So Long Lives This Fame, Or Not?

22 August 2022

So Long Lives This Fame, Or Not?

When Taiwanese singer Teresa Teng appeared on a recent TV show in mainland China, her performance was notable for one thing above all: the artist had died in 1995 and was brought back through the use of technology. Ivy Choi examines the rights celebrities have – in life, and in death.  

Fame and fortune often come together, not only because a famous person is typically so successful in their career that they can earn a huge income from it, but also because being famous itself is usually a profitable thing.  

From being featured in an advertisement to contributing their voice and image to a video game, there are many ways for a celebrity to make use of their fame for commercial gain. Even after a beloved celebrity passes away, with the latest technology, it is possible to virtually resurrect that person to take part in commercial activities.

For example, Audrey Hepburn has been digitally presented in a chocolate ad using computer graphics, and Teresa Teng, the late Taiwanese singing legend, was presented as a virtual-reality hologram to perform at a New Year’s countdown show in China. Obviously, fame is an important asset for a celebrity, so is there any legal protection for this asset, during their lifetime and after? 

In intellectual property, there is the concept of the right of publicity, also known as personality rights, which protects against the unauthorized use of an individual’s name, or other traits of their personal identity, such as nickname, voice, signature, or image for commercial benefit. Although publicity rights are yet to be a statutory right in most Asian jurisdictions, including India, Singapore and China, these rights are often recognized and protected in other ways.

Anooja Padhee, a senior associate at K&S Partners at Gurugram, said: “The Supreme Court of India recognized the right of publicity in the form of right of privacy and observed that, ‘the first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising – or non-advertising purposes or for any other matter.’ While there is no codified law protected publicity rights in India, courts in India have opined that publicity rights broadly encompass the right to permit commercial exploitation of a celebrity’s likeness or some attributes of their personality.” 

As for whether this protection lasts after the death of the celebrity, Padhee explained: “As courts in India have held that publicity rights exclusively emanate from the right to privacy, which extinguish after one’s death, even publicity rights have been held to not survive post the death of the celebrity because the right to privacy extinguishes with the human being.” As the reputation earned by the celebrity during their lifetime extinguishes with their death, it cannot be inherited like a movable or immovable property by their legal heirs, either.  

Padhee shared a related example. “Recently, in a case filed by the father of late actor Sushant Singh Rajput, the High Court of Delhi observed that ‘whether commercial celebrity rights, such as personality or publicity rights, would survive or extinguish after the death of the celebrity, requires a deeper probe’. The court opined that it is a matter of trial to prove that the persona of Sushant Singh Rajput is still surviving as a commercial property.” 

If a legal heir of a deceased celebrity discovers unauthorized appropriation of the celebrity’s publicity rights, unfortunately there is not much that the survivor can do. “This is firstly because the right of publicity of a celebrity is considered to be extinguished after their death. Secondly, in cases where the appropriation relates to a subject, details of which are already in the public domain, parties are able to rely on the defence of fair use of such information,” Padhee said. 

David Tan, head (intellectual property) at the E.W. Barker Centre for Law & Business at the National University of Singapore, explained that there is no right of publicity in Singapore, either. “However, the property interest in the identity of a well-known individual in the right of publicity laws in the United States is similar to the recognition of a proprietary interest in goodwill or reputation of the celebrity in a common law passing off claim in Singapore, which follows English law. Both actions acknowledge that the law should protect the commercial interests of these individuals and prevent unlawful profiting. Celebrities in countries like the United Kingdom and Australia generally rely on the action of passing off if their identities have been used without their consent in advertising or trade as the right of publicity is not recognized in these jurisdictions – they have to prove misrepresentation as to endorsement or sponsorship by the celebrity individual. Some high-profile claims have been filed by pop singer Rihanna, movie actor Paul Hogan and F1 driver Eddie Irvine.”  

As for protection after the celebrity passes away, Tan suggested: “Celebrities can also register their names as trademarks which can be managed by a company after they pass away. Unfortunately, the cause of action for passing off is unlikely to succeed upon the celebrity's death as the public would not be misled by any false endorsement or sponsorship.” 

Linda Zhao, a partner at GoldenGate Lawyers in Beijing, explained that while publicity right in China is not a certain statutory right, it does not mean there is no protection of publicity right in China. “In fact, you will find that different aspects of publicity rights are primarily covered in separate clauses under Civil Code, including individual’s name such as alias, stage name, short name, pen name, image, likeness and sound. Other laws may involve publicity right as well, such as the trademark law, which prohibits bad faith registration of celebrities’ names.” 

Similar to cases in India and Singapore, there are limitations to the protection of the celebrity’s publicity rights after they passes away, Zhao said. “The civil rights of a person, according to China’s Civil Code, starts from birth and ends with death. Therefore, for a deceased celebrity, his next-of-kin or heirs will find it difficult to stop bad faith use of the name or likeness of the deceased by claiming name right, image right and etc.” 

Nonetheless, this does not mean that one can abuse the name, likeness of a celebrity after his or her death, Zhao says. “Xiuqin Chen v. Xilin Wei & Tonight News in 1989 is the first case that draws attention to the publicity rights of the dead. In 2001, the Supreme Court issued an Interpretation of the Supreme People’s Court on Certain Issues concerning Determination of Liability for Compensation for Spiritual Damage Arising from Civil Torts, specifying in Article 3 that the next-of-kin of a deceased may claim compensation for mental distress caused by infringement of the name, likeness and etc., of the deceased by insulting, libelling, disparaging, vilifying, or by any other means contrary to the social public interests or social morality. Thereafter, Article 994 of Civil Code provides that where the name, likeness and etc. of a deceased is infringed, his or her spouse, children and parent have a right to request the infringer to assume liability, and where the deceased has no spouse, children and its parents are dead, other next-of-kins of the deceased has right to request the infringer to assume liability.” 

Zhao also mentioned other laws in China that protect publicity rights in a certain degree. “Unauthorized use of the name (including penname, stage name and so on) of a celebrity to cause confusion among consumers is not allowed by Anti-unfair Competition Law. Advertising Law prohibits unauthorized use of the image or likeness of a celebrity for advertising.”  

Zhao explained that in China, although the right concerning personality of a celebrity ceases at their death, the commercial benefits thereof still exist and can be inheritable to the deceased celebrity’s heirs. “For example, in the case Luca Dotti v. Jinhaihua Restaurant Management Company, the Suzhou High People’s Court ruled that an owner of his or her likeness and name has both spiritual and economic benefits, which benefits will not die with the death of the owner, but can be enjoyed by his or her heirs within a certain period of time, so Luca Dotti, the son of Audrey Hepburn, can ask Jinhaihua to assume liability for using his late mother’s name and photographs to exploit commercial benefits without consent.” 

Zhao suggested how heirs of deceased celebrities should secure their interests. “Heirs may closely monitor unauthorized use of the deceased’s publicity rights and take proper actions when necessary. Their heirs may ask the infringer to stop committing the infringement, make apologies, or even make compensations for any damages arising out of the infringement. Generally speaking, the more famous the decreased celebrity is, the more compensation it is likely to claim. Of course, it is always advisable to preserve evidence of the unauthorized use of the publicity right, by means of notarization or timestamp, before taking any actions.” 

If businesses would like to make use of a deceased celebrity’s likeness for commercial purposes, there are some points they should take note of, especially if the celebrity was resident in the United States. Tan said: “In some U.S. state jurisdictions, such as California, there is a post-mortem right of publicity protection, but there are also artistic use exemptions. Businesses need to check carefully the laws of the specific U.S. state or the country in which the deceased celebrity was resident in order to discern whether there is still post-mortem protection. Rights of publicity vary from state to state in the U.S., and although most states recognize the right during a person’s lifetime, only a few states extend those protections after death though. In California, for example, individuals have a posthumous publicity right, which can be bequeathed, while in New York, the right of publicity is extinguished at death.” 

Zhao notes that in 2012, there was a legal dispute regarding whether Marilyn Monroe’s right of publicity survived her death. “It would, if she was a resident of California where she died, but it would not if she was a resident of New York where she owned a home. In the end, the court ruled that her name and image belonged to the public domain after her death,” Zhao said.  

For Asian jurisdictions, where there is less comprehensive protection of publicity rights than the United States, businesses also need to take special care when making use of a deceased celebrity’s likeness. Padhee said: “While posthumous publicity rights have not yet been recognised in India, the jurisprudence in this regard is still evolving. As such, businesses should act responsibly and not exploit the publicity of rights of deceased celebrities in the absence of any express prohibition. The businesses should, as a matter of caution and good practice, be respectful of the celebrity and their families’ rights, and seek appropriate permission for use of the celebrity’s publicity rights post their death.” 

“However, there is no prohibition on the use of information that is freely available in the public domain and no permission is required for appropriation of such material. For instance, businesses may show fictionalized accounts of incidents about the celebrity that are derived from information that is available freely in the public domain, along with a disclaimer that the depiction is based on real life events but is fictional.” 

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