Yes, A Celebrity Must Be Protected, But To What Extent?

The understanding of a celebrity today is quite different from what it was in the past. Cultural studies scholars unanimously agree that the metric for attaining this status in the present day is “well-knownness”. David Tan further identifies three aspects in attaining the standard of “well-knownness”: the celebrity individual, cultural producers, and the audience, which he collectively recognises as the “celebrity trinity”.

According to him, these three aspects work in concert, although not in a coordinated, conscious fashion, to create a joint product of “celebrity”. More often than not, the other two factors, namely the audience and cultural producers, go unrecognised in this process. A dive into the recent developments in India's personality rights jurisprudence is a live example of this ignorance. The Delhi High Court orders in cases of protection of personality rights of Anil Kapoor, Allu Arjun and many more celebrities, more often than not, spearhead towards protecting only one factor of Tan's trinity model, and that has only been the “Celebrity”.

In Anil Kapoor's case, which has been used as precedent in most of the latter personality cases, we see the Delhi High Court has taken a very pro-celebrity view, passing an omnibus injunction order. This move has become really problematic when the usage of any aspect of the celebrity's identity can be pulled within the garb of liability. The claims raised by Anil Kapur against various defendants are not assessed individually: his picture being printed on keychains and T-shirts is treated as commercial exploitation, put on par with pictures being morphed and wrongfully used in deepfakes. Further, Anil Kapoor's claim of “Jakkaas” being a part of his identity is not touched upon by the court similarly Allu Arjun's claim of “Thagadelle” being a term popularised by him hence a part of his identity is not commented upon by the court, but passing an order protecting their public identity without assessing what the actor has claimed leads to a very problematic precedent and hits at the very heart of evolving personality rights jurisprudence.

In all the above analyses, as iterated earlier, the court refuses to identify the role of the audience and cultural producers. Richard Dyer observes that every aspect that runs across the media, the comments made, and the role of cultural producers in circulating such meaning all contribute to the creation of a celebrity persona, with some scholars even referring to celebrities as a spectacle. One needs to differentiate a celebrity from the individual themselves. The celebrification is attained as a result of collective forces that cannot be solely claimed by the celebrity. Tan mentions that celebrity is a sign encoded with ideals, cultural and dominant narratives, which is decoded and recoded by people. This process of decoding and recoding, which involves using the attributes attached to the celebrity or criticising it, cannot be curbed in a democracy. In fact, for example, people rightly using celebrity attributes only increases the well-knownness of a celebrity, by keeping them relevant in the fleeting economy. However, an attack on the individual or misappropriation of that identity should be held liable, and these can be validly asserted through performer rights, moral rights, right to privacy, common law remedy of passing off, malicious falsehood, and defamation. Nevertheless, there is another right that celebrities most often weaponise, and that is the right of publicity. With its extreme usage in recent times, the friction created prompts one to see how other jurisdictions protect their celebrities.

Right of Publicity: too unfettered for the Indian celebrity space?

One claim that has been consistent across most personality cases is the right of publicity. This right, when used by celebrities, helps them prevent the appropriation of their identity for commercial use by third parties without the celebrity's consent. The issue lies in how unfettered the right of publicity is, especially when used in the celebrity domain. India's chosen approach to the right of publicity is very similar to the US route; however, the US is a pro-freedom-of-speech and expression jurisdiction with a strong preference to 1^st amendment rights. Moreover, the right is treated differently in each state in the US, thereby not having a uniform standard.

On the other hand, the UK and Australia, which believe in not creating a new right but in expanding the already prevailing rights, expanded the common law remedy of passing off. They undertook this exercise by shifting from trading goodwill to promotional goodwill. The advantage of this expansion is that the protection granted extends only to misrepresentation, or rather false endorsement, that confuses the public. However, in the case of right of publicity, this distinction is not present, and any commercial appropriation will lead to liability. The distinction between mere character merchandising and false endorsement, which is accounted for in UK and Australian jurisdictions, as seen in the Rihanna Fenty and Olivia Newton cases respectively, is a more effective way of addressing the protection granted to celebrities. This route also takes into consideration the contribution of the audience and cultural producers, as rightly pointed out by Tan. Additionally, Tan observes that if “impressionistic association” (not only restricted to confusion, but if consumers merely believe there is some association with the celebrity, as in celebrity promoting the product, that would suffice) is imbibed within the exercise of promotional passing off, then the protection would be stronger than what right of publicity can do, but in a more effective manner.

The right route or not?

India is also a jurisdiction that expands rights rather than creating new ones, like the UK and Australia. However, courts have taken an activist position and recognised the right of Publicity. One purpose of the right is that it is proprietary in nature and can therefore be transferred, whereas goodwill can also be transferred through a licence or to an estate, which is covered by the passing off regime. Yes, one cannot cry over spilt milk, though the UK's method of expansion would have been better, given the contemporary understanding of a celebrity. Going back may or may not be feasible; if a more fettered publicity right is the need of the hour, the question is whether it will remain a right of publicity? Or should the right be tailored to the Indian jurisdiction, balancing celebrity protection and public use?