity adds substantial market value to a product . This phenomena has given rise to the need to protect the Intellectual Property inherent in these personalities.
In this light and for the sake of exploring the length and breadth of this concept, it would be appropriate to explore a few judicial precedents;
In Zacchini v. Scripps-Howard Broadcasting Co., the U.S. Supreme Court held that the First Amendment did not immunize a television station from liability for broadcasting a person’s act (specifically, Hugo Zacchini’s human cannonball act) without consent.
As early as in du Boulay v du Boulay a Court stated that the use of another’s name is a grievance for which English law affords no redress. English law has never moved towards creating rights in a name per se, and protection for other personality features such as likeness, voice, distinctive clothes, etc. or a more general right of publicity has constantly been rejected: first in 1931 in Tolley v Fry, then in 1948 in McCulloch v May, through various celebrity merchandising cases in the seventies, by the Whitford Committee in 1977.
The case of Alison Chang is a good example of a potentially unlawful use of someone’s name or likeness; in September 2007, Chang’s parents filed a lawsuit in state court in Texas against Virgin Mobile Australia and Creative Commons. Virgin Mobile Australia obtained a photograph of Chang from Flickr, where it was posted with a CC “Attribution” license, which gave Virgin Mobile permission from a copyright perspective to use the photograph in a commercial setting so long as it gave attribution to the photographer who took the photo. Virgin Mobile used the photograph in an advertising campaign to promote its free text messaging and other mobile services without getting permission from Chang or her parents to use her name or likeness. Chang’s parents sued Virgin Mobile for misappropriation of her likeness, and the facts would also have supported a claim for violation of her right of publicity.
The courts have held that unauthorised use of a celebrity’s voice can also violate the right of publicity, See Midler v. Ford Motor Corp . In Carson v. here’s Johny Portable Toilets, Inc it was held that the defendant was liable for using the slogan, “Here’s Johnny” as a brand name for portable toilets because it sufficiently evoked Johnny Carson’s identity. In other examples, courts have held defendants liable for using a photograph of the Plaintiff’s race car in a television commercial, see Motschenbacher v. R.J. Reynolds Tobacco Co. or creating a commercial featuring a robot decked out to resemble Vanna White posing next to a Wheel of Fortune game board, see White v. Samsung Elec. Am. Inc. etc. In all of these cases, the common rationale was that the attribute in question was sufficient to identify the plaintiff with and evoke their identity in the mind of the public.
One of the first cases to recognize a legal claim for misappropriation sprang out of the defendant’s use of the plaintiff’s photograph in an advertisement for life insurance. See Pavesich v. New England Life Insurance Co . In Christianson v. Henry Holt & Company , the court ruled in favour of the plaintiff, a waitress and a single mother whose photograph appeared on the cover of the book, Nickel and Dimed. The book, however, had nothing to do with Mrs Christianson; it was about how the lowly paid American poor got by. It was herein held that even though the plaintiff was not mentioned or described in the book, the use of her likeness on the cover of the book, without her express permission, amounted to commercial use.
In SFX Baseball Group v. Mariano Rivera.com Patrick O’Keefe, the operator of the fan site, MarianoRivera.com received a cease-and-desist letter from SFX Baseball Group, which represents Yankees baseball player, Mariano Rivera. The letter asserted that the site’s use of the domain name, marianorivera.com, violated Mr Rivera’s right of publicity and federal trademark law. After discussions, an SFX representative told O’Keefe that he could continue to operate the website, but refused to give any assurances about the future.
The case of Gould Estate v. Stoddart Publishing Co concerned a famous pianist who was interviewed by Jock Carroll for an article in Weekend Magazine. Nearly forty years later (in 1995), Carroll published through Stoddart Publishing Co. a book called ‘Glenn Gould: Some Portraits of the Artist as a Young Man’, which included some of the photographs and conversations that Carroll recorded during the interview with Gould. Gould had died in 1982 and Gould Estate did not authorize the publication or receive royalties from the book. As a result, Gould Estate sued Stoddart Publishing Co. on three grounds, one of which was the tort of appropriation of personality.
Ace cyclist, Andrew Mclean’s company and shop, Cycle Lab were called upon to defend claims by an ex- Miss South Africa and business personality, Basetsana Kumalo, that her rights over her identity and image were being abused. The issue at hand was whether it was right for a photograph of Kumalo, taken whilst she was shopping at Cycle Lab, to be subsequently used for advertising the shop, without obtaining her explicit consent. The same was held unlawful.
In Nussenzweig v. diCorcia, in a decision by the New York Supreme Court in New York County, it was held that a photographer could display, publish, and sell street photography without the consent of the subjects of those photographs.
In Lugosi v. Universal Pictures , in a suit brought by the heirs of Béla Lugosi against Universal Studios in 1966 for using his personality rights without the heirs’ permission, the trial court ruled in favor of the Lugosi heirs, but Universal Studios won the case in an appeal, where it was determined that a dead person had no right to his likeness, and any rights that existed did not pass to his heirs.
In Irvine v Talk sport . Eddie Irvine, a successful Formula 1 driver, objected to the unauthorised use of his image in an advertisement for a radio station. The court held that he had a property right in the goodwill attached to his image and was entitled to compensation on the basis of a reasonable endorsement fee. In Henderson v. Radio Corporation Pvt Ltd , the claimants were professional ballroom dancers; the defendant produced a record strictly for dance in which they used a picture of the claimants in the cover illustration. The claimants argued that this amounted to passing off. The court held it as wrongful appropriation of personality and professional reputation of the plaintiff. In Tolley v. Fry , there was controversy relating to the use of picture of a popular amateur golf player to advertise Cadbury chocolates. Tolley’s complaint was that the defendants made it appear as if he had consented to appear in the advertisement for gain or reward. The court held that the conduct of defendant was capable of amounting to libel and awarded damages. In Cohen v. Herbal concepts Inc. , a picture of the plaintiff and her daughter was used on the label of a cosmetic product without their consent. The defendants argued that the faces of the two individuals were not identifiable in the photograph. The court however, accepted the statement of the plaintiff’s husband and awarded damages to the plaintiff in recognition of the privacy rights.
In the famous controversy concerning Bollywood movie, “Om Shanti Om”, Manoj Kumar took Red Chillies Entertainment, Shah Rukh Khan and Farah Khan to court alleging that some scenes from the movie defamed the legendary actor by using his trademark signs in the movie. In the movie there was a scene in a theatre, where Police, waiting outside, did not stop Shah Rukh from entering the theatre as he had covered his face with his hand typically in the style of Manoj Kumar. Later in 2008 Manoj Kumar took back his case by accepting a personal apology from Shah Rukh Khan .
In India, there are neither enough precedents nor statutes governing celebrity rights per se. Thus, the legal system in India, at present, is quite deficient in dealing with the modern phenomena of endorsement advertising. The Hon’ble Delhi HC, in ICC Developmental (International) Ltd v. Arvee Enterprises , gave a statement on publicity rights, which is the only authoritative discussion of publicity rights in the Indian Legal system. The rights of publicity have evolved from the right of privacy and can inhere only in an individual’s personality like his name, personality trait, signature, voice, etc.
Only human beings, and not corporations or other organizations, have rights of publicity and privacy interests that can be invaded by misappropriation of name or likeness. Thus, only individuals can sue for unlawful use of name or likeness, unless a human being has transferred his or her rights to an organization.