The Role of IPRs in Protecting Publicity Rights: A Comparative Outlook

The Role of IPRs in Protecting Publicity Rights: A Comparative Outlook

In today's time, all merchandisers seek to enhance the image of their brands by endorsing celebrities to maintain an edge in the competitive market. Often, pictures and voices of famous figures are utilized to create the impression of a certain degree of association.

However, such commercial use of identities is not always made after seeking authorization, which may be detrimental to the rights of the person whose identity is being exploited. Even McCarthy has acknowledged the right of publicity in the form of his famous expression, "inherent right of every human being to control the commercial use of his or her identity." The international domain is also free of any such obligations citing that a State must provide for a law to protect the right of publicity; which is why, attention is brought to Intellectual Property Rights (IPRs) since only against the elaborate interpretation of these laws can the right of publicity be adjusted.

What is the Right of Publicity?

As has been appropriately defined by the International Trademark Association, the right of publicity is an IPR that protects against the misappropriation of a person's name,

likeness, or other indicia of personal identities, such as the nickname, pseudonym, voice, signature, or photograph, for commercial benefit.

The terms 'celebrity rights,' 'personality rights,' and 'rights of persona' are analogous to the term 'right of publicity.' Therefore, these rights primarily enable an individual to exercise control over the commercial use of his identity. Such individuals are often celebrities or public figures who are well recognized in society. The image or other attributes of a person may affect the commercial value of a product or service while also affecting the identity of an individual.

Position in the United States of America

In the USA, there is the federal statute, the Lanham Act of 1946, and the State Law of each State. For safeguarding consumers and owners of trademarks against

misrepresentation, the provisions of the Lanham Act come into the picture since the Act provides for a civil remedy against third parties using any word, term, name, symbol, device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which may lead to confusion on account of deception about the possible affiliation, connection, or association of him with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person. Although the Act does not specifically place consumer rights in its plain wordings, its broad interpretation can be construed to protect the same as well. The courts often assess consumer reaction and the degree of confusion while assessing whether or not celebrity rights have been breached.

Apart from the Lanham Act, the State Right of Publicity rooted in common law varies in scope from one State to another; however, the elements are essentially the same. To successfully enforce the 'right of publicity,' the plaintiff under the standard common law right of publicity shall prove:  The extent of the defendant's use of the plaintiff's identity;  The appropriation of the plaintiff's identity, name, or likeness to attain commercial or other potential advantages;  The absence of consent of the plaintiff; and  An injury caused or likely to be caused.

Hence, the USA does not objectively have a law in the picture to address the issue of publicity rights, but it enables the protection of celebrities' rights via liberal interpretation of the Lanham Act, federally, in addition to the State statutes, which may directly or indirectly address the same.

Position in the United Kingdom

The UK does not have particular legislation, and hence, there are multiple venues to seek refuge to safeguard such rights. The trademark legislation of 1994 also does not deal with publicity rights specifically. Despite this, it is witnessed that celebrities often register their names as trademarks; the failure to obtain the same leads to a web of unresolved issues. The chances of failure to safeguard names and surnames are that such names often step into the 'generic' cubicle lacking distinctiveness. Consider the case of Re: Elvis Presley Trademarks, Inc., where the court refused to register the name 'Elvis Presley' since it was so common that it could not be used to identify goods or services distinctively. However, when the identity or image or the likeliness of a public figure is fixed on a tangible format, the Copyright Designs and Patent Act of 1988 (CDPA) does provide protection. However, this is not an absolute solution since the affixation to a tangible object is considered an original work, which does face the limitation of 'fair dealing' wherein the infringer is prevented only from copying the 'substantial part' of such works. Therefore, protecting celebrity rights in the UK can be a challenging task.

Position in India Like in the UK, there is no specific statute that deals with personality rights in India. The Indian Constitution in Art 19 and 21 protects the right of privacy extending into the domain of the right of publicity. In the case of ICC Development (International) Ltd v.

Arvee Enterprises, the Delhi High Court held that the right of publicity emerges from the right of privacy and the right can be availed by natural persons only, excluding artificial persons from the ambit. To succeed in a case for infringing the right of privacy, the plaintiff must establish the following:  Validity: This means that the plaintiff owns an enforceable right in the identity or persona of a human being; and  Identifiability: This means that the plaintiff must be identifiable when compared with the defendant's unauthorized use.

Conclusion It is only very recent that publicity rights have come to gain popular attention because a sizable number of celebrities have now become aware of the concept and the commercial advantage their name may serve. As is observed, the law on the right to publicity is rather at a premature stage supported by only a handful of precedents, and the adoption of varied interpretations has led to the creation of a rather puzzling jurisprudence on the subject matter. The legislature of respective countries may need to formulate statutory laws to fill in the void since there is a requirement to accommodate public interest while balancing it against the right of public figures. It would rather be interesting to observe the route the law on the right to publicity develops.