Centre for Communication Governance at NLU delhi
Celebrity Rights and the Right to Publicity

Andrew T Kenyon and Esther Milne, ‘Images of Celebrity: Publicity, Privacy, Law‘ (2005) 10(4) Media & Arts Law Review 311

Celebrities have been a notable focus in recent media and cultural research, with work considering its textual construction as well as its production, circulation and consumption. Concurrently, celebrities’ claims for privacy from certain media publications have been important in English, European and New Zealand case law – law which has significance beyond those jurisdictions and has received considerable Australian attention from lawyers and commentators. In light of themes about celebrity from cultural and media research, this article examines an illustrative legal claim by celebrities where privacy was sought from particular media coverage; namely, the long running Douglas v Hello! litigation. The authors explore ideas about the celebrity as a commodity and the treatment of photographs in privacy-related claims, and draw out two points. The first concerns legal awareness of what could be called the celebrity industry and its role in the construction and circulation of media content. In some situations, these industrial aspects of celebrity may carry doctrinal weight for issues such as when reasonable expectations of privacy exist. The second raises matters about the uses of celebrity content in terms of subjectivity – uses which are suggested in contemporary media and cultural research – and the role of privacy itself within identity formation, which has been raised recently within Australian legal commentary on privacy.

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Anurag Pareek and Arka Majumdar, ‘Protection Of Celebrity Rights-The Problems And The Solutions‘ (2006) 11 JIPR 415

Celebrity rights are unique rights, which are distinct from others. It is a form of property, which can be exclusively enjoyed by the celebrity himself. Being a property, it is also susceptible to unauthorized trespasses. This ‘trespass’ takes place mainly in two ways- when the privacy of the celebrity is sought to be compromised for the sake of money, and secondly, when the celebrity’s right to publicity is defeated by its unauthorized use. Both the situations require law and the judiciary to intervene and ensure justice. In the absence of any specific regulatory mechanism to address these issues, it often becomes difficult to protect various celebrity rights like personality/moral rights, privacy rights & the publicity/merchandising right. In India, there is no specific legal remedy for infringement of celebrity rights. Thus the authors identified merits and demerits of various approaches, which protect the publicity rights of a celebrity and recommended appropriate legal regime suited to India.

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Bridget Carnachan, ‘Celebrity Privacy after Hosking v Runting: Entertaining the Public with Private Lives’ 11 Auck U L Rev 86 (2005).

The article reviews the issue of privacy law in New Zealand with reference to the landmark “Hosking v Runting” case in 2004. Privacy law and the protections that must be given to celebrities present a conflict of interest between freedom of expression and personal privacy. Several celebrities and journalists were interviewed to determine their views on celebrity privacy and the protection of their personal lives. The celebrities were in favor of the recognition of a tort of invasion of privacy with regard to publicity given to private information and the need for a code of ethics for the print media.

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Chris Marsden, ‘Freedom of Expression, Privacy and the Media‘ (22 Apr 2009)

This article discusses the issue about whether public figures have a lesser expectation of privacy due to their public image. It analyses the laws in various European countries and decisions of the European Court of Human Rights relating to this issue.

David Howarth, ‘Privacy, Confidentiality and the Cult of Celebrity’ (2002) 61(2) Cambridge L J 264.

This article deals with the constant conflict that exists between the right to privacy and confidentiality on one hand and the public nature of celebrities’ image. It refers to the complexities that arise when dealing with confidential information and the position of law on the same.

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Diana M Daniels, ‘Public Figures Revisited‘ (1984) 25 Wm & Mary L Rev 957

This article argues that although existing law has made the recovery by public figures for libel difficult, public figures have not been denied an effective remedy by having to overcome the hurdles of the actual malice standards of the New York Times case.  This is a rebuttal to the argument made by Professor Schauer, who argued that post the New Times judgment, libel actions by public figures have a very high standard.

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Duncan Miller, ‘Do politicians and other public figures have (moral) privacy rights which can be asserted against the media?‘ (1996) 149 UCL Jurisprudence Review 149

This article discusses the scope of the right to privacy that celebrities can exercise against the media. It starts out by explaining the general uncertainty that exists with respect to the scope of the right to privacy. It also discusses case law relating to this issue.

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Frederick Schauer, ‘Can Public Figures Have Private Lives?‘ (2000) 17 Social Philosophy and Policy 293

A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question addressed in this article.

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Frederick Schauer, ‘Public Figures‘ (1984) 25 Wm. & Mary L. Rev. 905 (1984)

This article argues that post the New York Times judgment, public figures now have too high a standard to prove libel. This would mean that public figures are now have the same standard as public officials.

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Garima Budhiraja, ‘Publicity Rights of Celebrities: An Analysis Under the Intellectual Property Regime‘ (2011) 6 NSLR 85

This article attempts to explore the meaning and justification behind celebrity rights. It also examines the incapacity of the current framework of intellectual property regime to protect publicity rights, thereby explaining the recent cases of violation. The article further suggests an appropriate framework for protection of publicity rights after an in depth study of the regime in the US and some European countries where they are well established and enforceable.

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Irwin Spiegel, Public Celebrity v Scandal Magazine the Celebrity’s Right To Privacy (1957) 30 S Cal L Rev 280

This article addresses the issue of the right to privacy for celebrities. Particularly, it addresses how this right is almost non-existent for celebrities due to the high standards that they are required to comply with and how scandal magazines can exploit the private life of citizens due to this high standard.

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Jamie E Nordhaus, ‘Celebrities’ Rights to Privacy: How Far Should the Paparazzi Be Allowed to Go?‘ (1999) 18 Review of Litigation 285

The techniques of the paparazzi are accused of causing undue harm to the rights of celebrities. This article discusses the right to privacy and its corresponding right to publicity. It addresses the current legislative solutions that exits and also suggests certain solutions to protect the rights of celebrities.

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Justice IDF Callinan, ‘Privacy, Confidence, Celebrity and Spectacle’ (2007) 7 Oxford U. Commw L J 1

Celebrity implies commercial potential readily exploitable by both the celebrity itself and by the media. In this article, the author explores whether this commercial potential can be enhanced by the legal protections privacy could afford. He argues that the law should provide remedies for celebrities to protect their identity and name, which he likens to a brand. He further argues that the traditional tort of breach of confidence is insufficient for these purposes. Instead, he concludes a new tort of intrusion of privacy should be recognised enabling the person entitled to privacy to have significant control over their brand.

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Lee Goldman, ‘Elvis is Alive, But he Shouldn’t Be: The Right to Publicity Revisited‘ (1992) BYU L Rev 597

This article discusses the scope of the right to publicity under the First Amendment. It starts off with a brief historical discussion of the derivation and development of the right of publicity and the rationale given by courts while recognizing this right. The author concludes that that the right of publicity is not merely superfluous, but harmful. Recognition of a right of publicity conflicts with free market. The final conclusion of the author is that absent confusion or misappropriation of a celebrity’s performance, there is no valid reason to protect the commercial value of a celebrity’s name or likeness.

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Lawrence Friedman, ‘The One-Way Mirror: Law, Privacy, and the Media‘ (2004) 82 Wash U L Q 319.

In every complex society, there have been famous people. But only in modern times do we have celebrities. Only in modern times do we have mass media; and it is the mass media that make it possible for us to be so familiar with famous people. The author argues that this familiarity, is the essence of the celebrity. The author talks about some of the social and legal consequences of this aspect that has created, nurtured, and fostered the celebrity culture.

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Scott. J. Shackelford, ‘Fragile Merchandise: A Comparative Analysis of the Privacy Rights for Public Figures‘ (2012) 49(1) Am Business L J

Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression – both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This Article addresses this omission by using comparative case studies from the United States, the United Kingdom, France, and Germany to analyze areas of convergence and divergence in privacy rights. The focus of each case study will be the right of privacy afforded to public figures, particularly those at the cusp of the classic definition, i.e., involuntary or temporary public figures. Though some semblance of a bright-line rule has evolved for voluntary public figures, involuntary public figures in the United States are accorded spotty protection varying by jurisdiction. Lacking guiding Supreme Court precedent, this has led to divergent practice especially regarding the definition of “public interest,” which is fundamental to defining the limits of freedom of expression. Thus, this Article draws from the comparative analysis to build a proposal for a clarifying definition of the public interest that helps delineate privacy rights, as well as arguing for the adoption of a graduated structure of privacy protections for public figures along the lines of the German and European Court of Human Rights models.

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Susana Herrera Damas and Carlos Maciá Barber, ‘Media harassment of public figures from the ethical perspective of journalists in Madrid‘ (2009) E-Archivo, el Repositorio Institucional de la Universidad Carlos III

In the area of journalistic ethics, there is very little exhaustive fieldwork on group behaviour in the processes for obtaining information, much less on media harassment of public figures and the ethical evaluation of the professionals themselves. In-depth interviews and surveys of media professionals indicate that journalists in Madrid show themselves largely in favour of harassment of politicians currently in office. Supporters and detractors of pursuing celebrities who sell exclusives are divided in equal numbers. On the other hand, those surveyed overwhelmingly reject the persecution of members of the royal family, especially their relatives, and are against the hounding of relevant personalities who do not trade in their private lives.

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DS Gurney, ‘Celebrities and the First Amendment: Broader Protection Against the Unauthorized Publication of Photographs‘ (1985) 61 Ind L J 697

The article takes a comprehensive look primarily at the state of online privacy in India arising out of the Information Technology Act, 2000.

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Thomas George, ‘Celebrity-focused culture highlights need for statutory right to publicity‘ (Nov 2010) World Trademark Review

This article discusses that there is an urgent need to enact a legislation in India to protect celebrity publicity rights. This in furtherance of recognition of the moral right to the fruits of one’s labour and the exclusive right to one’s own commercially marketable image.

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