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Intellectual Property: Usage of Celebrity Images

Usage of celebrity images in marketing activities has been a common trend over the years, Most of these brands have exclusive rights to use their images as part of the agreed contracts. Until or unless there is an agreement in place, the brands can’t use a celebrity image to endorse or to communicate a message about their product or company.

Protecting celebrity rights come under the purview of Intellectual Property Law. Although there is no predefined definition of celebrity as a legal term, Reference can be made to the definition of a performer as given under Section 2(qq) of the Indian Copyright Act.. “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. As a performer, the individual enjoys Performers rights under Sec 38 of the Copy Right Act where the work they have appeared, engaged in any of performance can’t be modified, broadcasted, amended, usage without their consent or used for any other purpose than it was intended to be. In case if any of the actions are committed then it would be deemed to have infringed the performer’s right.

Right to Privacy: Article 21 of constitution states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Under Article 21, there is also mention of Right to Privacy. In the case of Puttuswamy v. Union of India Supreme Court has declared that the right to privacy is a fundamental right protected under Part III of the Constitution of India. The below judgement was passed by the bench.

"Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent".

Using Private Image without consent Illegal: In the case of Sakshi Malik v. Venkateshwara Creations Pvt. Ltd. Sakshi Malik who is a well known actor and model had a still image of her displayed in a movie. The image was displayed without intimating or consulting her. The Delhi High Court had passed a judgement asking the image to be removed and also had said using the private image of the individual without their consent is illegal.

During the Tokyo Olympics 2020, brands had used the images of Indian Athletes who had won medals to congratulate on their win. As part of a marketing message that had also tweaked the congratulatory message highlighting their product benefits and brand mentions. In short, Indicating the association of the product benefits and the winning capability of the athlete. Although it might sound like a harmless message and more of a congratulatory thing. In terms of Intellectual Property laws, this is an infringement and misleading. Scenarios like this are known as Passing off.

Passing off is a common law tort, that is used for enforcing unregistered trade marks. The principle underlying the tort of passing off is that “A man is not to sell his own goods under the pretense that they are the goods of another man” (Perry v Truefitt, 1842).

All registered marks are protected under the Trademark Act, a trademark is said to be infringed, when the other person tries to use the goodwill and reputation of the registered trademark and make profits from such registered trademark. Passing off suit can be initiated in the case of even non registered trademarks.

If someone leads consumers to believe that their goods or services are connected with another business when they are not, they may give the other business grounds to sue for passing off. The Plaintiff apart from proving the dissimilarity shall also produce the proof of confusion in public and the likelihood of damage of goodwill of the Plaintiff.

The moment marketing might sound fun to do so, but ensure that the IP rights of the individuals aren't being encroached upon.

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