Issued in Public Interest: Your Name is Not a Copyrighted Work

Imagine that you randomly shout your friend’s name in the street out of fun, and he remarks, “Voila! You have violated my right to communicate my name to the public!”  That would sound a bit weird, right? Sadly, we live in a world where legal terms that carry heavy conceptual weight get thrown around quite easily.  Copyright is one such term from IP law. 

In recent news, I came across (thanks to friends at SpicyIP) multiple reports from news outlets stating that the late actor Rishi Kapoor’s family has copyrighted his name to prevent its unauthorized posthumous misuse. The phraseology of these news articles is varied: “the Kapoor family has officially copyrighted Rishi Kapoor’s name and persona posthumously (see here)” , “As per the copyright, anyone wanting to use the name Rishi Kapoor or mention it in any capacity would need prior permission…..” (see here). One news article also made reference to the latest hotshot ‘Personality rights’ (see here). There’s also contrary reporting where Neetu Kapoor, the late actor’s wife, has denied any such move to copyright his name (here). 

With passing days it will become even clearer whether the whole scenario was just a rumour or not. But that’s beside the point. What I wish to emphasise is that the whole media coverage reflects poorly on the state of discourse that puts the general public into a state of confusion over these fundamental legal terms and their meanings. And this is not about any one particular actor. This short piece is rather an attempt to rectify it/set the record straight in a general sense. Otherwise, let’s copyright everything that exists in this world. All problems solved! Since we only have to wrap our heads around one singular concept. (I am joking)

Copyright broadly refers to a set of legal rights granted to an author/creator when they create original forms of expression that satisfy the requisite standards of copyrightability, depending on the legal jurisdiction. In India, for instance, a copyrighted work has to display a ‘modicum of creativity’ for it to qualify as original. These carefully calibrated exclusionary rights are not natural; they are the product of a trade-off process in order to incentivize creative expression. The reason being that the cost of reproduction of a creative work is much lesser than the cost of its creation, and to cover this gap, copyright policy exists. This allows creators to recoup their costs by deriving economic value from the controlled market exploitation of their works. Note that not every possible use of the copyrighted work is subject to restraints by the owner. Akshat in his piece provides a simple illustration where my mere act of reading your article, learning insights from it and then penning my own is not infringement, even though I have appropriated your labour’s value.

When you read the above, tell me how does a person’s name fit into this scheme? My name is Kartik Sharma. If I assert copyright in my name, who exactly is being incentivized to engage in creative production here and for what reasons (there’s only one Kartik Sharma and I think the world is beautiful with unit=1). Rothman brings to light several such absurdities in the context of trying to ‘copyright people’. The Progress Clause of the US Constitution provides protection to “Authors” for their “Writings” for the purpose of “promot[ing] the Progress of Science and Useful Arts. And she says, “people are neither authored nor are writings. We are born.” The law contemplates protection for works created by the authors, and not the authors by and of themselves. In her lecture she goes beyond this and problematizes the statement by demonstrating how modern technologies enable the likenesses, voices etc. to be encapsulated in mediums and forms that may fall within copyrightable subject matter. But that nuance is beyond the point here. We are on the topic of names. And on that, applying copyright policy is completely absurd. If I speak for myself, my name is not a creative product (apologies to my family). It doesn’t satisfy the modicum of creativity standard. The rights available in respect of literary works under Section 14 of the Copyright Act, 1957 make zero sense [issuing copies of the work, performing the work in public]. Imagine contesting with somebody whether their name infringes the copyright in your name by being substantially similar. Would then one rationalize by saying that both persons created the same information good (their name) through independent processes of creative exercise?

Even copyright law has fair use/fair dealing exceptions (or some may call them rights) as doctrinal tools to prevent overreach of the rightholder’s domain. However,  what some of the initial reports stated was that anyone who wants to use Rishi Kapoor’s name in a “professional, commercial, or public capacity” would need the family’s permission. To the readers not versed in IP law, this is not how copyright doctrine works! Such a purported blanket prohibition would run counter to copyright law’s foundational moorings and would instead be an absolute clamp on freedom of speech in the public sphere. 

Many celebrities, especially in the last one year, have approached courts in order to protect their personality rights, which is essentially an umbrella term that encompasses a multiplicity of causes of action under it (see blog posts here, here, and here). The most prominent of them is the right of publicity(RoPub). RoPub protects the interest of individuals against unauthorised commercial misappropriation of the economic associative value in the recognizable aspects of their persona (refer to chapter 2 of Prof Aakanksha Kumar’s thesis for more). It is basically a misappropriation tort that found its origin in statutes of certain US states and has also found its place in India now. The right of publicity is therefore completely different in its content and understanding from copyright. Its invocation in India, and the broader wielding of personality rights as a litigation tool,  has not been without its fair share of controversies (see this for more). Another possible remedy claimed by celebrities under the umbrella is that of passing off where the trinity test (goodwill, misrepresentation and damage) has to be satisfied. Readers can refer to the Daler Mehndi case as an example where both RoPub and passing off have been cited. 

Specifically with respect to names, many actors have gotten trademark registrations over their names (see here). Nothing in the Trademark Act prohibits this; Section 2(1)(m) in putting forth the definition of “mark” includes name and its abbreviations [Section 2(1)(o)]. Of course the proposed mark has to satisfy the conditions of acquired distinctiveness and other statutory conditions. One may have their dissensions about the justifiability behind allowing this under the trademark doctrine. My aim is just to show what has happened till now. 

There’s also a relatively underused provision [Section 14] in the Trademark Act that allows for a trademark registration to be denied on the basis of the proposed mark suggesting a false connection with a living or a dead person (the death must have taken place within twenty years prior to the date of application). The registrant needs to get that person or the deceased’s representative’s consent to get the mark registered. If someone were to use any late actor’s name as a trademark and attempt for registration, this section carries potential to restrain such efforts. 

A couple of months back, in another blog post, I had observed that the mere fact of valuing something does not turn it into a right. I see a similar problem happening here as well. Just because we may think that something needs to be protected (by virtue of our intuitive moral leanings), which in this case may be a late actor’s legacy and name, we incorrectly try to catch onto the nearest plank we see. Copyright is that popular buzzword plank. Unfortunately, law doesn’t work that way (or at least shouldn’t, if we are to uphold the necessary rigour). Before jumping the gun, one needs to understand the foundations of the legal domain we are proposing to utilize. And then assess whether your valued object which you seek to protect is even the correct fit for it to be accommodated within the bounds of that legal framework. Only then can you locate rights in your valued object. 

Thanks to Prof. Aakanksha Kumar for the helpful food for thought and suggestions!