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THE CONFLICT IN REALITY AND VIRTUAL WORLD: EMERGENCE OF IPR IN FANTASY SPORTS
This post has been authored by Aarushi Relan. It is being featured on the blog for winning the First position in the Online National Level Sports Law Essay Writing Competition organized by Centre for Sports Law, Policy and Research, JLU School of Law, Jagran Lakecity University, Bhopal in Association with Atharva Legal and Extra-Cover, Sports Law Blog of India.
Aarushi is a student of the B.A. LL.B. course at the prestigious Amity Law School, Noida
INTRODUCTION – WHAT ARE FANTASY SPORTS?
Through the emergence of the internet, video gaming websites, mobile sports-related applications and the fantasy world of sports have unleashed the reality of such games. Nowadays, it is quite ordinary when applications for playing games like football, cricket, golf and tennis are used by people across the globe. As Jimmy Fallon once amusingly quoted;
“Thank you, fantasy sports draft application for letting me that even in my fantasies, I am terrible at sports”.
Fantasy sports (also known as ‘rotisserie’ or ‘roto’) provide an ordinary enthusiast of a sport to experience a virtual role of manager and owner of their virtual team, which owes to their triumph based on the level of performance and other related statistics of players.[i] It can be construed as a platform where real sportspersons have to compete in a virtual playing field. These teams essentially compete with each other based on the statistical performance of the players in the real game. Fantasy sports originated in Manhattan’s Rotisserie diner, where an informal baseball fan club evolved and established imaginary gaming solely based on fan-following of the sports, its players and instant sports update.[ii] Later, the creation of the internet transformed the motive of such sports from a hobby to a standard commercial venture, practised by renowned entrepreneurs. Internet, further, has helped the participants to be provided with a quicker update on statistics and score of the game.[iii] Nowadays, leagues are organized by websites like CBS Sports, ESPN, Yahoo etc. and certain web sites even provide free participation to attract young sports enthusiast, where galore of opportunities exists for all stakeholders to earn profits out of advertising revenue. The economic impact of these games increased with the usage of mobile phone applications which enabled the players to have access to such games at any time and venue. Moreover, the success of a team in such sports depends on the score of the chosen players at that particular tournament or league.[iv] Such sports infotainment channels earn monetary benefits out of the real-world popularity of physical sports and offer expert advice to the drafters of such applications based on the organization of the game in the virtual world. At times, cash prizes are awarded to the participants who win the leagues and are given premium membership packages of the fantasy gaming applications. It creates a loop of addiction for the players to be stuck in this virtual gaming world.[v]
INTERSECTING FANTASY SPORTS WITH IPR
The rapid rise in fantasy sports has led to an increase in participation by an average of 12% in comparison to the previous decade. In fantasy sports, heavy reliance is made on athletes, logos, brands, likeness in the name of players, their nickname, persona, team name, name of leagues, descriptive information pertaining to the team and other similar ideas based on physical sports. In addition to the aforementioned, the connection also lies with factual information like historical scores, performance metrics, results and other related statistics. It is quite essential to understand that the nature of fantasy sports is quite nascent in India and raises conflicts in Intellectual Property (“IP”) aspects so associated.
In the surge of fantasy sports, it is essential to establish that fantasy sports entrepreneurs are legally bound by a contract with such players, leagues and association, as India has become the biggest market for such sports by 2020.[vi] Therefore, it becomes pertinent to understand the legal aspects of fantasy sports which shall be legally protected by Intellectual Property Rights (“IPR”) of the owners and may be addressed by the Indian judiciary in the upcoming years. The Indian law concisely and adequately supports the rights of the operators or maker of such fantasy sports, sometimes more than the sports organizations and tournaments organizers regulating such sports in reality. The usage of facts and identity rights of the sportspersons to leads to complexities in the ever-evolving arena of laws governing IP rights. It also affects the marketability of the sports, essence of the existence of the players, owners, leagues, tournaments, broadcasters, advertisers and sponsors. The intangible value of the players is extremely important too, as they invest a significant amount of time and skill to establish such recognition and popularity.
Henceforth, it is important to address the issue that whether the facts and identities are the IP of the owner or the developer of such fantasy sports and also whether such operators are infringing the rights of the proprietors as they are the first users. Thus, it is vital to understand that the use of such facts and identity by the game operators may constitute a violation of IP laws under the jurisdiction of India. For this purpose, the article explores the scenario of fantasy sports and IP in India concerning statistics, logo and images and personality rights of players.
USAGE OF STATISTICS, IMAGES AND COPYRIGHT LAW
The facts or statistics of historical scores are the most important source of operation in fantasy games since the time it originated.[vii] Such statistics are obtained by the fantasy sports game operators from various sources which are available in the public domain. Moreover, such information is generally portrayed alongside the image of players of such fantasy sports on the game operator’s platform. The IP issue concerning the same is that usage of such facts or statistics leads to copyright infringement of the original owner of such facts. Thus, determining the copyrightability of facts in light of the Indian laws is crucial.
Originally as stated in the preamble of Copyright Act, 1957, it protects the literary, artistic, musical and dramatic rights of the broadcasters/proprietors from infringement by others. However, it is essential to establish that the statistics qualify as an ‘original’ literary work under Act.[viii] The term ‘originality’ as per the Act does not necessarily mean that the idea of a person must be authentic, but that expression of the thought must be original and not copied by another person. It is often termed as ‘idea-expression dichotomy’. Section 2(o) of the Act states that ‘literary work’ constitutes of computed programmes, algorithms, databases, data in a table format and its compilations.[ix] The definition of the same is inclusive and not exhaustive as it could further include a literary write-up, content or manuscript.
It is a universally established principle of copyright law that acts are not copyrightable. It was held in Eastern Book Company v. D.B. Modak,[x] that there exists no copyright in the factual information as it exists in public-domain. The primary objective of the copyright law is not to reward the author of the original work but to promote its progress in science and other essential art subjects. Henceforth, a creation of work which has been formulated by the usage of skill, capital, labour and intelligence is more than just a duplicate of an original work. The Act further affords to protect ‘compilations’ which are covered under the ambit of literary works but Indian statute does not state its definition. However, according to US Copyright Act, 1976, a ‘compilation’ is a form of work which is formed by the collection and assembly of pre-requisite knowledge or data which has been arranged, selected and coordinated in a manner that it results in original work of the authorship. In Feist v. Rural.,[xi] the court ruling decided that information from any source serves as a compilation but cannot contain any ‘expressive’ content added exclusively by the author of such information. The operator of such fantasy sports copy the proprietor’s compilation of data, statistics and factual information which has been collected after a substantial amount of labour and resources and is ‘original’ work of the owner. Hence, it may invite claims for copyright infringement by the proprietor of such data.
With regard to the issue of copyrightability of statistics, it was held in Delhi High Court that there appears and exists no copyrightable content in the statistics of a cricket game. The Division Bench rejected the rights claimed by Star India for publishing the statistics and match information by the appellant and arguing the violation of broadcasting rights.[xii] Consequently, in a similar decision, it was held by Delhi HC that once match scores enter in public records, they can be reproduced without violation of any copyright.[xiii] Henceforth, it is a well-established statistics and mere facts are not copyrightable. However, copyright infringement can be attributed if statistical compilations are used in the same format.[xiv]
In addition to the above stated, fantasy sports often use images, photographs, animated photos of players along with the statistics on their websites and applications. This may cause an issue concerning the violation of copyrights and personality rights of the players and teams. Images, whether of the celebrity or otherwise are copyrightable under the Copyright Act, if original.[xv] The first owner of such images has a monopolistic right to reproduce the image in any manner.[xvi]
The photographer of the artist shall be the first owner of the image unless the image is contractually clicked by a newspaper, broadcaster or magazine. Thus, an image of a player if available in the public domain shall be protected under copyright law and publicity rights of the player. However, if there is unauthorized use of such image and amounts to infringement, the same can be protected if the fantasy game operators have a valid license to use the image.[xvii]
USAGE OF LOGOS, NAME OF LEAGUES, TEAMS AND TRADEMARK LAW
The fantasy sports game vividly uses the brands, logos, name of teams and players associated with the game to attract the public attention and fans of the sports. However, the rapid growth of such sports broadcasting industries has led the team players and leagues to acquire a greater reputation which is infringed by such operators. The extend of protection is not solely restricted to the brands, logos or slogans, but the combinations of colour used, colour schemes, fixtures and uniform designs.[xviii] For instance, a unique colour scheme of green and purple stripes is used in the Wimbledon cup by the tennis players.[xix]
The Trademark Act, 1999 primarily serves the purpose of protecting the public from any deception or confusion by identifying the main source of particular products and distinguishing them from such similar brands. Subsequently, the Act aims at protecting the rights of the trademark owner from being infringed as well as the goodwill and reputation so attached with the trademark.[xx] To prove the infringement of a trademark, it is essential to establish that the mark is fraudulently used in the course of business or trade.[xxi] The violation occurs when the public deceitfully assumes that the wrong-doer is the proprietor of the trademark and operators enjoys the goodwill attached with the trademark.[xxii] Nonetheless, ipso facto, usage of the trademark by any such other party shall not amount to infringement if used concerning a different set of goods different from the Nice Classification of such Goods and Services in which it is registered.[xxiii] The possible remedy to trademark infringement is provided via Section 29 of the Trademark Act, 1999.[xxiv] The clause (4) of Section 29 provides that a trademark may be infringed by a person not registered as a proprietor and uses the mark in course of its trade and business when it identical or similar to other goods and services available. This remedy is attached with the concept of ‘dilution’ as it occurs when the usage of such mark causes a diminishing and weakening the strength of value and reputation of the well known-mark.[xxv] In 2011, it was decided by the court that usage of a mark may not cause perplexity among the consumers but damage to the reputation of a well-known trademark and which shall result in dilution of the popularity of the mark in the market.[xxvi]
More than infringement of goods, the logos and brands are subjected to passing-off under the trademark law. The statute governing the Act states that there shall be no action for infringement in case of an unregistered trademark, as no person has a right to pass off his goods or services and the court has subsequently recognized the same.[xxvii] When International Cricket Council filed a suit seeking an ad-interim injunction against the defendants to restrain them from publishing an advertisement associating with ‘Cricket World Cup’, it was held by the court it may be a case of passing off. The defendants promoted their business to the general public in a false impression and endorsed the brand of plaintiffs incurring the goodwill so associated with the trademark.[xxviii] Henceforth, the fair use of such images, logos and brands are essential as the operators of fantasy games use it to a great extent. The jurisdictions like the European Union and the United States[xxix] adopt the doctrine of fair use in similar situations. However debatable, the defence of normative fair use can be established for the game operators of fantasy gaming applications. This defence is applicable in cases where the mark is utilized by another party to provide identification of proprietor’s goods and services.
MERCHANDISING THE ‘SOUL’ OF A SPORTSMAN
In addition to the Copyright and Trademark Act, the players are entitled to certain neighbouring rights such as ‘publicity rights’. Therefore, an integral issue which needs to be addressed is whether the personality rights of a player is infringed by using their names in fantasy sports. The personality rights are elucidated as broad and bundle of rights vested upon an individual’s persona which is recognized based on their public image, likeness, name, skills, traits, character and fan-following.[xxx] Simultaneously, the player’s professional career graph, name and nick-name also add ups the personality and publicity rights of a player.
Delhi High Court recognized the publicity rights of a player and stated that the concept has been adapted from the Right to Privacy. It is inherited from the player’s name and personality which also benefits him monetarily. This case helps to distinguish the rights of an individual under the Constitution and publicity rights available to the celebrated entities under the mix of copyright and trademark law.[xxxi] Subsequently, in a similar case, the same court decided and recognized that when the personality of a celebrity is used in an unauthorized way, it results in an infringement of publicity rights.[xxxii] The Madras Court relied upon the decisions of Delhi High Court and held that when the name of a renowned Indian celebrity ‘Rajnikant’ is used in an unauthorized manner, it would result in a violation of the publicity rights of his persona and identity.[xxxiii]
Finally, the landmark judgment[xxxiv] passed by the Supreme Court of India in Puttuswamy deeply scrutinized the term ‘Right to Privacy’ in a broader dimension. Justice Kaul stated in the judgment that every individual has a right to exercise control over his image and persona in an authorized manner. In the light of abovementioned, it was stated that ‘right to publicity’ is an autonomous right inherently attached to ‘personal interest’ and prevents outsiders from inferring its meaning and value. This recognition of personality rights under the ambit of Article 21 has raised a potential question, especially in the context of its interplay with Article 19(1)(a) of the Indian Constitution. This connection was addressed by Delhi High Court in Baby Gift House, where it was held that publicity rights should not affect the exercise of the freedom to speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution.[xxxv]
In US courts, the publicity rights are addressed and guaranteed to the players based on common law and exclusive statutes. It protects celebrity individuals against unauthorized use of their identity for commercial advantage.[xxxvi] Quite similar to US & India, the countries in the EU also recognize the right to publicity and privacy of celebrities, but not of common individuals. The usage of player names in personality sports is generally utilized for normative and commercial purpose. The fair use arises when the necessary consequence is utilized by the game operators. Usage of the player’s persona is utilized for promoting fantasy sports and to increase profitability margin of the gaming operators. Henceforth, such operators do not likely fall afoul of the publicity rights of the players. However, the operators run the risk of violating the publicity rights of players by publishing facts about such players.
The usage of reality sports in virtual reality has created a myriad of complexities and have raised several integral IP issues. Through this analysis, it can be concluded that a normative fair use of such logos, images, team player names and name of leagues, substantial protection claims can be established in IP laws through various statues and precedents. However, there is still a scope for these issues to be addressed in Indian courts as they are emerging under Sports and IP law. The unauthorized use of such images, personality rights or logos can misinterpret and deceive the public. Addressing such ambiguities is essential to harmonize the rights of fantasy sports operators and the proprietors of such games. An ultimate solution to IP related problems is a collective licensing arrangement which assigns the third parties a right to use such resources legally and alternatively provide an exclusive right to operate them. This approach is not novel as developed countries like the US and EU operate on collective licensing contracts. In the US, Player Association assigns such rights to Football League Player Association and Baseball tournaments who further assign such rights to interested stakeholders. Moreover, this by no means signifies the only way which to enable the licensing of such rights, but this structure stands as a fair operation of sports law and may end the conflict between the real and virtual world. It is important to protect and harmonize the rights at both ends. As Zaid Mahomedy rightly puts it up together and states that;
“Don’t get too engrossed in Virtual Reality and always remember that you can unplug any time and exit that world, but not reality”.
The author can be reached for comments on her email at email@example.com
Cite as: Aarushi R., The Conflict in Reality and Virtual World: Emergence of IPR in Fantasy Sports, Extra-Cover: The Sports Law Blog of India (5th December 2020), Accessed at https://www.extra-cover.org/post/the-conflict-in-reality-and-virtual-world-emergence-of-ipr-in-fantasy-sports [Date of Access].
End-Notes: [i] Karan Sangani, When fantasy meets India: Debunking the need to license Intellectual Property for fantasy sports games, ISLJ ( Jun. 2, 2020, 6:51 PM), https://link.springer.com/article/10.1007%2Fs40318-020-00166-8#citeas. [ii] Arun Prabhu & Rishabh Shroff, Use of Third Party IP in Fantasy Sports Game, The Laws Relating to Fantasy Sports Games in India, The Sports Law & Policy Centre (Jun. 1, 2020, 1:24 PM) http://www.sportslaw.in/reports/FantasySportsPublication-Web.pdf. [iii] C.W. Hambleton, Are IP Rights in Fantasy Sports a Reality?, Law School Student Scholarship, Seton Hall University (Jun. 2, 2020, 8:46 PM) http://www.scholarship.shu.edu/cgi/viewcontent.cgi?. [iv] CBC Distributing and Manufacturing Inc. v. Major League Basketball Advanced Media L.P., 443 F.Supp 1077 (2006). [v] Gaurav Laghate, How fantasy sports is becoming a multi-billion dollar business globally, The Economic Times (March 23, 2018). [vi] Sharon Fernandes, Where Everyone is a Team Manager, Times of India (April 8, 2018). [vii] Z. Bolitho, When Fantasy Meets the Courtroom: An examination of IP issues surrounding fantasy sports industry, 67 O.S.L.J., 911-916 (2006). [viii] The Copyright Act, § 13, 142-143 (14 of 1957). [ix] The Copyrights Act, § 2(o), 138 (14 of 1957). [x] Eastern Book Company v. D.B. Modak, 1 SCC 1 (2008). [xi] Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991). [xii] Akuate Internet Services Private Limited v. Star Indian Private Limited, SCC Del 3344 (2013). [xiii] ICC Development v. New Delhi Television Ltd., 193 DLT 279 (2012). [xiv] Star India Private Limited v. Piyush Agarwal, SCC Del 1030 (2013). [xv] The Copyright Act, § 13(a) r/w §2(c), 9 (14 of 1957). [xvi] The Copyright Act, § 14 (c), 9-11 (14 of 1957). [xvii] Irvine v. Talksport Ltd. 1 WLR 2355 (2002). [xviii] Briana Emerson & Micheal Spink, US Color Trademarks: Not a pigment of imagination, Mondaq (Jun. 4, 2020, 9:40 AM) https://www.mondaq.com/unitedstates/trademark/382050/. [xix] S.C.C. Bond, Trademark for sports event – how Wimbledon secured their color mark, Law in Sport (Jun 4, 2020, 10:04 AM) https://www.lawinsport.com/more/podcast/item/. [xx] 1 J.T. McCarthy, Trademarks and Unfair Competition (New York, 86 (1973)). [xxi] Nestle India v. Mood Hospitality, 3 ILR Del 560 (2010). [xxii] Cadbury India ltd. v. Neeraj Food Products, 35 PTC Del. 95 (2007). [xxiii] Rana Steels v. Ran India Steels Pvt. Ltd., 102 DRJ Del. 503 (2008). [xxiv] The Trademark Act, §29(4), 25-28 (47 of 1999). [xxv] Sankalp Jain, Dilution of Goodwill in Trademarks: A case study in Indian Context, SSRN (Jun. 4, 2020, 5:15 PM), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208105. [xxvi] Tata Sons Ltd. v. Manoj Dodia and Ors., 46 PTC Del. 244 (2011). [xxvii] The Trademark Act, §27, 24 (47 of 1999). [xxviii] ICC Development v. Arvee Enterprises, 26 PTC Del. 245 (2003). [xxix] New Kids on the Block v. News Am., 971 F.2nd 302 (1992). [xxx] Awasthy Sujith, Sports and IPR – An overview of the Indian Standards, Open Access Journal, The Law Bridge (Jun. 4, 2020, 7:56 PM) http://thelawbrigade.com/wp-content/uploads/2019/05/Aswathy.pdf. [xxxi] Id. at 14. [xxxii] Titan Industries v. Ramkumar Jewellers, SCC Del 2382 (2012) [xxxiii] Shivaji Rao Gaikawad v. Varsha Productions, SCC Del. 2382 (2012). [xxxiv] Justice K.S. Puttuswamy (Retd.) v. Union of India, 10 SCC 1 (2017). [xxxv] D.M Entertainment Pvt. Ltd. v. Baby Gift House, CS (OS) 893/2002 (2010). [xxxvi] Uhlaemder v. Henricksen, 316 F. Supp. 1277 (1970).