-Ishaan Michael
INTRODUCTION
Image rights, one of the most commercialized intellectual properties in the modern era, in its wide sense refers to the personality or brand of a person. It can be defined as an image of that particular person that can be used for commercial and marketing purposes. Image rights also known as personality rights renders protection against the unauthorized appropriation of an individual’s image which might lead to an unearned commercial gain to the infringer.
The term concept of “image rights” was established by Judge Jerome Frank, in the case of Haelan Laboratories, Inc vs. Topps Chewing Gum, Inc where it was discussed that each and every individual possesses the capability to commercialise the intellectual property right in their own image. This right is varied from territory to territory and depends on the overall regulation and management of Intellectual Property Rights. The right to publicity also includes the right to protection against wrongful and uncompensated commercialisation of publicity/ celebrity rights. The approach under the jurisdiction of most common law countries is to rely upon a statutory framework under Intellectual Property Rights to ensure that there is no unauthorised exploitation. The value of an athlete is in his or her image over which, as a starting point, each athlete has complete ownership.
APPLICATION OF IMAGE RIGHTS IN SPORTS
In the field of sports, image rights are the rights of the sportspersons to control, sell, license, and monetize their image, name, voice, signature, and any other characteristics or acts that are unique to them. The global craze and enormous fan base of athletes across various sports and countries have made sports into a cash cow. Due to their exemplary performance and showcase of their skills on the playing ground, sportspersons are earning huge amounts of money through endorsement deals worth millions of dollars by associating themselves and their image with products ranging from all categories. Sportspersons have in various instances successfully trademarked certain aspects of their game or a particular routine mixed with their success on the ground.
The first case of utilisation of Sports and Image Rights, was in 1970 when English football player, Kevin Keegan, who entered into what was known at the time as a "face contract" for what was essentially his image rights. While Gareth Bale, a professional footballer failed to protect his “Eleven of Hearts” mode of celebration, another footballer Tim Tebow was able to trademark his popular and stylish pre-match bowing method known as “Tebowing”. In Indian Sports, Sachin Tendulkar and Kapil Dev also sought to protect their commercial interest in their image of a celebrity, by trademarking their name or securing domain names on the internet.
Modern Sports have made image rights into a huge commercial tool for both the professional sportspersons as well as the sports bodies whether it be clubs or federations. The sports image rights arise out of the efficient and efficient exploitation of a sports person's name and image, which made these sports image rights to be highly valuable intellectually prepared assets.
HOW CAN A SPORTSPERSON COMMERCIALISE THEIR IMAGE RIGHTS?
The following modes can be adopted by a sportsperson to commercialise their image rights.
Sponsorship
Sponsors and brands have found that the best way to capture attention is to tap into a community's passions and align with them through more targeted sponsorship; something that is more accessible nowadays through effective use of a wide range of social media platforms which allow marketers to be more immediate, inventive and arguably more creative in their messaging. The key to a successful sponsorship is taking the relationship beyond mere exposure; creating interaction with target consumers, chiefly through engagement with consumers A sportsperson under a sponsorship arrangement is paid by a particular corporation or brand for granting these brands their marketing rights. This is done in order to promote the brand image of the athlete. This sponsorship deal ensures that the marketing rights are utilised for advertisement, or are commercialised by the athlete’s act of consuming or using the goods and service of the brand or company. This is one of the most sought-after modes of commercialisation which can be seen by the overall growth of 17% in Indian Sports Sponsorships.
Endorsement
An endorsement agreement is one step further than the sponsorship deal which involves the athlete’s personal recommendation with respect to the goods and services offered by the brand in question. It may also involve the player’s personal attributes to be associated with the features and characteristics of the products. In such arrangements, the brand not only seeks to raise and attract huge numbers of potential consumers but also affects the purchasing patterns of the public by making them believe that the consumption of their goods will help them relate with that sportsperson who is endorsing the product.
Merchandising
Merchandising involves licensing agreement for coping with the logo and other features that can be attributed to the sports entity. It can be of three forms:
Merchandising of Sports personalities;
Merchandising of teams or sports club;
Merchandising of events and tournaments;
These agreements require a huge amount of investment by the brand for the purpose of protecting and growing the image value and brands of the athletes. This investment can be in the form of merchandise development and even investment in a trademark portfolio. One of the most recent and famous cases was in 2019, where Indian cricket team captain, Virat Kohli entered a merchandising deal with a cartoon production for the animated series titled “SUPER V” whose character would resemble the physical appearance of Virat Kohli himself.
INDIAN LAW ON COMMERCIALISATION
The right to publicity has not been recognised as a constitutional right in India nor is there dedicated legislation to protect these categories of rights, but various High Courts do recognise the presence of this image right and have laid down judicial structure to safeguard against and resolve any unauthorized form of exploitation of these rights. Indian Courts, in the case of ICC Development (International) vs. Arvee Enterprises, discussed the right to publicity and utilisation of image rights under Article 19 and 21 of the Indian Constitution as these set of rights were held to be an integral component of the right to privacy. It was further discussed that since image rights are a form of intellectual property rights, these can survive even after the death of the associated individual. The court also recognised the importance of image rights by stating that image rights help in recognising the commercial value of the picture representation of eminent personalities and thereby help in protecting the proprietary interest of the public reputation of these personalities.
In Titan Industries vs. M/S Ramkumar Jewellers, the court observed the significance of image rights and stated that: “When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity, but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity.”
India has been lagging far behind its western counterparts, in recognising the right of publicity. The jurisprudence of publicity right is not developed due to the lack of any ruling by the Supreme Court on the subject. Legislations on the same are not available due to the lack of jurisprudence. Even the celebrities’ have been very un-attentive in protecting their right to publicity.
REMEDY FOR INFRINGEMENT OF IMAGE RIGHTS
Sports entities have been granted with a variety of legal remedies which can be utilized in case the image of their sports rights have been infringed upon which includes charging damages as well as interim and final injunctions. A “lost license fee” can also be charged which would be the penalty that the infringer would have to pay if that party would have been granted a license to legally and commercially utilise and exploit the sports image rights concerned. In cases of breach of copyright, there can be ceased and desist order in order to avoid the counterfeiting or pirated products that bear the sports persons’ unauthorized images from entering their market.
CONCLUSION
Sports’ is a very lucrative market in the current times which makes a professional athlete’s right of publicity to be secured as it has come from the hard work they have done over the years. The Indian sports market is also expanding at a very fast rate, so is making the professional players more vulnerable to exploitation. A rights holder should use and ideally share its deep knowledge of its fan base to provide the other party with as much meaningful information as possible which will help validate the added value delivered by the rights holder. Increased regulation and the pace at which the demand is rising means that parties must be careful to ensure they will not harm their reputation by either directly or indirectly flouting the many and various data protection laws.
India is in need of legislation to protect its celebrities or even that it could be recognised as a part of the right of privacy, so that till the point an efficient legislation is made, there is still some protection for the celebrities in India.
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