Written By Saksham Sharma, the author is a law student pursuing BBA.LLB (Hons) from Symbiosis Law School Pune
Introduction
Personality rights encompass a set of legal principles that grant individuals control over the use of their names, images, and likenesses and are often regarded as the essence of an individual's personal identity. They are integral to the protection of one's privacy, personal dignity, and the ability to benefit from their own identity. As also observed by the Delhi High Court, in the landmark Titan Industries Case, they are also known as publicity rights and confer the control of commercial usage of one’s human identity upon oneself.
Online Fantasy Sports (hereinafter “OFS”) gaming platforms are digital platforms that allow users to participate in virtual sports competitions. Such platforms have emerged as a popular and innovative form of online entertainment, combining elements of sports and gaming. These platforms allow users to create virtual sports teams composed of real-life athletes, selecting players based on performance statistics and in many cases also encompass various aspects of players' personal identities, including their names, initials, physical features, attributes, likeness, and/or other pertinent information. This is where the controversy arises, as usage of aspects of the personal identity of the concerned players has the potential to affect and infringe their personality rights, both in respect of privacy and publicity.
Question of Personality Rights of Players of Publicity and Privacy
Recently, the Delhi High Court faced such a scenario wherein an OFS platform gave rise to a suit for violation of personality rights, in the matter of Digital Collectibles Pvt. Ltd. While dealing with an interlocutory application seeking an interim injunction, the primary question before the court was whether the usage of attributes, likeness and personality of players coupled with their performance data, by the defendants would lead to an infringement of the personality rights of the concerned players or not. In this respect, the court answered in the negative, and therefore refused to grant such injunctive relief, however, since the concerned interlocutory order is not a finality, the issue remains unsettled and debatable. Therefore, there is a need to discuss and analyze the jurisprudence in this regard, so as to reach a holistic, appropriate and correct interpretation and position of law.
Are Personality Rights Recognised In India?
The Supreme Court has expressed, in Tata Press Ltd. v. MTNL, that India has finally began to address the multi-dimensional aspect of personality rights and any sort of commercialization of the same by a person who is not authorized to do so can be seen to be amounting to embezzlement. Personality rights are generally recognized in the context of celebrities. In the Titan Industries case, it has been clarified that a celebrity can be seen as a person who may be well-known or famous and can also be someone who is talked about a lot or by many people.
The fact that players usually featured in OFS platforms fall within such definition is a view which requires no substantiation, for it is commonly accepted, if not universally. Therefore, there is a legal basis for the view that the concerned players, aspects of whose personality are being use in the concerned OFS platform have a personality right which is recognized in India. The scope and extent of the same may be ambiguous or undefined or unclear, however such rights do exist and are recognized by the courts of law in India.
Scope and Ambit of Personality Rights In order to understand the concept of personality rights holistically, it is important to consider the approach to the same by courts of law in different countries, especially common law countries such as USA and UK, along with Indian Courts of law.
In the Haelan Labs case, it has been held that a person certainly has a right of publicity over their own photograph. In Motschenbacher v. R. J. Reynolds Tobacco Co. the court applied the “test of confusion” which provides that a violation of personality rights would occur if confusion is created in the minds of the public that the plaintiff is endorsing a particular service or product. Accordingly, it was held that since the plaintiff was a professional driver, the use of his car in a cigarette advertisement would create confusion in the mind of the public that the plaintiff was driving the car and thus amounts to a violation of personality rights. Midler v. Ford Motor is an illustration of the fact that even a song sung by a “soundalike” which might give the impression that the plaintiff was singing for the defendant would amount to the defendants appropriating something which is not theirs and would create a false impression of endorsement by the plaintiff and this would again violate the publicity rights.
In Keller v. Elec. Arts Inc., it has been clearly laid down that the use of likeness of a college athlete in a videogame by the defendant would not be entitled to the protection of freedom of speech and expression and instead would amount to breach of the defendant’s right to publicity. Since the first amendment to the US Constitution is generally considered to be in pari materia to Article 19 of the Constitution of India in respect of freedom of speech and expression, even in India, the same position of law will prevail.
While on a prima facie perusal, it may seem that the right to publicity is quite wide and almost exclusive to the concerned players/celebrities, a careful examination of these authorities reveals that it is actually quite limited, for there must be a sense of confusion which must be created in the minds of the public about the product or service being endorsed by the concerned player and/or celebrity. Furthermore, it must be kept in mind that even where publicity claims have been recognised and accepted by courts of law in USA, they generally emanate from statutory provisions, as against common law. Therefore, the right of publicity is very limited. To further understand this, it is expedient to discuss other authorities which clarify this position of law.
False Endorsement/Advertisement if details in Public Domain are used
In the landmark case of CBC Distributors v. Major League Basketball, the test of confusion was again given weight and it was held that violation of publicity rights cannot be claimed if the game created by the defendant is based solely on information available in the public domain about the players for it does not have the potential to mislead consumers to think that the game is endorsed by the concerned players. Likewise, in Daniels v. Fan Duel. Inc, it was held that when a fantasy sports website displays informational and statistical data about college athletes, it does not constitute an endorsement of a specific product in a way that would infringe upon the athletes' right of publicity. This view is in line with the view taken by the court in Cartdoons LC v. Major League Basketball Players Assn. that the rationale supporting the right of publicity may not be as strong as that for other types of intellectual property.
The courts of law in UK have limited the applicability of personality rights at common law to false endorsements/advertisements etc. In Rihanna v. Arcadia Group, it was held that when a celebrity wishes to control the use of their image, they must pursue alternative legal avenues such as breach of contract, breach of confidence, copyright infringement, or passing off and in applying the principles of passing off, the court determined that the utilization of Rihanna's image on the t-shirts suggested that they were officially endorsed and approved by Rihanna, thus constituting a passing off case. Thus, under English law, a celebrity does not possess the inherent right to prevent the use of their image unless it creates the impression that the celebrity has endorsed the products or has given their authorization for such use. The same may be especially true for OFS where the element of endorsement is generally missing.
Position in India Regarding False Endorsement/Advertisement where Details of Celebrities are available in the Public Domain
The position of law in this regard in India is not very different from that in UK and recognizes the test of confusion as applied by courts in USA. In the ICC Case, the Supreme Court took the view that personality rights can generally be dealt with under the tort of passing off in India and the elements of the same would not be fulfilled if there is no probability of the public being confused or misled into believing that the defendants are connected with the ICC-organized Cricket World Cup.
In D.M. Entertainment v. Baby Gift House, it was held that in order to establish a claim of false endorsement, an individual must demonstrate that the use of their identity created a likelihood of consumer confusion, leading them to believe that the person in question endorsed the product in question. In the Digital Collectibles Case, the Delhi HC has opined that the observations made in Titan Industries with regard to right of publicity were in the context of false endorsement and advertising. The court has further made it clear that utilizing celebrity names and images for purposes of lampooning, satire, parodies, art, scholarship, music, academics, news, and similar uses is permissible as expressions of the right to freedom of speech and expression under band such uses do not infringe upon the tort of violating the right of publicity.
Personality Rights and Privacy
In the recent case involving Sakshi Malik, the court held that the concerned personality or celebrity having such personality rights has the discretion to exercise agency and control over the manner in which they are to be published. This was in line with the view taken in Actor Rajnikanth’s Case that the right to publicity only vests in the person whose personality is concerned and him alone.
In USA, personality rights and specifically the right to publicity is recognized as a facet of right to privacy. However, while the apex court might have talked about the same in its landmark ruling in Puttaswamy Case, it has not held the same position to be applicable in India. Therefore, personality rights of privacy in India are distinct from that of publicity, especially insofar as details available in the public domain are concerned. The converging point for the same is one where there is an impression of endorsement, advertisement, etc. which is false, as discussed hereinbefore. The only aspect where such rights would exclusively be vested in the concerned persons would be with respect to details which are not available in the public domain, for usage of the same would be a blatant violation of Right to Privacy.
Status of OFS Games in light of Personality Rights Jurisprudence in India
Upon due consideration of authorities from various jurisdictions, the Delhi High Court, while answering the questions raised in the case of Digital Collectibles, observed that Courts in United States have held that the use of a celebrity's name, image, and other publicly available information does not constitute an infringement of the right of publicity in the context of OFS Games, even though personality rights are statutorily recognized in multiple states. This gives weight to the view that in such cases even if even if the players' names, images and statistics are being used for commercial gain by the respondents, this would be protected under Article 19(1)(a) of the Constitution and would not amount to infringement of common law right of publicity. Since such details are available in the public domain, the question of violation of right to privacy would not even arise, for exclusive licenses can only be granted by players in respect of their personal details such as height, weight, etc. Therefore, the court refused to grant interim injunction and dismissed the interlocutory application seeking the same filed by the plaintiffs.
Conclusion
In conclusion, the legal landscape surrounding personality rights in the context of OFS gaming platforms in India remains evolving. While personality rights are recognised, their precise boundaries, especially in the context of OFS, remain somewhat unclear. The recent Digital Collectibles case has provided some clarity by emphasizing that the right to publicity is not absolute and depends on the presence of confusion and false endorsement.
When publicly available player information is used, courts have generally leaned towards protecting freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, leading to reluctance in granting injunctions. However, when private, non-public information is involved, players may have a stronger claim to safeguard their personality rights. Therefore, a well-defined legal framework may be necessary to address these issues more effectively as technology continues to advance, balancing the protection of individual rights with the promotion of innovation in the gaming industry .
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