Once a person becomes famous, then they are constantly in the eyes of the public. In the age of the internet they have become more of a product for mass consumption than an individual. This is where the right of publicity comes into play, right of publicity or personality rights is the right of a person to protect and claim ownership on the usage of his name or image and prevent others from making a profit leaching on his persona. Simply put, a person who has made a name for himself or herself out of his or her hard work and effort, should have the right to protect what he or she has created. Some believe that like other forms of property rights these rights should continue post-mortem, and the heirs must have a right to prevent such unauthorized usage. This is where the bone of contention lies.

Whenever I research on a topic to write I am drawn towards the cases that involve people who are famous. In the case of this blog, I was spoilt for choice. But let me choose the one of a person who needs no introduction; Albert Einstein. It started when the General Motors used the face of Einstein morphed with a Channing Tatum’esque, body bearing an e=mc2 tattoo on his arm, for GM’s cross-over vehicle tag-lined “Ideas are sexy too”. This displeased the heirs to the IP rights of Einstein, the Hebrew University of Jerusalem and sued GM for allegedly violating HUJ’s right to publicity as well as unfair competition under the Lanham Act. A lengthy court battle ensued and finally the court stated that after over 60 years of his death it was valid that people could incorporate Einstein’s person afro their creative expression. Stating also that the consumers would get the humor in the ad and would have understood that Einstein or his heirs were not endorsing the vehicle.

When it came to India, the assertion of personality rights was started by the one person who can do everything; Rajnikanth. In this case he did do something no one had done yet in India. He laid the foundation of publicity rights in India. This occurred in the case where the producers of a movie were trying to use his name and style of dialogue without his consent. The Madras High Court held that his name could not be used without his prior permission. The court further stated that personality rights vested in those person who had attained, and there was no need of proving falsity or confusion and a mere unauthorized used was sufficient. You can read a more detailed article on the instant case here.

The courts have not yet expressly stated anything with respect to post-mortem rights. The only rights that have been up held post-mortem are of those mentioned in the Emblems and Names (Prevention of Improper Use) Act. Which prevents the use of certain images, symbols and personalities from being used for commercial gain. The personalities included are Mahatma Gandhi, Pandit Jawaharlal Nehru, to name a few. There was a case where the luxury pen manufactures Mont Blanc had to withdraw a commemorative pen bearing the Mahatma, as it violated the provisions of the said Act. In the PIL the lawyers sought and succeeded in getting an injunction for the use of the image of Mahatma for a symbol of decadence (each pen was priced up to Rs. 12 lakhs).

What would happen to the post-mortem publicity rights of celebrities that are not mentioned in the Act? The post-mortem publicity rights are linked to that of privacy and hence a part of the Fundamental right to life and personal liberty under Article 21 of the Constitution. But then the question of post-mortem enforcement of rights comes up. Unlike in the Rajnikanth case, there has been no precedents in this regard. Only recourse being the Code of Advertising Standards Council of India, the Code for Commercial Advertising on Television and the Standards of Practice for Radio Advertising which have provisions that stress on the requirement of authorization prior to usage.

In India there is no direct law that deals with a right of publicity post-mortem. Does that mean that General Motors would go scot- free if they had made the same ad with say, C.V Raman? You don’t need to be a lawyer to guess that; there would be morchas, rallies and stones thrown at GM’s by people whose sentiments have been hurt and by people who would join in without even knowing who he was. There would be debates, petitions and the works, almost everything other than proper legal recourse by the heirs of the great physicist. They could probably file for an injunction, or sort remedies under defamation.  In the absence of any clear cut right of post-mortem rights of publicity in India, the decisions need to be taken on a case to case basis. Till then we can only hope that a better understanding of wit and tolerance develops in India. Till then the celebrated people can lie in their graves (or urns), and be rest assured that no one can use them to gain publicity without digging their own grave.

This article has been authored by Shwetha, an IP Law practitioner.