Brosnan’s ‘Pan’demonium – The Right of Publicity and a Possible Contractual Breach

pan-bahar-website-bannerPan Bahar’s new advertisement featuring Pierce Brosnan was met with much incredulity, leading to his ridicule on social media. Brosnan reacted to the advertisement only about a week after it aired, to which Pan Bahar has now responded – leading to the present controversy.

Brosnan told People that he was “deeply shocked and saddened” about his alleged endorsement of pan masala. He apologised, explaining that he has the “greatest love and affection for India and its people”; and clarified that it was Pan Bahar’s “unauthorized and deceptive use of his image to endorse their range of pan masala products”. Brosnan then revealed that his contract with the company was only to advertise a breath freshener/tooth whitener, which had been presented as “all natural, containing neither tobacco, supari, nor any other harmful ingredient.” The actor reinforced his commitment to support initiatives for human health; and stated that he would never endorse a product that causes cancer, as he had lost first wife and daughter to the disease. He further demanded that Pan Bahar remove his image from their products, and claimed that they had “grossly manipulated” the advertisement and violated their contract to make him out to be the brand ambassador for their entire line of products.

In reply, Pan Bahar has stated that the advertisement released did not violate the contract with Brosnan, as their product “does not contain any nicotine or tobacco”. While they are yet to make any comment on Brosnan’s demand to remove his images from the advertisement, they claim that Brosnan “knew the product he was advertising”, and that they were making efforts to resolve the confusion between the two parties.

I see two possible legal issues that could arise out of this:

Misuse of Publicity Rights

We have comprehensively blogged on publicity rights in the past, read here and here for relevant posts. Indian cases on the subject of personality rights have been few in number, but have centred around celebrities such as Steve IrwinSonu NigamDaler Mehndi, RajnikanthSrideviSourav Ganguly, and Amitabh Bachan to name a few. Amitabh Bachan was involved in a controversy quite similar to the matter at hand– a gutka company had used an imitation of his voice to market their product, which the actor protested as he saw it to be against the “law of the land and the law of ethics”. He claimed that such use painted him in bad light, as he did not propagate smoking or any form of intoxicant.

The right of publicity has not been codified in India, and instead finds its origin in judicial precedent. One of the first judgements that dealt with publicity rights was the Delhi High Court’s 2003 pronouncement in ICC Development v. Arvee Enterprises, where the breach of publicity rights was held to violate Articles 19 and 21 of the Constitution of India, having evolved from the right to privacy.

Consequent judgements have further expounded on the scope of publicity rights as recognised in India, but there is still much scope for interpretation of this right. The Delhi High Court in 2012, Titan Industries Ltd. v. M/s Ramkumar Jewellers clarified that a claim for infringement of the right of publicity requires “no proof of falsity, confusion, or deception, especially when the celebrity is identifiable”. This principle was reiterated in Shivaji Rao Gakiwad v. Varsha Productions, a 2015 order from the Madras High Court.

The Delhi High Court, in 2010 – D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. highlighted the fact that the right of publicity strikes at the individuals very persona. This case dealt with the misuse of Daler Mehndi’s trademark as well as his right of publicity, and this is perhaps why the Court diverged from earlier case law to interpret the infringement of the right of publicity as a passing off action, and didn’t bring up the constitutional perspective.

In comparison, the United States Code or more specifically, the Lanham Act, provides for civil action to be taken for the use of a name in connection with goods or services that lead to misleading representations of fact. IPWatchdog notes the evolution of the right, from a right of privacy tort action to a stand-alone right. In the United States, the right of publicity has been interpreted to extend beyond just the use of a name, or a likeness, with Carson v. Here’s Johnny Portable Toilets, Inc. ruling that if anything used in the advertisement triggers an association with a celebrity, it is a violation of the right of publicity. Besides the Lanham Act, there are separate State laws that prescribe different standards for the right to publicity, the California Right of Publicity Law is an example of the same.

Breach of Contract

14601099_1812778819007899_8317732533054806660_nWhere Brosnan’s case differs significantly from the above-mentioned examples is the fact that he had entered into a contract with Pan Bahar for the advertisements. Until the terms of the contract are made public, it is difficult to say who is legally right in this case.

If the contract was to endorse mouth freshener/teeth whitener, which was natural, and contained neither tobacco, supari, nor any other harmful ingredient, both the picture and video advertisements seem to violate this term with the propagation of Pan Bahar’s ‘Pan Masala’ in its signature blue tin. While Pan Bahar might not contain any tobacco or nicotine, the ill effects of its use have been widely proclaimed, and areca nuts, or supari is now a proved carcinogen. Under the Indian Contract Act (ICA), a contract may be deemed to be voidable where the consent of one party was obtained through misrepresentation. Section 18(3) covers causing a party to make a mistake as to the substance of the thing which is the subject of the agreement, no matter how innocently it was done – which might attract Pan Bahar’s liability.

Recently, the Ministries of Consumer Affairs and Law approved changes in the Consumer Protection Act that would make celebrity brand ambassadors accountable for endorsing products that make misleading or unrealistic claims. The proposed amendment doesn’t make celebrities vicariously liable but imposes on them the legal obligation to take all due diligence before endorsing a product. In my opinion, it is this due diligence that Pierce Brosnan should have undertaken before contracting with Pan Bahar, a company known almost primarily for their pan masala. The fallout from the advertisement could not have been a complete surprise to Brosnan had he or his team done even a preliminary check – A simple google search of ‘Pan Bahar’ directs you to their website, which boasts of the “world’s most expensive pan masala”.

There has lately been an increase in the number of celebrities endorsing pan masala companies – Shah Rukh Khan, Ajay Devgan, Akshay Kumar, Govinda, Sunny Leone and Priyanka Chopra have all appeared in similar advertisements. According to media reports, the Delhi Government requested them to refrain from endorsing these products, and solicited them to join their Anti-Tobacco Drive. It is about time the health hazards of pan masala are put to the same standard as that of tobacco. The fact that the Government even permits these advertisements seems to be somewhat of a double standard compared to the ban on tobacco companies from advertising on mass media.

It is quite clear that Pan Bahar’s advertisement for mouth freshener is just the latest in a long line of surrogate advertisements, and it was quite remiss of Brosnan not to see through it. My message to Pierce Brosnan is do not endorse a product you do not use,” said Dr. Vishal Rao, a Bangalore based oncologist. The association of celebrities with the products they endorse cannot be taken lightly, keeping in mind the far-reaching impact of their endorsement on the consumer. While the present case might be settled out of court, as the parties seem to be making efforts at reaching an amicable solution, it just reinforces the need for a higher level of scrutiny on advertisements such as this.

Images taken from here and here.

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