By: Aryan Bhat and Yashendra
It is essential for the law to be dynamic to keep in sync with the technological advancements in society. With the rapid growth of social media platforms and the paparazzi industry, celebrities are now watched and captured by the latter nearly in every country. This has led to the debate on the unresolved tension between a celebrity’s right to publicity, (i.e., to decide how the public image of the celebrity shall be circulated and regulated in the eyes of the public) and the copyrightability of paparazzi photographs. Though such instances are yet not found in India, there have come many instances abroad highlighting the competing rights.
In July 2021, Dua Lipa, a celebrated singer, was served a legal notice by the US court for a seemingly routine affair for a celebrity of her stature: she posed for a paparazzi photograph at an airport, which she uploaded on her Instagram account. Integral Images, the company which claimed to own the copyright of the image, sued her for copyright infringement. Similar instances have also been seen in the past, mostly to settle out of court. In another related incident, Gigi Hadid was sued for copyright infringement for having uploaded her own photograph clicked by a paparazzi, though the lawsuit was dismissed by the District Court of Eastern New York on procedural grounds.
Upon a reading of the Copyright Act, 1957 (hereinafter ‘the Act’), it seems clear that a prima facie case in such instances is made out against the celebrity for such conduct, for section 17 of the Act states that the copyright of a photograph shall vest with the photographer and is also considered as the author of the work under Section 2(d)(iv). This grants the photographer almost an absolute right to inter alia communicate the photograph to the public, the right to reproduce the work in any material form or its storage in any medium, the right to issue copies of the photograph, or a further transfer of the copyright by the photographer to any other person.
However, the Act has not kept pace with the technological advances, such as the rise of social media giants and the concomitant growing legal discourse on the publicity rights of a celebrity. It becomes vital that a celebrity shall be able to exercise some control in the circulation of their paparazzi photograph to determine how the celebrity as an individual is perceived by the wider public.
The authors in this article shall analyse this dichotomy and suggest a balancing approach to accommodate the celebrity’s concerns of publicity rights as well as the paparazzi photographer’s copyright over the photograph.
THE GAPING HOLE IN PRESENT JURISPRUDENCE
Right to publicity is of a very recent origin in Indian law, not enjoying any statutory backing but only recognised through judicial interpretation. It is commonly understood as the right of a celebrity to control the commercial appropriation of their own image. In ICC Development (International) v. Arvee Enterprises, the Delhi High Court analysing the scope of Publicity Rights stated that the said right inheres in every individual and aspects of an individual’s personality such as name, voice, signature, etc. The Court further established a claim for breach of publicity rights as an independent tort, evident from the sentence that use of a celebrity’s persona without their express authorisation would entitle them to a claim for damages.
In the famous case of Titan Industries v. Ramkumar Jewellers, the Court defined the right to publicity of a celebrity as the right to control the commercial use of their personality, which includes the right to determine when, where, and how the identity shall be used. Similarly, in Shivaji Rao Gaikwad v. Varsha Productions, the Madras High Court restrained the defendants from using the name of the plaintiff, a popular actor in their movie, as the same would lead to transgression of the latter’s right to publicity.
However, all these leading cases suffer from one limitation: that a claim for publicity rights in all of them was based upon the notion that the infringement of the same denoted an implied endorsement of the celebrity of the impugned product/event, which could mislead the public. For purposes of the inquiry as identified above, this present state of jurisprudence does not help one answer whether a celebrity can lawfully upload their own paparazzi image on their social media handles, in the absence of an authoritative precedent upon the same.
It shall be highlighted that the concept of publicity rights traces its theoretical origins in John Locke’s ‘Fruits of Labour’ theory, wherein a celebrity shall be granted an exclusive proprietary interest in their hard-won reputability as an incentive for the efforts put in by them. Since a person puts in considerable time and effort in acquiring a prominent image in the eyes of the public, the person must enjoy the fruits of their labour. However, in the case of paparazzi photographs, it is the photographer or its authorized licensee who reaps the benefit of the reputation of the celebrities while the subject matter of such photographs, who try to endorse themselves, are prevented(at least apparently) from doing so by the current copyright regime. This, the authors believe, is a travesty to the concept of publicity rights.
Since the right to publicity deals with the inherent right of the celebrity to regulate their own public image and its commercial usage, it becomes quite counterintuitive to not extend this same right to the celebrity to promote themselves. Social media has emerged as a common platform for celebrities to enhance their marketability and visibility in the eyes of the public, mostly due to the direct and instant nature of the communication, and some recognition of the right in pursuit of the same thereby becomes necessary.
RIGHT OF CELEBRITY – A FAIR DEALING UNDER SECTION 52?
Subject to some exceptions as carved under section 52, the Act authorizes only the author of the copyrighted work with the right to publish and circulate the same to the public. Under section 52, the Act gives protection to fair dealing with the work for private use and such use would not constitute an infringement of the copyright. In so far as the private use of the photographs by celebrities is considered, the expression is interpreted to not accommodate something displayed to the public at large through a post on social media platforms which boasts of millions of followers and is restricted to include family members making up the domestic or private audience in court’s opinion. Thus, the celebrities cannot take shelter from copyright infringement under the fair dealing exception either in light of judicial pronouncements suggesting the contrary view.
A WAY FORWARD: THE BALANCING APPROACH
It is discernible from the above discussion how the current regime creates the stalemate between the celebrity’s right to publicity and the photographer’s copyright over the paparazzi photos. The remedy to this quagmire may not come from the courts due to their fidelity to the letter of law. As discussed already, section 17 read with section 2(d)(iv) of the Act, the situation becomes greatly unfavourable to the celebrities, while the Preamble to the Act itself states that the legislation is a complete law in itself upon the field of copyrights, as is clear from the words “amend” and “consolidate”, which greatly curtails any space for judicial innovation.
A legislative amendment thereby becomes necessary in this case to strike a careful balance between the two rights, in accordance with the limitations placed upon the extent of this right by courts. For instance, in DM Entertainment v Baby Gift House and Ors., the Delhi High Court held that a claim for the right to publicity shall not be available in cases where it might infringe upon someone else’s freedom of speech and expression, as could be the case with cartoons and caricatures.
Similarly, as per the judgement in Indu Jain v. Forbes Incorporated, any photograph in furtherance of objective reporting regarding a newsworthy person, too is immune from such a claim. Besides, while a celebrity could be entitled to post their paparazzi photographs on social media, they must anyway be legally obliged to obey the moral rights of the photographer, (such as credits for the photograph so taken), under Section 57 of the Act.
Incorporation of the present standards of law would, therefore, ensure a regime which is mutually beneficial to the paparazzi as well as the celebrities and entitles them to their respective rights.
Right to publicity of a celebrity is a nascent concept under Indian law. Its scope in the social media era where a celebrity’s reliability upon the paparazzi for self-promotion is fast diminishing and calls for a focus upon the tension of the rights of paparazzi over copyright as against the celebrity’s right to use of their own identity. The authors believe that a calibrated approach to reconcile both the rights is necessary not only to keep pace with the technological and legal developments but to give wider effect to the concept of publicity rights. This wider implication can be seen in how the same is not restricted merely to cases of false advertising, as is implied by John Locke’s famous “Fruits of Labour” theory of publicity rights as well as the two-step test of infringement of the said right devised by the Court in the Titan industries case.
Cite as: Aryan Bhatt and Yashendra, ‘Whose Photo is it, really?: Dichotomy of rights and copyrightability of paparazzi photographs’ (The RMLNLU Law Review Blog, 20 September 2021) <https://rmlnlulawreview.com/2021/09/20/copyrightability-of-paparazzi-photographs/> date of access