Amitabh Bachchan recently turned 80, and neither the actor nor the Amitabh Bachchan brand is showing signs of losing their enduring appeal. The superstar, who will appear in roles alongside Deepika Padukone in Project - K and The Intern in the next couple of years, recently filed a suit in the Delhi High Court against “the world at large”, seeking protection of his name, image, voice, and personality attributes. Eminent lawyer Harish Salve appeared for him.
Certainly a bit too late in the day, but for him, better late than never. After all, his voice did lure even Amazon. Last year, Amazon signed Bachchan to be a voice on Alexa. For Rs149 a year, say, “Alexa, introduce me to Amit ji,” and Alexa takes you to the Amit ji interface. Ask away: “Amit ji, tell me something about your life”; “recite your father’s poetry”; "give me an inspirational quote”; “Give me a tongue twister”, or just, “Amit ji, how is the weather?” The baritone will boom back to you through your device.
On Friday, Justice Navin Chawla passed an interim order restraining persons at large from infringing Bachchan’s personality and publicity rights. Justice Chawla noted that the defendants were using the veteran actor’s celebrity status to promote their own businesses without his permission. “The plaintiff is likely to suffer irreparable loss and harm. Some of the activities may even bring him disrepute. In view of the above, an ex-parte ad interim order is passed,” Justice Chawla stated.
The order added: “It cannot seriously be disputed that the plaintiff (Bachchan) is a well-known personality and is also represented in various advertisements. The plaintiff is aggrieved by the defendants using his celebrity status to promote their own goods and services without his permission or authorisation. Having considered the plaint, I am of the opinion that a prima facie case is made out and the balance of convenience also lies in his favour.”
Bachchan’s name, image and voice were being used by mobile application developers to conduct lotteries by illegally associating with Kaun Banega Crorepati (KBC). Bachchan has also sought a restraining order against book publishers, T-shirt vendors and various other businesses. The matter will be heard in March next year.
Today, anyone who seeks to capture the public eye, including reality television stars and Instagram influencers, are celebrities. Public perception and social media fame are the primary measure in deciding whether or not an individual is a celebrity.
Celebrities enjoy a bundle of rights, including publicity rights, reproduction rights, distribution rights, rental and lending rights, personality rights and privacy rights. Worldwide, many provisions in intellectual property rights law safeguards celebrities. In India we are far behind. In the US, for example, if a name, mark, voice, noticeable slogans, or image is used by any third person and is found to be close to or having a certain affinity with a celebrity, the same is sufficient for the celebrity to get damages and compensation for the unauthorized use. Celebrity names and even signatures can be registered as trademarks. The United States Copyright Act does not specifically provide for the registration of a celebrity name, but in case of rights over images of celebrities, it provides certain safeguards to the celebrities. A photographer has the primary right over a photograph, but as soon as it is transferred to another person in exchange for economic profit, the celebrity has a right over the photograph, which cannot be used without the celebrity’s consent.
Recently, many celebrities across the world have started registering their names or their children’s name and trademarks associated with them, and this subject is gaining popularity. Shah Rukh Khan’s registration of the ‘SRK’ mark or Tim Tebow trademarking his style as ‘Tebowing’ – are some examples. Lionel Messi, the famous Argentinian soccer player, registered his surname after a long legal battle.
In India, even though the Trade Marks Act, 1999 does not make any specific provision for publicity rights, its definition of ‘marks’ includes names within its ambit. So celebrities have used the pre-emptive step of trademarking their names to prevent misappropriation.
One famous example is Sourav Ganguly vs. Tata Tea Ltd. Tata Tea Ltd was promoting its tea packets by offering the customers a chance to congratulate the cricketer through a postcard after his return from a highly triumphant batting spree, which was there inside each packet of tea. The court ruled in favour of Ganguly by accepting that his fame and popularity were his intellectual property alone.
Legal experts say that many judgments from the US recognize the fact that personality and publicity rights include right in photographs, voice, style, and appearance. Canadian IPR laws even have a provision for “appropriation of personality”. In English law, due to the influence of ECHR (European Convention on Human Rights), there are some image rights in place—taking photos without consent is considered a violation of Article 8 of ECHR.
In India, the Copyright Act, 1957 defines that a ‘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”. The provisions that deal with the performer’s rights and author’s special rights can cover publicity rights within their ambit. When the identity of a celebrity is used for advertising without their permission, the celebrity has the right to control when, where, and how their identity is used.
Take the case of Sonu Nigam vs. Amrik Singh (alias Mika Singh). Both the parties were to appear at the Mirchi Awards 2013 and were shown through photos on the official posters of the event with their consent. Mika Singh, to promote himself, had displayed hoardings and posters, which were different from official hoardings and posters of the event, carrying huge pictures of him along with smaller pictures of the other artists, including Sonu Nigam, without their consent and permission. The Bombay High Court restrained the defendants from displaying the pictures of the plaintiff without consent and ordered Singh to pay Rs10 lakh for damages.
In Shivaji Rao Gaikwad vs. Varsha Productions, the actor Rajinikanth had filed a suit seeking an injunction to restrain the respondent from using the applicant’s name/caricature/style of dialogue delivery in their film Main Hoon Rajinikanth. The Court held that the film’s title and caricature of Rajinikanth in the film would degrade his reputation.
The High Court’s Friday order will go a long way in redefining celebrity IPR in India.
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