Using Celebrity Names, Images For Art Or Satire Permissible Under Freedom Of Speech And Expression; Won’t Infringe Right Of Publicity: Delhi High Court

The Delhi High Court has observed that the use of celebrity names or images for art, satire, news or music would be permissible as a facet of the right of freedom of speech and expression under Article 19(1)(a) of Constitution of India and would not infringe the celebrity’s right of publicity.

Observing that the right of publicity cannot be seen as an absolute right in India in the absence of a specific legislation, Justice Amit Bansal said:

“Intellectual property rights, such as trademarks, copyrights and patents, that have a statutory basis in India, are also not absolute rights. The extent of these rights is defined by the statute and the statute itself provides defences or exemptions. Even in jurisdictions where right to publicity is recognized as a statutory right, such as the U.S., the statute itself provides exemptions or defences.”

The court made the observations while denying interim relief to Dream 11’s subsidiary and a Singapore based entity Digital Collectibles PTE Limited running a website “Rario” in its suit against “Mobile Premier League” and an application “Striker.” Both the parties to the suit are engaged in a similar business model.

The suit alleged that the defendants were “minting and distributing” non-fungible tokens which captured the images of players with whom the plaintiff had entered into exclusive license agreements.

The plaintiff claimed that the agreements exclusively entitled it to mint the tokens and thus, the defendants indulged in the act of infringement and breached the right of publicity in launching a similar business using players by creating their caricatures.

Dismissing the plaintiff’s application seeking interim relief, the court said that the plaintiff company failed to make out a case for grant of interim injunction which would result in closure of Striker application’s business and would cause huge financial losses not only to it but also to its users.

“In my opinion, 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,” the court said.

Referring to relevant decisions on the subject, the court said that various online fantasy sports gaming platforms use names and images of celebrities and other information which are available in public domain.

“In my considered view, the use of the name and/or the image of a celebrity along with data with regard to his on-field performances by OFS platforms is protected by the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. It is a settled position of law that protection under Article 19(1)(a) extends to commercial speech as well,” the court said.

Furthermore, Justice Bansal observed that even if the defendants were using players’ names, images and statistics for commercial gain, it would be protected under Article 19(1)(a) of the Constitution of India.

“Nor would the aforesaid use by OFS operators amount to infringement of the common law right of publicity. OFS operators use information of all available players available in public domain for the purposes of identification of the players for playing the game. 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,” the court added.

It also said that the information used by Striker regarding player name and data concerning a player’s real-word match performance is freely available in public domain which cannot be owned by anybody, including the players themselves.

“Therefore, such publicly available information cannot be the subject matter of an exclusive license by the player in favour of a third party,” the court added.

The court further said that the plaintiff cannot claim to have an exclusive right over the use of an non-fungible tokens technology which is freely available. It noted that the defendants used the said technology to ensure security and authenticity as a means of proof of ownership of its cards and to keep a record of transactions on a blockchain.

“Even on the parameter of balance of convenience and irreparable harm, I am of the view that these factors are in favour of the defendants and against the plaintiffs. An injunction granted at this stage would result in closure of the business of the defendant no.2 and would cause huge financial losses not only to defendant no.2 but also to the users of the Striker platform. On the other hand, in the event the plaintiff succeeds in the suit, it can always be compensated,” the court said.

Title: DIGITAL COLLECTIBLES PTE LTD AND ORS. v. GALACTUS FUNWARE TECHNOLOGY PRIVATE LIMITED AND ANR.

Citation: 2023 LiveLaw (Del) 345

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