RISING FANTASY CRAZE IN INDIA: POTENTIAL IP CONCERNS AND WAY AHEAD FOR FANTASY OPERATORS
Fantasy sports industry, the new fad in town, has grown leaps and bounds in terms of its popularity among Indian users. A fantasy sport essentially captures the spirit of the user by affording people with an opportunity to create and manage their own team. The basic model is that the user will be permitted to draft in players to form a team and they will have to then compete with other participants who engage in a similar process. Fantasy games are modeled around actual performance statistics of athletes and they also use actual team logos and player images to enhance the experience for the user.
The Indian market, which is seen as one of the largest markets for fantasy games in the world, will most definitely face a lot of IPR related issues in the near future. This can be said because considering the rudimentary nature of fantasy sports market in India, it can be averred that most fantasy operators have not explored the need for entering into licensing agreements with leagues and sports associations. In such a scenario, there can be various IPR concerns that can be expressed by stakeholders. This paper attempts to identify some potential concerns and gauge the probable response of the Indian IPR regime. The paper also discusses the means by which fantasy operators can avoid IPR violations under the existing legal system.
Issues Related to Copyrights
Primarily, there are two main copyright concerns when it comes to fantasy games viz. the use of performance statistics and player images.
a) Performance Statistics
In light of this, there are two main concerns that warrant discussion. First, whether the statistics maintained by various sports leagues can be included under the ambit of ‘original expression of idea’ and second, whether the usage of the above-mentioned statistics by fantasy operators will constitute a violation of the IP rights. While engaging with the question of whether these statistics maintained by leagues have copyright protection, it is important to understand that Indian Courts have not favoured the granting of copyrights to ‘facts’. Further, in Akuate Internet Services Private Limited v. Star India Private Limited, the Delhi High court opined that the dissemination of match information (statistics) is factual in nature. The court pronounced that such factual entries amount to news and cannot be granted copyright protection. Regardless, the uncertainty still persists because courts have granted protection to ‘fact compilations’. Fact compilations that have an essence of creativity and uniqueness associated with it have been credited with copyright protection. If the compilation passes the threshold of ‘originality’, it could be granted protection. Thus, one can make a case for the professional leagues by stating that the statistics they publish are often neatly arranged into several categories, making them eligible for copyright protection.
However, it is important to understand the process adopted by professional leagues world over. Let us take the case of IPL again, the statistical compilation that the league does, is restricted to total runs scored or total wickets taken. These numbers are then categorically arranged. This activity would not pass the creativity muster mandated by Indian Courts to award copyright protection. Hence, the pertinent factor to determine the copyright protection of performance statistics is whether some amount of thought or creativity has gone into the creation of the compilation. A mechanical process cannot be brought under the ambit of copyright protection.
At this juncture, it is fundamental to have a discussion on subjective and objective performance statistics. Objective performance statistics (factual aspects of the game) like wickets taken or goals scored are statistics that can be expressed only in a limited number of ways. These are usually hit by the doctrine of merger which precludes copyright protection for such statistics. On the other hand, subjective performance statistics are predictive statistics that are evolved by exercising some sort of judgment or skill (predicting the runs which a batsman will score based on his previous average, form etc). These statistics are considered to attract the protection of copyright, considering the level of creativity involved in their development. This distinction is important to the discussion as statistics maintained by sports leagues are generally ‘objective’ in nature, thereby vitiating the claims of copyright protection.
Therefore, it is very clear that copyright can be given to statistics maintained by leagues only if they are compiled and categorized in a unique and creative manner. Any claims of violation made by the professional leagues will be modeled around the arrangement of statistics rather than the actual factual data. Thus, fantasy operators can easily avoid the shackles of law by maintaining an alternate arrangement for statistics.
b) Player Images
Before analysing whether player images can be brought under the purview of original artistic work, it is important to understand the usage of player images by fantasy operators. They usually present a standard passport size photo against the player name and the photo is projected in a white background, leaving the rendition devoid of any creativity.
There is no clear jurisprudence regarding the originality criterion for photographs in India. However, more often than not, Indian Courts have drifted into American Jurisprudence for reference. American courts have taken the view that copyright protection in photographs can only be extended to the ‘original conception’ of the subject and not the subject itself. Keeping this observation in mind, it would be extremely difficult to hold the fantasy operators liable for copyright infringement as they employ only player images which are devoid of any creativity. In arguendo, if we were to grant copyright protection to such plain images, it would lead to a ludicrous situation where every standardised photograph (passport, license photos etc) would be brought under protection. This would lead to chaos and confusion.
Moreover, even if a copyright violation claim is leveled against a fantasy operator, the de minimis defence will provide adequate cover. Most fantasy games use standard images of players and these are mainly aimed at identification rather than commercial exploitation of the image through advertisement and sale. Thus, the de minimis standard can easily be invoked by fantasy operators by following a prudent business pattern, thereby immunizing them from claims of copyright violation.
Issues Related to Trademarks
Another pertinent concern is the potential trademark infringement that fantasy operators can cause through the usage of player names, team logos and other similar indicia. Infringement claims related to trademarks are covered under Section 29 of the Trade Marks Act which mandates the discovery of whether the product challenged is similar to the trademarked product, to prove violation. Hence, it is relevant to scrutinize whether the product provided by fantasy game operators are in any way identical to the product offered by athletes and sports teams.
The area of trade that professional teams and players try to protect through their trademark is actually very different from the class of trade occupied by fantasy operators. For example, let us take the IPL franchise Mumbai Indians; they have reserved their trademark for their brand of clothing, their sporting equipments, their services oriented towards physical education, exercise training and other sporting activities. At the same time, fantasy operators are working in a completely different space related to online gaming services and entertainment. Thus, the trademark registered by the franchise is governing a whole different set of products. Moreover, the contested usage by fantasy operators is neither an indictment of endorsement nor does it instill any confusion in the minds of the users. As held in H.M. Saraiya v. Ajanta India Limit, the test for trademark violation in India is based on whether it creates confusion among the consumers. Hence, the trademarks employed by fantasy operators for the de minimis sake of identification cannot be considered as an infringement especially due to the unique nature of the business line (online gaming) and the absence of uncertainty and confusion. Further, it is also useful to note that the usage of trademarks by fantasy operators are not detrimental to the athletes or to the sporting outlets in any manner, thereby vitiating claims for trademark dilution. In a way, fantasy games help in generating better interest towards sporting leagues by encouraging the public to actively participate in the competition through their virtual teams.
Fantasy industry in India has gained unprecedented growth over the last two years. This significant proliferation will surely lead to a lot of IPR based concerns. Although the country has not witnessed any sort of litigation involving fantasy sports and IP rights, the development is imminent and inevitable. Indian Courts will soon be presented with a lot of intricate questions that will require substantial consideration and deliberation. This paper has tried to cull out some issues that will definitely crop up in the near future. The paper has also tried to locate the possible responses that can be expected from the Indian IP regime. The regime seems to be favouring the fantasy operators but they would have to approach the whole situation in a prudent manner to avoid any sort of infringement claim. As mentioned before, concerns regarding performance statistics can easily be tackled by refraining from copying data arrangements blatantly. Operators can easily tabulate the data using other categories that have not been preferred by professional sports leagues. Regarding copyright protection extended to images, fantasy operators can always prove limited usage and the lack of originality in the photos used by them. The limited purpose of identification can exonerate them of any liability, including trademark concerns.
The future looks bright for fantasy sports in India. However, legal impediments are bound to block the way. By engaging in limited usage of IP, fantasy operators can avoid legal barriers and reap benefits from this money laden industry.
Title Image source: The Bridge
This article has been written by Krishnaunni U. Krishnaunni is a third year Law student at NALSAR University of Law, Hyderabad.