Privacy Law/Emerging Areas

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by Subhashini Narasimhan and Thriyambak J. Kannan+

Cite as : (2005) 5 SCC (J) 5


Gifted celebrities affect us most. A fine performer on screen conveys a staggering amount of information even before performing.1 It is by these acts of performing off or on the stage, but adding to the fame index of a celebrity is what is titled the "right of publicity".

The "right of publicity" (as different from "right for publicity" for a person intending to earn fame or publicity) is an independent right to protect the commercial interest of celebrities' identity. The theory is that the celebrity has an interest in the unauthorised exploitation of his identity.2

Nature and origin of the right

The right of publicity has its historical origins in a variety of sources, ranging from common-law intellectual property rights to the right of privacy and was shaped largely by a trilogy of influential articles.

Louis Brandeis (who later went on to become Justice Brandeis of the United States Supreme Court) and his law partner Samuel Warren wrote the first of these key articles in 1890.3 This article on privacy revamped the way privacy rights were perceived. Yet, the fundamental difference between the "right to privacy" and the "right of publicity" was yet to be expounded.

In 1954 Melville B. Nimmer authored the second4 article which introduced the concept of "right of publicity".5 Steven J. Hoffman observed that Nimmer did for the "right of publicity" what Warren and Brandeis had done for the right of privacy over half a century ago.6 In his critique, Nimmer opined that what the celebrity needed was not protection against unreasonable intrusion into privacy, but some right to control the commercial value of identity.7

Subsequently, in 1960, William Prosser scripted the third article Privacy8 and culled out four distinct kinds of rights,

(1) intrusion upon one's seclusion or solitude,

(2) public disclosure of embarrassing private facts,

(3) publicity which places one in false light, and

(4) appropriation of one's name for the defendant's advantage.

His first three types of rights generally protect the "right to be left alone", as understood by privacy law, while the fourth of his rights was interpreted as the "right of publicity" which protected the celebrity's pecuniary interest in the commercial exploitation of his identity.

The "right of publicity" as an independent right and cause of action

Person has a right to use his name only in a manner that he authorises. In Edison v. Edison Polyform Mfg. Co.9 the New Jersey Court of Chancery while granting an injunction to Thomas Alva Edison, stated:

" ... if a man's name be his own property ... it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorised use of it."10

The creation of a specific "right of publicity" was for the first time in the case of Haelan Laboratories v. Topps Chewing Gum.11

The person whose image is appropriated, without his actual consent may bring an action to direct the publication to restrain any display, broadcast, or other public use; and may recover from the appropriation reasonable royalties, punitive or even exemplary damages.12

Under the "right of publicity", the four elements of appropriation of identity infringement are, *

taking, *

identification, *

benefit to the appropriator, *

and lack of consent.13

The landmark ruling on the key element of "identifiability" is Motschenbacher v. R.J. Reynolds Tobacco Co.14 wherein the plaintiff, a professional race car driver of international fame sued the respondents for their advertisement wherein they had portrayed a car that carried the same design as the plaintiff's car and a similar-looking driver. The Court, holding for the driver observed15:

"Clearly if the District Court correctly determined as a matter of law that the plaintiff is not identifiable in the commercial then in no sense has the plaintiff's identity been misappropriated nor his interest violated...."

The "right of publicity" distinguished from other common-law rights

The "right of publicity" overlapping tort and intellectual property law, has now been adopted either in common law or statute law.16

The United States Supreme Court in the case of Zacchini v. Scripps-Howard Broadcasting Co.17 relied on the landmark cases on privacy, New York Times v. Sullivan18 and Time Inc. v. Hill19, holding that the right of privacy was a personal right whereas20 the "right of publicity" was a commercial right covering a wider aspect of a performer's right than the right to privacy.21

The "right of publicity" also varies from a common-law intellectual property right. The first principle of intellectual property law is that a competitor's commodity, deceptively similar to the original commodity, is attempting to "piggyback" on its goodwill.22 On the contrary, under the "right of publicity" no confusion is created, instead a publisher makes an unlicensed use of a celebrity for the publisher's commercial gain. Nimmer aptly summed it up in the following words:

"Advertisements, almost regardless of their nature, will increase their reader appeal by including the name and portrait of a prominent personality or a well-known enterprise, although there is no 'passing off' that such personality or enterprise produces or endorses the product being advertised...."23

Applicability of the right

The "right of publicity" applies to performers and celebrities who have carved a niche for themselves in their own walk of life.24

Three primary policy considerations behind the right of publicity are

(1) the encouragement to produce economic and creative work,

(2) the vindication of the economic interest of those who produce the works,

(3) prevention of "unjust enrichment and deceptive trade practices".25

In Zacchini case26 the United States Supreme Court observed that in the absence of the "right of publicity", there would exist,

"... a substantial threat to the economic value of that performance ..."

The "right of publicity" provides objective notice to the public of the individual's right to use their "publicity", and the more subjective attributes such as achievements and identifying characteristics are implicitly covered in the right.27

Nimmer, further observes that the "right of publicity" would vest not only in celebrities and performers but also in individuals.28

This view has been approved by the modern day courts.29 However, the "right of publicity" does not extend to firms or corporations or other legal entities.

Indian judiciary is yet to fully take cognizance of the "right of publicity". The only decided case on the "right of publicity" by an Indian court is that of I.C.C. Development (International) Ltd. v. Arvee Enterprises30 decided by the Delhi High Court. In this case, the respondents, authorised dealers of Philips India Ltd. had a promotional campaign, whereby the winners were to get free tickets to the International Cricket Council's (ICC) Cricket World Cup, scheduled to have been held in South Africa. There was no formal agreement either between ICC or the United South Africa Cricket Board (USACB) with the respondents to that effect. The petitioners brought an action against the respondents under, amongst other rounds, the "right of publicity". The Court observed with regard to the plea relating to the "right of publicity"31:

"... The New York statute prohibits the commercial use of the name or picture of 'any living person'. ... The meaning of 'living person' as restricted to a real human appears clear by the statute's listing of those entities which are forbidden to make such unpermitted uses: 'a person, firm or corporation'. Thus,.... the right of publicity has evolved from the right of privacy and can inhere only in an individual or in any indicia of an individual's personality...."

Nimmer in his article32 has taken a contrary view and observed that the "right of publicity" would vest in any entity, be it an individual or an enterprise.33 Conversely, the view taken by the Delhi High Court is in keeping with the principles laid down in R.C. Cooper v. Union of India34 where the Supreme Court of India observed that a corporation would not be a citizen under the chapter of fundamental rights, therefore the rights that inhere in a citizen would not inhere in it.

The relationship between the "right of privacy" and "right of publicity"—some recent developments

The essential predicament with the "right of publicity" is deciding at which point would its expansion come to an end35 and also whether there is an infringement of a "right of publicity" or a case of violation of privacy?

One of the most interesting and cited cases in celebrity-tabloid litigations is Eastwood v. National Enquirer, Inc.36 wherein The National Enquirer ran a "sensational" cover story detailing Clint Eastwood's alleged love triangle with long-term, live-in lover Sandra Locke and singer Tanya Tucker. The actor filed a suit, claiming that the story was false and that the publishers had improperly used his name and likeness without his consent. Two main causes of action emerged from Eastwood's suit—one under the ground of false light and invasion of privacy and another one for commercial misappropriation of his name and likeness. The Court observed that the story did not come within the boundaries of press freedom, but bordered on the realm of "commercial exploitation".37

Also, nothing sells more than "celebrity break-ups" as television or "page three" items.

One of the most infamous issues on this subject was the Clinton-Lewinsky scandal.38 Here the media, on the pretext of informing the public, transgressed all degrees of broadcasting ethics by transmitting the most personal aspects of the parties to gain commercial mileage.

One wonders if there is any preventing the media from violating the right of privacy and publicity?39 Notwithstanding the restrictions imposed by Article 19(2) of the Indian Constitution, the limitations upon the media from trespassing on personal rights of people and intruding into their lives seem woefully inadequate. Freedom of publication should ideally have limitations that unless an issue is of "public interest" or is beyond the realm of commercial exploitation as opposed to private and personal affairs, a legal basis to telecast an event cannot be claimed.40

One recent example is a programme that was aired recently on most of the popular television news channels. The facts that formed the unfortunate story was of a woman from the rural part of India who was asked to choose between the man she hadn't heard from (her husband, a soldier, who was declared missing, a deserter by the army in the Kargil conflict) and the man she was subsequently married to, whose child she was carrying. It transpired that her husband was not a deserter but was in fact languishing in the jails of Pakistan and by a cruel twist of fate returned to India after five years.41 Upon the broadcast of the programme she became a "public personality", but would that mean she had no right in preventing the media from dramatising the entire incident? The entire nation was privy to this show but the only voices of protest of the media's "altruistic" role came from the South Asia Citizens Web (SACW), a web-based organisation and an article written by noted columnist Kalpana Sharma. Both slammed the media for making a public mockery out of the entire episode.42

The latest scandals include the alleged "Kareena Kapoor-Shahid Kapur" imbroglio43 and the Delhi school MMS scandal.44

In the former case even if the courts do concede that the celebrities do not have a right of privacy and therefore no locus to seek a remedy, the celebrities should be in a position to claim compensation for their unlicensed portrayal under the "right of publicity", if the rule in Eastwood case36 is applied.

In MMS case44 the Juvenile Justice Board Principal Magistrate Santosh Snehi Mann observed:

"I deem it just and proper to seek the indulgence of PCI in the matter for necessary direction to the media in general that Section 21 of the Act makes it obligatory for the media not to disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile, including his picture, shall not be disclosed in any news report....45

The text of the report per se contravenes provisions under Section 21 of the Act."46

The ruling may prove to be an elementary beginning to the law on the "right of publicity" in the Indian legal system.


Becoming a part of the global entertainment network requires urgent legal and judicial acceptance of the "right of publicity" by way of statutory enactment to enhance the protection that can be afforded to celebrities by bringing the law on a par with the common man's right to privacy.


+ Advocates, Madras High Court. The authors are immensely indebted to the views and suggestions provided by the Hon'ble Justice B.N. Srikrishna, Judge, Supreme Court of India, Senior Advocate Arvind P. Datar and Advocate T.K. Bhaskar of the Madras High Court, and Advocates Muizz Ali, Feroz Ali and Rishi Kumar Dugar for the extensive discussions and views as well. All errors and shortcomings though are those of the authors. Return to Text

  1. See Ty Ford, The Price of Fame: The Celebrity Image as a Commodity and the Right of Publicity, 3 VAND. J. ENT. L. & PRAC. 26 (2001) at p. 26. Return to Text
  2. Paul Goldstien: Copyright, Patent, Trademark and Related State Doctrines, Cases and Materials on the Law of Intellectual Property, Revised 3rd Edn. (1993), (The Foundation Press), at p. 173. See also the observations of the Sixth Circuit Court in Memphis Development Foundation v. Factors, 616 F 2d 956 (6th Cir) (1980) at p. 957. Return to Text
  3. Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). Return to Text
  4. Nimmer, The Right of Publicity, 19 LAW & CONTEMP. PROBS. 203 (1954). Return to Text
  5. It is notable though, Nimmer wrote his article after the first breakthrough ruling on the "right of publicity" in Haelan Laboratories, Inc. v. Topps Chewing Gum, 202 F 2d 866 (2nd Cir) (1953), which was passed by the learned Judge Jerome Frank. Return to Text
  6. Hoffman, Limitations on the Right of Publicity, 28 Bull. Copyright Soc'y USA 111 at p. 111 (1980). Return to Text
  7. Supra at fn 4 at pp. 203-04. Return to Text
  8. Prosser, Privacy, 48 CALIF. L. REV. 383 (1960). Return to Text
  9. 67 A. 392 (NJ Ch 1907). Thomas Edison developed a pain relief formula and assigned the rights to market the formula. Several failures later a New Jersey firm successfully marketed the formula. On the bottle's label was a picture of Thomas Edison and the caption, which Edison testified he never authorised. Return to Text
  10. Ibid. at 394. Return to Text
  11. 202 F 2d 866 (2nd Cir) (1953). The respondent, a rival chewing gum company had entered into a contract with a baseball player, whom the plaintiff had already contracted with to endorse the plaintiff's goods on the ground that the former contract would not affect the latter. Return to Text
  12. The following are summarised from the Florida State Law, provisions 540.08(1)(a) to (c) and 540.08(2) and 540.08(6). In the United States there are certain States that have statutes dealing with the said topic. Florida, California, New York and Nevada are a few of the States. In other States, the cases are decided on the basis of common law. Return to Text
  13. Henry L. Zuckerman: Modern Communications Law, reference notes 4, 5 at pp. 316-19, (1999). Return to Text
  14. 498 F 2d 821 (9th Cir) (1974). On the topic of "identifiably" see also Ali v. Playgirl, 447 F Supp 723 (SDNY, 1978) and Hirsch v. S.C. Johnson & Son Inc., 90 Wis 2d 379 (1979). Return to Text
  15. Ibid. at p. 898. Return to Text
  16. Supra at fn 2 at p. 184, also see Paul Goldstien: Copyright, reference at 15.17 (1989). Return to Text
  17. 433 US 562 (1977). Hugo Zacchini, an entertainer performed an act called "The Human Cannon Ball", wherein he would shoot himself from a cannon into a net, 200 metres away. The area of performance was surrounded by a grandstand and unless a person purchased a ticket for the show, would have been unable to view it from any other point. A cameraman of the respondent came to the fair with a motion-picture camera, videotaped the performance without the knowledge of the petitioner and aired it on the evening news. The petitioner filed an action for damages which was decided in his favour on appeal by the United States Supreme Court. Return to Text
  18. 376 US 255 (1964). The case involved an article published during the time of Martin Luther King and his civil movement by the New York Times about how Dr. King was disturbed by the local police. The article at no place though made a direct reference to any member of the force, including the Montgomery City Commissioner, L.B. Sullivan. The Commissioner sued the paper for damages on the ground that the article defamed him. The Supreme Court, on appeal from the Alabama Supreme Court decided in favour of the newspaper. Return to Text
  19. 385 US 374 (1967). The respondents were taken hostage in their own house by a group of convicts. After a holdout the convicts fled, without harming the respondents who were immediately raised to "superstar status" and received continuous calls from the press about their period of captivity. Unable to take the growing media pressure, they moved away. Time Inc. made a story out of the incident that was later staged as a play and subsequently made into a movie, which was shot in the home of the respondents. The respondents filed a suit for damages which was decided in favour of Time Inc. by the United States Supreme Court. Return to Text
  20. The Court placed reliance on Dean Prosser's article, supra at fn 5 at p. 400. Return to Text
  21. Nimmer in his article has taken a similar view, see supra at fn 4 at 216. Return to Text
  22. In India, the Trade Marks Act, 1999 makes use of the words "deceptively similar", defined by Section 2(1)(h), subsequently used in Sections 13(b), 29, 75 and 102. There is further usage of the words "so nearly resembles" or "nearly resembles" in Sections 16, 34 and 76 and the term "similar mark" is used in Section 11. Return to Text
  23. Supra at fn 5 at p. 212. Return to Text
  24. See Landham v. Lewis Galoob Toys, Inc., 227 F 2d 619 (2000) at p. 624. Return to Text
  25. Supra at fn 7 at pp. 116-22. Return to Text
  26. Supra at fn 18, at pp. 575-76. Return to Text
  27. See Goldstien supra at fn 2 at p. 78. Return to Text
  28. Supra at fn 5 at p. 217. Return to Text
  29. See e.g. Motschenbacher v. R.J. Reynolds Tobacco Co., supra at fn 15, see also Canessa v. J.I. Kislak, Inc., 97 NJ Super. 327 at pp. 351-52, (1967); Onassis v. Christian Dior-New York, Inc., 472 N.Y.S. 2d 254 at p. 260 (1984). Return to Text
  30. (2003) 26 PTC 245 (Del). Return to Text
  31. Ibid. at paras 13-14. Return to Text
  32. Supra at fn 5 at p. 212. Return to Text
  33. This view has been refuted by McCarthy in his work The Rights of Publicity and Privacy (1987), at reference note 4.8(D), which was cited with approval by the Delhi High Court in the aforementioned case, at fn 31. Return to Text
  34. (1970) 1 SCC 248 Return to Text
  35. See R. Rajagopal v. State of T.N., (1994) 6 SCC 632. Return to Text
  36. 149 Cal. App. 3d 409 (Cal. Ct. App. 1983). Return to Text
  37. Ibid. at p. 426. Return to Text
  38. A google search with the keywords "Clinton-Lewinsky" provided 40,400 hits. last accessed on 18-05-2005. Return to Text
  39. The authors have addressed the same point in another article, see: Thriyambak J. Kannan and Subhashini Narasimhan, "The Right to Privacy of Public Persons", 4 JSLC (2004) 74. Return to Text
  40. When the Supreme Court gave a verdict on the telecasting of the India-Pakistan series for Doordarshan, noted columnist Swaminathan S. Anklesaria Aiyer wrote an article titled, "Watching Cricket is Not Your Right" bringing out the difference between "public interest" and events that the "public are interested in". The article can be viewed at website last viewed on 31-12-2004. Return to Text
  41. Weblinks to the story site can be viewed at %2Bsoldier%2Bwife&meta= website last accessed on 31-12-2004. Return to Text
  42. The letter can be viewed on the organisation's website Openletter30092004.html, website last accessed on 31-12-2004. Also view Kalpana Sharma's critical article against the media at the following website. thehindu/mag/2004/10/03/stories/2004100300260300.html, website last accessed on 31-12-2004. Return to Text
  43. A Mumbai paper published a photograph of the two celebrities caught in a moment of intimacy and made it frontpage news. Return to Text
  44. A school boy and girl filmed explicit sexual acts on a camera phone belonging to the boy and the clip was passed on through the technology of the phone, which was later converted into a CD and put up for sale by an individual on a website. The boy, the seller of the CD and the website owner have been arrested for various offences. Return to Text
  45. Order of the Juvenile Justice Board dated 20-12-2004. The same can be viewed at the following link: website last accessed on 24-12-2004. Return to Text
  46. Ibid. Return to Text
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