What Is Personality Merchandising Philosophy Essay

A celebrity is a person who has a prominent profile and commands some degree of public fascination and influence in day-to-day media. The term is often synonymous with wealth, implied with great popular appeal, prominence in a particular field, and is easily recognized by the general public. [2] 

A variety of careers within the fields of sports and entertainment are commonly associated with celebrity status. These two arenas have known to have produced very well-known figures in the society. While people may gain celebrity status as a result of a flourishing career in a particular field, in other cases, people become celebrities due to media attention for their profligate lifestyle; for their relationship with a famous person; or even for their crime. Celebrities may be known around the world, within a specific country; or within a region.

People may become celebrities in numerous ways: from their professions, following appearances in the media, committing a mass murder [3] , or even by complete luck. The term “instant celebrity” is often used for those who become a celebrity in a very short period of time or for those who achieve a fleeting fame through hype or mass media. However, public perception is the main criteria for determining whether an individual is a celebrity or not. The origin of the word celebrity comes from the Latin word celebritas, meaning multitude, fame, celebration. [4] 

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The word ‘celebrity’ is perceived to be an honor and a gateway to the upper echelons of the society. Sportspersons and artists earn it by dexterity, businessman earn it by their skillfulness, reality TV stars earn it by votes of the aam junta and for some it is a birthright like in the case of Monarchs.

Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity’s sole right to exploit this value [i.e., the value of being a celebrity] whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof. [5] 

(Emphasis added)

In the case of Martin Luther King Jr Center for Social Change v American Heritage Products Inc, [6] it was expressed that the term ‘celebrity’ should be interpreted in a broader sense to encompass more than the conventional categories of movie actors, rock stars and sport persons. Moreover, under the ‘direct commercial exploitation of identity’ test [7] , when an unauthorized use of a person’s identity is made that is both direct in nature and commercial in motivation, the person whose identity has been misappropriated has by definition become a celebrity for right of publicity purposes. [8] 

Marketing today relies a great deal on creating and maintaining an ‘image’. Investment in ‘image management’ is an essential part of creative content-based industry. [9] That modern celebrity is a source of immense value is undeniable. There is a multi-billion dollar market for merchandise bearing names and faces or other identifying characteristics of celebrities. In addition, a celebrity enhances the marketability of a wide array of products and services. Advertisers pay celebrities for product endorsements and tie-ins on the theory that their credibility, goodwill or glamour will rub-off on the advertised product. [10] A celebrity endorser is “[A]n individual who enjoys public recognition and who uses this recognition on behalf of a consumer good by appearing with it in an advertisement.” [11] 

There is no specific Indian statute which defines the term ‘celebrity’ but mention can be made to the definition of a ‘performer’ under s.2 (qq) in the Indian Copyright Act, 1957. A performer is not a always considered to be a celebrity and a celebrity may not be a performer at all. The word performer includes “an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.”

Personality Rights consist of two classes of rights. They are;

Publicity Rights

Privacy Rights.

Even though these rights are available to every individual, celebrities primarily, are known to have superior commercial interest in their identity, so in comparison to ordinary individuals protecting these rights are of more consequence to a person whose fame is his fortune.

The increasing trend for individuals well-known in one sphere to gain financially by ‘merchandising’ themselves was clearly recognized by Lord Hoffman in Campbell v. MGN Ltd. [12] 

“Naomi Campbell is a famous fashion model who lives by publicity. What she has to sell, is herself: her personal appearance and her personality. She employs public relations agents to present her personal life to the media in the best possible light just as she employs professionals to advise her on dress and make-up. That is no criticism of her. It is a trade like any other.”

Celebrities (e.g., athletes, politicians, entertainers, etc.), who have value in their identity are afforded right of publicity. The right of publicity is not limited to individuals; a popular musical group, for instance, may have the right of publicity. In some cases, the right of publicity also accrues to newsworthy people who are not celebrities. Generally, if you have a commercial interest in your name or likeness, then you will be afforded protection.

It is often argued that the mere fact that immense ‘publicity values’ attached to celebrity personas, are not reason enough to grant celebrities a property right in them. [13] 

What is Personality Merchandising?

Personality merchandising has been defined as commercially appropriating the persona to promote and sell almost anything with the name of the personality put on them in a decorative manner, subject to approval by the personality. [14] 

The practice of identifying various goods and services with a famous personality so as make the product greater to public appeal in the market is what personality merchandising is all about. The term persona refers to those elements or characteristics which make up a person’s noticeable being and by which third parties identify that individual.

One’s persona is a valuable property that a person might wish his successors to protect and commercially exploit just like any other intellectual property. [15] In this form of merchandising the celebrity lends his reputation to be used in connection with products or services therefore it is sometimes referred to as ‘reputation merchandising ‘or ‘celebrity merchandising’. [16] 

Endorsements is the promotion of the company’s products or services by means of the personal commendation of individuals who are so well-known and respected that he can influence the purchasing pattern of the public. [17] The personality hired is sponsoring the products or services for which he is paid. Endorsement can also be perceived a form of specialized advertising. [18] It is just another form of merchandising.

Personality merchandising involves the use of true identity of an individual in the marketing or advertising of goods and services. Character merchandising on the other hand involves the use in the marketing or advertising of goods or services of a fictional personality or situation. [19] From a commercial point of view personality merchandising has much in common with character merchandising.

The term ‘merchandising’ is quite often used in the business world but there is no sui generic system of laws particularly created for the practice of merchandising either at the national or international level in the form of a specific legislation or an international treaty. Therefore reliance has to be based on different forms of legal protection contained at various places in different legal contexts. The right to use a celebrity’s persona has become a valuable commodity in the market place. It has been observed that various jurisdictions have recognized the right of publicity as an emerging and immensely powerful right detached from any of the limitations of traditional trademark and unfair competition actions such as the likelihood of consumer confusion.

The need for personality merchandising has been acutely felt since the transformation of seller’s market to buyer’s market, today. Competition in the market is a global battle. Companies have over the decades realized the importance of trademarks, copyrights and industrial designs in their strategies to market their goods and services. Now the stress is on the value additions to the product in the consumer market. The whole aspect of merchandising is based on this factor.

A brand of a product could achieve enough recognition and respect by simply attaching the name or images of well-known personalities along with it. That is to say, a common article like toothpaste has more demand when Shah Rukh Khan endorses a particular brand of it. The celebrity endorsing a product or service acts as a recommendation to the larger public. The psychological basis is that people like to follow personalities, who they believe are trend-setters.

Can ‘Persona’ be called Property?

Personality rights are comprised of the right to privacy and the right of publicity. While the law regarding privacy has mostly been characterized from a human dignity perspetive, publicity has an economic value that has caused it be included (in most jurisdictions) within the realm of property.

Publicity’s inclusion in proprietary rights, and specifically in the field of intellectual property, can be partly justified by an interpretation of the labor theory. John Locke’s “labor” theory of property stipulates that one gains property rights in a thing by joining one’s labor to it. This argument is derived from his insistence that every man has a property right in his body and the labor of his body. By attaching one’s labor, one therefore attaches the accompanying property rights, to the exclusion of others. “Though the Earth, and all inferior Creatures be common to all Men, every Man has a Property in his own Person. This no Body has any right to but himself. The Labor of his Body, and the Work of his Hands, we may say, is properly his.” [20] Therefore, intellectual property in identity is justified on a broad interpretation of the labor theory. It follows that if a celebrity invests their time and labor into creating their image, which is marketable, they should possess sole property rights in it. [21] 

An interesting refutation to a celebrity’s exclusive property right in their public image is the argument that a star’s profitable success is not purely by their own design. Marilyn Monroe famously said that “… the people, if I am a star, the people made me a star, no studio, no person, but the people did.” [22] If “the people” did, indeed, play even a small role in the creation of Monroe’s public image, should not the people possess a proprietary right in it? If the people at large contributed to the creation of her public image, would Monroe then have the right to exclude anyone? Justin Hughes maintains that “a unique product of one’s labor can receive property protection even if there is no unique underlying property idea.” [23] By this, he infers that, though the idea of the celebrity’s fame or marketable persona originates from the public, the labor that was invested to produce it was the celebrity’s alone, and they ought to have exclusive proprietary control of it.

One interesting aspect of publicity rights is the idea that they also protect privacy in the public realm; one can choose to broadcast or publicize certain elements of one’s identity, yet reserve the right to control and limit them within the scope of his right to privacy.

Hegel’s personality justification is also appropriate herein, as it cannot be denied that one’s personality is inherently connected to one’s identity. He explains property as an “expression of the self,” which appears to exactly describe the concept of personality rights. [24] His conception of property involves the externalization of personality into an object, which must then remain external and not personal. [25] He further adds that “… attainments, talents etc. are, of course, owned by the free mind and are something internal and not external to it, but even so, by expressing them it may embody them in something external and alienate them.” [26] Thus by alienating these talents and attainments, the celebrity establishes the various characteristics of proprietary rights in them, and allows for them (the identity) to be bought and sold as marketable commodities.

What is the ‘Right of Publicity’?

The ‘Right of Publicity’ can be defined as the right of an individual to command and control the use of his or her name, image, likeness or other unequivocal aspects of his or her distinctiveness. For practical purposes it is generally analogous to a celebrity. The ‘unequivocal aspects’ of distinctiveness refers to all distinct recognizable elements which make up a particular persona, including the individual’s physical appearance, image or likeness, name, voice, signature, style, photograph, gestures, recognizable attire, look and facial features. It is the inherent right of human identity. [27] 

As Thomas J. McCarthy stated, “The right of publicity is not a kind of trademark. It is not just a species of copyright. And it is not just another kind of privacy right. It is none of these things, although it bears some family resemblance to all three.” [28] 

There may be several elements of a person’s identity which may be worthy of commercial exploitation or safeguarding from unauthorized exploitation or use. Identity breaks down to physical appearance, name, signature, voice and any other recognizable characteristic of that particular individual. [29] Recognition of the inherent commercial value of identity is central to the right of publicity. Thus an un-permitted use of the identity of a celebrity raises the cause of action for misappropriation of intellectual property, deceptive trade practices or a passing- off action.

American judge Jerome Frank in 1953 was the first to coin the term ‘Right of Publicity’. [30] He introduced it as a new and separate property right to protect the business value of popularity. [31] In his ground-breaking opinion, he stated that [32] ,

We think that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph… For it is common knowledge that many prominent persons, far from having their feelings bruised through public exposure of their likeness, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, buses, trains and subways. (Emphasis applied)

Prior to this, legal protection against the unauthorized commercial use of a person’s name or likeness was based on the jurisprudence that such a use was an affront to human dignity and self-esteem. This protection was based on a dignity or privacy interest of the person whose identity was appropriated. However, this theory could not help persons who did not object to the commercial use in itself, but merely to such use being made without payment in return. Their interest was not a privacy interest to the effect that no one could commercialize their identity, but rather a financial interest in controlling the use of their identity. Thus the ‘Right of Publicity’ was born.

As Professor Melvile B. Nimmer emphasized, what the celebrity wanted was not protection against unreasonable intrusion into privacy, but a right to control the commercial value of identity [33] :

Well known personalities connected with these [advertising, motion picture, television and radio] industries do not seek the “solitude and privacy” which Brandeis and Warren sought to protect. Indeed, privacy is the one thing they do “not want or need”. Their concern is rather with publicity, which may be regarded as the reverse side of the coin of privacy. However, although the well-known personality does not wish to hide his light under a bushel of privacy, neither does he wish to hide his name, photograph and likeness reproduced and publicized without consent to without remuneration to him.

(Emphasis applied)

In an American case, Midler v. Ford Motor Co & others, [34] an advertising company wanted to use a song by Bette Midler in a commercial for Ford cars. But Midler turned down the request for permission to use her version of the song. The Agency then contacted Ula Hedwig, a singer who had been a back-up vocalist for Midler and asked her to sing the song for a new recording with the instructions “to sound as much as possible like the Bette Midler record” Midler filed a suit, when the commercial was aired on television. The defendants argued that they were doing it in compliance with the Civil Code [35] as they had not used the ‘name, voice, signature, photograph or likeness’ of Ms Midler rather they had used the voice of Ula Hedwig. The court while stating that Section 3344 did not repeal the common law on privacy and publicity, and arguing that the publicity right of living people was also one of the property, held that the common law right of publicity protected against ‘an appropriation of the attributes of one’s identity’. The court also held that the defendants by using a sound-alike had clearly sought commercial benefit from “an attribute of Midler’s identity”.

The right of publicity therefore, grants entertainers or other public figures exclusive control over the commercial exploitation of their names, likenesses, or other aspects of their personae.

In another case, Edison v. Edison Polyform Mfg. Co. [36] the New Jersey Court of Chancery while granting an injunction to Thomas Alva Edison, stated, “… if a man’s name be his own property… it is difficult to understand why the peculiar cast of one’s features is not also one’s property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it.” [37] 

The Right of Publicity was expanded by some courts to protect not only the name and likeness of a person but almost everything that was identifiable with that person. Another example of a radical connection to identity is found in the Motschenbacher case [38] . The plaintiff in this case was a famous race car driver who claimed his ‘Right of Publicity’ had been infringed by a tobacco company in their advertisement. The alleged infringing use was a TV commercial which contained the picture of a race car and its driver. The picture created the impression that the driver and the car were sponsored by the tobacco company. There was no actual use of Motschenbacher’s likeness or name. The tobacco company had in fact used a picture of Motschenbacher and his car but it had been modified so that the driver’s face was not recognizable. Several elements of the car had also been altered so that it looked different from the car Motschenbacher drove. There were however, a few distinctive markings on the car still present in the picture. Based on these, the court found there to be an infringement and held that: “[T]hese markings were not only peculiar to the car but they caused some persons to think the car in question was Motschenbacher’s and to infer that the person driving the car was Motschenbacher”. The court affirmed that the car was a symbol of the driver’s identity.

Even though it has been a little over fifty years since the inception of the term into the American jurisprudence, laws pertaining to publicity or merchandising rights of celebrities are still in a fairly embryonic stage, in India. Further, even as courts in various foreign jurisdictions have adopted different approaches to justify this right, no uniform justification has crystallized yet.

The solitary case law speaking of publicity rights in India is ICC Development (International) Ltd v Arvee Enterprises [39] where the Delhi High Court clarified that publicity rights are reserved for persons, not events, in the context of the misuse of the Cricket World Cup event name by advertisers who were not the official sponsors.

To Whom Does the Right Extend To?

The Right of Publicity was to begin with was introduced as a way to protect the persona of celebrity. Today, there are diverse opinions on whether the Right of Publicity applies only to celebrities and to non-celebrities. One view holds that only a celebrity should be granted protection under the Right of Publicity since they have invested time and money into creating a value in their persona. [40] This is not always true however, as many celebrities become famous by sheer chance.

According to J. Thomas McCarthy the status of the plaintiff only affects the amount of damages. An unknown person can probably not prove that his identity is very valuable and therefore the compensation for the use of it will not be very high. It is therefore possible that a person may not succeed with a claim at all if the court cannot see that the identity had any value that was misappropriated. [41] Thus, if there is no value in the identity used, there is no possibility of damage, which is a criterion for misappropriation. However, the mere fact that a company has used a person in its advertisement may be proof enough that they found his identity valuable.

What is the Trajectory of its Growth as a Right?

The attributes of a celebrity’s personality are often used in advertising with the object of drawing public attention and enhancing the sales of goods and services. Recognizing individuality and protecting it from intrusion is not a recent phenomenon, it dates back to ancient European history. [42] Long before the term was even coined, an artist’s works were considered an expression of his or her individual personality. [43] This idea is also embodied in the law of intellectual property, which recognizes a link between a creator and his or her artistic or literary works.

Until the very end of the 19th century, however the unauthorized commercial exploitation of famous persons did not generate significant complaint. [44] The practice seems to have been supported by a widely shared conception of famous persons as the property of the community.

By the beginning of the twentieth century, however, this assumption began to be questioned. The economic view of ‘fame’ gained currency after World War I, as it became apparent that radio broadcasting, sound recording and motion pictures made it possible to manufacture the celebrity and greatly increased its commercial value. [45] Before this time, people generally could become famous only by accomplishing something “great” in the world – by performing a heroic deed, inventing a cure, commanding a victorious army or founding a business empire. [46] The advent of new communications technologies in the early 20th century abruptly uncoupled fame from greatness of achievement. [47] It now became possible to achieve fame in the realms of sports, screen acting or music. Corporations were quick to catch up and exploit the newly enhanced power of these stars to inspire emulation and generate consumer demand. It took several decades however, for the law to reconcile with these new practices.

American Courts have articulated a number of reasons for upholding an individual’s right to publicity, including the need to protect against confusion that would arise if consumers were led to believe individuals endorse products when they do not, the need to incentivize performers who provide entertainment and benefit to society and should thus be provided with a protectable property right in their identities and the need to prevent unjust enrichment of those who seek to profit from another’s talent and hard- earned fame. The right of publicity does not apply to non commercial uses, thus using another’s name, likeness or identity for news reporting, academics or research is permissible.

The nature of the law is best illustrated by principal cases on the subject.

In Douglas and Zeta Zones v. Hello Ltd. [48] the right to publicity has been defined as an exclusive right of a celebrity to earn the profit from the exploitation of their fame and popularity for commercial purpose. Therefore, such a right is distinct from the right against invasion of privacy and also a right against the adverse portrayal of one’s personality or in other words any moral right of celebrities over their personality. It was opined that the injury to the reputation of an individual is not normally understood as a form of financial or economic loss. But in the case at hand the plaintiff would suffer a loss in the sense that their reputation would be of lesser value as commodities to be exploited by licensing and assignment. [49] Hence, the publicity right deals with the ownership of an ‘intangible’ property like any other intellectual property right.

However, the definition of persona cannot be exhaustive. As seen in Hirsch v. S.C. Johnson & Son, Inc., [50] which involved football star Elroy Hirsch, it was ruled that the nickname ‘Crazylegs’, by which he was known to his followers, was sufficient to identify him and thus was protectable under the right of publicity. The court expressed the underlying principle that, “All that is required is that the name clearly identifies the wronged person.” The court found that the non de plume ‘Crazylegs’ was sufficient to identify Hirsch despite the fact that it was the press and public that had dubbed him so. Thus, unauthorized uses of characteristics such as nicknames can be a part of identity of the person.

One’s persona is a valuable property that a person might wish his heirs to protect and commercially exploit just like any other intellectual property. In Price v. Haloach Studios Inc. [51] the court held that the right of publicity survived the death of the individual. The court said, “There appears to be no logical reason to terminate the right upon the death of the person protected.”

There is a considerable academic controversy with respect to the publicity right’s descendibilty. It is artic