Celebrity Is As Celebrity Does

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DoubleX is starting a new partnership with The Washington Post Magazine . Each week our contributors will argue over a certain question, and we invite you to join in. This week: When a male celebrity perpetrates violence against a woman do his female fans have a responsibility to turn their backs on him? Can you love the performer and hate the person? Forgive and forget once his next project is released? Or is supporting an abusive celebrity’s work akin to supporting his violent behavior?
Nina Rastogi : I think this is the flip side of “love the sinner, hate the sin”-it’s completely possible to love the art and hate the artist. (That’s different, of course, from loving the art and excusing the artist, a la Roman Polanski.) At the same time, it’s impossible to avoid having our experiences as viewers or listeners or readers colored by what we know about an artist’s personal life. If you can’t hear a Chris Brown song without cringing or getting enraged, by all means, stop listening to him. But I don’t think there’s anything hypocritical about buying a ticket to his concert and then spending the next morning, say, volunteering at a domestic abuse center.
Claire Gordon : I struggled with a similar question as a major Woody Allen fan, given his marriage to Mia Farrow’s adopted daughter, Soon-Yi Previn. In a lot of Woody’s oeuvre he casts hot young leading ladies 30 years his junior as onscreen loves, which always seemed to me sexually unsavory and shameless-especially when the man hit 70. I still bought a Woody box set and watched it last holiday season. It was awesome. If we boycotted every artist who behaves unethically, our lives would be pretty desolate. The fundamental problem is that we live in a culture that normalizes violence to women; punishing individual perpetrators with a pocketbook protest seems more like self-punishment than effective political action.
Amanda Marcotte : If we couldn’t separate the art from the artist, most of us wouldn’t enjoy much art outside of Jane Austen’s. Enjoying someone’s art is no more endorsing every bad thing they’ve done than is working with someone whose politics you hate. That said, I understand why some feminists wish to make an exception for rape and domestic violence. Rapists rape and wife-beaters beat because they get public support even in the face of their crimes. We want to do a small part for creating actual shame for men who abuse women. But it seems to me that conflating the art and the artist is counterproductive. We’d do better to say that Chris Brown (or Roman Polanski) may make fine art, but they need to be doing so from prison.
KJ Dell’Antonia: I’m intrigued by the double standard that exists between entertainment and politics, although I don’t think it’s unreasonable. Governors Sanford and Spitzer, you’re out. Ditto John Edwards: Career over-we can’t trust you, and you’re clearly blackmail material. A liability. But although there may be fresh new implications for his face on the Wheaties box, Tiger can still hit a golf ball, Chris Brown will still take the stage. I’m not interested in either, but then, I wasn’t interested before. The lesson seems to be: if you’re a guy who finds the siren song of his nether regions to be more important than anything else (and I presume you know who you are), avoid politics.
Photograph of Charlie Sheen and Brooke Mueller by Frazer Harrison/Getty Images.
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“A celebrity is a person who is known for his well-knownness…He is neither good nor bad, great or petty. He is the human pseudo-event.”
Right to privacy, recognized under common law and now raised to the status of fundamental right under Article 21 of the Indian Constitution bestows every individual with the right to be left alone and lead a peaceful life without any external intervention. While every person enjoys the right to privacy, the limit of this right vacillates with increasing popularity and public recognition of an individual. In due course, popularity or fame escalates to a point where the public may intrude with certain private aspects of the celebrity without accruing any liability. In simpler terms, a celebrity’s right to privacy can be curtailed by the public in the exercise of their freedom of speech and expression, which includes access to information and freedom of the press. In the year 1954, Nimmer in his work Right of Publicity stressed on the fact that celebrity doesn’t need protection against unreasonable intrusion into privacy as much as they need the right to control the commercial value of their identity. On one hand, the “celebrity” status of individual results in loss of the right of privacy to a certain extent, while on the other it leads to gain in the right of publicity. This right of publicity enables a celebrity to prevent unauthorized commercial use of their persona. The celebrity can profit by permitting commercial use of their identity which includes name, image, voice and other likenesses to promote commercial products.
Raison d’être for Protection of Celebrity’s Rights.
First and foremost, the need for protection of publicity right arises to prevent unauthorized use of celebrity’s likeness by a commercial advertiser on their product or services to promote the same. This is because while buying the product or availing the service a consumer is drawn to the commercial product with which celebrity is associated (economic value of a celebrity). In other words, when a fan is buying a product or service bearing the likeness of a celebrity on the commercial product his concern is not the product or its source but the likeness as held in In Re Elvis Presley case. As the popularity, desirability and economic value attached with the indicia of a celebrity is the outcome of his/her labour no one else is allowed to unjustly enrich or benefit from the same. This argument is built upon Locke’s labour theory of property, that is, a celebrity’s likeness is a “fruit of ones labour” and hence a property entitled for protection.
Secondly, it is to save the public image of the celebrity. If the likeness of a celebrity does not match the product/service with which it is associated it might negatively impact celebrity’s image. For example, if the image of Rahul Dravid is misappropriated for the endorsement of a tobacco brand it would not only tarnish his image but also reduce his economic value.
Thirdly, celebrities play a major role in influencing society and culture. The hoi polloi keenly observes and follows the lives and behaviour of celebrity. Bearing in mind, the role that a celebrity plays in the transformation of society it is important that the rights of the celebrity are well defined.
Though the right of publicity in India is in a nascent stage, the debate and adjudication relating to various elements of the right of publicity will soon pave the path for its legal recognition.
Evolution of Right of Publicity in India
The right of publicity in India is not governed by any particular statute but is en-rooted in the common law. It has evolved from the right of privacy and relates to indicia of a celebrity’s likeness. Well-knownness of an individual is important for acquiring the right of publicity, such that, the general public can identify the person based on one or more aspect of his/her persona.
Ascertaining whether a publicity right violation has occurred in India requires determining – (a) the popularity and public recognition of an individual, – if satisfied and answered in the affirmative (b) determining whether the use of celebrity’s likeness is unauthorized and for commercial purpose – if yes then (c) whether the same can be excepted as fair dealing other forms of permitted free speech and expression.
The right of publicity was recognized as a form of right of privacy affording a tort action by the Supreme Court of India in R Rajagopal v. State of Tamil Nadu, where the Court observed that:
“the first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used and published without his consent”.
Delhi High Court in the case of ICC Development (International) v. Arvee Enterprises and Anr. recognized that the right of publicity inheres only in the natural person and not companies or legal persons.
“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, a personality trait, signature, voice, etc. An individual may acquire the right of publicity by virtue of his association with an event, sport, movie, etc. However, that right does not inhere in the event in question, that made the individual famous, nor in the corporation that has brought about the organization of the event…”
In the case of Titan Industries Ltd v. M/S Ramakumar Jewellers the Delhi High Court explained that the liability for infringement of the Right of Publicity depends on the satisfaction of two conditions:
“Validity: The plaintiff owns an enforceable right in the identity or persona of a human being.
Identifiability: The Celebrity must be identifiable from the defendant’s unauthorized use. Infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when the celebrity is identifiable. The right of publicity extends beyond the traditional limits of false advertising laws”.
The Delhi High Court while assessing infringement of the right of publicity in the case D.M Entertainment v. Baby Gift House and Ors. ascertained the following factors: a) Public recognition and popularity of Daler Mehndi; b) Daler Mehndi’s “identifiability” from the unauthorized commercial use and, c) Sufficiency, adequacy and substantiality of the user to identify the appropriation of the persona of Daler Mehndi. With regard to the first issue, the Court concluded that Daler Mehndi is a popular personality having economic value in his persona. With regard to the second and third issue Court pointed out that the identity of Daler Mehndi was fused into the toys for reaping undue commercial advantage- by selling the likeness of the celebrity and accordingly ruled that Daler Mendi’s right of publicity was infringed. The court explained that the right of publicity in a jurisprudential sense can 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. However, the Court noted that in a free and democratic society, where every individual’s right to free speech is assured, the over-emphasis on a famous person’s publicity rights can tend to chill the exercise of such invaluable democratic right. Thus, for instance, caricature, lampooning, parodies and the like, which may tend to highlight some aspects of the individual’s personality traits, may not constitute the infringement of such individual’s right to publicity. The Court pointed out that such caricature, lampooning or parody may be expressed in a variety of ways, i.e. cartoons in newspapers, mime, theater, even films, songs, etc. Such forms of expression in the Court’s view, cannot be held to amount to commercial exploitation, per se; if the individual is of the view that the form of expression defames or disparages him, the remedy of damages for libel, or slander, as the case may be, would then, be available to him.”
The D.M. Entertainment case is the first case in India that expounds the facets of the right of publicity in a comprehensive and detailed manner. The Court, in this case, acknowledged the applicability of the tort of passing off to publicity. The well-knownness of a celebrity was used by the Court as the basis for ruling on the well-knownness of the mark and passing off claim. Further, the Court expanded the scope of the passing of beyond names to include other likenesses of celebrity’s personality.
Course of Action for Protection of Celebrity Right
·      Protection via Trademark: In India, the Trademark Act of 1999 recognizes the right of celebrity to prevent the use of a trademark that aims to take advantage of celebrity’s persona. Section 14 of the Act prohibits the unauthorized use of a trademark that suggests a link with a person living or dead.
·      Tort of Passing off: The tort of passing off provides a remedy against misrepresentation, that tends to deceive the customer into believing that the product sold by the defendant is of plaintiffs. Celebrities may use the course of action in case of misappropriation of identity.
·      Standalone Right of Publicity: This is an emerging regime in India and has been enunciated by the Delhi High Court in the D.M. Entertainment case.
ESSENTIAL RELIGIOUS PRACTICE
June 13, 2020
In "Constitutional Law"
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