NFTs, Celebrities And Their Right To Publicity

Using names or pictures of celebrities in parodies, art, scholarship, music, academics and other similar ways is permissible, as facets of right to freedom of speech and expression under the Constitution, and would not violate the right to publicity, the Delhi High Court has said.

The case reached the high court after cricketers Harshal Patel, Umran Malik, Arshdeep Singh, Mohammed Siraj and Shivam Mavi along with Singapore-based company, Digital Collectibles Pte., sought an injunction against online gaming platform Mobile Premier League and its app Striker.

Digital Collectibles is an online marketplace where third-party users sell, purchase and trade officially licensed “Digital Player Cards” of cricketers. These cards are in the nature of Non-Fungible Tokens. MPL also has a similar business model.

The difference between the two is that Digital Collectibles has an exclusive license and authorisation to use the cricketers’ names, surnames, initials and images or other attributes of their personality for its business, while MPL does not.

Digital Collectibles alleged that the cricketers have limited playing time and have the right to monetise all aspects of their personality. Therefore, MPL cannot use the personality of a sports player for monetary gains without any authorisation from the celebrity. Striker is commercially gaining from the sale/trade of such NFTs, without authorisation from the players and this act amounts to breach of personality rights, it argued.

The high court disagreed.

It stated that the right of publicity cannot be infringed, merely on the basis of a celebrity being identified or a party making commercial gain out of the publicity. In the absence of a specific legislation, the right to publicity cannot be an absolute right in India, the high court highlighted.

Referring to previous rulings of Indian and American courts, the court said that the use of the name or image of a celebrity, along with data with regard to their on-field performances, by online fantasy sports platforms is protected by the right to freedom of speech and expression under the Constitution of India.

The information used by Striker, which includes that mentioned by the court, is freely available in the public domain and can be used by anyone, the court said.

Striker uses the artworks of cricketers and not the actual image of the players. This would be in the nature of caricature, which would constitute permissive use, the high court said.