The Right To Publicity Is Not Absolute In India And Is Subservient To Article 19 - Delhi HC

According to the Delhi High Court's recent ruling, it is permissible to use the names and images of celebrities for lampooning, satire, parodies, art, scholarship, academics, news, and other similar purposes under the right of freedom of speech and expression outlined in Article 19(1)(a) of the Constitution. Such use would not violate the tort of infringement and the right to publicity. However, the Court clarified that if a celebrity's identity or image is used without their consent to promote a product or service or to suggest that the celebrity endorses or is associated with it, this would be considered misrepresentation and could cause confusion in the market. Additionally, the right to publicity is not absolute in India and is subservient to Article 19.

The Delhi High Court recently addressed a case filed by Digital Collectibles, a Singapore-based company operating under the trade name Rario, and several cricketers, including Mohammed Siraj and Arshdeep Singh. Rario's business involves creating an online marketplace where third-party users can buy, sell, and trade officially licensed "Digital Player Cards" of cricketers, which use the cricketers' names, photographs, and other "Player Attributes."

The plaintiff claimed that its Digital Player Cards, which function as Non-Fungible Tokens (NFTs), must be technologically capable of being identified and distinguished as authentic and original in the online marketplace. It alleged that fantasy sports platforms MPL and Striker were minting and distributing NFTs that captured the images of players with whom Rario had entered into exclusive license agreements. It argued that this activity constituted infringement, passing off, breach of the right of publicity, and unfair competition, and sought an interim injunction to stop them from doing so.

After considering the case, Justice Bansal held that online fantasy sports platforms have the right to use the names and images of celebrities and cricketers because such use is protected under the right to freedom of speech.

The court stated that information available in the public domain, such as match details, cannot be monopolized. Even if a third party publishes such information for commercial purposes, no legal right arises for the plaintiffs. 

The court dismissed the argument that the use of a player's name and image on digital player cards unjustly enriches the defendants at the expense of the sportsperson. The court noted that sportspersons are already rewarded handsomely through their participation in games, brand endorsements, sponsorships, BCCI contracts, match fees, and Indian Premier League auctions. Justice Bansal refused to grant any interim injunction in favor of the plaintiff.