Publicity Rights Concerning Sports Athletes
Introduction
There is no exact legislation in India concerning regulating the publicity rights of a sports athlete. Through various proceedings from the Court of law, Publicity rights are inherent in Articles 19 and 21 of the Constitution of India.[i] In principle, the Delhi High Court has recognized publicity rights in the case of ICC Development (International) Ltd v Arvee Enterprises (2003).[ii] It was the first given judgment dealing with publicity rights. Publicity rights have attracted considerable recognition in the field of intellectual property rights. Merely put, it is an individual’s right to handle the commercial use of their name, image, individuality and personal brand. Publicity, such as character, reputation and personal brand, will be protected under various statutes, such as the Copyright Act 1957 and the Trade Marks Act 1999.[iii]
Provisions in Indians Laws
Trademarks Act, 1999 does not make any exact provision for publicity rights, but its definition of ‘Marks’ contains names within its ambit. This Act explains the significance of support when it comes to the enrollment of trademarks for the matter of Publicity or Privacy, and The Copyrights Act 1957[iv] defines word “performer” as an actor, singer, musician, dancer, acrobat and juggler etc. When a famous person’s individuality is used for publicity without their permission, the problem is not that one should not get commercial remuneration for that use but that it should be the famous person who should get the power and right to control when, where and how their identity is used.
Highest Paid Athlete-Endorsers in the World
| Name | Endorsements | Sport |
| Roger Federer | $90M | Tennis |
| LeBron James | $80M | NBA |
| Tiger Woods | $68M | PGA |
| Naomi Osaka | $58M | Tennis |
| Lionel Messi | $55M | Soccer |
| Cristiano Ronaldo | $55M | Soccer |
| Tom Brady | $52M | NFL |
| Kevin Durant | $50M | NBA |
| Stephen Curry | $47M | NBA |
| Serena Williams | $45M | Tennis |
Source: Forbes[v]
Here, We look at the highest paid athlete endorses in the world and Roger Federer, in endorsements this year and at the top of the table with $90 million. LeBron James is still up there with $80 million in NBA. Tiger Woods is in the $68 million range for golf. So when we look at the publicity rights of these athletes, how do their lawyers protect their athlete’s image worldwide and how Indians athlete will be there in future?
[Image sources : Shutterstock]
Case Studies
Case Study 1 – Bastian Schweinsteiger(5)
Hong Kong-based company Dragon and Dream began producing the “World War II Army Supply Duty – and Named it Bastian,” a Nazi soldier doll.
Bastian Schweinsteiger has stated that legal action will likely be pursued against Hong Kong-based company Dragon in Dream. But Hong Kong has no codified body of law protecting the rights of personality or Publicity Policy of an athlete but the company has distributors in nine countries, including the US, UK, China and Japan, which offer better enforcement options
Legal claims could include the following things like violation of copyright law, defamation, violation of advertising laws and breach of confidence under contract law.
Case Study 2- Cristiano Ronaldo(6)
In mid-June of 2015, Cristiano Ronaldo sells his image rights to Peter Lim, who is the owner of Mint Media Company and opposing La Liga club Valencia. Hence Cristiano Ronaldo’s Publicity rights were bagged by Mint Media for 6 years.
With respect to Ronaldo’s fans and football critics, it required a lot of clarity in terms of sports marketing and publicity rights to understand the situation but Ronaldo’s Representative said on the issue, It was a strategic move to take Cristiano Ronaldo’s brand to the next level, especially in Asia Continent.
Case Study 3 – Sourav Ganguly(7)
The Court granted in a case for Sourav Ganguly relief by holding that his popularity constituted intellectual property in the form of a licensed innovation and, therefore, the sale of tea using his name without his consent amounted to a violation even though he was an employee of the defendant.
Conclusion
As per my analysis, the Indian judiciary has identified these rights as part of the right to Privacy and IPR, but no defined legislation exists that can regulate things. Going ahead in this fast-forwarding world, publicity rights concerning sports in India will develop and can reach a high of excellent dominance like European countries. There will be a need for Publicity policies in India, like the countries US, UK, China, Japan etc., which follow and have codified legislation on publicity rights in general for sports.
Author: Abhishek Singh, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing
REFERENCES
[1]Indian Constitutions – Article 19 and Article 21
[2]ICC Development (International) Ltd v Arvee Enterprises 2003 (26) PTC 245
[3]Trade Marks Act 1999.
[4]Copyright Act 1957
[5]Sports.ndtv.com/football/bastian-schweinsteiger-sues-hong-kong-company
[6]Indiatoday.in/sports/singapore-billionaire-acquires-ronaldo-image-rights
[7]Business-standard.com/sourav-ganguly-slaps-damage-suit-on-tata-tea
[i]The Constitution of India, 1950, art. 21, 19.
[ii]2003 VIIAD Delhi 405, 2003 (26) PTC 245 Del, 2004 (1) RAJ 10
[iii]The Trademarks Act, 1999.
[iv]The Copyrights Act, 1957.
[v]http://www.forbes.com/athletes/list/#tab:overall_header:endorsements_sortreverse:true.
