Open Access Research Article
PERSONALITY RIGHTS AND VIDEO GAMES: WITH A SPECIFIC FOCUS ON THE LAW ON TRADEMARKS
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Article Details
PERSONALITY
RIGHTS AND VIDEO GAMES: WITH A SPECIFIC FOCUS ON THE LAW ON TRADEMARKS
AUHORED BY - KIRUTHIKA SHANKAR RAMAN
(kiruthika.rmn@gmail.com, 9100937502)
4th-year B.com LLB student at the
Institute of Law, Nirma University
Abstract
Personality Rights derive their importance from the importance
any person places over their identity and personhood. In today’s ideology of
social presence and the value of the status one holds in society, Personality
Rights are highly debated and seek protection. This is more prominent in the
world of public figures whose names and personalities become the basis of their
success and growth. When such a right is infringed it does become a grave
concern for the person in question, but also there is the probability of an
influence on society in general given that their identity and personality are
followed by the general public.
This is the case with using of celebrity names or identities in
public entertainment modes such as videos, media content, and also in video
games. While such use could in one sense be looked at as a PR stunt, most
celebrities tend to oppose such use owing to their lack of control over the
exact usage and contexts of such use. There is also the factor that something
so personal, which only they ought to have a right to is being used in the
public sphere, leaving them exposed and vulnerable. In order to avoid such
usage, celebrities have tried to acquire Trademarks, both conventional and
unconventional, on their names or related intellectual property protections as
well, to help protect their personality rights.
This paper seeks to give an overview of the prominence and
importance of such personality rights and is also an attempt to analyze how
such rights are sought to be protected under the IP regime with a special focus
on Trademark protection in India and also internationally.
Introduction
People around the world tend to be
heavily influenced by celebrities and famous personalities. They are swayed by
the words, actions, and opinions of such personalities. This influence goes
vice-versa as well, with actors, sportspersons, politicians, and other public
figures banking on their public recognition and the people’s support. This
makes them highly concerned with the image of them that is portrayed to the
people at large. From this arises the idea of ‘Personality Rights’. Although it
is the right of every individual to protect their individuality and personal
life, it becomes more important in the context of such personalities who are
more under the public lens and often have to deal with appropriation of their
personality rights.[1]
It is not uncommon for fans and
followers, out of affinity for their idol, to use their name, photo, etc. for
their own purposes. While on a personal level, this might still be looked at as
an exception to privacy infringement and viewed in a positive light as
increasing popularity and public image, it becomes a matter of concern when
such use is made for commercial purposes without the consent of the person
involved. Public personalities’ rights are often violated by businesses that
use their image, voice, or photographs in advertisements and promotional
material without obtaining requisite consent for such use. This is easier and
more prevalent, especially with the advent of artificially intelligent tools
and technology that can manipulate available input to make it seem like the
person is actually promoting the product.[2]
This makes the protection of such personality rights more important for public
figures and influencers.
Not only their names but also the
information about them available in the public domain needs protection. People
often also misappropriate certain names or objects attached to them that have
acquired a distinct identity that adds to their image and reputation such as
stage names or their unique identification marks such as a novel hairstyle or
famous catchphrase which people associate with them and can identify the person
based on those features alone as well.[3]
Personality Rights and
Video Games
Video games have, for a significant
time now, featured characters that each have their names and stories attached.
These characters are sometimes inspired by real-life people and this can become
problematic when the consent of the personality in question has not been
obtained for the purpose of generating revenue out of such video games through
the use of such a character.[4]
The video game character could be an inspiration that does not involve the
person being embodied in their entirety but could still bear certain
characteristics which are significantly associated with the person which
enables people to draw the connection and identify the character to be the
personality. This would still be a violation of their rights as the fact that
these characteristics are so distinct that they enable people to identify the
personality based on those alone shows that such characteristics form a part of
their personality thus requiring them to be protected in some manner.[5] As
an example, if one were to create a video game character that wore a khadi vest
with a rose attached as a boutonniere and a white topi by the name Jedemdal
Nahru, any person in the subcontinent of India would recognize it to be a
character inspired by the great freedom fighter- Jawaharlal Nehru ji, thus
leading to the infringement of his personality rights.
The use of such personalities as the
inspiration for video game characters can raise concerns about
misrepresentation and identity theft in addition to the consent issue.
Characters in video games are frequently depicted in a fictional or fantasy setting
leaving scope for their actions and personalities to deviate and cause the
character not to exactly coincide with the real-life personality whom the
character has been inspired from. It becomes a loophole in one sense as the
creator can claim that it is a fantasy or fictional world which does not refer
to any real person, However, such use would still in all probability results in
a distortion or misrepresentation of the personality of the person given the
level of association of their traits or other aspects in the eyes of the
public. This gives rise to the concern of the serious harm to their reputation
and also cause a negative impact on the community that draws influence from
them.[6]
On another note, the technology today
is advanced at a level where video game characters can be made to look highly
realistic with features that can be micro-designed onto them such as tattoos
and hairstyles.[7] This
makes the issue of personality rights more prominent as it gives more scope to
fixate on the unique characteristics of the public figure. As an example, it is
now easy to create a muscular character wearing a silver bracelet with a blue
stone and a t-shirt that reads ‘Being Human’. Even in the absence of a name, it
is very easy to identify that character to be a representation of Salman Khan.
This was also the ground for
contention in the famous case of the basketball game called NBA2K which created
players in the video game based on actual basketball players such as Kobe
Bryant and LeBron James along with their tattoos on the videogame character
which led to a copyright infringement suit.[8]
While the issue, in this case, was more focused on the infringement of the
copyright of the tattoo artist, it is important to note that the characters
could be identified based on those tattoos alone. This shows that it could be
deemed a part of their personality which when used by game creators without due
authorization, could very well be a case of personality right infringement.
Thus, the issues regarding
personality rights in the context of video games require regulation and
bridging of gaps caused by the lack of any specific legislation for governing
personality rights presently.
Protection under Privacy
Laws
Privacy laws are a possible solution
to such infringement of personality rights. The General Data Protection
Regulation in the EU is a comprehensive legislation that provides protection
for data and the privacy of individuals. Article 4 of the regulation provides
that ‘personal data’ would refer to any information that relates to an
identified or identifiable person. While the protection under GDPR is majorly
for data that is collected from an individual, the notion of it can be analyzed
from the perspective that, in one sense, such information could also extend to
mean such information that is used in video games in the process of creating
such inspired characters as well. India however, is yet to implement a
comprehensive legislation. Currently, there exists a Digital Personal Data
Protection Bill, 2022[9]
which has majorly been adopted from the GDPR thus awarding similar protection.
While both legislations provide for protection against unlawful and unjustified
use or processing of collected data, neither provides for a specific scenario
of misappropriation of personality rights. It can be an attempt to use these
laws to claim protection in the case of personality rights infringement, but it
is not yet a soundproof solution.
Trademarks Protection on
Personality Rights: Current Legal Position
Personality rights as seen, currently
remain ungoverned by any specific law and only derive protection in the form of
the ‘Right to Privacy’ under Article 21 of the Indian Constitution[10]
or in the form or tortious remedies.[11]
In some cases, personalities seek protection under intellectual property laws
such as trademarks to ensure that their names, phrases or symbols are not used
for economic gains without their due consent.
Usually, the use of personal names or
representations of people which suggests some false connection with any person
is not allowed under the Indian Trademarks Act, 1999 under Section 14.[12][13]
This would mean that video game companies cannot acquire trademarks over
characters or names that are inspired by famous personalities. However, some
personalities have names or symbols that have become so distinct that they
become something of an identification mark through which the public recognizes
them which have been allowed as subject matters eligible for protection under
trademarks. Some examples include the trademark held by Sachin Tendulkar for
his name or by Usain Bolt for his initials and his “pose”.[14]
This is also supplemented by the provision under Section 35 of the Trademarks
Act[15]
which allows for a person to register for bona fide use, of his own name.
Additionally, even if not registered, there is always the established practice
of acknowledging the name similar to a well-known mark in exceptional cases as
has been held in judgments such as Arun
Jaitley v. Network Solutions (P) Ltd[16]
if it can be established under the parameters set under the Trademarks Act.[17]
It is also common for celebrities to
allow, for limited purposes, the use of their image, voice, taglines, or
symbols as a promotional stunt or advertisement, but they still have to be
given complete information about the use and also a royalty fee for such use of
their personal property.
The use of trademarks has been a
common recourse across jurisdictions. To consider the famous case involving
Lady Gaga, a British entertainment company by the name of Mind Candy had
created a video game character, who despite being a toddler had the platinum
blonde hair that was a statement hairstyle that Lady Gaga, who was also named
Lady Goo Goo which clearly showed their intent to use her style and associated
personality. Lady Gaga sued the company for infringement of trademark which due
to the British position of not allowing use even for parody purposes was won by
her.[18]
However, in contrast to the UK law which does not recognize image rights, the
US legal system and the EU legal system allow for the protection of image
rights which they consider an economic right.[19]
Conclusion
Currently, in the absence of such a
system and also the lack of air-tight privacy regulations in India, IP
protection seems to be the closest to gaining the best possible remedy against
the use of personality rights. Since the law of trademarks is one that focuses
most on the consumer perception and prevention of confusion among them thus
causing harm to the mark in the question of any content that is sought to be
protected and the protection of personality rights is somewhat similar as it
seeks to protect the person against the misuse of their characteristics that
mislead the public to believe that it is, in fact, them, thus causing them loss
through unfair gain by the game developers, adopting trademark requirements as
the threshold in personality rights seems to be the best possible option.
The regime of Trademarks, although,
making an effort to protect personality rights in addition to privacy laws are
however not very effective. There is the defense of ‘fair use’, although not
very likely to be granted as there is a third-party interest that is being
violated. However, it would require an in-depth analysis of the intention of
the video game developer behind using such characteristics and assess based on
such intent, the existence or non-existence of an infringement. While the court
may reach a conclusion that it would not amount to infringement due to non-fulfillment
of the required threshold, there still exists the threat of loss of personality
rights to the public figures, which could have a grave negative impact.
Thus, it would be safe to say that
while the current legal system makes an effort, there exists a different and
advanced set of laws that enable the protection of personality rights as a sui
generis system in light of current trends and developments in technology
that enable realistic and deceptive virtual characters.
[1] Vishaka. S, Personality
Rights and Its Protection in India- a Statutory and Judicial Analysis, Lexology, (Apr. 17, 2023), https://www.lexology.com/library/detail.aspx?g=0759e39a-7803-4d67-95fa-f54624e99951.
[2] Personality
Rights, (2023), Drishti IAS, (Apr. 17, 2023), https://www.drishtiias.com/daily-updates/daily-news-analysis/personality-rights#:~:text=Personality%20rights%20refer%20to%20the,companies%20to%20boost%20their%20sales.
[4] Gaetano Dimita, Andrea Rizzi & Nicoletta
Serao, Image Rights, Creativity and Videogames, 15 JIPLP 185, (2019), https://doi.org/10.1093/jiplp/jpz178.
[5] Vaishnavi Joshi,
PERSONALITY RIGHTS: Yes, They Exist!, PhotonLegal,
(Apr. 17, 2023), https://photonlegal.com/personality-rights-yes-they-exist/.
[6] Jinghuai Lin J &
Marc Latoschik, Digital Body, Identity and Privacy in Social Virtual
Reality: A Systematic Review, 3 Front. Virtual Real., (2022), https://www.frontiersin.org/articles/10.3389/frvir.2022.974652/full.
[7] Anna Piechówka, When Video Games Meet IP Law, WIPO Magazine, (Apr. 17, 2023), https://www.wipo.int/wipo_magazine/en/2021/02/article_0002.html.
[8] Video
game tattoos and copyright, LetsLaw by RSM,
(Apr. 17, 2023), https://letslaw.es/en/video-game-tattoos-and-copyright/#:~:text=If%20the%20tattoo%20has%20been,for%20use%20from%20the%20author.
[9]
The Digital Data Protection Bill, 2022
[11] Vaishali Mittal,
Right of Publicity in India, Lexology,
(Apr. 17, 2023), https://www.lexology.com/library/detail.aspx?g=c2428891-d91a-4fbc-b5a4-a6e0cb9e3913.
[12] Id. at 2.
[13]
Trade Marks Act, 1999, §14, No. 47, Acts of Parliament, 1999 (India).
[14] Manavi Jain, An
Overview of Celebrity Rights - Athletes and Sportspersons, ALG India Law Offices LLP, (Apr. 17,
2023), https://www.algindia.com/an-overview-of-celebrity-rights-athletes-and-sportspersons/#:~:text=Celebrity%20Rights%20are%20a%20bundle,referred%20to%20as%20Celebrity%20Rights.
[15]
Trade Marks Act, 1999, §35, No. 47, Acts of Parliament, 1999 (India).
[16] Arun
Jaitley v. Network Solutions (P) Ltd, 2011 (47) PTC 1 (Del).
[17] Lucy Rana &
Shilpi Sharan, Protection of Personality and Image Rights in India, Mondaq, (Apr. 17, 2023), https://www.mondaq.com/india/trademark/1211056/protection-of-personality-and-image-rights-in-india.
[18] Id.
at 4.
[19] Simon Bennett, “It’s in the game”
– unauthorised use of image rights in video games, Fox Williams, (Apr. 17, 2023), foxwilliams.com/2021/03/09/its-in-the-game-unauthorised-use-of-image-rights-in-video-games/.
Article Information
PERSONALITY RIGHTS AND VIDEO GAMES: WITH A SPECIFIC FOCUS ON THE LAW ON TRADEMARKS
Authors: KIRUTHIKA SHANKAR RAMAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/05
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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