What Is Personality Merchandising Philosophy Essay

Published Date: 23 Mar 2015

A celebrity is a person who has a prominent profile and commands some degree of public fascination and influence in day-to-day media. The term is often synonymous with wealth, implied with great popular appeal, prominence in a particular field, and is easily recognized by the general public. [2] 

A variety of careers within the fields of sports and entertainment are commonly associated with celebrity status. These two arenas have known to have produced very well-known figures in the society. While people may gain celebrity status as a result of a flourishing career in a particular field, in other cases, people become celebrities due to media attention for their profligate lifestyle; for their relationship with a famous person; or even for their crime. Celebrities may be known around the world, within a specific country; or within a region.

People may become celebrities in numerous ways: from their professions, following appearances in the media, committing a mass murder [3] , or even by complete luck. The term "instant celebrity" is often used for those who become a celebrity in a very short period of time or for those who achieve a fleeting fame through hype or mass media. However, public perception is the main criteria for determining whether an individual is a celebrity or not. The origin of the word celebrity comes from the Latin word celebritas, meaning multitude, fame, celebration. [4] 

The word 'celebrity' is perceived to be an honor and a gateway to the upper echelons of the society. Sportspersons and artists earn it by dexterity, businessman earn it by their skillfulness, reality TV stars earn it by votes of the aam junta and for some it is a birthright like in the case of Monarchs.

Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity's sole right to exploit this value [i.e., the value of being a celebrity] whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof. [5] 

(Emphasis added)

In the case of Martin Luther King Jr Center for Social Change v American Heritage Products Inc, [6] it was expressed that the term 'celebrity' should be interpreted in a broader sense to encompass more than the conventional categories of movie actors, rock stars and sport persons. Moreover, under the 'direct commercial exploitation of identity' test [7] , when an unauthorized use of a person's identity is made that is both direct in nature and commercial in motivation, the person whose identity has been misappropriated has by definition become a celebrity for right of publicity purposes. [8] 

Marketing today relies a great deal on creating and maintaining an 'image'. Investment in 'image management' is an essential part of creative content-based industry. [9] That modern celebrity is a source of immense value is undeniable. There is a multi-billion dollar market for merchandise bearing names and faces or other identifying characteristics of celebrities. In addition, a celebrity enhances the marketability of a wide array of products and services. Advertisers pay celebrities for product endorsements and tie-ins on the theory that their credibility, goodwill or glamour will rub-off on the advertised product. [10] A celebrity endorser is "[A]n individual who enjoys public recognition and who uses this recognition on behalf of a consumer good by appearing with it in an advertisement." [11] 

There is no specific Indian statute which defines the term 'celebrity' but mention can be made to the definition of a 'performer' under s.2 (qq) in the Indian Copyright Act, 1957. A performer is not a always considered to be a celebrity and a celebrity may not be a performer at all. The word performer includes "an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance."

Personality Rights consist of two classes of rights. They are;

Publicity Rights

Privacy Rights.

Even though these rights are available to every individual, celebrities primarily, are known to have superior commercial interest in their identity, so in comparison to ordinary individuals protecting these rights are of more consequence to a person whose fame is his fortune.

The increasing trend for individuals well-known in one sphere to gain financially by 'merchandising' themselves was clearly recognized by Lord Hoffman in Campbell v. MGN Ltd. [12] 

"Naomi Campbell is a famous fashion model who lives by publicity. What she has to sell, is herself: her personal appearance and her personality. She employs public relations agents to present her personal life to the media in the best possible light just as she employs professionals to advise her on dress and make-up. That is no criticism of her. It is a trade like any other."

Celebrities (e.g., athletes, politicians, entertainers, etc.), who have value in their identity are afforded right of publicity. The right of publicity is not limited to individuals; a popular musical group, for instance, may have the right of publicity. In some cases, the right of publicity also accrues to newsworthy people who are not celebrities. Generally, if you have a commercial interest in your name or likeness, then you will be afforded protection.

It is often argued that the mere fact that immense 'publicity values' attached to celebrity personas, are not reason enough to grant celebrities a property right in them. [13] 

What is Personality Merchandising?

Personality merchandising has been defined as commercially appropriating the persona to promote and sell almost anything with the name of the personality put on them in a decorative manner, subject to approval by the personality. [14] 

The practice of identifying various goods and services with a famous personality so as make the product greater to public appeal in the market is what personality merchandising is all about. The term persona refers to those elements or characteristics which make up a person's noticeable being and by which third parties identify that individual.

One's persona is a valuable property that a person might wish his successors to protect and commercially exploit just like any other intellectual property. [15] In this form of merchandising the celebrity lends his reputation to be used in connection with products or services therefore it is sometimes referred to as 'reputation merchandising 'or 'celebrity merchandising'. [16] 

Endorsements is the promotion of the company's products or services by means of the personal commendation of individuals who are so well-known and respected that he can influence the purchasing pattern of the public. [17] The personality hired is sponsoring the products or services for which he is paid. Endorsement can also be perceived a form of specialized advertising. [18] It is just another form of merchandising.

Personality merchandising involves the use of true identity of an individual in the marketing or advertising of goods and services. Character merchandising on the other hand involves the use in the marketing or advertising of goods or services of a fictional personality or situation. [19] From a commercial point of view personality merchandising has much in common with character merchandising.

The term 'merchandising' is quite often used in the business world but there is no sui generic system of laws particularly created for the practice of merchandising either at the national or international level in the form of a specific legislation or an international treaty. Therefore reliance has to be based on different forms of legal protection contained at various places in different legal contexts. The right to use a celebrity's persona has become a valuable commodity in the market place. It has been observed that various jurisdictions have recognized the right of publicity as an emerging and immensely powerful right detached from any of the limitations of traditional trademark and unfair competition actions such as the likelihood of consumer confusion.

The need for personality merchandising has been acutely felt since the transformation of seller's market to buyer's market, today. Competition in the market is a global battle. Companies have over the decades realized the importance of trademarks, copyrights and industrial designs in their strategies to market their goods and services. Now the stress is on the value additions to the product in the consumer market. The whole aspect of merchandising is based on this factor.

A brand of a product could achieve enough recognition and respect by simply attaching the name or images of well-known personalities along with it. That is to say, a common article like toothpaste has more demand when Shah Rukh Khan endorses a particular brand of it. The celebrity endorsing a product or service acts as a recommendation to the larger public. The psychological basis is that people like to follow personalities, who they believe are trend-setters.

Can 'Persona' be called Property?

Personality rights are comprised of the right to privacy and the right of publicity. While the law regarding privacy has mostly been characterized from a human dignity perspetive, publicity has an economic value that has caused it be included (in most jurisdictions) within the realm of property.

Publicity's inclusion in proprietary rights, and specifically in the field of intellectual property, can be partly justified by an interpretation of the labor theory. John Locke's "labor" theory of property stipulates that one gains property rights in a thing by joining one's labor to it. This argument is derived from his insistence that every man has a property right in his body and the labor of his body. By attaching one's labor, one therefore attaches the accompanying property rights, to the exclusion of others. "Though the Earth, and all inferior Creatures be common to all Men, every Man has a Property in his own Person. This no Body has any right to but himself. The Labor of his Body, and the Work of his Hands, we may say, is properly his." [20] Therefore, intellectual property in identity is justified on a broad interpretation of the labor theory. It follows that if a celebrity invests their time and labor into creating their image, which is marketable, they should possess sole property rights in it. [21] 

An interesting refutation to a celebrity's exclusive property right in their public image is the argument that a star's profitable success is not purely by their own design. Marilyn Monroe famously said that "… the people, if I am a star, the people made me a star, no studio, no person, but the people did." [22] If "the people" did, indeed, play even a small role in the creation of Monroe's public image, should not the people possess a proprietary right in it? If the people at large contributed to the creation of her public image, would Monroe then have the right to exclude anyone? Justin Hughes maintains that "a unique product of one's labor can receive property protection even if there is no unique underlying property idea." [23] By this, he infers that, though the idea of the celebrity's fame or marketable persona originates from the public, the labor that was invested to produce it was the celebrity's alone, and they ought to have exclusive proprietary control of it.

One interesting aspect of publicity rights is the idea that they also protect privacy in the public realm; one can choose to broadcast or publicize certain elements of one's identity, yet reserve the right to control and limit them within the scope of his right to privacy.

Hegel's personality justification is also appropriate herein, as it cannot be denied that one's personality is inherently connected to one's identity. He explains property as an "expression of the self," which appears to exactly describe the concept of personality rights. [24] His conception of property involves the externalization of personality into an object, which must then remain external and not personal. [25] He further adds that "… attainments, talents etc. are, of course, owned by the free mind and are something internal and not external to it, but even so, by expressing them it may embody them in something external and alienate them." [26] Thus by alienating these talents and attainments, the celebrity establishes the various characteristics of proprietary rights in them, and allows for them (the identity) to be bought and sold as marketable commodities.

What is the 'Right of Publicity'?

The 'Right of Publicity' can be defined as the right of an individual to command and control the use of his or her name, image, likeness or other unequivocal aspects of his or her distinctiveness. For practical purposes it is generally analogous to a celebrity. The 'unequivocal aspects' of distinctiveness refers to all distinct recognizable elements which make up a particular persona, including the individual's physical appearance, image or likeness, name, voice, signature, style, photograph, gestures, recognizable attire, look and facial features. It is the inherent right of human identity. [27] 

As Thomas J. McCarthy stated, "The right of publicity is not a kind of trademark. It is not just a species of copyright. And it is not just another kind of privacy right. It is none of these things, although it bears some family resemblance to all three." [28] 

There may be several elements of a person's identity which may be worthy of commercial exploitation or safeguarding from unauthorized exploitation or use. Identity breaks down to physical appearance, name, signature, voice and any other recognizable characteristic of that particular individual. [29] Recognition of the inherent commercial value of identity is central to the right of publicity. Thus an un-permitted use of the identity of a celebrity raises the cause of action for misappropriation of intellectual property, deceptive trade practices or a passing- off action.

American judge Jerome Frank in 1953 was the first to coin the term 'Right of Publicity'. [30] He introduced it as a new and separate property right to protect the business value of popularity. [31] In his ground-breaking opinion, he stated that [32] ,

We think that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph… For it is common knowledge that many prominent persons, far from having their feelings bruised through public exposure of their likeness, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, buses, trains and subways. (Emphasis applied)

Prior to this, legal protection against the unauthorized commercial use of a person's name or likeness was based on the jurisprudence that such a use was an affront to human dignity and self-esteem. This protection was based on a dignity or privacy interest of the person whose identity was appropriated. However, this theory could not help persons who did not object to the commercial use in itself, but merely to such use being made without payment in return. Their interest was not a privacy interest to the effect that no one could commercialize their identity, but rather a financial interest in controlling the use of their identity. Thus the 'Right of Publicity' was born.

As Professor Melvile B. Nimmer emphasized, what the celebrity wanted was not protection against unreasonable intrusion into privacy, but a right to control the commercial value of identity [33] :

Well known personalities connected with these [advertising, motion picture, television and radio] industries do not seek the "solitude and privacy" which Brandeis and Warren sought to protect. Indeed, privacy is the one thing they do "not want or need". Their concern is rather with publicity, which may be regarded as the reverse side of the coin of privacy. However, although the well-known personality does not wish to hide his light under a bushel of privacy, neither does he wish to hide his name, photograph and likeness reproduced and publicized without consent to without remuneration to him.

(Emphasis applied)

In an American case, Midler v. Ford Motor Co & others, [34] an advertising company wanted to use a song by Bette Midler in a commercial for Ford cars. But Midler turned down the request for permission to use her version of the song. The Agency then contacted Ula Hedwig, a singer who had been a back-up vocalist for Midler and asked her to sing the song for a new recording with the instructions "to sound as much as possible like the Bette Midler record" Midler filed a suit, when the commercial was aired on television. The defendants argued that they were doing it in compliance with the Civil Code [35] as they had not used the 'name, voice, signature, photograph or likeness' of Ms Midler rather they had used the voice of Ula Hedwig. The court while stating that Section 3344 did not repeal the common law on privacy and publicity, and arguing that the publicity right of living people was also one of the property, held that the common law right of publicity protected against 'an appropriation of the attributes of one's identity'. The court also held that the defendants by using a sound-alike had clearly sought commercial benefit from "an attribute of Midler's identity".

The right of publicity therefore, grants entertainers or other public figures exclusive control over the commercial exploitation of their names, likenesses, or other aspects of their personae.

In another case, Edison v. Edison Polyform Mfg. Co. [36] the New Jersey Court of Chancery while granting an injunction to Thomas Alva Edison, stated, "… if a man's name be his own property… it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it." [37] 

The Right of Publicity was expanded by some courts to protect not only the name and likeness of a person but almost everything that was identifiable with that person. Another example of a radical connection to identity is found in the Motschenbacher case [38] . The plaintiff in this case was a famous race car driver who claimed his 'Right of Publicity' had been infringed by a tobacco company in their advertisement. The alleged infringing use was a TV commercial which contained the picture of a race car and its driver. The picture created the impression that the driver and the car were sponsored by the tobacco company. There was no actual use of Motschenbacher's likeness or name. The tobacco company had in fact used a picture of Motschenbacher and his car but it had been modified so that the driver's face was not recognizable. Several elements of the car had also been altered so that it looked different from the car Motschenbacher drove. There were however, a few distinctive markings on the car still present in the picture. Based on these, the court found there to be an infringement and held that: "[T]hese markings were not only peculiar to the car but they caused some persons to think the car in question was Motschenbacher's and to infer that the person driving the car was Motschenbacher". The court affirmed that the car was a symbol of the driver's identity.

Even though it has been a little over fifty years since the inception of the term into the American jurisprudence, laws pertaining to publicity or merchandising rights of celebrities are still in a fairly embryonic stage, in India. Further, even as courts in various foreign jurisdictions have adopted different approaches to justify this right, no uniform justification has crystallized yet.

The solitary case law speaking of publicity rights in India is ICC Development (International) Ltd v Arvee Enterprises [39] where the Delhi High Court clarified that publicity rights are reserved for persons, not events, in the context of the misuse of the Cricket World Cup event name by advertisers who were not the official sponsors.

To Whom Does the Right Extend To?

The Right of Publicity was to begin with was introduced as a way to protect the persona of celebrity. Today, there are diverse opinions on whether the Right of Publicity applies only to celebrities and to non-celebrities. One view holds that only a celebrity should be granted protection under the Right of Publicity since they have invested time and money into creating a value in their persona. [40] This is not always true however, as many celebrities become famous by sheer chance.

According to J. Thomas McCarthy the status of the plaintiff only affects the amount of damages. An unknown person can probably not prove that his identity is very valuable and therefore the compensation for the use of it will not be very high. It is therefore possible that a person may not succeed with a claim at all if the court cannot see that the identity had any value that was misappropriated. [41] Thus, if there is no value in the identity used, there is no possibility of damage, which is a criterion for misappropriation. However, the mere fact that a company has used a person in its advertisement may be proof enough that they found his identity valuable.

What is the Trajectory of its Growth as a Right?

The attributes of a celebrity's personality are often used in advertising with the object of drawing public attention and enhancing the sales of goods and services. Recognizing individuality and protecting it from intrusion is not a recent phenomenon, it dates back to ancient European history. [42] Long before the term was even coined, an artist's works were considered an expression of his or her individual personality. [43] This idea is also embodied in the law of intellectual property, which recognizes a link between a creator and his or her artistic or literary works.

Until the very end of the 19th century, however the unauthorized commercial exploitation of famous persons did not generate significant complaint. [44] The practice seems to have been supported by a widely shared conception of famous persons as the property of the community.

By the beginning of the twentieth century, however, this assumption began to be questioned. The economic view of 'fame' gained currency after World War I, as it became apparent that radio broadcasting, sound recording and motion pictures made it possible to manufacture the celebrity and greatly increased its commercial value. [45] Before this time, people generally could become famous only by accomplishing something "great" in the world - by performing a heroic deed, inventing a cure, commanding a victorious army or founding a business empire. [46] The advent of new communications technologies in the early 20th century abruptly uncoupled fame from greatness of achievement. [47] It now became possible to achieve fame in the realms of sports, screen acting or music. Corporations were quick to catch up and exploit the newly enhanced power of these stars to inspire emulation and generate consumer demand. It took several decades however, for the law to reconcile with these new practices.

American Courts have articulated a number of reasons for upholding an individual's right to publicity, including the need to protect against confusion that would arise if consumers were led to believe individuals endorse products when they do not, the need to incentivize performers who provide entertainment and benefit to society and should thus be provided with a protectable property right in their identities and the need to prevent unjust enrichment of those who seek to profit from another's talent and hard- earned fame. The right of publicity does not apply to non commercial uses, thus using another's name, likeness or identity for news reporting, academics or research is permissible.

The nature of the law is best illustrated by principal cases on the subject.

In Douglas and Zeta Zones v. Hello Ltd. [48] the right to publicity has been defined as an exclusive right of a celebrity to earn the profit from the exploitation of their fame and popularity for commercial purpose. Therefore, such a right is distinct from the right against invasion of privacy and also a right against the adverse portrayal of one's personality or in other words any moral right of celebrities over their personality. It was opined that the injury to the reputation of an individual is not normally understood as a form of financial or economic loss. But in the case at hand the plaintiff would suffer a loss in the sense that their reputation would be of lesser value as commodities to be exploited by licensing and assignment. [49] Hence, the publicity right deals with the ownership of an 'intangible' property like any other intellectual property right.

However, the definition of persona cannot be exhaustive. As seen in Hirsch v. S.C. Johnson & Son, Inc., [50] which involved football star Elroy Hirsch, it was ruled that the nickname 'Crazylegs', by which he was known to his followers, was sufficient to identify him and thus was protectable under the right of publicity. The court expressed the underlying principle that, "All that is required is that the name clearly identifies the wronged person." The court found that the non de plume 'Crazylegs' was sufficient to identify Hirsch despite the fact that it was the press and public that had dubbed him so. Thus, unauthorized uses of characteristics such as nicknames can be a part of identity of the person.

One's persona is a valuable property that a person might wish his heirs to protect and commercially exploit just like any other intellectual property. In Price v. Haloach Studios Inc. [51] the court held that the right of publicity survived the death of the individual. The court said, "There appears to be no logical reason to terminate the right upon the death of the person protected."

There is a considerable academic controversy with respect to the publicity right's descendibilty. It is articulated that because the right of publicity is a "property" right and property rights are descendible, the right of publicity must be descendible. The debate is one of personal right versus property right. Is the right of publicity a personal right that is not devisable upon death? Or is the right of publicity a property right that is devisable? Neither is a perfect classification. Publicity rights are susceptible of pecuniary value which is unique to a property right. [52] Yet, falling within the property classification does not automatically lead to descendibility. [53] A common thread in the search for a theoretical basis for the publicity right is the idea that individuals have the right to control the fruits of their efforts and enterprise. Third parties should not be allowed to appropriate the work of another for their own profit and advantage. [54] 

What it is that is protected by the Right of Publicity? What constitutes an infringement and what can be considered to be part of a person's persona? There are a number of ways in which a person's identity can be misappropriated. Besides the obvious use of a person's name and likeness there are other uses such as; appropriation by association, appropriation of a pseudonym, appropriation by similar appearance and voice. [55] As new ways of exploiting people's identities are brought forth, the courts have been forced to expand the scope that constitutes misappropriation.

There is no single accepted scope of 'Right of Publicity' across jurisdictions over the world. In some jurisdictions, any appropriation of identity for commercial advantage regardless of how it is accomplished can trigger liability. The number of attributes protected by right of publicity has increased over the years, it ranges from the commercial use of a look-alike [56] or sound-alike [57] , a distinctive mannerism or performance style, an associated phrase or even the character that individual has played on the screen.

In one case, the television game show hostess Vanna White sued Samsung over an advertisement that displayed a female shaped robot wearing a long gown heavy jewelry and a blond wig standing in front of the wheel of fortune game show board. [58] The court held the ad to be an actionable infringement of White's common law publicity right even though it was the distinctive Wheel of Fortune set and not the robot that reminded of her.

Today, anything that makes a person identifiable seems to be protected by the courts under the Right of Publicity. The outer lines of the right are not quite clear however, but are constantly being redefined through case law.

Is Publicity Right as an Intellectual Property Right?

Contemporary intellectual property law applications exemplify a very dynamic and rapidly evolving milieu. The proverbial conflict has been between the protection of intellectual creation and the general freedom to create, including expressions of one's intellect that has been inspired.

Intellectual property is an umbrella term. [59] Moreover, the umbrella is not a static one. Rather it is dynamic and ever expanding. New items are constantly being added to the menu of intellectual property. [60] 

The website of WIPO provides that "intellectual property, refers to creations of the mind: inventions, literary and artistic works and symbols, images and designs used in commerce." [61] 

Intellectual Property is an intangible, exclusive, tempro-spatial and conditional right. [62] 

The right of persona is defined as the exclusive right of each human being to commercially use his or her persona. Like any other intellectual property rights, this right can be justified, is intangible, exclusive, tempro-spatial and a conditional right that can be exploited.

Justification

The right of a persona can be justified morally and economically. The merchandising and endorsement of celebrities is now commonplace and forms a central component of the media industry. As in any form of commerce, celebrities seek to protect their commercial value through various legal mechanisms. Legal protection is sought on the belief that individuals have legitimate proprietary rights in their own person and any use of its image, signature and even style. Whether or not celebrities should be afforded image right centers on the range of arguments drawn from thee philosophy of property rights. As we know intellectual property refers to the intangible notion that individuals should have proprietary rights over their creation of mind. Therefore, it can be said that the intellectual property in an individual's persona can be justified, under the Lockean principle of natural rights. Here celebrities may claim natural proprietary interests over their images created out of labor involved in becoming famous. The natural right to ones own image is born of the belief that after years of effort to achieve fame and notoriety, individuals who achieve celebrity status have gathered enough consequence for their identity to be recognized as publicly valuable and commercially marketable. Just as a tangible piece of property can increase in value with improvements, so the reasoning goes, a celebrity's worth as intangible property comes from their efforts to become 'somebody' from being 'nobody'.

Moreover, the right of persona can also be justified on the grounds that it will result in a more efficient allocation and use of the persona. The recognition of an exclusive property right will create a market for the exchange of identities which recognize specific persons.

Intangible Right

The right of publicity protects something intangible; all indicia that identify a unique human being such as name, nickname, likeness, voice and/or typical objects which identify specific human beings. The right of persona right of persona is infringed if the defendant has used the plaintiff's persona in a way that can be brought under his exclusive rights.

The right of publicity only comes into play if the plaintiff is identifiable from defendant's commercial use. It is not relevant that how the defendant's use identifies the plaintiff nor is it necessary that the defendant uses actual images of the plaintiff. If the 'unequivocal aspects' of the plaintiff are brought to use, for a commercial purpose, that is for gain of the defendant, then the right comes into the picture.

Exclusive Rights

Publicity right is a negative right. The exclusive publicity right can be defined as the exclusive right to commercially use one's own persona. The term commercial use refers to a use in connection with advertisements or commercial products or services. The term 'use' includes affixing of the elements of the persona on commercial products or on their packaging, the offering, putting on the market or stocking of these products for such purposes, importing and exporting.

The owner of the right can grant a license, an exclusive or non-exclusive license to use his persona within the limits of the license. The licensee does not acquire the right of the persona itself. The licensor on the other hand can limit the license with respect to specific elements of his persona, types of use, types of product, duration or territory.

Tempro-Spatial

Like other intellectual property the right of publicity may be tempro-spatial. That is to say it may be limited in time and space.

It is a valuable capital asset that will benefit the owner's heirs and assignees after his or her death. The main justification for recognizing a post-mortem right of publicity is that licensees and other persons who exploit the persona of the deceased need to have some time to prepare for the moment at which the persona they are exploiting to enter into the public domain.

Saying, this it also needs to be noted that more than often the fame and fortune of celebrities is ephemeral in nature. So there is no question of exploiting it in perpetuity in most cases. In most jurisdictions, the right of publicity is governed by statutory law, for example the state laws in United States governing the right of publicity. Thus making it limited to the territory.

Conditional Right

Like other intellectual property rights some exceptions to the exclusive persona right is recognized.

Noncommercial use - Any use found by a court to be noncommercial in nature is obviously exempt from a right of publicity challenge.

De minimis use - If a person's identity is used only in a quick passing instance, such as having a character mention the name in conversation, then that use is considered too small for the right of publicity to apply.

Parody - Parody is another significant exception to the right of publicity. It involves using a person's identity in order to mock of the person. It has been established as a fair-use under the copyright law.

Freedom of expression: When the information sought to be published is new 'in the public interest'.

Factual information.

What is the 'Right to Privacy'?

The right to privacy is a human right and an element of various legal traditions which may restrain both government and private party action that threatens the privacy of individuals. [63] 

The tort law concept of a right of privacy has its beginning in a famous Harvard law review article written in 1890 by Louis Brandeis and Samuel D. Warren. [64] They argued that the common law should recognize a right of privacy, which they viewed as a right preventing truthful but intrusive and embarrassing disclosures by the press. [65] This law review article initiated a new chapter in American Law by providing the intellectual force and rationale for judicial recognition of a common law right of privacy. In wrestling with the question of the un-permitted commercial use of a person's identity, the early cases in this arena focused on the traditional tort law concepts of personal injury to dignity and state of mind, measured by mental distress damages. [66] The right invaded and the measure of damages both revolved around the indignity and personal affront of having one's name or face widely used to sell a product without permission. [67] This traced a connection back to the concern of Warren and Brandeis with the "right to be left alone". But in cases where the person was already well-known and sued under this theory, it was difficult to see how there could be "indignity" or "mental distress" to someone whose identity was already widespread in the media.

Taking the "privacy" tag literally, a public person was not allowed to claim that the un-permitted commercial use of identity invaded a "right to be left alone". More than oft the rights and remedies cast in the mental distress mold were not adequate when the real grievance was uncompensated rather than un-welcomed, publicity. [68] Locked into the spell of a right to be left alone, the right of privacy seemed unable to accommodate the view that human identity constituted an intellectual property right with commercial value measured by supply and demand in the marketplace of advertising. The situation was ripe for an overhaul in conventional thinking.

Earlier on American courts' were reluctant to apply privacy rights to celebrities, stating that celebrities waived any right 'to be let alone' through their pursuit of and profit from fame. Under this view, trade in celebrities' identities was limited to payment to the celebrity for a waiver by the celebrity of the right to sue any licensee of the celebrity's identity for violation of privacy rights.

Protection of privacy is oft seen as a way of demarcating the line for society to intrude into a person's affairs. The term 'privacy' has been described as the "rightful claim of the individual to determine the extent to which he wishes to share himself with others." [69] After Warren and Brandies decisive article, the concept of privacy picked up as a part of common law in 1960, William Prosser divided the right of privacy into four separate torts:

Intrusion upon the plaintiffs seclusion or solitude, or into private affairs;

Public disclosure of embarrassing private facts about the plaintiff;

Publicity which places the plaintiff in a false light in the public eye; and

Appropriations for the defendant's advantage of the plaintiff's name or likeness." [70] 

In the discussion, Prosser focused on the name and appropriations category, and noted that "extension beyond this realm was entirely possible." [71] To elaborate on the sphere to which he was referring, Prosser stated that "[I]t is not impossible that there might be appropriation of the plaintiff's identity, as by impersonation, without the use of either his name or his likeness, and that this would be an invasion of his right of privacy." [72] He went on to say that it was not inconceivable that there might be appropriations of the plaintiffs' identity, as by impersonation, without the use of either his name or likeness, and that this also would be an invasion of his right of privacy. It is apparent that, the right of publicity is the evolution of Prosser's fourth tort of the Right of Privacy. [73] 

A tort of 'invasion of privacy' serves to prevent the appropriation of a person's name or likeness. The right of privacy is personal one and therefore, can be enforced only by an individual and not by a corporation or business entity. [74] 

In Pavesich v. New England Life Insurance Co., [75] the Georgia Supreme Court held the unauthorized use of a person's photograph in a testimonial advertisement for life insurance to be actionable at common law as an "invasion of privacy".

On the other side of the spectrum, right to publicity grew concomitantly. Peculiarly, it took decades before the American courts moved from protecting the integrity of an individual's identity to safeguarding the economic value of celebrity as an alienable economic right.

Melville Nimmer [76] formally proposed the idea that the foundation for a right of publicity claim does not truly exist within the right of privacy, and it was greatly expounded upon in 1953 in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. [77] Nimmer put forth that celebrities' recognizable names and likeness carried a great deal of economic value when used for commercial endeavors because of the celebrity's contribution of time, money and effort to achieve public status. Therefore, granting a right of publicity to these celebrities follows with the labor principle that something of value is entitled to the fruits of its economic gain.

The Constitution of India does not explicitly recognize the right to privacy. However, in 1964, in the case Kharak Singh v. State of UP [78] the Supreme Court recognized that there was a right to privacy implicit in Article 21 of the Constitution. [79] 

In R. Rajagopal v. State of T.N. [80] the Supreme Court considered the freedom of the press vis-à-vis the right to privacy of citizens. The facts of the case were that the serial killer, "Auto" Shankar, convicted of six murders and sentenced to death, had written his biography which he intended to get published in a Tamil weekly magazine entitled Nakheeran. In 300 pages thereof, he set out the close nexus between himself and several IAS, IPS and other officers, some of whom were his partners in crime. With regard to privacy, the Court observed; [81] 

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. The position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(Emphasis Applied)

What exactly is then the relationship between right to privacy and right of publicity? The Delhi High Court in ICC Development (International) Ltd. V. Arvee Enterprises and Anr., [82] has commented upon such relationship in the following words,

The right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual's personality like his name, personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport movie, etc… The right of publicity vests in an individual and he alone is entitled to profit from it. For example if any entity, was to use Kapil Dev or Sachin Tendulkar's name persona/indicia in connection with the World Cup without their authorization they would have valid and enforceable cause of action.

(Emphasis applied)

What is the Difference between 'Right of Publicity' and 'Right of Privacy'?

While there has been much disorder generated by the semantic discussion between 'privacy' and 'publicity', some critics have now come to recognize that the two rights are clearly separable and rest on quite different legal theories: the right to privacy protects against invasion upon an individual's self-esteem and dignity, while the right of publicity protects against commercial loss caused by appropriation of an individual's personality for commercial exploitation. [83] The difference rests not upon the type of activity which constitutes the legal wrong but upon the nature of plaintiff's right and the kind of injury to that right. [84] 

The appropriation type of invasion of privacy like all privacy rights centers on the damage to human dignity. Damages are usually measure by "mental distress" [85] some bruising of the human psyche. On the other hand, the right of publicity relates to commercial damage to the business value of human identity. [86] 

Thus, right of privacy is, often, an innate inherent right. It is a personal and mental right. Right of publicity, on the other hand, has to be acquired throughout one's lifetime by creating economic value in one's name, image or likeness. Simply put, it is a commercial and business right. [87] 

Right of Privacy

Right of privacy could be described as a right protecting an individual's confidentiality. Right of privacy is a natural right inherent in all humans. Nonetheless, this right may be limited by actions which make the individual a public figure.

Right of privacy encompasses four different interests:

Appropriation: Appropriation is using the person's name or likeness for defendant's benefit without permission.

Intrusion: Intrusion is encroaching into person's physical solitude or seclusion.

Public Disclosure of Private facts: This public disclosure usually refers to disclosure of private information, even though the information is true, in a way a reasonable person would find objectionable.

False light: This involves publicity of information that places a person in a false light. For example, using a person's picture in connection with an article in which no reasonable connection exists; nonetheless, with an implication that such a connection exists.

Right of Publicity

Right of publicity bestows on an individual the privileges of monetizing individual's personality. The stark distinction between the right of privacy and the right of publicity is how they are created. As opposed to the innate characteristic of right of privacy, right of publicity must be earned, to some extent, by the person commanding it.

Right of Publicity may is divided into five categories.

Performance: This right refers to one's prerogative to exclusively perform services through which the individual earns a living. It is granted that a person has the exclusive right to exploit one's act or performance and to preclude others from using the act in its entirety without one's permission.

Adaptation: It refers to one's privilege to exclusively authorize others to create derivative works personifying the person's performance.

Personality Products: The right of personality products refers to exploitation of products based on a person's name, likeness or image. Such right would also encompass posters, motion pictures, images from motion pictures etc.

Endorsement: The right of endorsement refers to the use of person's name, likeness, image and reputation in connection with the advertising of goods or services. Not surprisingly, sports figures and a number of performers have started to trademarking their names.

Reputation: This right refers to protection of one's reputation against misuse even though the use was otherwise authorized.

What is the Philosophy behind the Right of Publicity?

In the United States there is an unyielding accord within the American legal community that the right of publicity is a good thing, [88] it has been noted that despite its initial reluctance the United Kingdom seems to have followed suit, however does this mean that the India should follow down the same path? Within India, there has been surprisingly little literature justifying the need for personality rights.

Thus, it is critical to analyze the justifications for a development in this quarter and assess whether these arguments are strong enough to justify any ensuing laws that would be inducted into our legal system.

Arguments for Publicity Rights

Broadly speaking, the justifications advanced in support of personality rights fall into one of three categories: 'moral' arguments, 'economic' arguments, and 'consumer protection' arguments.

Moral Arguments

In society today, it is perhaps not unusual to believe that a property right in identity is something a celebrity ought to have, simply for being famous. It is but obvious that the individual creator should have the moral and therefore legal, right, provided that he or she can meaningfully be said to have created the object, and not merely to have discovered it. [89] 

There are a numerous reasons to demand a persuasive justification for publicity rights. For instance when looking at the fact that publicity redistributes wealth upwards, [90] it becomes imperative to ask why should the law confer a source of additional wealth on entertainers and sport persons who are already very considerably well paid?

Amitabh Bacchan for example recently earned a whopping sum of 116.3 crores INR [91] from his endorsements in the year 2012. In the sports world, the situation seems to be no different. Sachin Tendulkar earned a sum of 97.6 crores INR [92] , Tiger Woods secured an incredible $59.4 million [93] , and David Beckham's net worth is $46 million. [94] 

It is in fact argued that in the route of achieving fame, celebrities call on a cultural tradition, and thus they, in themselves, become part of our cultural "commons". [95] For example, we have seen a number of pop-icons who have become cultural icons in the past. [96] 

Labor Justification

The labor theory is frequently by the proponents of the right of publicity, Nimmer contended that a person who has "long and laboriously nurtured the fruit of publicity values," who has expended "time, effort, skill, and even money" in their creation, is presumptively entitled to enjoy them himself. [97] 

Professor Thomas J. McCarthy sees the right of personality as "a 'common-sense', self-evident right needing little intellectual rationalization to justify its existence." [98] 

The basic tenet of this justification is John Locke's labour theory of property. According to Locke, [99] it is natural self-ownership which justifies property:

"Because we own our labor, when we mix it with the resources of the external world, we effectively appropriate those resources." The person is seen to have a justifiable interest in the products of their mental or physical labor "which brought the celebrity entity into being." [100] 

A labour based argument for personality rights presupposes that commercially marketable fame is 'no mere gift of the gods'. [101] But for any credibility to be afforded to this contention, a commercially marketable public image or persona must be credited to a particular celebrity who has exerted effort and time to reach that status.

Madow explains that judicial opinions generally treat commercially valuable fame as a crown of individual achievement, and that time and again, right of publicity plaintiffs are described by the courts as carefully "cultivating" their talents, slowly "building" their images, judiciously and patiently "nurturing" their publicity values, and working long and hard to make themselves famous, popular, respected, beloved. [102] 

Prevention of Unjust Enrichment