In the third part of his three part post on personality rights, Akshat discusses the real implications of granting broad personality rights to celebrities. Part I and II of this post can be accessed here and here. Akshat is a practicing litigator working at Saikrishna and Associates. He did his LLM from Berkeley Law in 2023 specialising in IP and Tech law. His previous posts can be found here. He would like to thank Sneha Jain and Angad Makkar for their comments and discussion. He adds the following disclaimer: After some discussion around an earlier draft and an admitted history of verbosity, I would also like to acknowledge the usage of Claude.ai for helping me re-frame the draft more succinctly and in a reader friendly manner. Views expressed here are personal.
Part III: The Right to Publicity: 31 Years Since Madow’s Scathing Verdict, Yet……. The Show Must Go On?
By Akshat Agrawal
The Hidden Price Tag: The Real Costs of Publicity Rights
- Cultural Expression in Handcuffs: Strict enforcement of publicity rights can chill important forms of cultural commentary, critique, and artistic expression. This could lead to homogenizing cultural discourse in a top-down centralized manner. By limiting the ways in which artists, commentators, and ordinary citizens can engage with celebrity images, we risk creating a cultural landscape that is less diverse, less critical, and ultimately less vibrant.
- Innovation Interrupted: As AI and other technologies evolve, overly broad publicity rights could stifle innovation. We risk sacrificing tomorrow’s creative breakthroughs on the altar of celebrity control. This concern is particularly relevant in the age of AI and machine learning. Many cutting-edge technologies rely on large datasets that may include celebrity images. Overly restrictive publicity rights could hamper the development of these technologies, potentially slowing progress without any cognizable harm.
- The Fame Gap Widens: As there are unjustified disparities in fame, due to visibility or what controllers of visibility i.e., the media likes etc., such disparities are usually accompanied by disparities in income- the superstar 1% vs. the rest. What a ‘Right to Publicity’, as a matter of policy does is exasperate such disparity, as against remedy it- channeling additional dollars under the garb of a completely unrelated cloak of a dignitary interest- privacy- but with the remedy of a property claim i.e., “exclusionary rights.”This exacerbates existing inequalities in the entertainment industry, widening the gap between established stars and struggling artists. The publicity rights regime doesn’t just protect celebrity images; it actively contributes to wealth inequality in the entertainment industry. By granting additional legal protections and revenue streams to those who are already at the top of the fame pyramid, we’re creating a system that makes it even harder for new talent to break through and challenge established stars.
- Public Domain in Peril: Publicity rights effectively privatize aspects of our shared cultural history. Celebrities are not just private individuals; they’re part of our shared cultural narrative. Allowing perpetual control over their images limits our ability to engage with and reinterpret our own cultural history.
- Dialogue Diversity Diminished: Strict personality rights stifle diverse cultural conversations by allowing only “preferred meanings” of celebrities to circulate. This limits the potential for critique and reinterpretation of cultural icons. This point underscores how publicity rights can lead to a sanitized, corporate-approved version of celebrity culture. By giving celebrities (or their estates) control over how their image is used, we limit the potential for critical, subversive, or alternative interpretations of these cultural figures.
Conclusion: Rethinking Publicity Rights for the Digital Age
Let’s go back to the question we started with: “Whether the additional revenue stream supposedly due to the celebrity for exploitation of their likeness/voice is a more/less important legal interest when pit against the freedom of expression of society, and commercial ventures in using their likeness/voice as a cultural symbol or for producing new expression as a part of the cultural grammar (when use is not deceptive or defamatory or harming the reputation of the celebrity)?”
In my view, the answer seems to be a strong no. There is no justification, whether economic or moral in favour of the former, as against the cost it imposes on the latter. There is no overpowering incentive function of the Right to Publicity (beyond intellectual property or compensation from the activity to which one owes their fame), as compared to the dynamic inefficiency or the cost it incurs on downstream cultural production. There is no fairness claim to labour that is ipso facto valid to justify full internalization of value through a property-like right, inspite of there being no harm. Moreover, there is a widening of the gap that such rights generate between the lucky superstar and the hard-working, yet unlucky, struggling performer.
We need a more nuanced approach that considers:
- The socially constructed nature of fame
- The importance of diverse cultural dialogues
- The potential benefits of non-deceptive, transformative uses
- The adequacy of existing protections for celebrities
- The need to foster innovation in the AI era
Such a nuanced understanding foundationally challenges the basis of the ex parte orders passed by the Delhi High Court and the Bombay High Court. It is, thus, time to unmask the publicity rights racket and reclaim our collective cultural conversation. The stakes are nothing less than the richness and diversity of our shared cultural discourse.
[Note: For convenience, readers can access all the three parts of this post in a pdf here.]