Online Fantasy Sports and Personality Rights: Navigating Legal Challenges Under Indian Copyright Law

United States

In the United States, personality rights are predominantly safeguarded under the “right of publicity,” a concept rooted in privacy law but developed into a distinct legal doctrine. ³⁹ This right grants individuals, particularly celebrities and public figures, control over the commercial use of their identity. Since there are no federal statutes governing personality rights, protection is provided through state laws, resulting in diverse interpretations and scope.

The right of publicity was recognized as a distinct legal privilege in the case of Haelan Laboratories v. Topps Chewing Gum, ⁴⁰ which established the right of publicity as a separate legal entitlement. The Second Circuit Court held that individuals have an exclusive right to control the commercial exploitation of their name and likeness, a right that can be assigned or licensed. This case laid the foundation for subsequent developments in personality rights. Another pivotal case, Zacchini v. Scripps-Howard Broadcasting Co. ⁴¹ involved Hugo Zacchini, a performer, who sued a broadcasting company for airing his entire “human cannonball” act without authorization. The court ruled in Zacchini’s favor, emphasizing that unauthorized broadcasts undermined his ability to monetize his performance and violated his right of publicity. The U.S. Supreme Court ruled that broadcasting an entire performance without consent infringed the performer’s right of publicity, emphasizing the economic harm caused by such unauthorized use. ⁴²

In White v. Samsung Electronics America, Inc., ⁴³ the US Court of Appeal for the Ninth Circuit ruled in favor of Vanna White, whose likeness was used by a robot in a Samsung commercial. The court held that the right of publicity extends beyond literal uses to include depictions that evoke a person’s identity. Similarly, in Carson v. Here’s Johnny Portable Toilets, Inc., ⁴⁴ the US Court of Appeal for the Sixth Circuit upheld Johnny Carson’s right to control the use of his catchphrase “Here’s Johnny,” recognizing that phrases associated with an individual’s persona are protectable.

Statutory protection of personality rights varies by state. For instance, California’s Civil Code §§ 3344 and 3344.1 provide comprehensive protection for the use of a person’s name, voice, signature, photograph or likeness for commercial purposes. ⁴⁵ These laws extend protection to heirs, granting posthumous rights for up to 70 years. New York’s Civil Rights Law §§ 50 and 51 extend protection to a person’s identity, name and likeness not only during an individual’s lifetime but even after death. ⁴⁶ These statutes also create a clear distinction between commercial and noncommercial uses, balancing personality rights with freedom of speech under the First Amendment. ⁴⁷ For instance, courts have allowed the use of athlete names in news reporting or video games under First Amendment protections, provided there is no direct commercial gain. ⁴⁸

The advent of digital media has brought new challenges. Cases such as Hart v. Electronic Arts, Inc., ⁴⁹ and Keller v. Electronic Arts, Inc., ⁵⁰ addressed the unauthorized use of college athletes’ likenesses in video games. The courts held that such uses violated the athletes’ right of publicity, underscoring the need to adapt these rights to evolving technologies.

European Union

In the EU, personality rights are recognized as part of the broader framework of human dignity, privacy, and data protection. While there is no uniform statute specifically addressing personality rights, these rights are safeguarded through a combination of domestic laws, the European Convention on Human Rights (ECHR) and the General Data Protection Regulation (GDPR). ⁵¹ Article 8 of the ECHR guarantees the right to respect for private and family life, encompassing protection against unauthorized use of personal identifiers. ⁵² The European Court of Human Rights has addressed personality rights in cases such as Caroline Von Hannover v. Germany, ⁵³ where Princess Caroline of Monaco challenged the publication of photographs depicting her private life. The court held that such publication violated her right to privacy under Article 8, emphasizing the need to balance freedom of expression with the protection of personality rights.

The GDPR, which came into effect in 2018, provides additional protection for personality rights by regulating the processing of personal data. Article 4 defines personal data broadly, covering any information relating to an identified or identifiable individual, including names, images and other identifiers. ⁵⁴ Article 6 mandates that the processing of personal data requires consent, ensuring that individuals retain control over the use of their personal identifiers. ⁵⁵

Municipal laws in EU member states further reinforce personality rights. For instance, Germany’s Civil Code and case law offer extensive protection. Article 8(1) of the ECHR guarantees privacy and influences German jurisprudence. ⁵⁶ Personality rights are enshrined under Articles 1(1) ⁵⁷ and 2(1) ⁵⁸ of the Basic Law, protecting human dignity and free personality development. The Mephisto decision ⁵⁹ emphasized posthumous rights by interpreting the inviolability of human dignity. The Marlene Dietrich Case ⁶⁰ recognized both commercial and moral aspects of personality rights, affirming the existence of posthumous rights for ten years, analogous to older copyright laws. ⁶¹ In Günther Jauch v. Burda Verlag, ⁶² unauthorized use of a TV presenter’s image for commercial purposes was deemed unlawful, reinforcing the protection of both private and commercial interests. Section 823(1) of the Civil Code ⁶³ recognizes personality rights as “another right,” and Section 201a of the Criminal Code ⁶⁴ criminalizes unauthorized photography of private settings. Therefore, Germany, with its strong constitutional protections of human dignity and personal freedom, has been at the forefront of personality rights jurisprudence.

In France, personality rights are anchored in the dualist concept of droit à l’image, ⁶⁶ recognizing both personal and commercial aspects. Consent is generally required for making, displaying or reproducing a person’s image, with exceptions for tacit permission when public activities are involved. ⁶⁷ For minors, parental consent is mandatory. Posthumous rights last for 20 years, as upheld in the Raimu Case, ⁶⁸ where a company’s unauthorized use of an actor’s image led to compensatory damages for his widow. The court underscored that posthumous patrimonial rights are descendible if the image held economic value during the person’s lifetime. French law balances freedom of expression with respect for individual rights, including exceptions for parody under copyright law. ⁶⁹ The legal framework reflects a blend of privacy rights, moral rights, and intellectual property considerations.

The EU’s emphasis on balancing privacy and freedom of expression is evident in cases involving media and technology. In Google Spain SL v. Agencia Española de Protección de Datos, ⁷⁰ the European Court of Justice established the “right to be forgotten,” enabling individuals to request the removal of links to personal data from search engine results. This case highlighted the intersection of personality rights and digital privacy, setting a precedent for protecting individuals’ control over their online identity.

The GDPR mandates that personal data, including images and likenesses, can only be processed with explicit consent. ⁷¹ This emphasis on consent ensures that individuals retain control over their identities in both commercial and noncommercial contexts.

The United States and EU’s nuanced framework offers a balance between individual rights and public interest, making it a valuable reference point for India.

Use of image

Under 1957 Act, the rights to an image typically belong to the photographer ⁸¹ or the person commissioning the photograph, ⁸² not the individual depicted in the image. Section 14(c) of the 1957 Act grants photographers the legal right to publish, ⁸³ reproduce ⁸⁴ or sell their photographs. ⁸⁵ Any reproduction or use by others requires the photographer’s prior permission. Regarding OFS platforms, owners can either commission photographs with celebrity consent to secure copyrights or use publicly available images. Many images, including those captured by paparazzi or generated by AI tools, may not belong to any individual or entity, leading to legal ambiguity concerning ownership and liability.

OFS operators use images, caricatures, photographs and animations of players alongside their statistics (collectively referred to as “Images”) on their websites and applications to allow the identification of players and enable participants to draft players for their fantasy teams. This may be an issue and potentially an alleged violation of the copyright and/or the publicity rights of the respective proprietor of such images.

Images, whether of a celebrity or otherwise, are copyrightable in India as artistic work under the 1957 Act if original. ⁸⁶ Only the owner of a copyright has the exclusive right to reproduce the image in any manner. ⁸⁷ The photographer or the artist shall be the first owner of the copyright in an image unless the image was commissioned or clicked under a contract, such as for a newspaper or magazine. ⁸⁸ Thus, the photographer, the player, professional league, broadcaster, publisher or other such proprietor could be the owner of the copyright in the image.

Moreover, such copyright shall exist even if the image is freely available on the internet, including images of most celebrities. ⁸⁹ The argument that an image is in the public domain due to its publication on the internet would not stand as a defense to a claim of copyright infringement. ⁹⁰ However, some websites allow copyright owners to license their work for free usage by the public ⁹¹ (e.g., Creative Commons, Pixabay, Wiki Commons, etc.). Except for downloads and use from such licensed websites, any other use without permission would constitute infringement. ⁹² The Bombay High Court in Kesari Maratha Trust v. Devidas Tularam Bagul ⁹³ held that publication of a photograph without the photographer’s permission constitutes copyright infringement.

Similar to the protection afforded in India, jurisdictions such as the United States, Australia and Germany consider images as copyrightable subject matter. ⁹⁴ Owners have exclusive rights to reproduce, display and distribute images. Courts in these jurisdictions have consistently upheld these protections.

In addition to copyright protection, players have publicity rights over their images. This right enables players to profit from the commercial value of their image and prevents unauthorized commercial use. In DM Entertainment v. Baby Gift House, ⁹⁵ the court emphasized the commercial value of a celebrity’s persona and protected their proprietary interest.

The U.S. first recognized publicity rights in Haelan Laboratories v. Topps Chewing Gum, ⁹⁶ where unauthorized marketing of baseball player cards without consent was deemed a violation. The U.S. Supreme Court in Zacchini v. Scripps-Howard Broadcasting ⁹⁷ ruled that unauthorized broadcasts of performances could deprive performers of their commercial value.

Germany and France prohibit unauthorized image use under their civil codes. ⁹⁸ Notably, a German court barred the sale of a FIFA game without the soccer player Oliver Kahn’s permission to use his image. ⁹⁹ Conversely, English law does not explicitly recognize publicity rights, relying instead on tort principles like passing off. ¹⁰⁰

Use of names

The use of names, particularly those of public figures and celebrities, is closely tied to both personality and publicity rights. ¹⁰¹ Names may serve as identifiers or commercial assets in various contexts, including advertising, endorsements and digital platforms. Under Indian law, names themselves are not inherently protected under copyright, as copyright pertains to literary, artistic and dramatic works. ¹⁰² However, publicity rights protect individuals from the unauthorized commercial exploitation of their names. Courts have recognized that celebrities and public figures have the right to control the commercial use of their names. ¹⁰³

In the landmark case of DM Entertainment v. Baby Gift House, ¹⁰⁴ the court held that unauthorized use of a celebrity’s name could result in liability for misappropriation of personality rights. The ruling emphasized the importance of obtaining consent before using a name for promotional or commercial purposes.

In the United States, nominative use of names is generally permissible under the doctrine of fair use as long as it does not imply endorsement or create confusion. ¹⁰⁵ European jurisdictions, including Germany ¹⁰⁶ and France, impose stricter controls on the commercial use of names.

A clear distinction emerges between nominative and commercial use of player images and names as personality traits. Nominative use, which occurs when facts about players are necessary for identifying them (such as in OFS games), is generally permissible. ¹⁰⁷ Courts in the United States have found such uses to be acceptable even without licenses, as long as they do not imply endorsement. Conversely, promotional or commercial uses intended to enhance the appeal of a product without authorization are more likely to infringe on publicity rights. ¹⁰⁸ In India, while nominative use may be acceptable, OFS operators and other entities must exercise caution when using player names or likenesses for commercial purposes.

To determine the legality of such uses, it is essential to evaluate the purpose and manner of use, utilization of player information for descriptive purposes to identify the players, such as listing participants in a OFS game. When the player’s image, likeness, or name is used to endorse, market, or promote a service or product, explicit authorization becomes critical. Courts may examine whether such use implies endorsement or generates revenue directly linked to the player’s personality attributes.

Best practices involve obtaining licenses for commercial usage, adhering to fair use provisions, and ensuring compliance with both copyright and publicity rights. The Delhi High Court Case Digital Collectibles Pte Ltd v. Galactus Funware ¹⁰⁹ addressed the violation of players personality rights in OFS platforms. Two key points emerged: 1.

The defendant used publicly available information, such as players names and match performance data, which cannot be monopolized by any single entity, including the players.

Initially, elements of passing off may not apply to OFS platforms such as My11Circle or Dream11, as these platforms do not rely on the reputation of any individual player. ¹¹⁰ Instead, they create a virtual realm where sports personalities coexist under the control of online players. ¹¹¹

However, an average consumer might assume that the players depicted on these platforms endorse the games. ¹¹² The plaintiff argued that the use of player names and images constituted a commercial association. ¹¹³ The court emphasized that digital player cards did not establish a connection, license, or endorsement from the players. ¹¹⁴

OFS platforms use publicly available information, such as names, images, and statistics of sportspersons. ¹¹⁵ Courts have established that facts and information in the public domain cannot be claimed as exclusive property by any entity. Consequently, such information cannot be licensed exclusively. ¹¹⁶

OFS platforms represent a growing market, ¹¹⁷ heavily reliant on the portrayal and performance of real-world athletes. ¹¹⁸ The intersection between OFS and personality rights becomes apparent when examining the inclusion of player data, names, and images. ¹¹⁹ While OFS operators claim a right to use publicly available information, ¹²⁰ the potential commercial gains from exploiting players likenesses raise ethical and legal questions.

The use of digital player cards and Non-fungible Tokens (NFTs) as entry points to OFS games further highlights the overlap with personality rights, ¹²¹ influencing how consumers perceive the relationship between sportspersons and these platforms. Players names and likenesses in NFTs might imply endorsement or approval, ¹²² even when none exists, thereby affecting consumer perception. Legal accountability becomes crucial, as courts may need to determine whether such representations mislead users or constitute legitimate utilization of publicly available information. Balancing these considerations will be pivotal for maintaining transparency and upholding personality rights. Courts must assess whether such practices mislead consumers into assuming an endorsement by specific athletes or if they merely represent a fair use of publicly available information. Balancing players rights with freedom of expression for OFS operators will continue to challenge legal interpretations.