Post Mortem Rights of Publicity

Introduction

In this chaotic world if there is anything every individual craves for is some privacy and living in solitude. What shall supposedly be the very basic necessity of man has now become a matter of judicial scrutiny. Being a public figure brings a lot of fame, money and a feeling of superiority; however, this comes with some baggage. Every move a public figure makes is watched by millions of people in and around the world. There is a need to be cautious with every public statement or action a celebrity makes, one wrong move could tarnish their image for several years. Sometimes a celebrity’s personality is used in their favour or against them for some monetary gains. In order to protect one from being freely exploited for this commercial value, laws such as the right to privacy and right to publicity come into play. These laws ensure the right to protect one’s individuality, their personality, characteristics and traits linked to them. In contemporary India, the jurisprudence of publicity rights is still at an evolving stage even though there are no express provisions to ensure the same. There lies an uncertainty with these publicity rights, does this only exist till the celebrity is alive? Does the right subsist after the death of the celebrity? We aim to answer these questions in this article.

Publicity Right’s tryst with Right to Privacy

It is the appropriation of one’s name and likeness that has given rise to the development of the right of publicity. Today the right of publicity is understood as the right of a celebrity to use, control and forbid the illegal usage of their identity, including the celebrity`s name, likeness, and voice, as well as other aspects of their personality. Normally, the right of publicity is owned by famous athletes, singers, actors, politicians, and other famous persons who are followed and admired by the public. This right to publicity resonate the ethos of right to privacy. Right to publicity can be seen as a right to protect one’s image from being exploited commercially without their consent.

Right to privacy is those rights which allow one to keep their life private. It allows them to protect their personality from being exploited without their consent. This right to privacy has been recognized by the Supreme Court as a fundamental right under Article 21 of the Constitution of India. It was observed in K.S Puttaswamy v. Union of India, “Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life.” It encompasses right to publicity being an integral part of a celebrity’s right to life.

The right of publicity originally developed from the right to privacy. The privacy right doctrine in the USA is traditionally connected with the names of Samuel Warren and Louis Brandeis, who published the article titled ‘The Right to Privacy’ in Harvard Law Review in 1890. Since then the right to privacy has transformed into the right to be left alone. A famous American scientist, William Prosser, further enunciated the following categories, included within the personal right to privacy: protection against intrusion in to one’s private affairs; avoidance of disclosure of one`s embarrassing private facts; protection against publicity placing one in a false light in the public eye; and remedies for appropriation, usually for commercial advantage, of one`s name and likeness.

Recognition of Right to Publicity

India does not formally recognize the right of personality. Nonetheless, the twin concepts of privacy and publicity are slowly taking shape in the courts. In terms of publicity rights, as in the case of misappropriation of trademarks, a “passing off” action is available against any third party that causes injury to the business, goodwill or reputation of a celebrity by trying to pass off its goods or business as those of the celebrity. However, for such action to be successful, all three classic elements of a passing off action must be proven: damage to reputation, misrepresentation and the resultant irreparable damage. Furthermore, the Indian courts have recognized the name of a celebrity as having trademark significance, and have restrained third parties from misappropriating such names for use as domain names. Copyright law also allows for protection of a specific image in the form of, for example, a photograph or painting. However, seeking recourse to IP laws has limitations – for example, copyright law may protect a specific image in the form of a photograph; however, protection would not extend to the likeness of the celebrity’s name or image.

Publicity rights were also discussed by the Delhi High Court in ICC International v Arvee Enterprises. The court noted that the right of publicity had evolved from the right of privacy and could inhere in an individual or in any aspect of an individual’s personality (e.g., in his or her name, personality trait, signature or voice). However, contrary to the plaintiff’s claim, publicity rights vest only in a living person and not in an event or a corporation behind the organization of an event. Thus, in principle, the right of publicity is recognized in India. The right of publicity protects all persons’ rights from birth to death and beyond.

When the right of publicity extends after death, it is called the post-mortem right of publicity. However, whether the right of publicity extends beyond life is jurisdiction-specific. For example, the post mortem right of publicity has only been recently recognized in the US in California and will soon be recognized other American states too. Legal recognition of post mortem rights of publicity usually permits the deceased’s beneficiaries or heirs to control and financially benefit from the use of a deceased’s image and likeness.

Publicity Rights of a deceased person?

One controversial area of publicity law is whether – and for how long – a deceased persona can be protected. Many states, including California, recognize a post-mortem right of publicity, ranging from 10 years in states likes Tennessee (although this term can be extended if commercial use continues) to 100 years in states like Indiana. Other states, however, such as New York, do not afford any post-mortem rights. Adding to the complexity, some courts have held that publicity rights survive death only if the individual exploited the right during his or her lifetime. At least one state statute affords longer post-mortem protection – 75 years – if the person’s identity has “commercial value” versus only 10 years for those whose identity does not. In the United States, Whether a celebrity retains the right of publicity after death (i.e., a postmortem right) is a complicated question, and the answer varies from state to state. A total of twenty (20) states recognize a postmortem right of publicity – fourteen (14) states by statute and six (6) states by common law. California, a celebrity-friendly state, recognizes a postmortem duration of seventy (70) years, By contrast, New York does not recognize a postmortem right at all, New York only grants the right to living celebrities. Accordingly, a star’s domicile at death is significant when examining whether his or her image can be safely put to use.

Post-mortem availability for the right of publicity is raised in Shaw Family Archives Ltd. CMG Worldwide, Inc. The Shaw Family Archives were selling T-shirts with the image of Marilyn Monroe and were running a website allowing the customers to purchase licenses for the use of Monroe`s picture, image, and likeness on commercial products. Marilyn Monroe, LLC and CMG Worldwide, Inc. alleged that these actions had violated the right of publicity for Monroe under the Indiana Statute. The parties raised the question that the statute of the state, where Monroe was domiciled at the time of her death, should be applied. The parties discussed whether Monroe was a New Yorker or California domiciliary at the time of her death. At the time of the case`s consideration, New York limited the rights of publicity to living persons, while the right was recognized in Indiana and California. The court ruled that at the time of Monroe`s death, the right of publicity was not recognized by any of the above mentioned states, making it impossible for her to transfer through a will a right she did not have at the moment.

Another case worth citing in this context is The Martin Luther King, Jr. Center for Social Change, Inc, et al. v. American Heritage Products, Inc, et al., where the Supreme Court of Georgia was addressed several questions on the right of publicity, including whether the right of publicity survives its owner and whether the right is inheritable and devisable. When answering this question, the Supreme Court of Georgia held that ‘the right of publicity survives the death of its owner and is inheritable and devisable. If the right of publicity dies with the celebrity, the economic value of the right of publicity during life would be diminished because the celebrity`s untimely death would seriously impair, if not destroy, the value of the right of continued commercial use’.

The jurisprudence of Post mortem publicity in India

Currently, as stated above there is no express provision which protects the publicity rights of celebrities. However, it does not mean these rights are not protected in India. With the help of a varied set of Intellectual Property laws and a mix of common tort law such rights are ensured. This is very much similar to the United Kingdom model of publicity rights protection. With respect to post mortem publicity rights, there lacks a concrete provision which expressly mentions like in the United States whether the rights of a celebrity will prolong after their death. It was seen in Germany in 1999, the daughter of Marlene Dietrich sued for damages because of the illegal use of her mother`s image in the advertisement of a musical about Marlene Dietrich`s life. The court ruled in favour of the claimant in the case, allowing post-mortem protection of the right of publicity. However, the term of protection is limited to 10 years, during which an individual`s picture or other characteristics of that person cannot be used for commercial purposes without prior permission of the heirs. Similarly, in France, there is uncertainty whether post mortem publicity rights shall exist. The first court decision to recognize the post- mortem availability of the image right was the decision in the Raimu case, where the widow of the famous French actor tried to prevent an advertising company from using the image of her husband. The court ruled in favour of the claimant, stating that the patrimonial aspects of the right of the image are descendible. Post mortem rights to one`s image is also allowed in Spain. Pursuant to Organic Law, a right may be enforced by family members who were alive at the time of his/her death. In the case of the absence of legal heirs, the Ministry of Justice is entitled to enforce a person`s image right for 80 years after the death of a celebrity.

However, in India, a very recent event with regard to the right of privacy and publicity arose when former Tamil Nadu Chief Minister Jayalalithaa’s niece, Deepa Jayakumar filed a suit against the director and the producer of the film “Thalaivi” and against the producer of the web-series “Queen”. Deepa Jayakumar filed a suit for seeking a stay on the release of these projects which are allegedly based on her aunt’s life. This was as a measure to prevent revealing of personal information of Jayalalitha in the public sphere. It was contented by the plaintiff that the directors of the movie and web series did not take the consent of the family before releasing the two and this violates their right to privacy. This case was similar to Makkal Tholai Thodarpu Kuzhumam Ltd. vs. Mrs. V. Muthulakshmi, also known as ‘The Veerappan case’.  The bare reading of the order of the Madras High Court it is ascertained that the immediate family members of a deceased person would inherit the deceased person’s right. The order made no conclusions on the post-mortem personality rights of Jayalalithaa. There is no statute with regard to post-mortem rights of an individual in India which makes it unclear as to whether there would be inheritance of these rights after the individual’s death.

Conclusion

The law pertaining to personality rights is still at a nascent stage in India; however, if the recent increase in reported cases involving personality rights is anything to go by, awareness is quickly growing. With the increase in the involvement of the courts in deciding cases related to publicity rights and publicity rights of deceased persons, there could be a shift towards having a concise express provision for the same. In an age of globalized mass media, powerful economic factors drive the cult of stardom; therefore, the legal framework governing its commercial exploitation is also guaranteed to evolve.

This article can be cited as:

Tushar Sinha, Post Mortem Rights of Publicity, Metacept- InfoTech and IPR, accessible at https://metacept.com/post-mortem-rights-of-publicity.

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