Legal things OFS game devs to consider when using sportspersons' attributes
Cricket being a highly popular sport in India attracts a lot of eye-balls, and a lot of cash. It is growing steadily at 31 per cent from Rs 6,800 crore last year, expected to cross Rs 25,240 crore by 2027. It is estimated that by 2025, Fantasy Sports industry could be employing nearly 13,000 people, many with high tech skills, spread across over 300 playing platforms.
Apart from the usual legal corners dealing with platform hosting issues, intermediary compliances, data privacy compliances, e-commerce compliances, and software licences, developers of Online Fantasy Sports (“OFS”) games were also faced with the challenge of whether or not they could use sportspersons’ identifiers such as their names and faces, without inviting legal trouble.
In some ways, much of the thinking was influenced by how EA Sports used to roll out its cricket games. One can recall EA Sports deliberately twisting and tweaking sportspersons’ names by altering their spellings. So Sachin Tendulkar would become S. Tendehar, which was suggestive but not quite accurate. Coupled with a distorted and an inauthentic representation of facial and bodily features, the intent to not leach off their personality and non-private personal attributes was amply made clear.
After Delhi High Court’s (“Delhi HC”) recent decision in the case of Digital Collectibles v. Galactus and Anr., in which it was held that the use of sportspersons’ identifiers in the context of an OFS game will not amount to unauthorised merchandizing or false endorsements, OFS game devs should breathe a sigh of relief.
However, it should be noted that the decision has been handed down by a single bench of the Delhi HC, and it is open to be challenged before it attains ultimate finality at the apex court. Until then, assuming this judgement continues to hold as the applicable law for the use of sportspersons’ identifiers in OFS games, game devs may adopt the following best practices:
1. Sportspersons' images may be used, but with a twist. Sportspersons' images available through a simple google search may still be owned by photographers. Therefore, it is preferable that caricatures/sketches of sportspersons may be used which makes it an independent copyrightable work of the sketching artiste.
2. It is preferable to avoid perfect resemblance with the sportspersons' images. Caricatures or bobblehead sketches can be argued to be sufficiently creative in their own right to avoid being labelled as a copy. In this regard, it is preferable to avoid (i) using the same proportion of physical features in the sportspersons’ representation, (ii) using the same skin tone, (iii) using the same birthmarks or unique marks, or any distinguishing physical or facial features, and (iv) using representations of the body below the face. It is best to incorporate artistic flourishes to make it as creative as possible. The more non-serious representation it is, the safer it will be from a legal standpoint because one could say that such artwork is fictional and not a representation of real world sportspersons. However it should be respectful and not a bad caricature to avoid the possibility of ending up defaming the sportsperson.
3. Avoid indicating or showcasing personal attributes that are private information such as height, weight, signatures, or personal quirks that are not on display publicly when sportspersons play in a match.
4. Any fanfiction about the sportspersons or a storyline on any particular or a set of sportspersons should be avoided. This is so because it will be a creative output and usage of sportspersons’ identifiers with a creative output could be interpreted as unauthorised association. It is permitted use as long as those sportspersons’ identifiers are used strictly for the purposes of relaying real world information about match statistics to enable players to play the OFS game.
5. Commentary based on match statistics is acceptable, including commentary based on the fantasy teams of participating OFS game players, because the same will be largely confined to describing the real world match performance of both the sportspersons as well as the game players, both of which is public information.
6. It goes without saying that any words/messaging that might be interpreted to mean any connection/association/endorsement by the sportspersons with the OFS game should be avoided. It’d be a good idea to add disclaimers at relevant and prominent pages during gameplay, to inform the players that (i) the OFS game is not endorsed by any of the sportspersons whose identifiers have been used; (ii) there is no association or connection between the sportspersons and the OFS game; (iii) that there is no intent to hurt the feelings, sentiments or economic rights of any person; (iv) that any resemblance between the art-work and the sportspersons’ images is purely coincidental.
7. In any case even creative non-serious artworks of sportspersons’ images should not be used in any advertising/promotional content created to market the OFS game. Only officially hired sportspersons and their images/representations can be used to sell the OFS game.
8. It is advisable to avoid using a sportsperson's favourite dialogues/punchlines/takia-kalaams, such as for e.g., “boys played well”, which even though given out publicly, could be considered as sufficiently creative and deeply associated with a sportspersons’ goodwill.
9. Finally, and most importantly, the choice of being selective about inclusion of any particular sportsperson will not be available. The judgment found an absence of unauthorized association because identifiers of all the cricketers forming a real world team were used in the 'Striker' game. This led the court to view that the format of an OFS game relies on real world information, and therefore the game cannot be created without using the same. Therefore any selective use of real world players may be held as indicating unauthorized association. On a related note, this also implies that the OFS game format should frequently update its players' rosters so as to keep it mapped to actual composition of real world teams. A delay in updating team churn could prove legally fatal.
The Delhi HC's decision in the Digital Collectibles' case was handed out strictly for an OFS game. It would be a stretch to extend the judgement's applicability to video games like EA Cricket series which are distinctively creative in nature and not in the format of an OFS game, which is built on real world information and match statistics. It is quite obvious that a video game like EA Cricket series, or for that matter any sports based video game does not need real world information to function and therefore it would be difficult to say that the use of sportspersons' identifiers permitted via said judgment will be kosher for such video games.
Important Disclaimer: The information provided herein this article is our interpretation and understanding of the law. The legal analysis presented hereinabove is not given for application to any specific set of facts or circumstances peculiar to you or your organization. You may rely on the the write-up for your peculiar facts or circumstances at your sole risk only. We will not be liable, answerable or responsible to you under any client-privilege relationship.