Search

Region
Country
Firm
Author
Date
to
Keywords
Search

The Intersection of Personality Rights and Intellectual Property Vis-a Vis Fantasy Sports in India

Khurana and Khurana, Advocates and IP Attorneys India


 

  1. INTRODUCTION

Virat Kohli is the most followed Indian on Instagram. Is this a relevant piece of information? Indeed, it is. It is reflective of the mindset of people towards an individual who has gained massive popularity due to his sport. It is also suggestive of the overarching influence of a sports person over the masses. Call it ‘Sports’ or ‘Entertainment’, there is an obsession around the sports and games industry in India. Indian audience is drawn towards not just sport events but also towards those who participate in it, almost equating a few players to god like idols who must be worshipped. Drawing heavily form this obsession is the fantasy gaming industry which has boomed in the last decade and continues to do so. Worldwide, the fantasy sports sector has been ‘demonstrating strong expansion, with India leading the way as the fastest-growing market with a user base, numbering 130 million.’[1] Online Fantasy Sports or OFS is an imaginative and digital gaming setup that replicates the world of sports as it exists in reality. It provides users a space to immerse themselves in their favourite sport wherein they have significant autonomy in terms of creating virtual teams comprising of popular athletes, organise matches and earn points based on the real-world performances of the sportspersons. The operation of fantasy sports platforms raises several legal concerns and this essay is an endeavour to identify these in addition to exploring the interlinkage of Intellectual Property and Personality Rights specifically in the context of fantasy sports.

  1. THE INTER-LINKAGE OF PERSONALITY RIGHTS AND IPR

In India, as around rest of the world, sportspersons are considered to be celebrities as ‘people know and talk about them’[2]. A personality used synonymously with celebrity is a person who is widely recognized by the public and often renowned for their achievements, or prominence in a particular field, such as entertainment, sports, politics, or other areas of public interest. Fantasy sports are known to employ the real names, images, team logos, signature poses etc. of sportspersons on their respective platforms in the form of player cards or NFT tokens etc. and usually place significant reliance on the real time performance of a sportsperson. The deployment of all the elements related to the players highlights two sets of rights; first Intellectual Property under which the images and information etc. may be classified and Personality Rights as for those to whom it refers.

The Supreme court of USA was among the first jurisdictions to recognise the Right to Privacy and thereunder acknowledge Publicity Rights in ‘Pavesich v. New England Life Insurance Co.’[3] Even in India, as observed in the Puttaswamy judgement, “every person should have the right to be able to exercise control over his or her own life, image, and identity as it is used for commercial purposes. Additionally, it means that a person may be able to stop others from utilising his or her name, image, and other aspects of their private lives and identities for profit without their permission.”[4] The above-mentioned narrative has been crucial in securing the Personality Rights of individuals as the set of rights is considered to be an offshoot of the Right to Privacy. The same was upheld inICC Development (International) Ltd v Arvee Enterprises’[5], wherein it was suggested that the right of publicity can “inhere only in an individual or in any indicia of an individual's personality like his name, personality trait, signature, voice, etc.”[6]

In the present time, the Indian judiciary has acknowledged that both Personality Rights and Intellectual Property Rights aim to prevent the unauthorized commercial exploitation of an individual's identity. In other words, it is through Intellectual Property law framework that Personality Rights in India are offered protection, beyond the Right to Privacy. For instance, trademark law acts as a safeguard that prevents others form using one’s own name, brand or image etc. for commercial purposes.

  1. Protection of Personality Rights under Copyright law

As per the Copyright Act 1957, a copyright is vested in any original literary artistic, literary and dramatic works. In addition to these subject matters the Copyright Act enshrines ‘Performers Rights.’ A performer is someone who makes a performance, and as per Section 2 (qq) of the Act a ‘performer’ “includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture.”[7] Performers are vested with a bundle of rights for example making a sound recording or a visual recording of the performance and communicating it to the public. Players, gamers and athletes etc. are not performers as per the above definition. The rationale behind not including players of any sport in this category is that sports matches are neither predictable nor choregraphed like performances are. Over the years, watching sporting events has been a source of entertainment with an added element of culture as sporting events enlightens a patriotic spirit in many but due to its spontaneity, cannot be termed as performance, irrespective of whether it is being broadcasted on television or the internet.

  • Image: Copyrights for an image rest with the photographer or with the person who has commissioned the photograph in other cases. As against common sense would suggest, it does not vest with the individual being photographed. Furthermore, as per Section 14(c) of the Copyright Act. It is the  legal right of photographers to publish, reproduce, or sell their photographs. If anybody else intends to use or reproduce such photographs then prior permission from the copyright owners is necessary.

With reference to the use of sports celebrity images on fantasy sports platforms, the owners have two options, either to commission their photographs with the consent of the celebrities such that the owners have copyrights in those images or to use publicly available images that are not owned by anybody and may sometime also be generated by artificial intelligence. This is because the internet has copyright protected images and in addition to those there exist viral images of sportspersons captured and uploaded by members of the media including social media pages, news channels and what we may call as ‘paparazzi’. Once uploaded, images spread and become open for the public to use, and often misuse. With the influx of AI tools, images are generated by AI software in a fraction of a second and as a result do not practically belong to anyone. The law in India is silent on the ownership claims and liability when it comes to AI.

 

  • Match scores/Statistics: Since sporting events are competitive in nature, they always have a scorecard which is live and available for viewing for both, the audience who are physically attending the match, and also those who are virtually watching it through a television or an Over-The-Top (OTT) Platform. Live scores are pieces of information over which no exclusive property rights may be asserted. This is true as the nature of ‘scores’ is factual in nature. However, if the statistics are analysed and any original data is generated via compilation and analytics etc., then it would be subject to copyright protection. When information enters the public domain “upon its occurrence for a live audience and upon broadcast for all other audiences, regardless of whether the individual reproducing the information is doing so for financial gain or not.”[8] A buffer time of 2 mins from the first broadcast was suggested in ‘Star India Pvt. Ltd. v. Piyush Agarwal & Ors’[9], after which information such as match score may be used and disseminated by others for commercial purposes.
  1. Protection of Personality Rights under Trademark law

The Trademark Act 1999 stands as the prime legislation that extends protection to an individual’s persona i.e. name, voice, signature etc. Section 2 (1) (m) of the Trademark Act ‘mark’ includes “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.”[10] Additionally, the Section 2(zb) defines a trademark as a “mark capable of graphical representation and which distinguishes goods and services owned by one person from those of others in the market and includes the shape of goods, the combination of colours and their packaging.”[11] In its essence, trademark helps us in identifying between different products or services as belonging to separate proprietors. Trademark is relevant for celebrities because celebrities have a high value attached to themselves in terms of popularity and influence, as a result, they engage in endorsement activities. The public actively associates the products and services of one brand with the celebrity and then gives into purchasing behaviour. This is simply how consumerism operates in society, there is an application of business acumen and psychology that brands are able to draw huge profits from by exploiting the likeliness of a celebrity.

In today’s time, celebrities are brands in themselves and hence there arises the need for Trademark law. The idea is to prevent the misrepresentation of the identity or persona of the celebrity so that there is no false advertising, unsolicited endorsements and other forms of abuse of personas. The legal validation of Personality Rights via precedents have ensure that the personas of celebrities are not capitalized upon without their consent. For example, post the 2016 Rio Olympics, P V Sindhu sued businesses which were using her image to promote their products without having any such license from her.

While ‘trademark’ protection is typically for registered trademarks, the common law remedy of ‘passing off’ is available and of much significance when it comes to cases pertaining to unregistered trademarks. In 2001, the apex court in Cadila Healthcare Ltd v. Cadila Pharmaceuticals Ltd.’[12] defined the tort of Passing off as “the species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation, which the other has established for himself in a particular trade or business.”[13] Passing off has three ingredients which have also been referred to as the ‘clinical trinity’ by the courts in the United Kingdom. These include established goodwill, misrepresentation, and damage to the goodwill. Passing off as a valid ground for action has been acknowledged in a number of Supreme Court and High Court judgments in India. If the “identity or the image of a celebrity is used to promote the sale of a product or a service or to show its endorsement by the celebrity or an association with the celebrity, without their consent, it would amount to misrepresentation and passing off”[14].

  • Name: Based on the trinity, in Gautam Gambhir v. D.A.P & Co. & Anr[15]., the court declined to rule in favour of the plaintiff, a popular cricketer and now coach, Gautam Gambhir, since the requisites for passing off were not met. The defendant was also named Gautam Gambhir who had several restaurants by the tagline ‘by Gautam Gambhir’. In this case, there was no damage caused to the goodwill of the cricketer due to an absence of association between him and the restaurants. Similarly, in OFS, there is no prima facie association between the players and the game which may indicate an endorsement. The names of all players playing  particular match or league are used for functional purposes only.  Thus, the use of names or initials as claimed by various owners of fantasy games is only to enable the users to identify the players and form their teams accordingly.

 

  • Voice: The dialogue and delivery style for ‘Jhakaas’ and ‘Computer ji lock kiya jaye’ are exclusively associated with Anil Kapoor and Amitabh Bachan respectively. Recently, the Delhi High court granted an ex parte injunction for prohibiting entities from exploiting Anil Kapoor’s name, likeness, or image for monetary gain or commercial purposes. Since the voice is not an element used for fantasy sports, it is not a matter of debate; however, if the unique voices and accents of Sachin Tendulkar, MS Dhoni and Chris Gayle for instance, were to be imitated by AI and imbibed for the sake of experience, then the courts would have to consider the legal implications for the same.

 

  • Style or pose: ‘The Helicopter shot’ as the cricket fans would recognise was popularized by Indian Cricketer MS Dhoni. Several fantasy sports use images of him playing this signature shot and the users can immediately identify that it is an image of MS Dhoni. Thus, in the absence of any regulation, famous poses of personalities and their playing or celebration styles can be replicated into online gaming without any accountability or credit to the personalities themselves. It is interesting to note that even the ‘lightning bolt pose’ of Usain Bolt has been applied for trademark registration in India. However, the extent of protection to a physical move or a style of celebration under trademark law is limited in India and elsewhere due to concerns that include the ability of graphical representation of these moves and also their distinctiveness. It is difficult to establish whether a particular move is distinctive enough to distinguish one player from another for instance ensuring that no other player has been found to play that shot at an earlier point in time.

 

 

  1. WAY FORWARD

The Delhi High Court, in ‘Digital Collectibles Pte Ltd v. Galactus Funware’[16], deliberated upon the violation of Personality Rights of players wherein both the plaintiff and defendants were owners of fantasy games. Two of the essential points made by in this case were firstly, that the defendant was using publicly available information i.e. name and data concerning a player's real-word match performance which are such pieces of information that cannot be monopolised by any single entity, not even the players themselves. This was done in furtherance of the purpose of identification of players in the OFS. Secondly, the defendants were using artistic images of the players instead of actual images and hence were successful in classifying their work as original. This judgement is crucial and foundational in influencing litigation with respect to enforcement of Personality Rights with respect to fantasy sports in India, and will be frequently referred below. 

  1. Identifying Associations as Potential Endorsements: Initially, the elements of passing off may not apply to fantasy sports or games. This is because platforms such as My 11 Circle, Dream 11, etc. for instance, do not rely on the reputation of any individual player. Instead, they construct an alternative realm where the sports personalities coexist and play matches under the command of online players who are ordinary individuals. There is no endorsement or association of a celebrity with a particular product or service, the online fantasy game itself is the commodity. In the above-mentioned judgement, the courts have refused to identify any element of endorsement.

 

Alternatively, a person of average intelligence may think that the sports players, represented in a particular gaming platform, approve of that game since it displays the name and image of that particular player. According to the author, an association can still be drawn even though the celebrity may not be outrightly endorsing it via an advertisement or commercial. To this extent, the plaintiff in the above-mentioned case had acquired exclusive licenses from players to store and trade their information as NFTs unlike the defendant. The plaintiff contended that cause of action arises due to the commercial use of the names and images of the players. The court in this case emphasised the fact that Digital Player Cards bears the names and images of the players for descriptive and nominative use only, which is an element common to all OFS platforms, and opined that “Unlike a bat which is signed by a particular player, the NFT Player Cards in the present case do not have any such signature/autograph or anything to establish a connection, license or endorsement from a player.” [17]

  1. Ambiguity On Information Available In Public Domain: OFS use information including, names, images and basic statistics, related to the sportspersons, as they are all available in the public domain. Anyone using the internet can easily access and download information that is not owned by anybody exclusively. It has been established that “facts and information that are available in public domain cannot be claimed as an exclusive property of an entity and such information cannot be licensed by the said entity in favour of another.”[18]

 

OFS, which are now considered to be ‘games of skill more than chance’[19], operate for commercial purposes and also generate great profits. The recent Delhi High Court judgement refused to grant an injunction to the plaintiff which is testament to the fact that in the absence of statutory protection to Personality Rights, they may be outweighed when rights enshrined under Article 19 1 (a) and (g), of the Indian Constitution, are threatened. The author is of the opinion that even though for descriptive purposes but if not for their persona, fantasy sports operators would not be able to operate without using the images, names and real time performance scores of sports players. The information published at online fantasy gaming platforms though are publicly available but are contributing significantly in the commercialisation of these platforms by forming its subject matter, this calls for certain checks and balances.

 

  1. Possibility Of Mandatory Licensing: According to the author, the pertinent question remains that whether the gaming platforms are enriching themselves at the behest of sportspersons. The magnitude of dependence on the persona of sportspersons and their real time performance is so great that it cannot be ignored. A mandatory license with every sportsperson who is represented on OFS with the focus of obtaining authentication for the use of persona with minimal economic benefits for the licensor would acknowledge the rights that celebrities hold over the commercial use of their personality including their name and image. If the players consent to and authorize the use of their names, images etc. for commercial exploitation with respect to fantasy games, their moral rights could potentially be catered with. Moreover, there needs to be some standardised rules and regulations that should be applicable to all online fantasy games in a similar fashion, especially with respect to obtaining consent and license agreements from players.

 

  1. CONCLUSION

Even though Personality Rights have been granted legal protection by virtue of precedents, there is an under-lying void due to the lack of statutory provisions. Intellectual Property law, copyright and trademark in particular act as safeguards for most celebrities in India including sportspersons. However, the industry of OFS is growing with users increasing exponentially and in the near future, the judiciary’s primary aim would be maintaining an equilibrium between the right to practice a trade and right to freedom of speech and expression on one hand, and safeguarding publicity rights on the other.  It is also necessary to channelise artificial intelligence and incorporate in the gaming sector in a responsible manner. In this backdrop, statutory measures are needed to give legal validity to publicity rights and enforcement of the same since the influential role played by their mammoth sized personas in the current market cannot be denied, especially in the context of Online Fantasy Sports.

 

[1] Federation of Indian Fantasy Sports (FIFS) and Deloitte Report on ‘Fantasy Sports: Creating a virtuous cycle of sports development’, (2022).  

[2] Titan Industries Ltd. v. Ramkumar Jewellers (2012) 50 PTC 486.

[3] 50 SE 68 (1905).

[4] K.S Puttaswamy v. UOI (2017) 10 SCC 1.

[5] (2003) SCC OnLine Del 2.

[6] Ibid.

[7] Copyright Act, 1957 (Act 14 of 1957).

[8] Akuate Internet Services Pvt Ltd v. Star India Pvt Ltd. 2013 SCC OnLine  3344.

[9]  (2014) 58 PTC 169.

[10] Trademark Act, 1999 (Act 47 of 1999).

[11] Ibid.

[12] (2001) 5 SCC 73.

[13] Ibid.

[14] Anil Kapoor Film Co (P) Ltd v. Make My Day Entertainment 2017 SCC OnLine Bom 8119.

[15] (2017) SCC OnLine Del 12167.

[16] (2023) SCC OnLine Del 2306.

[18] Ibid.

[19] Shri Varun Gumber v. UT of Chandigarh & Ors, 2017 SCC OnLine P&H 5372.

 

Khurana and Khurana, Advocates and IP Attorneys



About the Firm

Khurana and Khurana, Advocates and IP Attorneys

AddressD-45, UPSIDC, Site IV, Kasna Road, Greater Noida - 201308, National Capital Region, India
Tel91-120-313 2513, 91-120-350 5740
Fax91-120-4516201
Contact PersonTarun Khurana
Emailinfo@khuranaandkhurana.com
Linkwww.khuranaandkhurana.com


Related Articles