[Author: Vanya Agarwal, student of law at Jindal Global Law School, India]
Last year, the news of Indian shuttler PV Sindhu being the first Indian woman to win two Olympic medals for the country was flooding the social media and news channels. While the whole country was celebrating the win, simultaneously the headline “PV Sindhu takes 20 brands to court for using her name and image without permission” was being circulated. This sparked a much-needed discussion in the Indian Sports Law community about Personality Rights of Athletes in India.
The sports industry accounts for more than 3% of the world trade. Since the advent of Indian Premier League (‘IPL’), the sports industry has taken a turn in India and has become extremely commercialized, with billions at stake. Each element of sports is now a money-making opportunity, be it broadcasting, merchandising, sponsorships, etc. Because of their skill in the sport, their name, image, voice, and likeness, the players have garnered a commercial value for themselves. This forms a part of the personality rights of an athlete, which is an inextricable part of the athlete, and can be utilized only with the athlete’s permission. Contracting these rights are a huge revenue churner for athletes, which can be considered as fruits of their labour and training to perfect their skill, in accordance with the labour theory under Intellectual Property Rights jurisprudence. These personality rights play a huge role in the success of a product or service, because a famous athlete’s picture or name has the potential to skyrocket the brand’s revenues. The importance of personality rights can be highlighted by a situation that occurred when Jose Mourinho left Chelsea and was appointed as the manager of Manchester United. It led to a huge dispute over his personality rights, as Chelsea owned multiple trademarks and other rights in his name. This led to Manchester United paying Chelsea an undisclosed, but most likely a handsome amount for these rights. If Manchester United wouldn’t have paid up, it would have meant that they would not be allowed to use Jose Mourinho’s images, name, autograph etc., as part of their promotions.
India, like most nations around the world, does not have a separate statue governing personality rights. Currently, the Intellectual Property Rights regime in India does not define personality rights and neither does it protect these rights directly. In order to protect oneself, an athlete would usually have to either trademark their name or take shelter under the common law principle of passing off, limiting the protection available to them. The Advertising Standards Council of India (‘ASCI’) also provides a recourse to athletes, whose goodwill might be monetized for the benefit of a third party, without their permission. Under the ASCI code, advertisements cannot comprise of reference to another person, firm or institution, without their permission. Even though these rules provide some level of protection, they are still unreliable, considering that the jurisdiction of the ASCI is contentious.
Unlike the legislature, the Indian judiciary has been more than receptive towards the need for formal recognition of personality rights. In the case of ICC Development (International)Ltd. v. Aarvee Enterprises & Anr, the Delhi Hight Court recognized that the roots of publicity rights are imbedded in Article 19 and 21 of the Indian Constitution, and evolve from right to privacy. The court further went on to give an example, that if Sachin Tendulkar’s name/persona is ever used in connection to the ‘World Cup’ without his permission then he would have a valid cause of action. The Delhi High Court, in Titan Industries Ltd. v. Ramkumar Jewellers, also recognized that a famous personality shall have the right to control when, where and how their identity is used and such right should vest with the famous personality. Other landmark cases in relation to personality rights would include, Sourav Ganguly v. Tata Tea Ltd. wherein the court provided relief to Sourav Ganguly and stated that his popularity and personality form a part of his intellectual property, which cannot be used to boost sale of tea packets, without his permission.
Even though the Indian Courts continue to recognize personality rights as and when claims arise, it still leaves a level of uncertainty as to the outcome of these claims, considering there is still no Supreme Court judgment specifically recognizing the same. With the growing commercialization of sports, a statue recognizing personality rights is needed now, more than ever. India should follow the footsteps of countries like Brazil, where the Brazilian Federal Constitution protects personality rights and specifies that it can only be exploited by a third party via an assignment agreement. India has a long way to go when it comes to formal recognition of personality rights, but sport personalities like PV Sindhu recognizing their rights and holding the violators accountable is definitely a step forward in the right direction.
(Note: The term Personality rights, Publicity Rights and Image Rights are used interchangeably depending on the jurisdiction)
*For any query, feedback, or discussion, Vanya can be contacted at [email@example.com]
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PREFERRED CITATION: Vanya Agarwal, Are Personality Rights of Athletes Protected in India, SLPRR <https://sportslawandpolicyreviewreporter.com/?p=1980(opens in a new tab)> June 22, 2022.