ATHLETE’S PERSONALITY RIGHTS AND SPUR OF THE MOMENT ‘CONGRATULATORY MESSAGES’
Updated: Jan 10, 2022
This post has been authored by Ms Trusha Modi.
Trusha is a third-year student of B.B.A. LL.B. (Hons.) at the prestigious OP Jindal Global University.
INTRODUCTION
William Shakespeare coined the famous phrase “What’s in a name?” Apparently, a lot lies in a name, such as the name, image, likeliness, and persona of an individual, which gets protected under the umbrella term of what is termed as personality rights. Personality rights provides an athlete the opportunity to monetize on their fame and popularity through endorsements, advertising, sponsorships, etc. The growth and commercialization of sports makes it essential to protect personality rights of an individual athlete so that brands for their own gain do not exploit the fame and popularity of an athlete without authorization.
When social media was poured with congratulatory messages for the Tokyo Olympic medallists, few brands decided to seize that moment through “Moment Marketing” and skirted personality rights by posting ‘congratulatory messages’ using the image and name of athletes’ without authorization, thereby cashing in on success of the medal winners. The ace shuttler PV Sindhu decided to take on brands that made unauthorized use of her image and name. This article analyses the new ground of battle that has opened-up between the Athletes- the right-holders and Moment marketers- the unlawful gainers; by diving deep into the legal landscape of ‘Right to Publicity’. It elucidates the challenges associated with claiming punitive damages and other legal recourse in such cases. It also highlights the need for special framework for protection of athletes’ personality rights in India.
RIGHT OF PUBLICITY IN INDIA
The ‘Right to Publicity’ or ‘Personality Rights’ is recognized through judicial legislation in India as there exists no specific legislation protecting the same. The Court in ICC Development (International) Ltd. v. Arvee Enterprises held that ‘right to publicity’ is an individual’s right to commercially exploit and have control over their name, likeliness, fame, image, and other personality traits. Publicity rights in India are considered to be a facet of right to privacy under Art. 21 of the Indian Constitution. In the case of Titan Industries Limited v. M/S Ramkumar Jewellers, the Court laid down two key elements to establish publicity rights. The first element is validity i.e., right in one’s own identity. The second element is identifiability which means, the ‘plaintiff’ should be identifiable in the unauthorized use made by the defendant. The Court further held that there exists a claim in right to publicity even if there is no falsity, deception or confusion as to the association of athlete with the brand, therefore, its scope extends beyond the traditional boundaries of false advertisement.
However, ‘public interest’ element that involves dissemination of information like news reporting forms the first exception to the claim of personality rights. The other exception is “indiscriminate use of publicity right that creates a chilling effect on the freedom of speech and expression of others”[i] i.e., deters the public from exercising their democratic right of free speech. However, the following exceptions cannot be invoked for congratulatory messages as it does not involve dissemination of information nor does it creates a chilling effect on free speech, therefore, moment marketing infringes personality rights of athletes.
RIGHT OF PUBLICITY IN OTHER JURISDICTIONS
Right to publicity is a well-established right in the USA. Though, there is no federal law, the majority states recognize the right by statute in addition to case laws. In the Hirsch v. S.C. Johnson & Son, Inc case the Court made a distinction between the ‘right to publicity’ and ‘right to privacy’ because the former includes economic exploitation of one’s personality and such aspect differentiates it from the latter. Thus, right to publicity has developed as a separate property like right in many foreign jurisdictions. The civil law jurisdictions like Italy and France have specific legislation for safeguarding athletes’ image rights. Image rights are protected in the UK through the tort of passing off, copyright and trademark law, but there exists no directly enforceable image rights that athletes could rely on.[ii]
DETERMINATION OF DAMAGES
Right to publicity is protected in India, however in comparison to USA and Europe, the remedies granted by Courts is mostly restricted to a grant of a permanent injunction against the wrong-advertisement. In Rajat Sharma v. Ashok Venkatramani and Titan Industries Limited v. M/S Ramkumar Jewellers, where right to publicity of the plaintiff was violated, only a restraining order against the advertisement’s use was granted. In the D.M. Entertainment case,[iii] in a claim of passing off and violation of personality right, damages worth one lakh rupees was awarded. Such was because in a passing off claim, the plaintiff has to prove an additional element of “likelihood of confusion in the minds of the public”. This means, the public should believe that the plaintiff is associated with the tortfeasor’s brand or product.
In contrast, the US Court has granted $8.9 million compensation to Michael Jordan under the right to publicity when he sued two grocery chains for publishing an advertisement for congratulating him. Similarly, the UK court in the case of Irvine v. Talksport Ltd [iv] the plaintiff, Eddie Irvine, the former formula one racer driver, received £25,000 damages when the defendant exploited his image, goodwill and reputation without his consent for false endorsement. Though there is no specific law in USA or UK as well for moment marketing, the quantum of damages awarded for violation of publicity right creates deterrence which is not the case in India as the difference in damages awarded is quite visible.
In India, the Court in Arun Jaitley v. Network Solutions Pvt. Ltd. case has noted that exemplary or punitive damages will be awarded only when the defendant’s conduct is ‘ex facie’ dishonest. The congratulatory messages being in the moment does not seem to be prima facie dishonest. Therefore, brands can take the defence that they are just participating in the ongoing social media discussion with there being no dishonest intention to cause confusion among people. For instance, Oreo’s “You can still dunk in the dark” tweet, side-stepped infringement as Oreo was just being a part of ongoing conversations. There exists a thin line between participating in the discussion and suggesting an official link of their products with the athlete and smart marketers can take advantage of it. In a similar case involving the Indian cricketer ‘Prithvi Shaw’, Baseline sued ‘Swiggy’ and ‘Freecharge’ for congratulatory messages. However, the suit bore no fruit as compensation wasn’t awarded and nothing came out of this case. Therefore, lack of proper damages leaves the remedy under ‘right to publicity’ meaningless.
MOMENT MARKETING – ADVERTISING GENIUS OR DISINGENUOUS ?
The congratulatory messages potentially violate Rule 1.3. of the ASCI Code for Self-Regulation. The rule provides protection against advertisement that are without a person’s permission which misleads people to believe that the person is endorsing that particular brand. The legal remedy against such false and misleading advertisement can be claimed under S.89 of the Consumer Protection Act, 2019. The punishment under the said provision includes imprisonment for a term of two years with a fine which may extend up to ten lakh rupees for the manufacturer or service provider, and such punishment is harsher for a repeat offender. However, as explained above, in context of moment marketing, it is very hard to argue that people would be confused into believing that the athlete is endorsing the brand as the congratulatory posts are in the spur of the moment when the entire social media is flooded with such messages. The smart marketers, therefore, can rely on allusion to the event. For instance, Amul has been decades ahead in moment marketing by the way of ‘Amul Topical Ads’ and now has built a strong brand equity for it.
Therefore, many brands can circumvent the legal provisions and unfairly run on the bandwagon of an athlete which would be termed as an ‘advertising genius’ where the brand has managed to make the connection and trigger high level of engagement with the game’s audience on social media. Also, there may be instances where the athlete would not like to be associated with some brands because of the ignominious status of the brand, as such leads to loss of reputation and damage to goodwill of an athlete protected under personality rights, for instance Pan Bahar’s post in PV Sindhu’s case. The ingenuity of brand to respect such personality rights needs to be countered with stringent laws in India.
RULE 40 OF THE OLYMPIC CHARTER
Moment Marketing also violates Rule 40 by-law 3 of the Olympic Charter which restricts the way in which athletes can use their image during the Olympic blackout period. The rationale behind the rule is to protect and assert the exclusivity of the Olympics official sponsors and guard the event from ambush marketing. However, the applicability of the rule is decided by the respective nations National Olympic Committee. The sponsors of German athletes or American athletes are allowed to post congratulatory messages for their athletes during the Olympic blackout period, whereas, the Indian athletes and the British athletes official sponsors are not allowed to post congratulatory messages. The rule seems harsh on Indian and British athletes official sponsors as it disallows them to post congratulatory messages for an athlete they have supported. The ‘moment marketers’ violate the rule and also commit a wrong against the official sponsors who could not post because of the restraint. However, the effectiveness of the remedy under Rule 40 is questionable, “certainly when they appear to extend far beyond the legal recourse which is actually available”.
CONCLUSION
The right to publicity is still at a nascent stage in India especially in the sporting industry because of less judicial precedents and no specific legislation, unlike foreign jurisdictions which have at least either one of them. Many athletes in India do not trademark their name or copyright their unique elements unlike athletes in foreign jurisdictions. The existing Intellectual property rights framework needs to be amended to include personality rights and courts should look to create ‘deterrence’ by awarding huge exemplary damages for exploiting athletes rights in the name of ‘moment’. The existing remedies as seen through PV Sindhu’s case are time-consuming and heavy-handed legal action can garner more publicity and attention to non-sponsor brands. Therefore, with rapid commercialization of sports and increasing social media advertising, the exploitation of ‘moments’ needs to be countered by using speedier remedies such as special take-down arrangements with social media platforms. There is a need for a special framework for protection of personality rights as all the existing remedies falls short to protect the athlete from moment marketing.
The author can be reached for comments on his email at trushamodi25@gmail.com
Cite as: Trusha Modi, Athlete’s Personality Rights and Spur of the Moment ‘Congratulatory Messages’, Extra-Cover: The Sports Law Blog of India (08th Jan. 2022), Accessed at https://www.extra-cover.org/post/athlete-s-personality-rights-and-spur-of-the-moment-congratulatory-messages [Date of Access].
End-Notes: [i] D. M. Entertainment v. Baby Gift House CS (OS) 893/2002. [ii] Simon Boyes, ‘Legal protection of athletes’ image rights in the United Kingdom’(2015) 15 (1) The International Sports Law Journal <https://doi.org/10.1007/s40318-015-0067-7> accessed 03 November 2021. [iii] Supra note 1. [iv] Irvine and Ors. v. Talksport Ltd [2003] EWCA Civ 423.