Very recently Taylor Swift grabbed headlines for using sound mark to prevent misuse of her personality rights. However, it is Matthew McConaughey whose steps were followed as he pioneered by trademarking his signature phrase, ‘Alright Alright Alright’ along with few other sound marks which aim to protect his unique pitch and delivery.
Taylor swift, the global pop singer being wary of the way Artificial Intelligence’s capability to imitate her vocals has sought to protect common phrases used by her in songs or tours such as “Hey, it’s Taylor Swift” and “Hey, it’s Taylor” etc. Ordinarily the protection of a trademark in general sense prevents reproduction of any mark identical or similar to the trademark. In the present case if the trademark protection is granted an AI can be prevented from trying to imitate the sound ‘Hey, it’s Taylor Swift’ or anything sounding deceptively similar to the same which will constitute a trademark infringement.
In addition to the said sound mark, she has also attempted to trademark her image wearing a multi coloured iridescent bodycon suit that she wore in “Eras Tour”. This aims to protect her image rights so that nobody, not even AI can regenerate such image of Taylor Swift in an identical/ similar form. Both the vocals and images form a facet of personality right which are being protected through trademark. However, personality rights are much broader than what can be protected under trademarks and use of trademarks to protect personality rights appears to be a new use which has not yet seen the light of court proceedings. Until the development of unconventional trademarks it was only name and signature that could be protected. Now, any word, phrase or song which is an identical reproduction or imitation the vocals of a said celebrity can be treated as a violation of personality right by virtue of sound mark. However, it can be debated if the registration of sound marks of their vocals by artists can be extended to protect their exact or similar vocals registered as sound mark from being misused by AI.
Indian Perspective on Trademark and Personality Rights Intersection
In India, the protection of these rights occurs through a common law of passing off as a result of right to publicity, a facet under Art 21.Mr Narayana in his blog while dissecting trademark and personality rights calls personality rights in India a judge made law. However, the inter-connection of a trademark and personality rights is quite evident as both pertain to branding. Celebrities have a commercial identity and the said identity functions akin to a trademark. The name, likeness, vocals, image, style etc. of a said celebrity is a commercial identity which cannot be exploited as a result of personality rights. In case of a sound mark Rule 26(5) of Trademark Rules, 2017 which allows submission of a 30 seconds audio with musical notations to permit registration of sound marks opens a wide ambit for certain unique phrases and delivery style to be registered as a trademark provided they are distinctive. However, the personality rights protection only comes into existence when there is an alleged violation whereas, trademark acts as a crucial tool to prevent infringement as it accords immediate protection.
In India, various celebrities have used their names, abbreviations and signatures which form an essential part of their personality rights and can be registered as trademarks by virtue S. 2(1)(m) of Trademarks Act, 1999 such as SRK, Kareena Kapoor Signature etc. Further the ability to trademark the names and signature poses of celebrities is permissible on account of them being identifiable characteristics of a person.
The following are some of the important questions which arise in light of personality rights
Whether trademark can be used to protect all facets of Personality rights? Does it lead to an over-extension of trademark right?
Currently, Trademark Act, 1999 clearly permits protection of name (wordmark), signature (wordmark), style (sound/motion mark), vocal (sound mark), likeness, other identifiable characteristics etc. Trademark protects the registered mark against identical/ similar mark but not against a reproduction which is unauthorised and constitutes misuse.
Similar to signature, name etc. if sounds and images of the celebrities are also permitted protection as a trademark, it raises questions if sound and image trademark will protect identical or similar unauthorised reproduction of such sound and image trademarks or whether they can be extended to prevent using the voice and image of celebrity in any form. This leads to an over extension of use of trademark which can in reality appear to be a misuse. It is often contended copyright forms basis of personality rights and protects performers to prevent any misuse of economic rights or moral rights. A similar or identical voice or image of such celebrity may not always result in a deterioration or mutilation and hence moral rights cannot always be refuge for such celebrities. In light of the same, trademark does appear to be a stronger medium.
Whether personality rights can exist for the dead?
Further Trademark also provides an avenue for heirs of deceased celebrity to protect their rights as in case of S.14 of Trademark Act, 1999 requiring consent of such heirs who have died within 20 years from the date of application. Although the common law remedy can also suffice in such a case, trademark provides a statutory remedy which only requires a case of infringement. For example, the use of Kishore Kumar’s voice in case of Saiyaara song has raised queries on plausible ‘personality rights’ misuse after death. The right exists but the enforceability ceases due to death. Before Personality rights developed, celebrities who have deceased cannot enforce such rights posthumously as has been decided in the case of Krishna Kishore Singh v. Sarla A Sarogi & Ors which inevitably stated that right to publicity is a facet of right to privacy which expires once the said celebrity dies. Ms.Krisha states that such personality rights can be treated as quasi-property, permitting limited rights towards the heirs of deceased personality to prevent commercial misuse of the personality rights as a mark of respect to dignity of the deceased. On the other hand, Dr. Pratima views that personality rights should be heritable and exploitable by the heirs of the deceased. However, it is yet to be known if a celebrity who has already moved the court and has a judgment in his favour to protect its personality rights subsequently dies. In such a case whether holding a judgment entitles heirs to continue protecting personality rights.
Is Trademark a better alternative to protect personality rights or should personality rights be codified as a separate IP?
Trademark is assignable, licensable and heritable. In such a case allowing registration of such personality rights facets becomes possible for licensees and assignees (not being the celebrity itself) to exploit personality rights even while the said celebrity is alive. In case of death, trademark being heritable, heirs can protect personality rights in absence of celebrity. This changes the entire discourse which has been laid down in the above case. Trademark is a crucial branding tool but when the person attains the status of a brand, can its protection continue similar to trademark is a lingering doubt. Trademark brings a unique angle to personality rights and the said discussion is facilitated by Taylor Swift and Matthew McConaughey who have started using the most contentious unconventional trademarks to protect their personality. It is also stated in aforementioned blog that the said use of trademark to protect personality rights is pre-emptive and proactive model to minimise court interaction to protect personality rights. Nonetheless, trademark cannot act as an alternative to personality rights since it protects limited aspects within a personality. It can protect a core aspect of personality such as a specific dialogue, delivery, image etc. but it cannot protect the whole persona of celebrity. AI generated audios and images cannot always be a commercial misuse through parody and satire and hence domains like copyright continue to intersect. Trademark may never be able to completely protect personality rights like common law does. Further personality rights have arisen through common law to protect multiple aspects of personality of celebrity. Thus, codification of personality rights will lead to a precision in defining what a ‘persona’ means but doing so is impossible as there are aspects within a persona which the celebrity himself might not know but it inadvertently makes them known such as their style of walking, sitting, dancing etc. It is impossible for trademark to capture all these angles. Thus, trademark has to exist for core elements of a personality which becomes evident over a period of time whereas personality right can capture the subtle elements missed out by camera but known to the audience.
Authored by: Ms. Sakshi Iyer