Name of the author: Varun Pratap Singh (4th Year Law Student, Maharashtra National Law University, Aurangabad)
After a remarkable stint of our Olympians in the Paris Olympics 2024, there were hordes of wishes and congratulatory messages for the sports stars. One such wish was in the form of an advertisement published by Anand Milk Union Ltd. popularly known as ‘Amul’. The advertisement was directed towards Bronze Medalist Manu Bhaker, who became the first Indian woman to win an Olympic medal in the 10m air pistol event.
The advertisement of Manu Bhaker is a terrific example of a Parody advertisement in which there is the use of another person’s intellectual property in a humorous manner as a social commentary and appreciating the athlete for her astonishing performance in the event. Generally, these types of advertisements do not attract IP infringement laws and are constitutionally protected under Article 19(1)(a) i.e., free speech and expression.
Statutory Protection for Parody and Satire
No law specifically deals with parody advertisements. India’s legal framework, Section 52(1) of the Indian Copyright Act, 1957 deals with those acts that come under the purview of ‘fair use’ and thus, do not constitute a copyright infringement. Subclause (a)(ii) asserts that fair dealing with any original work for criticism or review would not attract IP infringement.
TRIPS Agreement sheds some light on the concept of ‘Fair dealing’. Article 13 of the TRIPS Agreement states that any limits on a creator’s exclusive rights must be for specific, clearly defined situations. These limits should not affect how the creator normally makes money from their work, and they shouldn’t unfairly harm the creator’s legal or financial interests. The goal is to strike a balance between public benefit and the creator’s rights.
In the case of Blackwood and Sons Ltd. v. AN Parasuraman, the Madras HC explained the meaning of the term ‘fair’ in ‘fair dealing’ in two ways. First, there must be a profit-making motive while competing to constitute unfairness, and second, the motive of the infringer must be improper and oblique. In the case of Civic Chandran v. Ammini Amma, Kerala HC, while relying on the Blackwood case, laid down three parameters to determine the violation of the plaintiff’s right:
- The value of matter taken in connection to the comment or review.
- The purpose for which the original work is taken.
- The chances of competition between the original work and parody.
This shows that the intention for which the parody is made is a relevant factor for consideration.
In the late 1990s, in Pepsi Co., Inc. and Ors. v. Hindustan Coca-Cola Ltd. and Anr., Coca-Cola ran a parody advertisement ‘Yeh Dil Maange No More!’ to Pepsi’s slogan “Yeh Dil Maange More!”. Pepsi filed a trademark infringement suit against Coca-Cola. The court held that Coca-Cola’s advertisement was a parody advertisement mocking the other brand at best and didn’t amount to trademark infringement.
The decision of the Delhi HC in Tata Sons Limited v. Greenpeace International and Ors., where Greenpeace ran a campaign in the form of a Pacman-themed game to highlight the environmental hazards of Tata, highlighted the nature of such advertisements as critical commentary and it is protected under the freedom of expression. The court also emphasized the relationship between the trademark and parody and how much a parody should take from the trademark to make it easy for the audience to comprehend its humor. This is also known as nominative fair use where changes and juxtaposition in the mark create laughter and satire.
Therefore, in regards to trademarks, Indian courts have recognized parody and satire as defenses against trademark infringement, even though the Trade Marks Act, 1999 does not expressly allow for a fair use exception for parody or satire.
Personality Rights vis-à-vis Parody Advertisements
Personality rights vest a right on the person, generally a celebrity, to control the unauthorized use of their features such as voice, image, name, etc. in a highly commercial market setup, the persona of an individual also gets its commercial prominence which further gets enclosed in the realm of Intellectual Property Rights. [Ed1] Article 21 of the constitution is the closest law to protect the personality rights of any individual.
There is no particular statute to govern these personality rights but through various judicial decisions, personality rights have come under the trademark and copyright regime. A celebrity’s name has a trademark value and the use of such name co-relates with the personality and publicity rights.
In the case of Digital Collectibles Pte Ltd. and Ors. v. Galactus Funware Technology Private Limited and Ors., the Delhi HC held that the personality attributed to any celebrity including its name or images for parody, satire, art, lampooning, music, academics, or news would be considered fair use and duly protected under Article 19(1)(a).
Recently, In the case of Independent News Service Private Ltd. v. Ravindra Kumar Choudhary Delhi HC passed an ex-parte injunction in favor of India TV’s Senior journalist Rajat Sharma against satirist Ravindra Kumar Choudhary. The Satirist was holding a parody show “Baap ki Adalat” on “Jhandiya TV” which is similar to Rajat Sharma’s “Aap ki Adalat” on “India TV”. HC noted that although caricature and satire are protected under free speech, their misuse can cause severe harm to the reputation of the trademark holder (in this case ‘Aap ki Adalat’ and ‘India TV’) and could damage various rights including the Right to privacy and dignity of that person. The major criticism of this case is that the use of words like ‘Baap ki Adalat’ and ‘Jhandiya TV’ is not a traditional use of Trademark under Section 30 but rather they are the parodic satires which are duly protected under the nominative fair use.
How Amul’s Advertisement is a Clear IP Infringement and a Way Forward
If we look at the Blackwood and Sons’ Case, the profit-making motive of the competitor constitutes unfairness and hence, it will be considered as copyright infringement. In the present case, using Manu Bhaker’s name in Amul’s advertisement was sort of commercial in nature and will help the company in economic gains because of the deception that might make people think she is endorsing the brand. The Italian Court of Cassation has established the thresholds for parody use in relation to others’ IP rights in an advertisement. The case revolves around a television commercial in which Max Tortora was dressed as the fictional character Zorro and the American company Zorro Productions holds the IP rights to the character of Zorro. The court reaffirmed that a parody must strike a balance between freedom of expression and the rights of the original work’s owner and clarified that the use of a trademark without any justification in economic activities, that allows unfair advantage over the original trademark’s uniqueness, is unlawful. However, if the use is purely for parody or art, it is a permissible facet under freedom of speech and expression.[Ed2]
As these satire and parodies are important in any civil society to give social or political messages, it is important to demarcate the line between creative freedom and infringement of Intellectual Property Rights. There should be a striking balance between the protection of the personality rights of the Celebrity and the creative expression of any satirist or parody artist. Intellectual property, by its very nature, is all about embracing creativity rather than restricting it.
[Ed1]Needs restructuring, does not flow well from the previous lines.
[Ed2]The author is advised to substantiate this argument properly. The analysis of this argument and the argument made in the previous line is required.