The (Copy)Right Baritone

‘Khamoosh’, we have heard this word being used numerous times in various mediums, most commonly the radio. But is it always Shatrugan Sinha's voice that we hear? More often than not it is an imitation. Though we can pass the usage on the radio as an allowed imitation or even a parody, what happens when we hear conversations, jokes, advertisements and even news in the voices of many celebrities or characters made famous by movies?

Amitabh Bachchan has recently, while expressing his disbelief in a gutka company using an imitation of his voice for the purpose of advertisement of their product, stated on a famous online blogging website, "for someone who does not smoke or propagate smoking or any kind of intoxicant, by keeping away from endorsing such products, it is most disgusting to find someone conflagrating the law of the land and the law of ethics.” Further, he has explored the possibility of legal protection to his voice so as to have an enforceable right against such advertisements.

Due to the influx of new media, the need to raise the sales, and ideas for advertising, people have started using the voice and mannerisms of well-known public figures to try and emulate their personality. An area undiscovered by India until very recently, celebrities are now getting more conscious about their brand and its usage. With the advent of brand imaging in India,  the ‘star’ who works hard for many years before reaching the cult status he enjoys gives him the capacity to cash in on his success. If someone uses this brand he has created, for material gains, without permission, he is depriving the ‘star’ of his income and success. Today, a lot is to do with brand recognition, recall and brand identity and it is on this proposition that today many consumers buy a product or service, depending on the level of identification with the brand and the person or logo attached with it.

With respect to Copyright in the voice, a copyright exists only when things are in tangible form. Though the law requires no registration to have a valid copyright, it must be expressed in tangible form. A person’s voice on its own cannot be a subject matter of copyright in India. Although, if this voice is a part of a movie, song or advertisement it can get protection to the extent of which it is a part of such expression under Sections 2(y) and 13 of the Indian Copyright Act.

The facet of protection for the right a person has in their voice falls under Rights of Publicity, an inherent right a person has to safeguard and monetize his own personality. This right is an intrinsic right and hence need not be registered. Though in its nascent stages in India, the Delhi High Court has held that the right of publicity vests in the individual and he has the sole right to his voice, mannerisms or signature. In the American case of Midler v. Ford Motor, it was ruled that voice is a part of a person’s identity and thus controllable against unauthorized use by that person’s right of publicity. While in Waits v. Frito Lay Inc, an artist successfully sued a company for using an impersonator without the artist’s permission.

Thus, in today’s legal setup, Amitabh Bachchan has a valid claim against the makers of the advertisement, on the basis of exploitation of his persona, unfair use and even defamation, if it is sufficiently proved that the common man assumes the voice in the advertisement to be his.

Like Amitabh Bachchan, the sudden awareness about various intellectual property rights and methods of exploitation are making celebrities aware of their inherent rights. However, while it is imperative to curb the free reign seen today by way of imitations bordering on passing off, it is also important to make sure that the freedom of expression with respect to parodies, known imitations and using of look-alikes is not made extinct with the sudden onset of protecting rights.