Intersecting Fantasy Sports with Intellectual Property Rights: A Conflict in Reality and Virtual world
Issue 22 | November 22, 2020
Nowadays, the use of applications to play games like football, cricket, golf and tennis instead of playing them, in reality, is an ordinary practice . As Jimmy Fallon once amusingly quoted, “Thank you, fantasy sports draft application for letting me know that even in my fantasies, I am terrible at sports”. 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 the similar idea of the sport. In addition to this, the connection also lies with factual information like historical scores, performance metrics, results and other related statistics.
In the surge of rise in fantasy sports, the issue of whether the fantasy sports entrepreneurs are legally bound by a contract with such players, leagues and association is essential to be established, as India has become the biggest market for such sports by 2020. Therefore, it becomes pertinent to understand the legal aspects of fantasy sports which shall be legally protected by Intellectual Property Rights of the owners and would be addressed by the Indian judiciary in the upcoming time. With regard to Copyrights, the issue is that usage of facts, statistics, images, photographs, animated photos of the players related to the original game in fantasy sports leads to copyright infringement of the original owner of such facts. Thus, determining the copyright-ability of such facts in light of Indian laws is crucial.
Further, the fantasy sports games vividly use the brands, logos, teams and player’s names 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 extent of protection is not solely restricted to the brands, logos or slogans, but the combinations of colour used, colour schemes, fixtures and uniform designs. For instance, a unique colour scheme of green and purple stripes is used in the Wimbledon cup by the tennis players. Such logos and brand names are subjected to passing-off under the Trade Mark Act, 1999, if not registered. Subsequently, in a precedent when International Cricket Council filed a suit seeking an ad-interim injunction against the defendants to restrain them from publishing an advertisement associated with ‘Cricket World Cup’, it was held by the court it may be a case of passing off.
In addition to copyrights and trademarks, the players are entitled to certain rights which are covered under the arena of ‘publicity rights’. Therefore, an integral issue which needs to be addressed is whether the personality rights of a player are infringed by using their names in fantasy sports. The personality rights are elucidated as a broad 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. In Star India Private Limited v. Piyush Agarwal, SCC Del 1030 (2013), the Delhi High Court recognized the publicity rights of a player and recognized that the concept has been adapted from the right to privacy.
An ultimate solution to IP-related problems is the collective licensing arrangement which assigns the third parties a right to use such resources legally and an exclusive right to operate them. This approach is not novel as developed countries like the United States of America and the European Union operate on collective licensing contracts. In the United States of America, the Player Association assigns such rights to Football League Player Association and Baseball tournaments who further assign such rights to interested stakeholders. It is important to protect and harmonize the rights of both ends but acknowledge the real ‘proprietors’ rights more as they are the rightful first owners.