When celebrities seek copyrights

Written by Amit Gupta | Updated: Dec 27 2010, 05:34am hrs
Two Bollywood actors, Amitabh Bachchan and Sunny Deol, have expressed their desire to get copyright protection for their voice. Amitabh Bachchan was particularly annoyed with an advertisement by a Gutka company imitating his voice. According to Bachchan, selling or seeking commercial gain through imitation and caricatured images of a celebrity without authority and consent, is wrong, unjust and illegal.

Celebrities and their brand managers may indeed have reason to feel aggrieved if someone mimics or copies their voice or mannerisms. Several advertisements use artists who sound alike or are look-alikes of celebrities. Besides, some artists and comedians thrive purely because they are excellent imitators. Spoofs based on celebrities voice are also common on radio channels. Last year, Sunny Deol issued a legal notice to Big 92.7 FM because the latter aired audio fillers Son Sunny mimicking him and his family.

It does appear morally wrong to allow someone else to take pecuniary benefit of a celebritys unique personality traits.

However, does that entitle them to legally preempt others from using similar voices/looks/mannerisms for any purpose whatsoever

Voice, per se, cannot be a subject matter of copyright under the Copyright Act. Section 13 permits copyright only for literary, dramatic, artistic or musical work, or cinematograph films and records. By no stretch of interpretation, does a celebritys voice fall under any of these categories. A song, an advertisement or a movie may be copyrightable and voice may get protected to the extent it is a part of the tangible medium. However, copyright protection is not available specifically for voice.

It is also not possible to get a trademark on voice since it is not defined as a mark under the Trademarks Act, 1999. Mark is always associated with a product or service. In Amitabh Bachchans case, he is neither a product nor a service. He is merely selling a product or service using his voice. Also, a citizen has a right to express his opinions in any manner he may like, which also includes imitating someone else. A performer cannot be prevented from improvising his voice or mannerisms, even though the improvisation resembles that of a celebrity. Allowing such protection would kill parody.

While the law on copyright or trademarks may not allow a celebrity to preempt use of his voice, law recognises personality rights or celebrity rights. These rights have developed as an offshoot to core intellectual property rights. Thus, an individual has right over his reputation and information connected to him deserves to be protected. In ICC (Development) International vs Arvee Enterprises (2003), the Delhi High Court held that right of publicity inheres in an individual or in any indica of individuals personality like his name, personality traits, signature, voice, etc. It was held that an individual is entitled to profit from the right of publicity. In Australia, a court held that a professional dancing couple could stop the unauthorised use of their photograph upon a record sleeve. Likewise, a Canadian court accepted that a professional player may sue for appropriation of his personality. However, in the US, this area of law is more developed than elsewhere. Several American states have enacted legislations on the right to publicity, though each state law varies in content. Organisations such as Elvis Presley and Martin Luther King estates have resorted to litigation in pursuit of publicity revenue. In a 2008 judgment, relating to legendary commentator John Facendas voice, it was ruled that where a persons voice is taken from a copyrighted work to promote other work, such a use may violate that persons right of publicity under certain circumstances.

However, the UK has a more nuanced approach. The English courts have made a distinction between endorsement and merchandising. In Edmund Irvine Tidswell Limited vs Talksport Limited (2002), a photograph of well known Formula 1 racing car driver Eddie Irvin was used on the front of brochure advertising Talk Radio. The court held that a celebrity could have a proprietary interest in his reputation and could protect the same from unlicensed appropriation. The car driver succeeded primarily because the brochure gave an impression that he was endorsing the Talk Radio. In so far as merchandising, i.e., the sale of memorabilia bearing the name of a famous person or an event, is concerned, the English law does not provide any relief. The courts have refused to adopt the all embracing principle that a person has a right to his name or voice or image.

While Bachchan may want exclusivity over his voice, someone else may want exclusive right over his dressing style, mode of performance, style of speaking and so on. Therefore, it is imperative to recognise that the privilege to claim monopoly over voice or looks or style of performance would be a step too far. It would prevent others from making reference to the person as too varied a range of circumstances to be socially or economically justifiable.

Such protection would mean that, in future, no one would be able to imitate or even improvise a celebritys performance. It would be illegal to perform Rajnikants style of popping in a cigarette or Shahrukhs style of saying Kiran or Sachins hair style and voice effect and so on, in the event these celebrities also obtain some sort of intellectual property right.

To the extent that celebrities are made to appear as if they are endorsing a product without their prior consent, the law does provide damages for unfair use and also for defamation. Therefore, Bachchan may be justified in taking a legal recourse if the gutka advertisement is using his characteristics in such a manner that the common man believes he is endorsing the product. The same would be true for Airtel advertisements. However, where an advertiser simply uses an imitator only to produce a look-alike or a sound alike of a celebrity, the same should not be stifled under the garb of a personal right. By publicly airing their views, Bachchan and Sunny Deol may have achieved more than what the law already provides. A chilling effect on performers or advertisers, not sure of the law, is enough to prevent them from using a sound alike or look-alike character.

The author is a partner at Mitter & Mitter Co, Advocates, Delhi