The fame game: why we need more clarity on celebrity rights

Fame, like power, could never be evenly distributed, for even if it were possible that we could all be famous, if everyone were famous then no one would be famous.

— McDonald

We live in a celebrity-driven economy. The notion of ‘celebrity’ has undergone a significant change in the recent years, where newer concepts of popularity such as ‘influencers’ have altered the impact and meaning of the term.

Sean Redmond and Su Holmes in their book Framing Celebrity aptly describe the phenomenon of celebrity in the current era as, ‘the contemporary state of being famous’.

A celebrity encounters a wide range of social, economic, and political phenomena on account of their status and recognition. In the last two decades, we have seen celebrities actively pursue entrepreneurial activities to capitalise on their status. Alongside the accolades and privileges, they also have to deal with heightened exposure to criticism and scrutiny, and invasion of their privacy.

This article explores the various rights available to a celebrity to protect their status, personalities and image. We also probe into the conventional definition of ‘celebrity’ and whether there is scope to stretch the meaning to include artificial intelligence.  

Celebrities wield their influence and power through their association with products, events, causes or lifestyles, which give rise to various forms of rights, which are commercially valuable and extensively exploited for profit.

Traditionally, trademarks were the clearest legal route to protecting and exploiting the commercial value of a celebrity’s name, signature or use of a product or brand. Celebrities however enjoy a vast array of rights including publicity rights, personality rights, copyright, right of privacy and the right to be forgotten among others.  

These rights can be classified into three broad categories – (i) personality rights or moral rights, (ii) privacy rights, and (iii) publicity rights or merchandising rights.

The evolution of personality rights

The attributes that help us recognise someone on account of their image and persona shape their personality. A personality may be a result of one’s behaviour, talent, skill, appearance, voice, demeanour, etc. which are unique indicators of a person’s impact on or relationship with society.

Even the slightest resemblance to such personality traits, skills or appearance may be associated with the underlying person and their status and credibility. Therefore, while a celebrity enjoys the right to commercially exploit their image and status, there is also a corresponding risk of misuse and misappropriation.

The development of a legal framework around celebrity and personality rights has been gradual. Trademark law protects the brands created around a celebrity’s name or personality. Section 14 of the Indian Trade Marks Act is aimed at preventing any false or misleading suggestion that an applied trademark is associated with a living or dead person, unless written proof of such connection is furnished. In cases of unregistered marks that make use of a celebrity’s name or personality, the celebrity can pursue injunctions for misrepresentation or defamation suits and potentially damages. 

In November 2022, the Delhi High Court passed a judgment protecting the personality rights of the veteran Bollywood star Amitabh Bachchan. Mr. Bachchan sought protection of his publicity rights and the Delhi High Court, in the case of Amitabh Bachchan v. Rajat Nagi and Ors., passed an ex parte ad-interim injunction preventing the defendants from infringing the actor’s personality rights by misusing his name, voice, image and any other attributes for any commercial use.

This ruling is of great significance in the context of deepening the protection of personality rights. Intellectual property laws are aimed at safeguarding the creator-author-owner’s rights and making IP accessible to the public for the purpose of advancing and disseminating knowledge. As the case highlights, this also includes the opportunity to commercially exploit those rights.

The multidimensional spheres of personality

The rights attached to personality have grown to be multidimensional, encompassing the different forms of personality that celebrities have. They begin with the private sphere encompassing a person’s personality at their home or with their family. This is typically protected by privacy regulations, such as those enacted in India under the “Right to life and personal liberty” provision.

The privacy and intimacy of a celebrity are highly protected while they are in this personality sphere, which is a wholly segregated dimension under the personality right. The legal system provides unambiguous protection for this aspect of personality rights.

The “personality of the characters performed by celebrities” is the second dimension of personality and relates to how the general public most frequently perceives a personality. Shahrukh Khan is perceived by the general public as having a highly romantic demeanour because of the parts he portrays in his films. Another example would be Gulshan Grover. Well known for playing the bad guy, our initial impression of him is similar to those of the villains he has portrayed in movies. Such personalities are protected by the copyright laws in India under the heading of “performers’ rights”, which prevent unauthorised use of a performers’ work.

The third type of personality is the one that is displayed in public by celebrities but adopted as their own. This personality is a combination of the personalities of the roles that these actors portray and the personality that one must uphold in the workplace. This is the persona a celebrity uses to establish a mark of distinction, a trademark, or a brand.

Celebrities across the world use this aspect of their reputation for what is known as “character merchandising”. Examples from the cosmetics sector, where products are endorsed by a famous person, would be “Alia Bhatt” in India or “The Kardashians” in the US.

When a celebrity’s appearance, name, voice, or other individual traits acquire an undeniable reputation as being equivalent to the uniqueness of a mark, they can be registered as trademarks.

Starting with a basic right to privacy, there are now multiple dimensions to personalities, which can be protected as “performer’s rights” under copyright laws and as “self-marks” under trademark law. This expansion of personality rights under the heading of intellectual property is still in its early stages.

Is a check on the scope of protection under personality rights needed?

Although these are exclusive rights to be enjoyed by celebrities, the second and third types of personality rights that are a component of intellectual property should not impede the broader public or societal desire to enjoy the works and personalities of these celebrities. To safeguard people’s freedom of expression, a check must be placed on the protection of these personality rights.

Pop Culture serves as the rationale for this. This can be defined as “a collection of activities, artistic output, and items communicated by the mass media that have grown to be prominent in a society”.

Pop culture is a component of society, and as such, it is protected under freedom of expression.  Let’s use “Sholay” as an illustration. Whether it is used to portray the pinnacle of friendship or the cruelest villains of all time, it has been ingrained in Indian film culture. Individuals strive to express themselves in many different ways, such as by mimicking or using portraits from movie character posters, etc. These movies and the people in them have become cultural idols that others attempt to emulate. Unchecked and unreasonably strict protection of personality rights may have the unintended consequence of limiting people’s freedom of speech.

A straightforward right to privacy has evolved into a multifaceted set of rights via the growth of personality right protection. Even though it is still in its infancy, the usage of the internet and technological advancements have made it more important than ever to safeguard celebrities’ reputations from improper use that might undermine not just their standing as public figures but also their personal lives.

But because celebrities have a high profile and because of the lack of precedent, it is quite simple for judges to tend towards protecting personality rights, which may impede people’s freedom of speech.

The Indian legal system needs to clarify the extent of these rights as currently the IP regime in India appears ill-prepared to handle the growing concerns over personality rights and their ramifications.

Photo: Fardad Sepandar/Unsplash