Navigating the Complexities of Publicity Rights

• 09 Oct 2023

For Prelims: Publicity Rights, Deepfake Technology, Injunction, Freedom of Speech and Expression.

For Mains: Arguments in Favour and Against Publicity Rights

Source: IE

Why in News?

Recently, the Delhi High Court has issued an interim order, preventing 16 entities from misusing a Bollywood actor's persona, including his name, image, voice, and likeness, for unauthorized commercial gain.

• This case marks the first instance in India where publicity rights are being examined to address concerns related to image distortion and circulation.

What are Publicity Rights?

• About:
  • Publicity rights are a legal concept that protects an individual's right to control and profit from the commercial use of their name, image, likeness, or other aspects of their identity.
  • These rights are designed to prevent others from using a person's identity for commercial purposes without their permission.
    • However, currently there is no statutory provision in India prescribing the duration of the right of publicity.
• Arguments in Favour:
  • Protection of Personal Identity: Publicity rights are essential for protecting an individual's personal identity and ensuring that they have control over how their name and likeness are used for commercial purposes.
    • It is significant in the era of AI-generated deep fakes and synthetic media. These technologies can create highly convincing videos and images that make it appear as though a celebrity endorses or participates in activities they have not.
    • This protection helps individuals maintain their dignity and privacy.
  • Economic Incentive: Publicity rights provide a financial incentive for individuals, particularly celebrities, to invest in their public persona and fame.
    • This can encourage people to pursue careers in fields like entertainment, sports, and endorsements, benefiting the economy as a whole.
  • Clarity and Accountability: Publicity rights create a clear framework for determining when the unauthorized use of a person's identity constitutes a violation. This legal clarity is essential for resolving disputes and ensuring accountability.
  • Protection of Consumers: Publicity rights can protect consumers from deceptive practices by ensuring that they are not misled into believing that a product or service is endorsed by a celebrity when it is not.
    • This helps maintain trust in advertising and endorsements.
• Arguments Against Publicity Rights:
  • Freedom of Expression: Publicity rights can sometimes be seen as limiting freedom of expression and speech. They may restrict the use of an individual's image or likeness in various creative, artistic, or critical works, even when there is no intent to mislead or harm.
  • Overcompensation of Celebrities: Critics argue that many celebrities are already highly compensated for their work, endorsements, and appearances.
    • Extending publicity rights can be seen as a form of double-dipping or providing excessive financial benefits to already wealthy individuals.
  • Complexity and Lack of Clarity: The application of publicity rights can be complex, leading to legal disputes and uncertainty.
    • It can be challenging to determine when the use of a person's identity crosses the line into a violation, potentially stifling legitimate uses.
    • Also, in India, publicity rights are transferable, often to corporations. Expanding these rights excessively could grant celebrities and corporations undue control over public imagery and cultural products.

Way Forward

• Clarify and Harmonize Laws: To strike a balance between protecting individuals' rights and fostering creativity, jurisdictions should clarify and harmonize the publicity rights.
  • This can include defining the scope and duration of these rights, as well as establishing clear guidelines for what constitutes infringement.
• Tailored Remedies: Emphasize the need for a more nuanced approach to remedies. Courts can carefully consider the specific nature and impact of each use and tailor remedies accordingly.
  • Instead of blanket injunctions, courts can impose remedies that address the harm caused while allowing legitimate forms of expression to continue.
• AI Regulation: Develop and enforce regulations specifically targeting AI-generated deep fakes and synthetic media.
  • This can include requirements for watermarking or other forms of labeling to indicate AI-generated content.
  • Such regulations should also be designed to minimize harm without unduly restricting artistic and creative expression.