In an interesting case involving alleged infringement of right of publicity, the Delhi High Court, after relying on number of foreign judgements, has held that use of celebrity names, 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 fall foul to the tort of infringement of the right of publicity.
It may be noted that the Court also added that the right of publicity cannot be infringed merely on the basis of a celebrity being identified or the defendant making commercial gain.
Dismissing the application for interim injunction, the Court in this respect noted that the violation of the right of publicity in India has to be considered on the touchstone of the common law wrong of passing off.
The High Court in Digital Collectibles Pte Ltd. v. Galactus Funware Technology Private Limited [Judgement dated 26 April 2023] was hence of the view that the use of the name and/or the image of a celebrity along with data with regard to his on-field performances by the online fantasy sports (OFS) platforms is protected by the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, and not amounts to infringement of the common law right of publicity. It also, in this regard, noted that protection under Article 19(1)(a) extends to commercial speech as well.
The Court therefore held that even if the defendants are using players’ names, images and statistics for commercial gain, this would be protected under Article 19(1)(a). It also noted that the Defendant did not use actual photographs of the players but used artwork of the players on its NFT enabled Digital Player Cards, contained creative elements that distinguish them from the actual image of the players in question.
The Court further noted that OFS operators use information of all available players available in public domain for the purposes of identification of the players for playing the game, and that this obviates any possibility of confusion that a particular OFS platform is being endorsed by a particular player or has an association with a particular player.
Regarding the availability of information in public domain, the Court also noted that the information which is available in public domain cannot be owned by anybody, including the players themselves, and therefore, such publicly available information cannot be the subject matter of an exclusive license by the player in favour of a third party.