In the realm of publicity rights, Amitabh Bachchan has been amplifying it the most, and rightly so because of the huge amount of goodwill his likeness brings, but overtime, the mass of legal causes pursued by Amitabh Bachchan, and several other celebrities in India, eventually led to believing that celebrities enjoyed unhindered publicity rights, even though such rights never existed in any statute.
Publicity rights therefore were becoming a formidable right on their own in popular imagination, despite being nebulous without any statutory backing, even as they were advancing with every case ever since ICC Development International v. Arvee Enterprises and Anr - the very first Indian case adjudicated on that concept.
Publicity rights were believed to be traversing over the concepts of privacy rights (emerging from Article 21 of the Constitution), intellectual property rights (emerging from the Trade Marks Act, 1999 and Copyright Act, 1957), and unfair competition. It must be borne in mind that the notion of publicity rights is most frequently employed and used in cases involving unauthorized merchandizing and false endorsements.
In light of the above, a recent decision from the Delhi High Court may come as a relief and perhaps as a move towards settling the dust, only that it may not be quite so. Contrary to popular perception, this decision is not a dilution of the idea of publicity rights in so far as it is about holding that a certain type of use of celebrities' identifiers does not make it unauthorized merchandizing or endorsement. The reasons provided were also very specific to the item under consideration, viz., an Online Fantasy Sports ("OFS") game, and therefore taking a broad view of the court’s decision in diluting publicity rights of celebrities will be incorrect.
In the case of Digital Collectibles v. Galactus and Anr., the Delhi High Court ("Delhi HC") held that use of cricketers’ identifiers, viz., name, images and basic statistics that are in the public domain can be used irrespective of commercial motive.
In para 63 of the judgment, the court held that:
“The information which is available in public domain cannot be owned by anybody, including the players themselves. Therefore, such publicly available information cannot be the subject matter of an exclusive licence by the player in favour of a third party.”
In so far as the court held that public domain is free to use for anyone, the judgment does not say anything new. In so far as the court held that ‘information’ cannot be protected against duplication, again, the judgement does not say anything new, because the principle that there cannot be any property rights on ‘information’ is a well recognized fundamental principle under common law. Trade secrets once leaked cannot be penalized under statute ring a bell? The court also did not say anything to imply that the scope of remedies and reliefs available to celebrities for violation of their publicity rights could be impacted.
What the judgement really does is summarizing past Indian judgments on "publicity rights" as really belonging to cases of "unauthorized merchandizing and endorsements", thus one could say that the correct term to use would be the "right against unauthorized association" instead of publicity rights.
To impute that the names and faces of celebrities, and perhaps even body features as available to a naked eye in the public were unavailable before and now made available via this judgment would be ignoring the right of journalists and newspersons to report on news development around celebrities.
By no means has the court thrown images of all public personalities into the public domain. Celebrities will continue to enjoy their publicity rights and have the right to restrict use of their images and photographs in a very large number of circumstances as they were able to do so far, as long as such usage is in the nature of any unauthorized association.
Ultimately, it must be borne in mind that the scope of the judgement should be taken only with respect to OFS games. This is because an important consideration that went into deciding whether it was a case of unauthorized association, was the fact that the ‘Striker’ game, contained details of all the cricketers forming part of various cricket teams without being selective in any manner, and rightly so in the manner demanded by the format of OFS games.
Therefore, to summarize, the Delhi HC did not dilute the publicity rights of celebrities. It has merely found that an OFS game using cricketer’s identifiers cannot be considered as unauthorized association, especially because of the manner in which those identifiers have been used. To suggest that the judgment now permits celebrities' identifiers to be used with full abandon would be a misunderstanding. This is so because using even publicly available information, to indicate any association that is unauthorized, continues to be illegal.
P.S.
This leaves a lot of room for one to wonder if usage of a limited number of cricketers' identifiers could have been used to argue otherwise? Could it then have been stated that a false endorsement is being indicated. It might be possible to do so because anything less than the full roster of the cricket team or any sporting team could imply that the game at hand may not be an OFS game. If this be so, then it can be stated without hesitation that no part of any celebrity’s publicity rights have been touched.
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