A single judge bench of Justice Amit Bansal made the observation in a suit filed by Dream 11’s subsidiary and a Singapore-based entity Digital Collectibles PTE Limited running a website called Rario against Mobile Premier League (MPL) and an online fantasy sports (OFS) application called Striker. The Delhi High Court held Wednesday the use of celebrity names and images for satire, art, music, and other similar uses is permissible under the right to freedom of speech and expression under the Constitution and would not infringe their right to publicity.

A single judge bench of Justice Amit Bansal made the observation in a suit filed by Dream 11’s subsidiary and a Singapore-based entity Digital Collectibles PTE Limited running a website called Rario against Mobile Premier League (MPL) and an online fantasy sports (OFS) application called Striker. Justice Bansal observed, “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”. While dismissing the plea for interim relief Justice Bansal said, “Where the identity or the image of a celebrity is used to promote the sale of a product or a service or to show its endorsement by the celebrity or an association with the celebrity, without their consent, it would amount to misrepresentation and cause a likelihood of confusion in the market. In such cases, consumers would be misled into believing that a celebrity is endorsing the defendant’s goods/services or is otherwise associated with them. This would result in infringement of the right of publicity of the celebrity.” The court, however, remarked this right of publicity cannot be infringed merely because a celebrity is identified or that the defendants in this case were “making commercial gain” as was argued by Rario. “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 of India. 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) of the Constitution of India,” it said. The court took the view that the use of a celebrity’s name or image along with data about their on-field performances by Online Fantasy Sports (OFS) platforms is “protected by the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India” and that the 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 HC held. The court said that OFS operators use the information of the players “available in the public domain” for identifying players to play the game. Hence, it said, this removes any “possibility of confusion” that a particular OFS platform is being endorsed or has an association with a particular player. The court further said that the plaintiff cannot claim to have an exclusive right over the use of a non-fungible tokens technology which is freely available. It held that if an injunction is granted at this stage it would result in closure of the Striker’s business and would cause huge financial losses to it. The business of both parties includes the creation of an online marketplace where third-party users can purchase, sell and trade Digital Player Cards, which include the image of a player along with the player’s name/initials. Rario alleged the defendants were “minting and distributing” non-fungible tokens which captured the images of players with whom Rario had entered into exclusive license agreements.v Digital Collectibles PTE and Rario filed the suit on account of unlawful use of player marks and other attributes which amounts to “unfair competition (including passing off); unjust enrichment; unlawful interference with economic interest of the plaintiffs; and breach of personality rights” of the players.