Alongside winning medals for India in the 2024 Olympics, shooter Manu Bhaker is also in the news for legal notices sent on her behalf against ‘unauthorized’ congratulatory posts by different companies. Now, one may wonder what’s the harm in posting a simple congratulatory message and if such a measure is a little too extreme. Explaining why and how such seemingly innocuous posts infringe on the shooter’s personality rights, we are pleased to bring to our readers this post by SpicyIP intern Tejas Misra. Tejas is a third-year law student at National Law University, Delhi, and is interested in the evolution of IPR law and its growth in India.
Manu Bhaker’s Olympics Victory: Do Brands Violate Publicity Rights by Putting out Congratulatory Posts?
By Tejas Misra
On 30th July, 2024, Manu Bhaker made history by becoming the first Indian to win multiple medals at a single Olympic session, by winning two bronze medals in womens’ and mixed shooting in Paris. However, in usual fashion, this has made her one of the most sought-after athletes for unauthorized brand endorsements, such as Bajaj Foods, LIC, FIITJEE, Oakwood International School, Praneet Group, Radha TMT, Apricot Bioscience, Kineto, Xtrabrick Realtors and Parul Ayurved Hospital. These various brands have posted laudatory posts congratulating her for this achievement, while at the same time utilizing her image and Olympic win for their own commercial own use by using it in the form of an advertisement.
Currently, Bhaker is managed by iOS Sports & Entertainment, who released a statement calling such unauthorized advertising as “moment marketing free of cost,” and issued a legal notice to the above brands to take such commercials down, contending that such advertisements violated their ownership of Bhaker’s personality rights.
“Moment marketing” refers to a strategy where brands can take advantage of ongoing events to gain relevance, and especially for some of the sheen of patriotic athletic victories to wear off on them. This practice is not uncommon in Indian sports. For example, PV Sindhu (also dealt with here) was another athlete who in 2021 filed a lawsuit against 20 brands who put out congratulatory ads post her Olympic win, which utilized her name and image without consent, with her managing agency contending that they have an exclusive right to utilize or license her commercial and brand endorsement deals. (SpicyIP has previously covered Indian cases on the subject of personality rights related to different celebrities – Steve Irwin, Sonu Nigam, Daler Mehndi, Rajnikanth, Sridevi and Sourav Ganguly).
These advertisements pose a major problem as they might infringe upon a celebrity’s publicity rights, which encompasses the right to control the use of one’s own likeness and persona, and accordingly exclude unauthorized commercial exploitation by others. Moreover, these advertisements may also lead many viewers to misconstrue the message as an endorsement of the brand by the athlete themselves.
In this post, I will look at the following questions: i) whether such advertisements can be regarded as an infringement of personality rights, and ii) in what circumstances can such congratulatory messages be posted?
Personality Rights: Publicity or Privacy?
“Personality” can be defined as the combination of characteristics or qualities that form an individual’s distinctive character. It can include their face, voice, characteristics and distinctive qualities or attributes.
India, like many nations around the world, does not have a separate statute governing personality rights, but which are rather protected under common law jurisprudence. There are two facets when an individual wants to protect their personality rights: firstly, the right to protect one’s image from being commercially exploited which falls under the overarching IPR regime; and secondly, under the right to privacy which entails one’s right to be left alone.
For a long period of time, the unauthorized use of an individual’s persona was regarded as a violation only when it pertained to defamation law. This position changed famously in the R. Rajagopal case (i.e. the Auto Shankar case), wherein the Supreme Court held the publicity rights of an individual as squarely falling under the “right to be left alone”, and to be protected from undue commercial utilization of such likeness, even if it is laudatory. This puts into perspective that simply being non-defamatory, and on the converse even being congratulatory, is no justification to violate publicity rights.
However, when talking about celebrity rights, these protections needed to be broader than merely a right grounded in the “right to be left alone”. It was recognized that celebrities or persons of influence needed to have rights over their own persona and distinctive attributes, including the right to utilize it commercially, license it, and accordingly exclude unauthorized persons from making use of it. In 2011, in the landmark case of Titan Industries Ltd. v. M/S Ramkumar Jewellers, the Delhi High Court dealt with the unsanctioned and malafide use of the images of Amitabh and Jaya Bachchan, the concept of publicity rights of a celebrity were categorically defined as “the right to control commercial use of human identity is the right to publicity”. It recognized that a famous personality has the right to control where and how their identity is used, and further stated that publicity rights move much beyond the legal limits of false advertising.
Building onto this development, in 2015, the Madras High Court in Shivaji Rao Gaikwad v. M/S.Varsha Productions, when dealing with a case of an unauthorized film revolving loosely around the famous actor Rajinikanth, added that personality rights vests on those persons who have attained the status of a “celebrity.” What is important to note here is that it is the “identifiable characteristics,” (such as the alias “Rajinikanth”) that are entitled to intellectual property protection, as it is the property value of the attribute and its possibility for commercial utilization by the celebrity.
Now the pertinent question becomes whether the advertisements in question are prohibited under the law. As held by the Delhi High Court in D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors., the requirements for a violation of publicity rights are:
- Unauthorized appropriation of an individual’s persona
- Commercial use of an individual’s identity
- Gain on the part of another person through such use
Analyzing the advertisements that were posted about Manu Bhaker, it can be seen that they fulfill these ingredients. Though most of the advertisements were pulled down following the legal notice, some of them are still posted on the official handles of various brands (as seen here). Examples of these unauthorized posts can be seen below:
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Under the given requirements, if a person is identifiable from a signature characteristic or attribute, then such usage would be violative of that celebrity’s personality rights.
The above advertisements are congratulatory in nature, but the context of her Olympic win alongside her face and name associate her with the brand. Moreover, the brand names such as “FIITJEE” are prominently displayed alongside her image, which has the possibility of creating confusion in the minds of readers. In fact, the Delhi High Court in one case explicitly provided an example, observing that if Sachin Tendulkar’s name or persona was ever used in connection to the ‘World Cup’ without his permission, then he would have a valid cause of action. Hence, similarly, the utilization of Manu Bhaker’s Olympic victories in unauthorized commercial advertisements falls within this same category.
The Agent’s Power to Issue Notice
Though there is no specific law on the transfer on the right of publicity in India, an individual may permit another to use their name or persona for commercial gain in the form of a license or an agreement. In M/S. Super Cassettes Industries v. Nandi Chinni Kumar, (covered here by Shivam Kaushik) the Telangana High Court upheld the right of a sportsman to license out his personality rights to a third-party, and the right of that third-party to pursue claims against others for utilizing the likeness of the athlete. In ICC Development (International) Ltd. v. Arvee Enterprises the Delhi High Court upheld the right of the licensees to proceed against unauthorized commercial usage of the celebrities’ likeness and directed for a permanent injunction.
Are All Congratulatory Posts Prohibited?
Another question that emerges now is whether a brand can lawfully and genuinely congratulate an athlete on their victory? Or does there exist a blanket ban on using the likeness of a celebrity or an athlete in any form?
Considering that one of the major ingredients for violation of publicity rights is that it is for “commercial use”, i.e. to be used in advertising or marketing. Accordingly, it is important to understand what “commercial use” is, and what are the legal exceptions to such use.
In the recent case of Digital Collectibles Pvt. Ltd. v. Galactus Funware Technology Pvt. Ltd. (covered here by Gaurangi Kapoor), the Delhi High Court, it was observed in recognition of a settled position that not all commercial uses are prohibited, but the use of celebrity names for “lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses” are valid and protected under the right of freedom of speech and expression under our Constitution. News channels and similar sites are allowed to use and do in fact use images of celebrities in often sensational posts.
Accordingly, it would be reasonable to assume that “congratulatory” posts per se are not prohibited by the law, but only when they extend to unfair marketing and commercial use by brands to market themselves. This is most obviously done when brands put their own names or taglines or otherwise market themselves in the posts, which is prohibited under the law.
Regardless of this, the clearest and most obvious way that any company can avoid legal liability is to ask the managing brand of the athlete for permission before utilizing such likeness. According to the self-regulatory guidelines laid down by the Advertising Standards Council of India (ASCI), advertisements should not contain any reference to a person that brings an unjustified advantage on the product advertised without explicit permission to which reference must be made in the advertisement.
Thus, brands therefore have to be more careful in their willingness to capitalize on athlete victories by engaging in “moment advertising” to avoid infringing on legal protections laid down under common law.