The right to publicity refers to an individual’s right to control the commercial use of their name, image, likeness and other identifiable aspects of their persona. The pertinent question which arises is whether right to publicity is a fundamental right or not.
Recently, the Delhi High Court in the case of Digital Collectibles Pte Limited & Ors. v. Galactus Funware Technology Private Limited & Ors.[1] observed that use of publicly available information about a celebrity would not infringe upon the individual’s right to publicity and subsequently, use of a player’s name, image, and other performance data in NFTs does not amount to infringement of their personality rights. Any use of celebrity names, or images for the purpose of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of 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 privacy. The right to publicity is not a facet of right to privacy under Article 21 of the Constitution of India and products that are freely available in the public domain do not attract the principle of passing off. The right to publicity is not absolute and must be weighed against the right to freedom of speech and expression.
If one has gained commercial benefits from monetizing a celebrity’s name, image and/or statistics, the use of such information would still be permissible as a valid exercise of one’s right to freedom of speech and expression, to the extent that it does not suggest any kind of endorsement or association with the concerned celebrity.
Additionally, one cannot claim to have an exclusive right over the use of an NFT technology as NFT is a technology that is freely available. There is no difference between an OFS[2] game with NFT enabled player cards and an ordinary OFS game insofar as use of the name or artistic impression/photograph of a celebrity is concerned. The Court indicates that the requirement of obtaining specific rights to create NFTs or any unique products linked to a celebrity does not arise if it can be demonstrated that the information was in the public domain, and that there is no misconception of specific endorsement created in the minds of the target audience.
The judgement has thrown some light on the ambit of regularization of the advancing technology as it becomes a part and parcel of our lives. It would be interesting to see the observations of the Apex Court on this facet of law.
[1] MANU/DE/2670/2023 [2] OFS games are a form of online gaming offered on the internet that allows users/fans of sports to create and manage their own virtual teams based on real athletes in formats set by online gaming platforms. Such online games allow users to compete against each other in various virtual gaming events/leagues centred around real-world sporting events and are based on, inter alia, the statistical data of the performance of sportspersons.