If you are stuck in such a situation, here is what to do.

Mr. Sameer, a young and ambitious entrepreneur from the city of Alipur, had a brilliant idea for an e-commerce startup. He wanted to launch a brand named “CelebThreads,” which would sell custom-designed apparel and posters featuring popular figures like star cricketers and movie actors. He planned to use their photographs to create unique digital art and print it on his merchandise. However, before investing his savings, he became concerned about the legal implications. A quick search online gave him conflicting information; while official sources stated that using such images without a license is illegal, he noticed numerous small online stores on social media platforms doing exactly that, seemingly without any consequences. This discrepancy left him confused and worried about the potential legal risks to his dream business.

Advice in such cases

Navigating the use of celebrity images for commercial purposes is fraught with legal complexities. It is crucial to proceed with caution and full awareness of the law.

• Do not assume that because other businesses are doing it, it is legal. Many small businesses operate without proper legal compliance and may eventually face legal action.
• The core issue involves intellectual property rights, specifically copyright and the right of publicity. Using someone’s photograph or likeness without permission for commercial gain is a violation of these rights.
• Always seek to obtain a license or explicit permission from the copyright holder (usually the photographer) and the celebrity (for the use of their likeness) before using any image.
• Consider creating original artwork that is transformative and does not directly copy a photograph. However, even original “fan art” can violate a celebrity’s right of publicity if sold commercially.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The legal framework governing this issue in India is primarily civil and based on the following statutes and principles:

• The Copyright Act, 1957: A photograph is protected as an “artistic work.” The photographer is the first owner of the copyright. Section 51 of the Act defines infringement as doing anything that the owner of the copyright has the exclusive right to do, without their permission. This includes reproducing the work in any material form. Section 63 provides for criminal penalties for infringement.
• The Trade Marks Act, 1999: While a celebrity’s image is not automatically a trademark, it can be if it is used to signify a connection with goods or services. Unauthorized use can lead to a lawsuit for “passing off,” where you are misrepresenting your product as being endorsed by or associated with the celebrity.
• Right of Publicity: This right, recognized by Indian courts under the broader Right to Privacy, allows an individual to control the commercial use of their name, image, likeness, or other unequivocal aspects of their identity. A celebrity can sue for damages if their identity is used for commercial gain without their consent.

If you are the complainant

If you are a celebrity or a photographer whose image is being used without permission, you can take the following steps:

• Send a Cease and Desist Notice: The first step is to send a legal notice to the infringing party, demanding that they stop using your image and, if applicable, pay for the unauthorized use.
• File a Civil Suit: You can file a suit in a civil court seeking an injunction to stop the infringement, as well as damages for the financial loss and harm to your reputation.
• Initiate Criminal Proceedings: Under Section 63 of the Copyright Act, you can also file a criminal complaint against the infringer, which can lead to imprisonment and fines.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you are a business owner who has received a legal notice for using a celebrity’s image, it is crucial to act promptly and strategically.

• Do Not Ignore the Notice: Ignoring a legal notice can lead to an ex-parte court order against you. Acknowledge the notice and seek legal advice immediately.
• Preserve All Records: Keep records of your sales, designs, and any communication related to the images in question.
• Evaluate the Claim: With your lawyer, assess the validity of the claim. Did you have permission? Is the work transformative enough to be considered original?
• Attempt to Settle: Often, it is more commercially viable to negotiate a settlement, which may involve paying a retrospective license fee and agreeing to cease the infringing activity.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

This issue is primarily a civil dispute. The police generally do not get involved unless a criminal complaint is filed under Section 63 of the Copyright Act. If a court issues a warrant or an order for search and seizure based on a criminal complaint, the police will act to confiscate the infringing goods. However, for the most part, the enforcement of these rights happens through civil courts, not police stations. The police might direct the parties to approach the appropriate civil court for resolution.

FAQs people normally have

• Is creating ‘fan art’ illegal?
  Creating fan art for personal, non-commercial use is generally tolerated. However, the moment you sell it, you are commercializing someone else’s intellectual property (their likeness and the copyright of the original photo), which is illegal without permission.
• What if I draw the celebrity myself instead of using a photo?
  Even if you create an original drawing, you are still using the celebrity’s likeness for commercial gain. This violates their Right of Publicity. While you would own the copyright to your specific drawing, you do not have the right to commercially exploit the celebrity’s identity.
• How difficult is it to get a license?
  Obtaining a license can be a complex and expensive process. It typically involves contacting the celebrity’s management agency or the photographer’s licensing firm. The cost will vary greatly depending on the celebrity’s fame and the scope of use.
• What are the potential penalties for infringement?
  Penalties can be severe. A civil court can order you to stop all sales (injunction), pay damages to the celebrity/photographer, and hand over all profits made from the infringing products. Criminal conviction under the Copyright Act can lead to imprisonment for up to three years and a fine.

What evidence is required?

For the complainant (the celebrity or photographer), the key evidence includes:

• Proof of ownership of the copyright (e.g., the original, high-resolution digital file with metadata) or proof of identity (for a right of publicity claim).
• Evidence of the infringement, such as screenshots of the website or social media page selling the products, URLs, and physical samples of the merchandise.
• Records of communication, if any, such as a sent cease and desist notice.

For the accused business owner, evidence could include:

• Any license agreement or written permission obtained.
• Proof that the artwork is original and transformative (though this is a weak defense in commercial cases).
• Sales records and financial statements to contest the amount of damages claimed.

How long will the investigation take?

As this is typically a civil matter, the term “investigation” is not quite accurate. The timeline refers to the legal process. Sending a legal notice and receiving a response can take a few weeks. If the matter proceeds to court, obtaining an interim injunction can take anywhere from a few weeks to a few months. A full trial to decide on damages and other final reliefs can be a lengthy process, often taking several years to conclude in the Indian legal system.

Advocate Sudhir Rao, Supreme Court of India