Delhi HC: Use of celebrity names for art, satire permissible under right to freedom of speech.
The instant suit was filed by Digital Collectibles Pte. Ltd. (plaintiff), Dream 11’s subsidiary and a company incorporated in Singapore and carries on its business in India and worldwide under the trade name “Rario,” seeking relief of permanent injunction, on account of unlawful use of player marks and other attributes amounting to unfair competition (including passing off); unjust enrichment; tortious or unlawful interference with economic interest of the plaintiffs; and breach of personality rights against against “Mobile Premier League” and an application “Striker.” Both the parties to the suit are engaged in a similar business.
The suit claimed that the defendants were minting and distributing non-fungible tokens, which captured the images of players with whom the plaintiff had exclusive license agreements. The plaintiffs alleged that the defendants had violated the “mobile rights” and “mobile activation rights” of the plaintiffs that were exclusively assigned to them by the BCCI and filed the suit for injunction and damages
In this regard, the Delhi High Court Bench of Justice Amit Bansal observed that “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“.
The Court noted that the information used by the defendants, i.e., player name and data concerning a player’s real-word match performance, was freely available in the public domain and could be used by anyone and in view of the same stated that “In my considered view, the use of the name and/or the image of a celebrity along with data with regard to his on-field performances by OFS platforms is protected by the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. It is a settled position of law that 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”. Further, it noted that “It is not the plaintiffs’ case that the defendants are using any personal information such as the height and weight of the players, which is not in the public domain. The information which is available in public domain cannot be owned by anybody, including the players themselves. Therefore, such publicly available information cannot be the subject matter of an exclusive license by the player in favour of a third party.” Further, it was taken into account by the Court that “Facts which are available in public domain such as match information cannot be monopolized and even if a third-party were to publish such information for commercial gain, no actionable right arises in favour of the plaintiffs“.
The Court further took into account that the defendant uses the artwork of the players on its Digital Player Cards and not the actual photographs and took the view that “These artworks contain creative elements that distinguish them from the actual image of the players in question. As noted above, the Supreme Court of California in DC Comics (supra) held that when a work contains significant number of transformative elements or creative contributions, they become the defendant’s own expression rather than the celebrities’ likeness and would therefore be entitled to the protection under the First Amendment. As noted in Cardtoons (supra), the use of transformative elements and artistic contributions in the player cards of the defendants would be in the nature of caricature, which would constitute permissive use. Such use, in my view, would also be protected under Article 19(1)(a) of the Constitution of India“.
The court opined that the balance of convenience and irreparable harm factors are in favor of the defendants and against the plaintiffs and held that “An injunction granted at this stage would result in the closure of the business of the defendant no.2 and cause huge financial losses not only to defendant no.2 but also to the users of the Striker platform”.
A copy of the order can be accessed here.
Bombay HC upholds IPRS’ rights in case against private FM players
In a landmark judgment, the Bombay High Court upheld the rights of The Indian Performing Right Society against private FM radio broadcasters. The judgement by Justice Manish Pitale of the Bombay High Court in the cases titled IPRS v Rajasthan Patrika Pvt Ltd and IPRS v Music Broadcast Limited agreed with the contentions of IPRS that the broadcast of music by FM radio broadcasters required the payment of royalties in respect of the utilisation of literary and musical works underlying sound recordings notwithstanding the payments made by the broadcasters to owners of the sound recordings.
Additionally, the court held as a result of the wide-ranging amendments made in 2012 to the Copyright Act 1957 substantial change came in favor of authors of underlying literary and musical work. The Hon’ble High Court also specifically held that IPRS has a right to claim royalties in respect of literary and musical works exploited as part of sound recordings or in cinematograph films.
The court has unequivocally held that “the communication of the sound recording to the public on each occasion amounts to the utilisation of such underlying literary and musical works in respect of which the authors have a right to collect royalties and accordingly, the authors of such literary and musical works who are entitled to claim royalties on each occasion that such sound recordings, whether part of cinematographic films or otherwise are communicated to the public through radio stations.”
The court has directed the defendants to pay the royalties to IPRS as per the judgment of the erstwhile Intellectual Property Appellate Board dated 31st December, 2020 within a period of 6 weeks failing which interim injunctions restricting broadcast of music would come into effect.
Read Judgement here.
IMI (Indian Music Industry) and ISRA (Indian Singers Rights Association) make a historic agreement for the music ecosystem in India
The Indian Music Industry (IMI), the apex body representing all music labels in India, and the Indian Singers Rights Association (ISRA), the apex body representing all singers in the country, have signed an agreement and will see performance rights revenues flowing to the latter’s members. The announcement revealed that the deal “covers all record labels, singers and musicians on a pan-India basis” and shall ensure that all registered singers, old and new, will benefit from royalty payments across the board for songs they have sung by music labels across the country.
Few specifics of the agreement were revealed at a conference on 23rd April being that 25% percent of PPL’s collections from licensing the sound recordings of its members will now also be shared with Indian singers who are part of the ISRA. The agreement states that ISRA will be entitled to a minimum guarantee of INR 50 crore the first year of the agreement, and that this will increase by 5% annually over the next four years. From the fifth year onwards, ISRA will receive either INR 60 CR or, if the sum is higher, 25% of what PPL collects. It is likely that the agreement was signed back in October 2022, , but was only being announced now because authorities “wanted to see it operationalise”.
Madras High Court rules that SIMCA not bound bound by Copyright Board Order of 2010, further upholds the 2% NAR royalty and modifies the CRB order by providing Rs. 660 per needle hour as minimum floor rate
The Madras High Court recently in a case titled M/s.Phonographic Performance Limited v Entertainment Network (India) in relation to Copyright Board Order Appeals stated that South India Music Company Association (SIMCA) is not bound by the Copyright Board Order. Further, upholding the royalty determined by the Copyright Board at 2% of the net advertising revenue to be paid by radio stations as compulsory license fees to copyright owners and additionally, the order also modified by providing a minimum floor rate payable to the Appellants at Rs.660/- (Rupees Six Hundred and Sixty only) per needle hour uniformly irrespective of the timing or city/town when the songs were played.
Read order here.
Delhi HC Orders Social Media Platforms to Remove Leaked Clips of SRK’s Film ‘Jawan’
Red Chillies Entertainment Private Limited had filed a lawsuit in the Delhi High Court after clips of the upcoming Shah Rukh Khan-starrer movie ‘Jawan’ got leaked. The Court was told “The leaked video clips together give away the look of the actors in the said film, as well as the music, both of which are typically disclosed at strategic points in time as part of the carefully-curated marketing strategy of a film” and that the “The plaintiff reasonably apprehends that such publication and unauthorised circulation of the leaked video clips will jeopardise the promotion and exploitation rights of the plaintiff in the said film, and as and when the said film is released in theatres, similar acts of piracy relating to the entire film would also commence and intermediaries/websites as described would again be utilised to illegally copy, record, download, reproduce, transmit and communicate the said copyright protected work to the general public”.
The Delhi High Court bench headed by Justice C. Hari Shankar after hearing the matter directed social media sites like YouTube, Google, Twitter, and Reddit to take action to halt the circulation of the movie’s copyrighted content and ordered a number of internet service providers to remove and prohibit access to websites that were showing or making the movie’s footage available for viewing or downloading.
Read order here
Bombay High Court In Kunal Kamra’s Case: IT Rules Amendment Prima Facie Lack Necessary Safeguards To Protect Satire
The Court while hearing a petition filed by stand-up comedian Kunal Kamra observed that the new amendment to IT Rules 2022 prima facie lacks the necessary safeguards to protect satire and parody.
The court was hearing comedian Kunal Kamra’s petition challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 allowing the Government’s fact checking unit to identify “fake news” about government policies, etc and found Kamra’s petition challenging the amendments “pressable”. A division bench of Justice GS Patel and Justice Neela Gokhale took note of Kamra’s plea that the amended rule even without the FCU notification will deter free speech.
Primary Wave Expands Global Reach With $100M Investment In India’s Times Music
Primary Wave, the American independent music company, has made a strategic investment in Times Music, one of India’s leading music labels, in a deal worth $100 million. The investment marks Primary Wave’s entry into the Indian music market, and it is the largest investment made by the company in its 15-year history.
HBO Content coming back to India on JioCinema
Starting next month, content from HBO, Max Original and Warner Bros will be available on the streaming platform JioCinema after Warner Bros Discovery and Viacom18 this week announced a new multi-year agreement to bring titles from the premium American studio to Indian audiences.
As per the deal, HBO Original, Max Original and Warner Bros. Television series will premiere on JioCinema on the same day as the U.S.