Using names, images of celebrities won’t infringe right to privacy: Delhi HC

The use of names or images of celebrities for art, satire, news or music is permissible as a facet of the right of freedom of speech and expression would not infringe the celebrity’s right to publicity, the Delhi high court said on Wednesday.

The high court gave its decision denying interim relief to Dream 11’s subsidiary and Singapore-based entity Digital Collectibles PTE Limited in its suit against Mobile Premier League (MPL) and an application Striker. Digital Collectibles carries its business worldwide and in India under the trade name Rario.

“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,” justice Amit Bansal said.

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Rario filed a plea in the high court on February 28 to prevent rivals MPL and Web 3 fantasy platform Striker from using caricatures and identifiers – such as names and surnames – it had licensed from some sports persons under exclusive deals to offer them as non-fungible tokens (NFTs) on its platform.

The suit by Rario alleged that the defendants were “minting and distributing” NFTs which captured the images of players with whom the plaintiff had entered into exclusive license agreements.

An NFT is a unique digital identifier, meaning it cannot be replaced and is recorded on a blockchain. NFTs are used to certify ownership and authenticity. In the gaming industry, NFTs are used to represent in-game items such as weapons or even entire virtual environments. These items can be traded like traditional collectables and generate revenue for game developers.

In its interim order, justice Bansal said that the right of publicity cannot be seen as an “absolute right in India” in the absence of specific legislation, while also adding that it cannot be infringed merely on the basis of a celebrity being identified or the defendants (MPL and Striker) make commercial gains.

“The extent of the right of publicity also has to be considered in the context of the ‘right to freedom of speech and expression’ protected under Article 19(1)(a) of the Constitution. Even if the right of publicity were to be considered to be an absolute right in India, it still must be subservient to Article 19(1)(a),” the court noted.

Stating that Rario cannot claim an exclusive right over the use of an NFT technology which is freely available, the court stated that the defendants used the NFT 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.

“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. Therefore, even if the defendants are using players’ names, images and statistics for commercial gain, this would be protected under Article 19(1)(a) of the Constitution of India,” the court said in its order.

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The court added that the defendants (MPL and Striker) were already running their game for almost six months and the grant of an ex-parte injunction order would gravely prejudice their business and the plaintiff’s (Rario’s) application seeking exemption from advance service was not bona fide.

“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 the closure of the business of defendant no.2 (Striker) and would cause huge financial losses not only to defendant no.2 but also to the users of the Striker platform,” the court said.