Manu Bhaker – the first Indian woman to win an Olympic medal in shooting - is among India's newest role models and sports celebrities. But as congratulatory messages poured in, she simultaneously sent legal warnings to brands using her image without her permission to bask in reflected glory. In contrast to the typical advertising copy stood Indian dairy superbrand Amul's advertisement, as usual employing words with a clever twist to congratulate Bhaker on her achievement, and tying it to the brand's own ethos of market leadership and dominance.
The copy read: 'MANUkammna poori hui. AMUL Aim for it.' 'MANUkaamna', incorporating the name Manu, is a twist on the Hindi word 'manokaamna' which means 'the heart's desire'. 'Aim for it' refers to Bhaker's sport of choice – shooting. So the message translates to 'The heart's desire is achieved. AMUL Aim for it'. This is a stellar example of a 'parody' – use of another's intellectual property (IP) – in this case the name Manu Bhaker itself - in a humorous vein as part of social commentary that does not invite the sanction of IP statutes and is subsumed within the broader right of freedom of speech and expression.
However, the line between freedom of expression and IP infringement is often thin – this article looks at leading Indian judgements on this point and attempts to sketch the legal boundaries of parody.
Is re-creation parody?
While issues of disparagement and comparative advertising have been rampant in the Indian marketing arena, parody per se is not a common subject when we look at the intellectual property landscape.
In terms of India's statutory framework, Section 52(1) of the Indian Copyright Act, 1957 lists several acts that do not constitute copyright infringement and subclause (a)(ii) stipulates that fair dealing with any original work, for the purpose of criticism and review, is one of them.
This issue was discussed in detail in a 1996 decision issued by the Kerela High Court in Civic Chandran v. Ammini Amma 16 PTC 329 wherein the court laid down three factors relevant for deciding whether the plaintiff's rights had been violated:
- the quantum and value of the matter taken in relation to the comment or criticism;
- the purpose for which it is taken; and
- the likelihood of competition between the two works.
In the case, it was held that the purpose of reproduction of artistic work i.e., a counter drama, was not misappropriation involving the production of a play similar to the original. Rather, the purpose was to criticise the idea propagated by the original drama, and to expose to the public that it had failed to achieve its real object. Since copying was for the purpose of criticism, it amounted to fair dealing and did not constitute infringement of the copyright.
A 1959 decision by the Madras High Court referred to in Civic Chandran - Blackwood and Sons Ltd. And Ors. v. AN Parasuraman [2] [AIR 1959 Mad 410] - is also instructive in this regard. To explain the term 'fair' in 'fair dealing', the court laid down the following:
- in order to constitute unfairness there must be an intention to compete and to derive profit from such competition; and
- unless the motive of the infringer was unfair in the sense of being improper or oblique, the dealing would be fair.
Thus, the intent behind the making of a parody is also a relevant factor.
In the late 1990's, beverage giant Pepsi came up the advertising slogan 'Yeh Dil Maange More!' (This Heart Desires More) which became very popular (and was, in fact, reprised recently in March 2024). Rival Coca Cola soon ran a parody advertisement with the tag line 'Yeh Dil Maange No More!' that led Pepsi to file a suit of trademark and copyright infringement (Pepsi Co., Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr. 2003 (27) PTC 305 (DEL)). However, on the limited subject of the Coca Cola's cheeky tagline, the court held that it could best be seen as mocking or parodying Pepsi's advertising but did not amount to infringement of Pepsi's trademark. Also, Coke had not used the parody slogan for its products and hence, the use did not merit interference.
Another noteworthy decision is the Delhi High Court's 2011 ruling in Tata Sons Limited v. Greenpeace International and Ors. (I.A. No.9089/2010 in CS (OS) 1407/2010). Here, environmental organization Greenpeace ran a campaign to highlight the environmental impact that Tata's - one of India's largest conglomerates – construction of a deepwater port in the state of Orissa was having on turtles. At issue was a game called 'Turtle vs Tata' modelled on the popular game 'Pacman'. It featured four- headed, ball-like creatures with Tata insignias embossed on them, trying to catch a helpless turtle attempting an escape. Tata alleged defamation, disparagement and trademark infringement while Greenpeace countered with the defence of parody. It asserted its game was merely an awareness creating exercise that sought to compel the government and corporate houses to come up with environmentally friendly projects. The court found that Greenpeace was not liable as use of a trademark, as the object of a critical comment, or even attack, does not necessarily result in infringement. It remarked that "...the courts, the world over, have set a great value to free speech and its salutary catalyzing effect on public debate and discussion on issues that concern people at large. The issue, which the defendant's game seeks to address, is also one of public concern. The court cannot also sit in value judgment over the medium (of expression) chosen by the defendant since in a democracy, speech can include forms such as caricature, lampoon, mime parody and other manifestations of wit."
It further explained, "the relationship between the trademark and the parody is that if the parody does not take sufficiently from the original trademark, the audience will be unable to distinguish between the trademark and thus, comprehend its humour. Conversely, if the parody steals too much, it may be judged unlawful since there is excess stealing and insufficient originality, regardless of how amusing the parody is."
Thus, when it comes to trademarks, though the Trade Marks Act, 1999 does not specifically provide for a fair use exception for the purpose for parody or satire, Indian courts have recognised parody and satire as defenses to trademark infringement.
Parody and personalities
Coming back to Amul's advertisement featuring ace shooter Manu Bhaker, though one could argue that a celebrity's name has trademark value, such use also co-relates with the right of publicity and personality rights. And on this point, the Delhi High Court in Digital Collectibles Pte Ltd. and Ors. v. Galactus Funware Technology Private Limited and Ors. (2023:DHC:2796) has held that use of celebrity names and images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and would not equate to the tort of infringement of the right of publicity. If it were held otherwise, an entire genre of expression would be unavailable to the general public. Such caricature, lampooning or parody may be expressed in a variety of ways, i.e. cartoons in newspapers, mime, theatre, even films, songs, etc. and cannot be held to amount to commercial exploitation per se; if the individual is of the view that the form of expression defamatory or disparaging, the remedy of damages for libel, or slander, as the case may be, would be available to them.
More recently on May 30, 2024, in Independent News Service Private Ltd v. Ravindra Kumar Choudhary (2024 SCC OnLine Del 4380), the Delhi High Court issued an injunction against one Ravindra Kumar Choudhary, a self proclaimed satirist. Choudhary had published video and audio content on social media platforms parodying the 'India TV' channel and the format of its popular, long running show 'Aap Ki Adalat' (translating to 'Your Court') that features interviews with prominent personalities. The plaintiff held registered trademarks for both 'India TV' and 'Aap Ki Adalat' and raised concerns over Choudhary's production and dissemination of content under the mark/logo 'Baap Ki Adalat' (translating to 'Father's Court') as well as references to 'Jhandiya TV' (Jhand translates to depressing), arguing that it closely resembled its own marks and caused public confusion, thereby infringing the plaintiff's trademark and personality rights.
The court noted that though the law exempted caricature and satire, the exercise of free speech, if not done correctly, could damage various rights of a person, including the right to livelihood, the right to privacy and the right to live with dignity in a social structure.
Many disagree with the above decision and cite opposing judgements. For instance, in a case instituted by actor Jackie Shroff earlier this year (CS(COMM) 389/2024 Delhi High Court), the court had ruled that it was critical to preserve a creator's 'artistic and economic expression' beyond an actor's personality rights. It was reasoned that, "the format, akin to a meme, spoof, or parody, is part of a burgeoning comedic genre that leverages the cultural resonance of public figures to create engaging content... [that] translates into significant revenue for the creators".
Good humour or infringement?
As satires and parodies become more commonplace, it is important to demarcate the thin line between creative freedom and exploitation of trademarks and copyright. On the pretext of free speech, one cannot tarnish the goodwill and reputation of a trademark holder – typically, years of effort lie behind building popularity and goodwill of mark in the marketplace.
Traditionally, one test applied was whether the use in parody or satire was commercial in nature or not but this distinction may increasingly become difficult to draw as parody and satire are a big, emerging genre in the entertainment space. An act dressed up as a parody may actually be taking unfair advantage of a mark. The abuse of freedom of speech is to be condemned as is the potential overreach of trademarks and copyrighted content that may reek of private censorship. What is required is a nuanced balancing of the rights of all involved parties dependant on the facts of each case. After all, intellectual property is, in essence, all about fostering creativity rather than curtailing it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.