The tort of publicity has been recognised in various jurisdictions abroad, with different facets of the tort being legally recognised in different jurisdictions. In India, the tort of publicity (interchangeably known as “the tort of personality”) has been recognised in a piecemeal manner, looking to the peculiar facts of the case before the court. This article aims to analyse the theoretical basis for the right of publicity, and its remedy, the publicity tort, and the practical implications thereof on the development of this unique tort in India.
In Part I of this article, rights based in privacy versus rights based in property are discussed. In India the right of publicity is seen as having its juridical basis in privacy law as opposed to property law, but it is argued in this article that in fact, property law ought to be the juridical basis of the right. Thereafter, in Part II, the development of the right of publicity in the United States of America and Canada is discussed. In Part III, is discussed, the development of the tort in India, which broadly allows celebrities to protect their name/likeness/persona, etc. from unauthorised use. Since it has been made applicable only to celebrities in India (unlike in Canada), the difficulty in basing the tort of publicity in privacy is highlighted, since celebrity by its very nature has eschewed the private in favour of public notoriety. Certain contradictions in the development of the right in different High Courts in India are also brought out with particular emphasis on the assignability and heritability of the right of publicity. In Part IV, it is argued that the tort of publicity should in fact be based in a property-rights system, since this would afford a basis for introducing rational limitations on the tort. The thesis of this article, contained in Part V, is that freedom of speech, constitutionally protected under Article 19(1)(a) of the Indian Constitution, cannot be made subservient to the tortious right of publicity, and to that end a defence to the tort in the form of the test of viewer confusion (analogous to the test of consumer confusion in trademark law) ought to be applied, as it would allow what is currently a broadly defined tort to be more narrowly tailored.
THE ‘SOLE AND DESPOTIC DOMINION’ VERSUS THE ‘RIGHT TO BE LEFT ALONE’
At the outset, it is important to delineate the concepts of privacy versus property for the purposes of this article. The concept of privacy as “the right to be left alone”1 is perhaps the most famous explanation for a concept that seems to defy classification. Various scholars, while talking of the right to privacy, have repeatedly highlighted the difficulty in precisely defining this term.2 In any event, rights grounded in privacy, as opposed to property, are concerned with individual autonomy and the personal liberty of human beings. To borrow a phrase used by Justice Stewart (in the context of obscenity and free speech):“I know it when I see it.”3
The most famous conception of property as a right is that of Blackstone:
the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.4
This conception of property as the “sole and despotic dominion” of the individual is wide enough to take within its sweep the common law of torts as well.5 However, this interpretation of the right to property is not universally accepted. Pavlos Eleftheriadis, for instance, regards property rights as being opposed to rights in tort or contract:
The distinction between rights to property and other rights in private law follows the formal distinction between “rights to things” and “rights against persons”. Property rights are “rights to things”. Rights arising in tort or contract are “rights against persons”.6
The concept of a property right which would include in its sweep a right to privacy appears to have stemmed from the very article which brought the right to privacy to the fore. Warren and Brandies had stated in 1890:
The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested.7
This broad conception of property as the foundation of the right to privacy appears to have influenced the law in the United States to make their conception of the “right to publicity” apply to celebrities, who protect their personality as they would their property. This “publicity right” is not available to all members of the public i.e. persons who are not celebrities, who have less of an interest in their personality as a property right. Founding the right to publicity in property has been called “undeniable” as
there are property interests at stake, by virtue of the fact that there is often a commercial value to an individual’s persona. … The proprietary nature of personality rights becomes particularly clear when a celebrity personality is involved, as his or her personality may be worth a great deal in commercial terms.8
PUBLICITY RIGHTS ABROAD
Although the tort of publicity as conceived of by the Indian courts have contradictions, particularly concerning whether or not it is heritable and assignable, broadly, to succeed in an action of the tort of publicity, the plaintiff has to establish that he/she is a celebrity i.e. he/she must be “identifiable”, the use of his/her persona by the defendant must be unauthorised and there should be some element of gain by the defendant.9 Much of the confusion in the doctrine concerning the tort of publicity in India stems from a piecemeal application by the High Courts in India of the “publicity right” granted by different jurisdictions in the United States of America.
Publicity Rights in the United States of America
The development of the right to publicity has not been uniform in the various States of the United States of America. The United States of America are just that—a true union of States. In fact, in the famous Declaration of Independence, it is notable that the title in the original document read as “The unanimous Declaration of the thirteen united States of America”, with the word “united” in lower case. This lower case “united” is important, since it is evidence that the “united” could be seen as merely descriptive of the “States of America”. The significance of this is often lost on Indian jurists, who do not realise that being truly federal in nature, each of the States of the United States of America has its own laws and indeed its own Supreme Court, and as such judgments of the various State courts often apply different principles. This is particularly true with regard to the “right to publicity”10.
Although it is beyond the scope of this article to examine the various laws of the United States concerning the right to publicity, a few examples shall be taken to show the divergence of laws within the United States of America itself, on the right to publicity. One such divergence, with markedly different laws in different States in the United States of America, is on whether the right survives the death of the person involved, and how long after the death the right subsists. The State of Indiana, for instance, gives a statutory right to publicity for the lifetime of the person concerned and for 100 years after the death of the said person, and includes natural as well as corporate persons11, while Tennessee grants the right for the lifetime of the person concerned and thereafter to any executor, assignee, heir, or devisee for an initial period of 10 years and thereafter for as long as the use for publicity continues and is deemed to have terminated upon non-use for 2 years.12 In California, the California Civil Code explicitly recognises that “The rights recognized under this section are property rights, freely transferable”13, and makes the publicity right enforceable for a period of 70 years after the death of the deceased personality.14 California also recognises a common-law right, which has been held to be “not so confined” as compared with the statutory right.15 In White v. Samsung Electronics America Inc.16, the 9th Circuit Court, a Federal Court in the United States of America which has jurisdiction over California, amongst other States of the United States of America, held that a robot with a blond wig which evoked the identity of Ms Vanna White on the Wheel of Fortune game show, violated the common-law right of publicity, even though it did not violate the statutory right stating that:“It is not important how the defendant has appropriated the plaintiff’s identity, but whether the defendant has done so.”17 This is in stark contrast to New York, which not only did not recognise a posthumous right to publicity until very recently18, but also held that the mere evocation of the identity of the plaintiff would not lead to a violation of the publicity right of the plaintiff.19
Thus, it is clear that the “right to publicity” is not a straightforward right applicable uniformly across the United States of America, and as such reliance upon the laws thereof without acknowledgment of the differences inhering in each State jurisdiction, is intrinsically flawed.
Publicity Rights in Canada
The Canadian right to personality (it is referred to as the “right to personality” alone in Canada, and not the “right to publicity” as is interchangeably used in India and the United States of America) is rooted in both statute and tort, and each province in Canada deals with the right slightly differently.20 Insofar as the traits that would come within the fold of “personality”, Manitoba, Newfoundland, and Saskatchewan provinces of Canada provided by statute that use of a person’s name, likeness, or voice could amount to appropriation of personality, while the British Columbia statute references only the name or portrait.21 All four statutes require the person to be “identifiable”, and in Joseph v. Daniels22 decided by the Supreme Court of British Columbia, a province of Canada,23 the plaintiff’s case was dismissed because he could not be identified as the person in the picture.24 What is interesting to note is that the criterion of identifiability relates more to whether a person can be identified in the trait being appropriated, rather than whether he or she is identifiable to the public at large, namely, whether he or she is a celebrity, as is the case in India.
As to whether appropriation of the personality of a deceased person is actionable, the statutes of the provinces of British Columbia, Newfoundland, and Saskatchewan provide that it is not, while the statute of the province of Manitoba does not expressly prohibit such an action taken by the deceased’s estate/heirs.25 In India, as we shall see, there is considerable confusion on this aspect.
Québec, being the only province of Canada whose sole official language is French, is influenced by French law, and has a Civil Code. The Civil Code of Québec provides that an appropriation of personality can be realised through the use of a person’s name, likeness, or voice.26 In Les Éditions Vice-Versa Inc. v. Pascale Claude Aubry27 while interpreting the right to privacy under Section 5 of the Québec Charter, the Supreme Court of Canada held that the person must be identifiable in the following terms : (Les Éditions Vice-Versa Inc. case27, SCC OnLine Can SC para 53)
53. Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified.28
It is therefore evident that identifiability does not relate to identifiability by the general public, but rather that the person themselves be identifiable in the appropriation of the defendant. Further, this personality right, rooted as it is in privacy, has been given the broadest contours : (Les Éditions Vice-Versa Inc. case27, SCC OnLine Can SC para 23)
23. … I am of the view that the dissemination of the respondent’s image constituted a violation of her privacy and of her right to her image. In the abstract, to appropriate another person’s image without his or her consent to include it in a publication constitutes a fault. I am of the view that a reasonable person would have been more diligent and would at least have tried to obtain the respondent’s consent to the publication of her photograph.29
It is apparent that the element of commercial use by the defendant is missing in Québec’s conception of the personality right, being grounded in the right to privacy.30 As to whether the plaintiff must show damage to maintain the action, the judgment in Aubry27 while holding that there must be damage, stated that : (Les Éditions Vice-Versa Inc. case27, SCC OnLine Can SC para 66)
66. … the damages are the logical, direct and immediate consequence of the fault. A teenager’s sensitivity and the possibility of being teased by her friends are eminently foreseeable.
This view of damage shows that it is not merely commercial in nature, but rather even the feelings of the plaintiff suffering damage would be enough to maintain an action in Québec, Canada.
In the common law in Canada31, which applies to every province except Québec, Krouse v. Chrysler Canada Ltd.32, after undertaking an extensive review of the law as it then stood as regards what is broadly referred to as a personality right, established that “the common law does contemplate a concept in the law of torts which may be broadly classified as an appropriation of one’s personality”32. However, it was in Athans v. Canadian Adventure Camps Ltd.33 that the common law right to personality was developed. Both Krouse32 and Athans33 concerned athletes of considerable reputation, and as such applied the right to personality in the context of celebrities. Thus, the Court in Athans33, while relying upon Krouse32 held that,
… it is clear that Mr Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded. If a case for wrongful invasion of this right is made out, then the plaintiff is entitled, in appropriate circumstances, to an injunction and to damages, if proved. It is only in recent years that the concept of appropriation of personality has moved from its place in the tort of defamation … to a more broadly based common law tort.
(emphasis supplied)
Since these two cases concerned celebrities, the common law personality right appears to have been limited to celebrities since the condition of “exclusive marketing for gain” would generally apply only to celebrities and not ordinary people, despite the assertion that it is “a more broadly based common law tort” in Athans33 Pertinently, in Athans33, the Court there noted that since there had been no commercial gain by the defendant, and since the defendant was running in losses, “the obvious inference is that the promotional material did not have the effect of establishing any connection in the minds of the relevant public between Mr Athans and the camp”. The requirement of commercial gain was reiterated in Horton v. Tim Donut Ltd.34 wherein it was held that:
It is inescapable and uncontradicted that the predominant purpose of the portrait is charitable and commemorative. It is neither exploitative, nor commercial. … Accordingly, … there is no right of personality in Tim Horton which has been unlawfully appropriated.
Thus, the common law personality right in Canada closely mirrors the tort of publicity in India, being applicable to celebrities alone.
PARADOXES IN THE TORT OF PUBLICITY IN INDIA
The Erroneous Grounding of Publicity Rights in Privacy Law
Indian courts have routinely and repeatedly affirmed that the tort of publicity is rooted in privacy law.35 In the context of the right to privacy, the Indian Supreme Court in the famous R. Rajagopal case36 held thus : (SCC p. 649-50, para 26)
26. … (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.37
(emphasis supplied)
The above passage of the Supreme Court has been cited by the Madras High Court in the context of the tort of publicity while expressly stating that “(the) right of publicity has evolved from the right of privacy”.38 Reliance upon the abovequoted paragraph shows that in fact a celebrity (or a person who “voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy”) would have greater difficulty in an action for damages based on a tortious right grounded in privacy. If the right to publicity is confined to celebrities but is grounded in privacy, then as per our own jurisprudence, the tort is self-defeating because the celebrity cannot make a claim based on a privacy right. It is in fact this difficulty which the courts in India do not take into account when grounding the right to publicity in the right to privacy and not the right to property, as it ought to be. Since, unlike in some jurisdictions in Canada where ordinary people possess the right of personality and the tort is thus correctly grounded in the privacy concerns of the ordinary citizen, the tort of publicity in India is limited only to celebrities, and it is thus all the more important to ground it in property and not privacy concerns.
The ingredients that make up the tort of publicity in India, namely unauthorised appropriation of an individual’s persona resulting in unearned commercial gain to another39, or the test of validity, identifiability, commercial use of an individual’s identity, and gain on the part of the defendant through such use40, all militate against the tort of publicity being based in privacy concerns, and in fact the emphasis on commercial use and gain by the defendant all point to the basis of this tort in property law. The Delhi High Court has also held in a case concerning the publicity rights of Amitabh and Jaya Bachchan, that “The right to control commercial use of human identity is the right to publicity”41 (emphasis supplied). It is submitted that this case makes it clear that the very foundations and justifications for the tort of publicity are rooted in property concerns and not privacy, being based on the commercial use of identity and not identity appropriation itself.
However, in a case dealing with a cyber squatter who registered the domain name www.arunjaitley.com, the Delhi High Court made certain observations about the use of a personal name which do not sit well with the other jurisprudence on the publicity tort in India.42 The Court therein put the use of a personal name (“Arun Jaitley”, India’s former Finance Minister and well-known public figure, in that case) on a higher footing than a commercial right.43 Because of these comments, this case has been cited repeatedly in the context of the right of publicity as affording the tort of publicity a basis in privacy law. Although the Court therein did go on to hold that “there is no absolute right to use personal name … [but] the name of Mr Arun Jaitley … has attained distinctive indicia of its own”44, its holding that “the right to use a personal name is superior than that of the commercial right of using the trade mark”45 seems to have (wrongly, in the author’s opinion) resonated in the context of the right to publicity law in India, since this conception of the Court is grounded squarely in privacy — the personal name being superior to the commercial property right. This is particularly troubling since the ultimate basis for the decree was the fact of his “distinctiveness” or celebrity, and not the commercial use of a personal name per se. The Court’s repeated insistence on grounding the right to publicity in privacy is perhaps attributable to this laudable though misplaced instinct to put human autonomy above property rights. However, in the case of the tort of publicity, as later argued in this article, grounding the tort in privacy actually does more harm than good, since grounding the tort in property would allow rational limitations on the extent of this tort, while grounding it in privacy concerns allows it to suffer from the vice of being overbroad.
Supporting the view that the tort of publicity ought to be grounded in property conceptions, a case in the Bombay High Court46 concerning the tort of character merchandising of the well-known serial “Kyunki Saas Bhi Kabhi Bahu Thi”47 has been used as a precedent in another case of the Bombay High Court while dealing with the tort of publicity.48 Since the tort of character merchandising is evidently property-based and does not have any element of privacy, it could be argued that reliance on the case as precedent is recognition of the property-based nature of the tort of publicity as well. Further, the latest judgment of the High Court of Delhi on the subject49, does allow that the tort might be grounded in property conceptions50, but holds that “Such enquiries would first require evidence … to prove that the persona … is still surviving as a commercial property.”51 This it is submitted, though a move in the right direction, is problamatic — the theoretical foundations of whether a right can be based in a property-rights system can never “first require evidence”, but ought to be the basis on which the evidence led at trial is to be seen.
“Identifiability” as the Basis for the Tort of Publicity in India
While the test of identifiability in most jurisdictions in Canada (barring the common law right in Canada)52 refers to the person being identifiable in the defendant’s use of his/her persona, in India it is amply clear from a review of the case law that for an action under the right to publicity, the personality concerned needs to be a celebrity, easily identifiable by his or her name/persona by the general public.53 However, an action for the tort of publicity has been allowed by the Madras High Court in the context of the family of a deceased journalist, who could not be said to be celebrities or easily identifiable by name.54 This was allowed because the Court noted that the right to publicity is rooted in privacy concerns, which were made out in that particular case. Although laudable, this decision is at odds with every other precedent, and ought not to have been brought under the rubric of publicity rights. It appears that the lip-service to privacy in the publicity rights cases has led to conflicting application of doctrine by different courts in different contexts.
In another case, the Madras High Court injuncted the release of a film “Main Hoon Rajinikanth”, which was not authorised by the famous actor Shivaji Rao Gaikwad alias Rajinikanth.55 In this case, the Court reiterated the need for the person to be a celebrity i.e. easily identifiable by the public for the tort to apply.56 An element that may have motivated the Court in this case was that the defendant had chosen to advertise the movie with an almost defamatory title, namely, “Hot Kavita Radheshyam As Sex Worker For Rajinikanth”57, lending a right to privacy angle to the case. However, it is interesting to note that the privacy of the plaintiff i.e. Shivaji Rao Gaikwad, was not in issue : it was the stage name/pseudonym of “Rajinikanth” that was the “identifiable” name that was protected by the right to publicity. Here, the case for bringing the right to publicity within the realm of property rights and not privacy rights is evident—it is the property value of the pseudonym “Rajinikanth” that gets protection through this judgment and not the privacy of the person involved i.e. Shivaji Rao Gaikwad.
Assignability of the Tort of Publicity in India
The question of whether the right to publicity is assignable has not been answered clearly by Indian courts. The Delhi High Court in one case rejected the right to publicity for “the ICC World Cup” holding that “non-living entities are not entitled to the protection of publicity rights in an event”.58 However, in another case, the very same High Court allowed an action by a company, albeit claiming the right in the names of celebrities, Mr Amitabh Bachchan and Mrs Jaya Bachchan.59 The ratio of these two cases are in direct conflict : on the one hand the Court has held that non-living entities are not entitled to the protection of publicity rights, but on the other hand, the Court is willing to concede that a non-living entity might be the assignee of the right to publicity, and as such entitled to the protection of the publicity tort.
The Telangana High Court has come out in favour of the assignability of the right to publicity in a case concerning a sportsman, one Mr Akhilesh Prakash Paul, who had escaped from a life of crime through success in his chosen sport, soccer.60 The Court therein acknowledged that “… his personality right of publicity was exclusively assigned to the plaintiff.…”61 (emphasis supplied), thereby showing that the right is assignable to a private limited company.
The assignability of the right to publicity militates in favour of the basis of the right being in property and not privacy, since the privacy of a person, being inherent in the human being, cannot be assigned to a company, while the property interest in the celebrity’s name can be.
Heritability of the Tort of Publicity
Once again, on the question of whether the right of publicity is heritable, different Indian High Courts have passed conflicting opinions. In a case concerning the rights of deceased renowned ghazal singer, Jagjit Singh, through his widow Chitra Jagjit Singh, the Bombay High Court62 after referring to a number of Indian judgments, as well as judgments of the United States, ultimately held that “there is no developed body of law”63 on the question of whether the right to publicity is heritable, and did not hold that the right is heritable.63 Various judgments of the United States were also cited to support the proposition that there is no unified body of law on the point of heritability of publicity rights. The judgments of the United States cited in that case again go to show that different jurisdictions in the United States appear incoherent from the outside, since each jurisdiction in the United States deals with its own set of laws.64 This however, cannot be a reason for not developing our own law as concerns the heritability of the right—merely because some jurisdictions in the United States allow it to be inherited and some do not, does not mean that there need be confusion in India on that aspect. The Delhi High Court has also prima facie found the publicity right to be not heritable, being “inextricably interlinked to and birthed from the right of privacy.”65
There is in fact now precedent in India for the proposition that the family/estate of a deceased person can successfully sue for the right to publicity of the deceased person concerned. The Madras High Court had dealt with the right of a deceased journalist and granted an injunction to her family based on her (the deceased journalist’s) right to publicity.54 It is to be noted that the Madras High Court54 handed down its decision after the above order was passed by the Bombay High Court62, but before the judgment of the Delhi High Court.49
If one accepts that this tort should be property based and not privacy based, it would logically follow that it ought to be heritable. The so-called confusion in the United States, not being confusion at all but merely different jurisdictions with different rules and laws, ought not to deter the development of the tort in India.
THE CASE FOR A PROPERTY-BASED PUBLICITY RIGHT
In spite of the repeated insistence of our courts that publicity rights are based in privacy, it is submitted that the idea that it is the celebrity’s privacy that is sought to be protected through a right to publicity is ill founded for the reason that celebrity through its very nature is a public enterprise, where an individual willingly gives up his or her privacy to achieve a certain notoriety which makes them of interest to the general public.
The benefits of this notoriety, though deserving of protection as a commercial right ought not to be equated with the protection of the inalienable right to privacy inhering in human beings by virtue of their being human. Grounding the right of publicity in notions of privacy renders the very basis for the right open to challenge, while grounding the right of publicity in property rights, would be more appropriate and allow for certain restraints on the right, particularly in the context of free speech. In this respect, Professors Dogan and Lemley critiqued the right of publicity as it stood in the United States as becoming overbroad “to the point at which virtually any reference to an individual that brings financial benefit to someone else qualifies as a violation of the right of publicity”.66 The answer according to the Professors was to ground the theoretical justifications for the right firmly in trademark law, a property-based system.67 As stated by them,
… the emergence of a property-like form of the right of publicity can best be understood as an adoption of the putative trademark merchandising right, with judicial decisions reflecting the same anti-free-riding instincts that informed the merchandising cases in the trademark context. … Doctrinally, such an approach would limit the right to circumstances in which the use of an individual’s name or likeness in connection with the sale of a product is likely either to confuse consumers or to dilute the significance of a famous name.68
(emphasis in original)
In fact, as seen earlier in the article, both the Delhi High Court59 and the Telangana High Court60 have allowed actions which were raised by corporations and not the human being concerned. If indeed this was a right based in privacy, the very fact that the plaintiff was a corporation ought to have been enough to dismiss it. The fact that a corporation, an inanimate being, could pursue a right to publicity, albeit while holding the right as an assignee of natural persons, goes to show that it is in fact a commercial right at stake and not a privacy right, thereby rendering the jurisprudential basis of the right questionable.
Again, whether or not the right is heritable would be easily answered if, as submitted, these cases deal with a right to publicity and are grounded in property and not privacy law. Since the right to publicity is firmly grounded in commercial concerns, it would by its very nature be heritable, and the concerns of the Bombay High Court in the context of the deceased ghazal singer Mr Jagjit Singh would not apply.62
In “The Commodification of Celebrities : Rights of Publicity”69, Madhavi Goradia Divan lays emphasis on the “two facets” of publicity rights — one being “somewhat like a trade mark” and the other “the right to privacy”, although that is hedged with the epithet “The second facet of the right, oddly as this may sound, is the right to privacy”70 showing that the fact that claiming privacy rights for celebrities is in many ways an oxymoron was not lost on Ms Divan. It was also asserted in the article that “the invasion of the right to privacy is a personal tort that cannot be assigned or inherited while the right of publicity being in the nature of a property right is assignable and descendible”.71 This view, that the right of publicity is assignable and descendible/heritable, though sound requires clarification by the Court, since there are conflicting judgments on the issue.
As a justification for publicity rights, Dogan and Lemley found the moral justification tenuous—personal liberty cannot be said to be at stake where a celebrity does not want to safeguard their personal liberty, but rather profits from their fame; and a labour-based or unjust enrichment-based moral justification fared as badly in their opinion since the labours involved in building celebrity are never entirely the efforts of the celebrities themselves.72 Further, the analogy of copyright was labelled as “both misleading and dangerous”73, since the economic rationale for copyright, namely, to encourage creativity (Dogan and Lemley call it “market failure … in the absence of the legal right”73), does not apply easily to creation of celebrity, since such creation is not entirely a “creative” process, being more reliant on commercial factors like marketing. Dogan and Lemley go on to show that trademark law is in fact a better analogy, since the likelihood of confusion test can be easily applied in publicity rights cases as well, and the justification for trademark law, namely, that consumers not be misled, applies squarely to publicity law as well.74 This requirement however, namely that the consumer be misled is not only absent in Indian law, but in fact several High Courts in India have specifically held that the tort of publicity requires no proof of falsity, confusion or deception, making the test of confusion of the viewer expressly inapplicable in publicity rights cases.75 The rationale for this is perhaps due to the fact that the closest analogy used by Indian courts appears to be copyright law and not trademark law.76 It is submitted that a change is warranted here — if the test of consumer confusion (or viewer confusion) is introduced, it would allow for the publicity right to be invoked only where the compelling interest of protecting the consumer from being misled exists, which in turn circumscribes the use of this tort, which is otherwise widely phrased — the twin necessities being only validity of claim and identifiability of the celebrity, which are easily met.
NARROWING THE TORT OF PUBLICITY IN INDIA
In India, the courts have not yet delineated the defences required to defend against an action under the tort of publicity. This jurisprudential void would best be filled by a strong defence in the case of free speech rights, including comedy, scholarship, art and education.
In Defence of Freedom of Speech and Expression
The Supreme Court of India has emphasised that the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution “is of paramount significance under our constitutional scheme”.77 The importance of allowing criticism of public figures has also been underlined by the Supreme Court, particularly in the context of the political class, since “public criticism is essential to the working of its [democracy’s] institutions”.78 In this light, it becomes all the more important to delineate the defences to the right to publicity, since the right, if unfettered, could trammel on the right of every citizen’s free speech.
It is also pertinent to look at the public figure doctrine in the United States of America, which has been referred to by the Indian Supreme Court with approval in inter alia R. Rajagopal case.79 The public figure doctrine brings a free speech issue to the fore, and stipulates a heightened standard in libel cases for public figures—they must prove actual malice on the part of the defendant in order to succeed in a libel action.80 The rationale for this doctrine is clear—the free speech interests of the media in reporting matters of interest to the public, protected under the First Amendment of the Constitution of the United States of America, must be placed on a higher footing when a public figure is involved as compared to a private individual, since otherwise “the news media’s ability to criticise government officials would be severely hampered”.81 Analogously, this militates against the tort of publicity being overbroad to the point of encroaching on the freedom of speech guaranteed by Article 19(1)(a) of the Indian Constitution — the free flow of ideas in the public arena must be given ample play in the joints, and a public figure simply ought not to be able to claim cover under the tort of publicity.82 It is apposite that the right to freedom of speech guaranteed by Article 19(1)(a) of the Indian Constitution cannot be subservient to the tort of publicity. For instance, Article 19(1)(a) of the Indian Constitution would militate against an action in publicity rights by a celebrity attempting to prohibit a biography being written or a play being enacted on publicly available material on the celebrity. Article 19(1)(a) of the Indian Constitution thus becomes the touchstone for the development of a strong defence in an action brought under the tort of publicity.
Rebecca Tushnet’s remarks concerning art and film history ought to apply in equal force to the tort of publicity:
Professor Lawrence Lessig has eloquently written about how freedom to quote is the foundation of textual fair use; quotation is the foundation of scholarship, or indeed of any endeavor that involves writing. But art history and criticism routinely require whole pictures, not fragments, to make their points, and verbal descriptions are poor substitutes for actual visuals. As Lessig points out, it is bizarre that freedom to quote a Hemingway novel is accepted as standard, but freedom to copy clips from the filmed version to serve the same purpose is not.83
This parallel to art history applies in equal measure to the subject of political science — one might need to circulate a copy of a photo of a celebrity when dealing with a particular topic, which, as the law stands today, could become a publicity right issue since the famous person who is easily “identifiable” did not consent to the same.
Art as a category is perhaps even more troublesome than scholarship. It is easy to agree that art deserves to be protected as a category against a publicity rights action, but given the manner in which the Indian courts have defined the right, Andy Warhol’s famous silkscreen paintings “Marilyn Diptich” (Marilyn Monroe), Richard Hamilton’s paste up “My Marilyn” (Marilyn Monroe), and Mark Ryden’s oil painting “Katy Aphrodite” (Katy Perry)84 could all amount to actionable torts by the celebrities concerned, since the celebrities are clearly identifiable and there is an element of gain on the part of the artist by trading off the interest generated by the persona of the celebrity. Although famous artists such as Andy Warhol, would likely be exempted by a court in an action against him, lesser-known artists doing much the same thing could easily fall foul of the law as it stands today in India. Further, the very concept of what qualifies as “art” has always been troublesome.85 In fact, an interesting question arises in the context of pin-up posters made of famous art — it is easy enough in the case of a Monet, since there is no celebrity involved, but when dealing with a poster of Warhol’s works containing Marilyn Monroe’s picture, it could very easily be argued that the posters do not qualify as “art” in themselves and would fall foul of an action under the tort of publicity rights. The posters sold at various art museums around the world, funds from which help maintain these museums, could be held to ransom by a celebrity who does not consent to his/her image/persona being used in art. Thus, even carving out an exception for the arts is not as straightforward as it appears.
Comedy is yet another grey area — actions ought not to be maintainable against comedians, who ought to hold a free speech defence, and who, without an exception made in favour of their right to criticise, would otherwise fall foul of the tort of publicity, since the ingredients of the tort otherwise appear to exist, namely, that the celebrity be identifiable, and there be an element of gain from the persona of the celebrity. Comedy, particularly political comedy, operates as a safety valve in society, and the law ought to allow for criticism of the political class without fear of censure. Allowing this safety valve to be held to ransom by celebrities, including political celebrities, is not only injurious, but dangerous, to the fabric of society. This was noted in obiter by the Delhi High Court, which has held49 that:
… a word of caution has to be expressed here. In a free and democratic society, where every individual’s right to free speech is assured, the over emphasis on a famous person’s publicity rights can tend to chill the exercise of such invaluable democratic right. Thus, for instance, caricature, lampooning, parodies and the like, which may tend to highlight some aspects of the individual’s personality traits, may not constitute infringement of such individual’s right to publicity. …86
As has been correctly pointed out by and Lemley, “It is unreasonable to expect that an individual will license to another the right to criticise or make fun of him”.87 If a researcher/writer writes a biography of a celebrity from publicly available materials, would that be construed as violating the right to publicity, particularly if it showed the celebrity in an unfavourable light? Here, the free speech interest of the researcher/writer ought to be paramount, but it is unclear under the present law which way a court would hold. Ms Madhavi Goradia Divan states that:
“The use of an individual’s likeness in connection with a newsworthy event is excepted. The use of names, pictures and identities in connection with the production of biographies of newsworthy individuals is permissible”.88
However, she appears to get this either from common sense or from US sources, as Indian case law has so far not made any such exception. It is hoped that courts in India would follow her statement that, “the production of biographies of newsworthy individuals is permissible”88, but it is unclear whether courts will, particularly if the biography is critical of the celebrity concerned. Ms Divan concludes her analysis by stating that:
Affording excessive protection to personality rights would amount to a fetter on the freedom of expression of the media and also restrict the fundamental right of freedom of information and entertainment available to the citizen under Article 19(1)(a) of the Constitution. … celebrities must remain larger than life. They tend to lose some of their sheen when they turn themselves into commodities.89
If a mere reference to the celebrity which leads to commercial gain is the basis for a publicity tort action, even an artist referencing another artist in a song could be said to be actionable — for instance, the song “Grace Kelly” by artist Mika has the following lyrics:
I try to be like Grace Kelly,
But all her looks were too sad,
So I tried a little Freddie,
I’ve gone identity mad.
The way the right to publicity is defined in India today, all the ingredients to make an actionable claim against Mika by the estates of Grace Kelly and Freddie Mercury appear to be present—there is validity, in that Grace Kelly and Freddie Mercury (the plaintiffs in this fictional case) are celebrities who own their identity, and they are directly identifiable—Grace Kelly being the name of the song itself and the song mentioning both Grace Kelly and Freddie by name, and Mika (the defendant in this fictional case) also stands to gain commercially because of interest in the celebrity. This fictional case would show the importance of defining the contours of the tort of publicity in a less expansive manner.
It becomes all the more important to carve out exceptions for genuine journalism, scholarship, parody, and art in publicity rights actions, with particular emphasis on the freedom of speech which is constitutionally guaranteed in India. In this regard, Warren and Brandies had categorically asserted that “The right to privacy does not prohibit any publication of matter which is of public or general interest”90 and this statement (which presaged the public figure doctrine of the First Amendment of the United States’ Supreme Court mentioned above) ought to be all the more applicable in the context of the right to publicity. The right to publicity must of necessity be more narrowly tailored in order that it not hamper the constitutionally guaranteed freedoms of speech and expression in India. It is of utmost importance that freedom of speech and expression play an important role in the defences available to a defendant in an action under the tort of publicity.
Applying the Test of Viewer Confusion
In all these cases, if courts applied the test of confusion of a customer/viewer (as used in trademark law cases), the analysis of the court would yield a more balanced result. In publicity rights cases, this test would translate to the consumer/listener/viewer etc. assuming that the goods/product/speech etc. is trading off the good name of the celebrity. However, unfortunately, this test has been declared as inapplicable to publicity rights cases in India.75 If one were to apply the test of confusion of the viewer, the difficulty discussed above in the context of the arts would not arise, since a poster of Andy Warhol’s art works would be seen as just that—a poster of Andy Warhol’s art work and not a poster of Marilyn Monroe. This would also take care of merchandising cases, since the consumer would invariably buy the merchandise due to the celebrity value and fame of the celebrity, and thus, merchandising without the consent of the celebrity would fall foul of the tort of publicity rights. Again, in the context of scholarship, newsworthy events and comedy, this test would allay all fears that the tort of publicity, unchecked, might be overbroad and trammel on other rights such as the right to know and the right of free speech. For instance, a comedian’s reference to a celebrity would not be actionable if the exception of confusion of the listener is applied, since, although the ingredients of identifiability, validity and commercial gain are all made out in the case against a comedian, there would be no confusion by the listener as to the comedian trading off the name of the celebrity.
The contours of the right to publicity being broadly defined have not troubled the present author alone — Lee Goldman has argued in the context of the United States, that the right to publicity should be revisited, and perhaps even abolished.91 Goldman states that “The right of publicity has intuitive appeal. But when one looks behind the rhetoric, there is little to support its widespread recognition and much that recommends its rejection.”92 He argues that the right to publicity had originated when celebrities were poorly compensated for their creative endeavours, and “fairness concerns and a desire to maintain incentives for creativity might easily have justified a right of publicity”.93 However, today’s celebrities are extremely well compensated, and therefore, Goldman argues that incentives in the form of a publicity right, which often trample on free speech rights of defendants, are no longer needed.94 In fact, in support of Goldman’s view, the very basis of the right to publicity, namely, that defendants would trade off the name, reputation and goodwill of celebrities for commercial gain without such a right, has been undermined by economic studies which show that the market correlation between celebrity endorsements and the market value of the product endorsed appears to be tenuous at best.95 Although the author does not share Goldman’s extreme views on the subject of total abolition of the right to publicity for celebrities, the author does think that the right needs circumscribing, particularly in the context of art, scholarship, and other free speech interests, and the test of confusion of the viewer would achieve that object.
CONCLUSION
Indian law now stands on a precipice from where it can either take flight or fall into the abyss of unending contradictions. It is hoped that either the Supreme Court steps in, in an appropriate case, or the High Courts reassess the law of publicity, and acknowledge that it is a right based in property and not privacy and apply the test of confusion of the viewer, thereby tailoring publicity rights in a narrower version so as to allow free speech interests, art, and scholarship to triumph over the publicity rights of celebrities.
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*The article has been published with kind permission of SCC Online cited as (2021) 6 SCC J-1
† Advocate practising at the Supreme Court of India, and High Court of Delhi; LLB from the Campus Law Centre, Faculty of Law, Delhi University and LLM from Harvard Law School.
1 Warren and Brandeis, “The Right to Privacy”, (1890) 4 Harv L Rev 193 at p. 193 (hereinafter “Warren and Brandeis, Privacy”).
2 See Amy M. Conroy, “Protecting Your Personality Rights in Canada : A Matter of Property or Privacy?”, Online : (2012) 1 : 1 UWO J Leg Stud 3 at p. 18 (hereinafter referred to as “Amy Conroy, Personality Rights”).
3 Jacobellis v. Ohio, 1964 SCC OnLine US SC 156 : 12 L.Ed.2d 793 : 378 US 184 (1964).
4 William Blackstone, Commentaries on the Laws of England (1809 Vol. II, Book 2, 15th Edn.) Ch 1, 2 cited in Pavlos Eleftheriadis, “The Analysis of Property Rights”, 16 Oxford J Legal Stud 31 (1996) (hereinafter referred to as “P. Eleftheriadis, Property Rights”) and Theodore M. Benditt, “Private Land Ownership and its Limitations”, Public Affairs Quarterly, Vol. 29, No. 3, 2015, 297-312 at p. 298.
5 For instance, see John Oberdiek (Ed.), Philosophical Foundations of the Law of Torts, (United Kingdom : OUP Oxford, 2014) at p. xxxvi. See also Shyamkrishna Balganesh, “Debunking Blackstonian Copyright”, The Yale Law Journal, Vol. 118, No. 6 (April, 2009), pp. 1126-181.
6 P. Eleftheriadis, “Property Rights” at p. 32.
7 Warren and Brandeis, “Privacy” at p. 221.
8 Amy Conroy, “Personality Rights” at pp. 18-19.
9 See Titan Industries Ltd. v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382 : (2012) 50 PTC 486 (hereinafter referred to as “Titan Industries”); Shivaji Rao Gaikwad v. Varsha Productions, 2015 SCC OnLine Mad 158 : (2015) 1 LW 701 (hereinafter referred to as “Shivaji Rao Gaikwad”); Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364 (hereinafter referred to as “Chitra Jagjit Singh”); K. Ganeshan v. Film Certification Appellate Tribunal, Ministry of Information and Broadcasting, 2016 SCC OnLine Mad 9355 : (2016) 4 LW 961 (hereinafter referred to as “K. Ganeshan”) and Super Cassettes Industries (P) Ltd. v. Nandi Chinni Kumar, 2020 SCC OnLine TS 1282 : (2020) 6 ALT 162 (hereinafter referred to as “Super Cassettes”).
10 Haelan Labs. Inc. v. Topps Chewing Gum Inc., 202 F.2d 866 at p. 868 (2d Cir 1953) was the first case in the United States of America to ever use the phrase “right to publicity”:
This right might be called a “right of publicity”. For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.
11 Title IN ST 32-36-1-5 found at <http : //rightofpublicity.com/statutes/indiana> last accessed 7-7-2021.
12 Title 47-25-1104 found at <http : //rightofpublicity.com/statutes/tennessee> last accessed 7-7-2021.
13 Section 3344.1.b in the California Civil Code found at <http : //rightofpublicity.com/statutes/california-2008-amendment-to-33441> last accessed 7-7-2021.
14 Section 3344.1.g in the California Civil Code found at <http : //rightofpublicity.com/statutes/california-2008-amendment-to-33441> last accessed 7-7-2021.
15 White v. Samsung Electronics America Inc., 971 F.2d 1395 at p. 1397 (9th Cir 1992).
16 971 F.2d 1395 (9th Cir 1992).
17 Id, p. 1398.
18 Pirone v. MacMillan, 894 F.2d 579 at p. 585 (2d Cir 1990) has stated that New York did not recognise a posthumous publicity right. However, as on 1-12-2020, New York has enacted a law allowing such a posthumous publicity right, but only to celebrities who died after the law comes into force, i.e. on or after 29-5-2021. See <https : //www.natlawreview.com/artile/new-york-passes-law-recognizing-post-mortem-right-publicity-and-creating-private#:˜ : text=%E2% 80%9CDeceased%20Personalities%E2%80%9D%20Will%20Have%2oTransferable,any%20 commercial%20use%20of%20those> last accessed 7-7-2021.
19 Uri Geller v. Fallon McElligott Advertising and Timex Corpn., 1991 No. 90-Civ-2839 (SDNY 22-7-1991).
20 See generally, Amy Conroy, “Personality Rights”.
21 Id, p. 4.
22 1986 BCJ No. 3231 : 11 CPR (3d) 544 (SC).
23 Id, CPR (3d) at p. 549.
24 Amy Conroy, “Personality Rights” at p. 4.
25 Id, p. 6.
26 Id, p. 15.
27 1998 SCC OnLine Can SC 30 : [1998] 1 SCR 591 found at <http : //www.canlii.org/en/ca/scc/doc/1998/1998canlii817/1998canlii817.html?autocompleteStr=aubry&autocompletePos=1> last accessed 7-7-2021 (hereinafter referred to as “Aubry”).
28 Id, para 53.
29 Id, para 23.
30 See also, Amy Conroy, “Personality Rights” at p. 16.
31 Id, pp. 9-13.
32 Krouse v. Chrysler Canada Ltd., 1 OR (2d) 225 (1974) found at <https : //www.canlii.org/en/on/onca/doc/1973/1973canlii574/1973canlii574.pdf> last accessed 7-7-2021 (hereinafter referred to as “Krouse”).
33 (1977) 17 OR 2d 425 found at <https : //www.canlii.org/en/on.onsc/doc/1977/1977 canlii1255/1977canlii1255.html?autocompleteStr=athans&autocompletePos=1> last accessed 7-7-2021 (hereinafter referred to as “Athans”).
34 75 CPR (3d) 451 (1997) found at <https : //www.canlii.org/en/on/onsc/doc/1997/1977 canlii12372/1997canlii12372.html?resultIndex=2> last accessed 7-7-2021.
35 See for instance, ICC Development (International) Ltd. v. Arvee Enterprises, 2003 SCC OnLine Del 2 : (2003) 26 PTC 245, para 14 (hereinafter known as “ICC Development”); Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364, para 5 and K. Ganeshan, 2016 SCC OnLine Mad 9355 : (2016) 4 LW 961, para 49(c).
36 R. Rajagopal v. State of T.N., (1994) 6 SCC 632 (hereinafter referred to as “R. Rajagopal”).
37 Id, pp. 649-50, para 26 cited in K. Ganeshan, 2016 SCC OnLine Mad 9355, para 36 : (2016) 4 LW 961. It is pertinent to mention that this passage from R. Rajagopal, (1994) 6 SCC 632 has been cited in the landmark nine-Judge Bench of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, with approval no less than five times.
38 K. Ganeshan, 2016 SCC OnLine Mad 9355, para 49(c) : (2016) 4 LW 961.
39 D.M. Entertainment (P) Ltd. v. Baby Gift House, CS (OS) No. 893 of 2002, decided on 29-4-2010, para 13 (Del)(hereinafter referred to as “D.M. Entertainment”).
40 See Titan Industries, 2012 SCC OnLine Del 2382 : (2012) 50 PTC 486.
41 Id, para 15(II).
42 Arun Jaitley v. Network Solutions (P) Ltd., 2011 SCC OnLine Del 2660 : (2011) 181 DLT 716 (hereinafter referred to as “Arun Jaitley”).
43 Id, para 29 states : (Arun Jaitley case42, SCC OnLine Del para 29)
29. … it would not be out of place to say that the entitlement to use one’s own name stands on a higher footing than the entitlement to use the trade mark. This is so due to the reason that the right to use ones own name is a personal right as against the right to use a trade mark which is merely a commercial right.
44 Id, paras 32-33.
45 Id, para 30.
46 Star India (P) Ltd. v. Leo Burnett (India)(P) Ltd., 2002 SCC OnLine Bom 942 (hereinafter referred to as “Star India”).
47 “Kyunki Saas Bhi Kabhi Bahu Thi” translates to “because a mother-in-law was once a daughter-in-law”.
48 See for instance, Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364.
49 Krishna Kishore Singh v. Sarla A. Saraogi, 2021 SCC OnLine Del 3146 (hereinafter referred to as “Krishna Kishore Singh”).
50 Id, para 26:
26. … additional questions emerge, such as whether personality/publicity right is a property, being part of the estate/assets of the deceased, as a concept detached from the theory of dignity, or can it only be harmonised with the right of privacy, from where it originated.
(emphasis supplied)
51 Id, para 26, while dealing with whether the right of publicity is heritable.
52 Refer to Part II of this Article titled “Publicity Rights Abroad”.
53 See for instance, Titan Industries, 2012 SCC OnLine Del 2382, paras 15(III) and (IV) : (2012) 50 PTC 486 and Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364, para 5.
54 K. Ganeshan, 2016 SCC OnLine Mad 9355 : (2016) 4 LW 961.
55 Shivaji Rao Gaikwad, 2015 SCC OnLine Mad 158 : (2015) 1 LW 701.
56 Id, paras 4.3, 21, 23.
57 Id, para 23.
58 ICC Development (International) Ltd. v. Arvee Enterprises, 2003 SCC OnLine Del 2, para 12 : (2003) 26 PTC 245.
59 Titan Industries, 2012 SCC OnLine Del 2382 : (2012) 50 PTC 486.
60 Super Cassettes, 2020 SCC OnLine TS 1282 : (2020) 6 ALT 162.
61 Id, para 105.
62 Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364.
63 Id, para 6.
64 See Part II of this article titled “Publicity Rights Abroad”. Also see D.M. Entertainment, CS (OS) No. 893 of 2002, decided on 29-4-2010 (Del) at para 13 and ICC Development, 2003 SCC OnLine Del 2, para 11 : (2003) 26 PTC 245 where cases from the US District Court for the Southern District of New York, the 9th Circuit which has jurisdiction over, inter alia, California, as well as the Supreme Court of the United States are cited or relied upon, without any notice of the fact that these different jurisdictions have entirely different laws, although they may arise from the same country i.e. the United States of America.
65 See Krishna Kishore Singh v. Sarla A. Saraogi, 2021 SCC OnLine Del 3146, para 21.
54 K. Ganeshan, 2016 SCC OnLine Mad 9355 : (2016) 4 LW 961.
62 Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364.
49 Krishna Kishore Singh v. Sarla A. Saraogi, 2021 SCC OnLine Del 3146 (hereinafter referred to as “Krishna Kishore Singh”).
66 Stacey L. Dogan and Mark A. Lemley, “What the Right of Publicity Can Learn from Trademark Law”, 58 Stan L Rev 1161 at p. 1162 (hereinafter referred to as “Dogan and Lemley, Right of Publicity”).
67 Id, p. 1163.:“courts and commentators have looked to copyright law in an attempt to justify and delimit the right of publicity” and at p. 1164:“Logically, the right of publicity has more in common with trademark law than with copyright.”
68 Id, pp. 1165-66.
59 Titan Industries, 2012 SCC OnLine Del 2382 : (2012) 50 PTC 486.
60 Super Cassettes, 2020 SCC OnLine TS 1282 : (2020) 6 ALT 162.
62 Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364.
69 Madhavi Goradia Divan, “The Commodification of Celebrities : Rights of Publicity”, (2009) PL December 16 at p. 16 (hereinafter referred to as “Madhavi Goradia Divan, Rights of Publicity”).
70 Id, p. 16.
71 Id, p. 19.
72 Dogan and Lemley, “Right of Publicity” at p. 1181:“From a labor perspective, the value of a celebrity persona rarely owes itself exclusively-or even primarily-to the efforts of the celebrity.”
73 Id, p. 1187.
73 Id, p. 1187.
74 Id, pp. 1190-93.
75 See Titan Industries, 2012 SCC OnLine Del 2382, para 15(III) : (2012) 50 PTC 486; Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364, para 5 and Shivaji Rao Gaikwad, 2015 SCC OnLine Mad 158, para 21 : (2015) 1 LW 701.
76 For instance, Titan Industries, 2012 SCC OnLine Del 2382, para 19 : (2012) 50 PTC 486 and Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364, para 1, both show that the Courts therein were concerned with copyright and publicity rights brought in one action.
77 Shreya Singhal v. Union of India, (2015) 5 SCC 1, p. 128, para 8 (hereinafter referred to as “Shreya Singhal”).
78 Id, p. 129, para 9.
79 R. Rajagopal v. State of T.N., (1994) 6 SCC 632, pp. 645-46, paras 16-18.
80 See New York Times Co. v. Sullivan, 1964 SCC OnLine US SC 43 : 11 L.Ed.2d 686 : 376 US 254 (1964) (US Supreme Court), followed in Gertz v. Robert Welch Inc., 1974 SCC OnLine US SC 152 : 41 L.Ed.2d 789 : 418 US 323 (1974) (US Supreme Court).
81 Bruce L. Ottley, John B. Lewis & Younghee J. Ottley, “New York Times v. Sullivan : A Retrospective Examination”, 33 DePaul L Rev 741 (1984) at p. 748. See generally, Catherine Hancock, “Origins of the Public Figure Doctrine in First Amendment Defamation Law”, 50 NYL Sch L Rev (2005-2006).
82 See generally, Shreya Singhal, (2015) 5 SCC 1 for an erudite exposition of the law of free speech in India.
83 Rebecca Tushnet, “Worth a Thousand Words : The images of Copyright”, (2012) 125 Harv L Rev 683 at p. 753 citing Lawrence Lessig, Remix : Making Art and Commerce Thrive in the Hybrid Economy (2008), p. 68.
84 The author here acknowledges her sister, K.R. Nariman, a bronze sculptor, who being well versed in modern art, sourced some of these famous paintings based on celebrities for the author.
85 See for instance, Harry Levin, “What Is Not Art?” Poetics Today, Vol. 2, No. 1b, 1980, pp. 5-11 at p. 5:“Art has always had, and still retains, a certain aura of mystery, in the double sense of mystere and metier, of comprising at once a cult and a skill.”
49 Krishna Kishore Singh v. Sarla A. Saraogi, 2021 SCC OnLine Del 3146 (hereinafter referred to as “Krishna Kishore Singh”).
86 See D.M. Entertainment, CS (OS) No. 893 of 2002, decided on 29-4-2010, para 14 (Del).
87 Dogan and Lemley, “Right of Publicity”, 58 Stan L Rev 1161 at p. 1177.
88 Madhavi Goradia Divan, “Rights of Publicity”, (2009) PL December 16 at p. 20.
89 Id, pp. 21-22.
90 Warren and Brandeis, “Privacy”, (1890) 4 Harv L Rev 193 at p. 214.
75 See Titan Industries, 2012 SCC OnLine Del 2382, para 15(III) : (2012) 50 PTC 486; Chitra Jagjit Singh v. Panache Media, 2016 SCC OnLine Bom 2364, para 5 and Shivaji Rao Gaikwad, 2015 SCC OnLine Mad 158, para 21 : (2015) 1 LW 701.
91 Lee Goldman, “Elvis Is Alive, but he Shouldn’t Be : The Right of Publicity Revisited”, 1992 BYU L Rev 597 at p. 627.
92 Id, p. 628.
93 Id, p. 625.
94 Id.
95 See H. Ding, A.E. Molchanov, and P.A. Stork, “The Value of Celebrity Endorsements : A Stock Market Perspective”, Mark. Lett. Vol. 22, 147-163 (2011) at p. 159:
Surprisingly, given the substantial amounts of money spent by companies on celebrity endorsements [ten percent of total advertising budgets, see Agrawal and Kamakura 1995, “The Economic Worth of Celebrity Endorsers : An Event Study Analysis”, Journal of Marketing, Vol. 59, No. 3, pp. 56-62 (1995)] the prior research on the effects of celebrity endorsement announcements on the market value of the firm, measured by the announcement-day returns have been generally mixed,
and at p. 160:
… despite an array of previous studies documenting the importance of endorsers’ characteristics, our data lends only weak, albeit positive, support for the match-up hypothesis between the celebrity and the endorsed product.
