INTRODUCTION
With the development in the arts, science and technology the intellectual property also developed and now it has become a innovation and creation. “The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement” includes several types of intellectual properties such as Copyright, Trademarks, Patents, Geographical Indications, trade secrets, Design layouts and so on. Present day the intellectual property rights (IPR) has been expanded to allow protection of modern rights, such as the right to advertising, to be a corollary to the rights to privacy. But considering the modern time there are no any provisions for the protection of celebrities rights.
The word celebrity is been derived from the Latin language “celebritatem” which means “the condition of being famous”[1]. It is important to understand who is celebrity before we study their rights. “Besides, it is also important to remember that celebrities have the sole right to exploit the value of being a celebrity”[2]. In the Martin Luther King Jr Centre for Social Justice v. American Heritage Goods Inc[3], it was discussed that the term 'celebrity' should be considered in a broader sense than traditional categories of musicians, rock stars and ball players, The person whose identity has been hijacked is by definition a famous individual for publicity purposes in the test of the “direct commercial use of identity,” where unauthorized use of an identity of the person is made directly motivated.[4]
PROTECTION UNDER COPYRIGHT LAWS:
There is confusion as what part of celebrity right can be protected under Indian copyright laws. The voice is main aspect which is commonly misused for advertisement purpose but as per Copyright Act, 1957 the voice of the personality can’t be copyrighted. “The economic or commercial rights to the performer under copyright laws have been provided as a separate class of performers’ right.”[5] However, the issue persists since these rights are limited to individual performances and not to the artist's or celebrities overall profile and hence the Indian copyright law is also in sufficient in this regards. Copyright is nothing but the exclusive right given by the celebrity himself to the other person to create an authorized photo of himself[6]. The biggest problem is that the celebrity does not have copyright over the picture which is been misused and hence he can’t file infringement suit. The Indian Copyright Act, 1957 protects artistic works such as painting, sculpture, and drawings. The court expanded the security provided by Section 14 of the Act granting the author the exclusive right to authorize others, including the conversion of two-dimensional works into three-dimensional works, and to replicate work in any other manner.
Now, a right for the fictional characters in the field of creative work has been expanded. Though the celebrity's name and image are not protected in India, In the case of Raja Pocket Books v. Radha Pocket Books[7], a well-known character from a children's comic book was given copyright protection. Under section 2(qq)[8] of the Act the definition of performer given which includes the actors, musician, singer, acrobat, and any person who delivers a performance. And hence we can observe that the definition of Celebrity is missing in Copyright Act too.
So under Section 2(qq) of the Act which provides performers right and it include Actors. Thus it means “actors are being given the performers right. Performer’s right includes economic rights, moral rights and non-tangible rights.”
What exactly is included in non tangible rights? It includes the “right over the persona of the performer”[9] and, the “right against use of likeness or name of the performer”[10].
It has been provided in section 38(4)[11] of the Act that, “Once a performer has consented to the incorporation of his performance in a cinematograph film, the provisions of Sub-sections (1), (2) and (3) shall have no further application to such performance” and this seems to be a restriction on performers right. In short it means once the performance is recorded as cinematographic film then the performer will loose his right to protect it. In 2012 amendment section 38B(b)[12] is added which says that “the performer of a performance shall, independently of his right after assignment, either wholly or partially of his rights, have the right to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation”. Hence now the scope of protection is wider than the earlier one.
In accordance with Section 57[13] of the Act, a special right is given to the authors only. Authorship was not expanded to include stakeholders themselves. The WIPO Performances Phonograms Treaty also specifically denies audio-visual performers such as actors "moral rights”.
The definition of performer is modified as per section 2(q) of amendment Act of 2012. It includes “a performance is any visual or acoustic presentation made live by one or more performers”. It crated “acting” as a questionable work and if the work is not subject to copyright protection then it will be very difficult for performer to protect and claim morality rights in any work.
PROTECTION UNDER TRADEMARK ACT, 1999:
the Indian Trademark Act, 1999; section 14 says that a personal name can’t be register as trademark when the name used is belongs to the person who is alive or died recently in last 20 years. Also the names of lords such as Sai Baba or names of Sikh Guru’s under section 159(2) of the Act. In the case of DM Entertainment v. Jhaveri[14]the defendant used the name of Daler Mehandi who is well known music director in India for his domain name as “dalermehndi.net”. the high court of Delhi ordered to the defendant that the name of Daler Mehandi cant be used as domain name as that the name may be a significant trademark
in the another case, where the Montblanc has released a luxury pens in 2009 with the name “Mahatma Gandhi Limited Edition 241” and “Mahatma Gandhi Limited Edition 3000” and uses the picture of great Mahatma Gandhi. The use is with the prior permission of Mr. Tushar Gandhi who is Great Grandson of Mahatma Gandhi. But this use of name was opposed on the name of protection provided under Emblems and Names (Prevention of improper use) Act 1950. The name and image of nationally relevant personalities under this law is not allowed, unless and until permission is granted by government, to use it for business or other professional purpose.
The defendant used the domain name 'arunjaitely.com' in another ruling Jaitley v. Network Solutions Private Limited[15]. The court ordered Arun Jaitley to give the defendant permanent orders so that the Domain Name was not misused and the Domain Name was immediately transferred by him. Jaitley argued that the defendants did not move to the claimant but to another third party following the expiration of the domain name. Consequently, a provisional order was passed by the Court and the domain name was not sold or transmitted to a third party.
PROVISIONS IN INTERNATIONAL CONVENTIONS
In various jurisdictions the definition of advertising rights has progressively evolved. The defense of the rights of performers is a matter of various international agreements or treaties. Some of the seminal treaties in this respect include the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961, the TRIPs Treaty (WIPO) and (WPPT) 1996. ‘Rome Convention’ is the first foreign instrument to address the rights of musicians, phonogram makers and radio broadcasters. The secondary usage of films in accordance with Article 19 did not allow performers to exercise their rights. The right to secondary use is restricted to fair pay. The Convention does not safeguard moral freedom. Whereas under ‘TRIPS agreement’ Article 14(1) allows performers to be given “the possibility of avoiding” the following acts: phonogram fixation, replication of such fixation, and broadcasting of their live performances. The term can be extended from 20 years to 50 years under Article 14(5). Contrary to other intellectual property deals, TRIPs has a strong compliance process and the WTO dispute resolution mechanism allows Member States to be disciplined. Under “WIPO Performance and Phonograms Treaty (WPPT)” it is been discussed about the deep impact on production and use of performances and phonograms of the development and convergence of information and communication technology and the need to balance performers' rights and producers' rights.[16] Article 5 of the Treaty provides that the performer has the right, irrespective of economic rights, to argue that, even in such circumstances, he is a performer (moral rights).
CONCLUSION
The discussion above suggests that a right to celebration is a right of its own kind. Firstly, it is the property of the celebrity who is able to make use of it in whatever way it prefers, and advertising rights are considered as own property. In order to address the new phenomenon of celebrities and merchandising, the Indian legal system is under fitted. The marketers and market forces frequently find ways to misuse celebrities' identities with exorbitant amounts. No one has an all-round defense for identity and image rights of the character in the current trademark law or copyright regime. While it is possible to seek to preserve the registered names of the character, as mentioned above, under the provisions laid down to safeguard the 'best known logos,' certain legal barriers must be met during the entire process. The clause shall not cover names per se as protection is only available when the owner or consumer is able to prove that the name is a recognized label. In addition, the provisions offer no remedy against the unauthorized use for endorsement purposes of the image or other qualities of personality of any character or celebrity. In the same way the Indian Copyright Act has not provided celebrities with any guarantee of moral rights, because actors have not been included in the author's sector. This situation increases the need for advertising rights in India to be recognized.
ENDNOTES: [1] Michael Madow, “Private Ownership of Public Image: Popular Culture and Publicity Rights” 81 Cal. Law. Rev.125, 128 (1993) [2] White v Samsung Elec Am Inc, 971 F.2d 1395, 1397 (9th Cir 1992), cert denied, 113 S. Ct. 2443 (1993). [3] Martin Luther King Jr Center for Social Change v American Heritage Products Inc, 694 F.2d 674 (11th Cir 1983). [4] Hetherington Lee, Direct commercial exploitation of identity: A new age for the right to publicity, Columbia-VLA Journal of Law and the Arts, 17 (1992) 1 [5] Performers’ Rights are given under Sec.38 of the Copyright Act, 1957. It should be noted that performers are only conferred with economic rights and there is no provision to accord moral rights. [6] Shilpika Pandey, Celebrity Rights Protection Under Intellectual Property Rights Regime: A Critical Analysis, available at: https://www.ijcrt.org/papers/IJCRT1705231.pdf (Lastly Accessed on 8/05/2021) [7] Raja Pocket Books v Radha Pocket Books (1997) (40) DRJ 791 [8] Section 2(qq) of the Copyright Act, 1957 [9] Onassis v Christian Dior, (1984)122 Misc.2d 603 [10] Presley v. Russen,( 1981)513 F.Supp. 1339 D.N.J [11] Section 38(4) of Copyright Act, 1957. [12] Section 38B(b) of Copyright Amendment Act, 2012. [13] Section 57 of Copyright Act,1957. [14] Case 1147/2001. [15] 181 DLT 716 (2011). [16] The Preamble, The WIPO Performances and Phonograms Treaty (WPPT)
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