Hello Identity, Are You There? It’s Me, the Right of Publicity!

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When FaceApp took the Internet by storm, there was furor over its broadly worded privacy policy. FaceApp is not alone, as there is similar backlash against Facebook’s vaguely worded terms. For instance, take a look at this term in Facebook’s policy:

Permission to use your name, profile picture, and information about your actions with ads and sponsored content: You give us permission to use your name and profile picture and information about actions you have taken on Facebook next to or in connection with ads, offers, and other sponsored content that we display across our Products, without any compensation to you.

The terms of service of FaceApp state:

You grant FaceApp a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, transferable sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you.

These terms are not unique to FaceApp. Rather, other companies, including facial recognition services and Facebook include similar terms. In essence, these terms invoke the right of publicity and its transferability. The right of publicity grants individuals control over commercial use of their name, image or likeness. There is confusion regarding its theoretical foundation. In this post, I would argue that the right of publicity is a personal right and hence, not alienable and non-transferable under Indian law.

Delhi HC dealt with the first notable case, ICC Development (International) v. Arvee Enterprises. The plaintiff, ICC Development, organizer of ICC World Cup, had filed a suit to own and control all commercial rights relating to ICC events. It contended that due to widespread publicity, ICC World Cup had acquired a “persona” of its own in ICC cricket events. It alleged that the defendant, Phillips India misrepresented their association with plaintiff in their advertisements and was commercially exploiting the “persona” or “identity” of the plaintiff to sell its goods.

The crux of the argument, regarding personality rights was that the plaintiff had developed a “personality” with respect to an event and had transferred these rights to its sponsors. Thus, the defendant could not commercially exploit and free ride onto the identity of the plaintiff. The Court rejected this. It held that non-living entities are not entitled to personality rights for twin reasons. First, non-living entities enjoy adequate protection under other laws. Second, including non-living entities violates the understanding of “persona”. The Court referred to Black’s Law Dictionary and New York law to restrict the meaning of “persona” to living entities.

Further, the Court held, “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 like his name, personality trait, signature, voice, etc… Any effort to take away the right of publicity from the individuals, to the organizer {non-human entity} of the event would be violative of Articles 19 and 21 of the Constitution of India. No persona can be monopolized. The right of publicity vests in an individual and he alone is entitled to profit from it.”

The Court established the right of publicity as a personal right, which means that its diginitarian foundations do not allow it to alienated or held by non-living entities. This is an important conclusion, as it acknowledges the illegality of all terms and conditions that treat the right of publicity as property.

In contrast, in DM Entertainment v. Baby Gift House, Daler Mehndi had assigned his personality rights to DM Entertainment. The Delhi HC recognized this transfer as he had a “quasi-property” right in his persona to protect his “economic” interests. Interestingly, the Court also held, “The right of publicity can, in a jurisprudential sense, be located with the individual’s right and autonomy to permit or not permit the commercial exploitation of his likeness or some attributes of his personality.”

Thus, the Court held that both, right of publicity—as property and privacy—co-exist.

On one hand, it held that the transfer was justified to protect economic interests. On the other hand, it rooted right of publicity in autonomy, and not transferable. It would be quite paradoxical if a right inhered in autonomy allowed property rules to destroy itself.

In Titan Industries v. Ramkumar Jewelers, the plaintiff had sued for the unauthorized use of their advertisement in relation to diamonds, which Mr. Amitabh Bacchan and Ms. Jaya Bacchan were promoting. These celebrities had assigned their personality rights to the plaintiff. On plaintiff’s standing to sue on behalf of the celebrities, the Court delved into a succinct discussion. It held that plaintiff had standing over an exclusive license agreement with the celebrities. Interestingly, the Court referred to a paragraph in Haelan Laboratories v. Topps Chewing Gum, which has recognized a right of publicity independent of privacy to protect “economic” interest in personality rights. Haelan created a common law right of publicity to validate the exclusive agreement between plaintiff and celebrity basketball players who were promoting the product.

With these rulings, the Delhi HC drew a trajectory as US. In essence, it recognized a “property” interest in personal rights, without explicitly distinguishing the right of publicity from its alignment with privacy, as in Haelan.

It was misguided to create a distinct right of publicity. First, ICC clearly held that right of publicity was a facet of privacy. Second, ICC was not contradicted by subsequent cases, which created a distinct publicity right without ground. For instance, D.M. Entertainment concurred with ICC on jurisprudential basis whereas Titan Industries cited a paragraph from Haelan Laboratories, an American case, to express dissent! In Puttaswamy, Kaul J. affirmed ICC. His obiter was restated in Puttaswamy (2018).

Further, it was misguided to create a co-existing right of publicity and right of publicity as privacy. This is because the latter is a personal non-alienable right whereas, as property it is not. This creates to a contradiction. If the right of publicity were a “personality right”, it cannot be transferable, especially after the Puttaswamy ruling. In Puttaswamy, the Court had ruled that right of privacy is rooted in diginitarian foundations, and hence, not a property right. Since the US recognizes privacy as a property right, the alienability of publicity is still at issue. To this, scholars have suggested that while privacy is a property right, it is not a transferable one. But, in India, there is no scope for discussion. The right of publicity is rooted in privacy, and hence cannot be alienable. Thus, other cases are outliers in the overall framework of treating publicity as a non-transferable personal right, which is capable of protecting both economic and non-economic interests.

The alienability of publicity has been severely criticized. It has been argued that the approach in Haelan—to create an assignable right in order to protect commercial interests—is itself unrequired. Further, this approach has created a class of publicity holders. This class benefits from the economic exploitation of human data, whereas identity holders are unable to profit. In the digital age, this unexpected outcome is even more exacerbated. It also lacks any theoretical foundation, since a “publicity holder” can enforce the rights of an identity holder, even against the latter! Attachment of a property label also disengages the foundation of publicity and privacy.

To this effect, any term of service that treats publicity as an assignable property right is against the law, regardless of India’s lack of a data protection law. Thus, it is interesting that a largely ignored field of IP is not only, not a field of property law but also capable of serving us well in the digital age, where all else might fail!

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