The world of Fantasy Sports and its integration with Intellectual Property Rights
Every avid sports enthusiast loves to give their opinion on how a team should have been set or how a certain player should have been picked or dropped. This desire of fans to be a decision-maker has been capitalized by the fantasy sports industry. Fantasy sports is currently the most innovative medium of fan engagement in sports. The landscape in India has witnessed a significant transformation since its inception.
In fantasy sports, fans can create their fictional team of real-life players from upcoming sports matches. These virtual teams garner points based on the actual statistical performance of players during the real-life match and winners are determined accordingly. It is always seen how emotionally connected sports fans are to the teams they follow. However, this emotional connect is forgotten when an individual sets up their fantasy team. They pick top players who would give them higher points even though they play for a rival team. But the road was not always smooth for them. This industry faced a major setback when Dream 11, a major fantasy sports game had to face legal turmoil. It surpassed that hurdle; however, there are many other aspects which have to be considered with fantasy sports. These games deal with a lot of factual information like current and historical scores, results, statistics and performance metrics. As well as player and team names, logos, nicknames, images, models, personae, likenesses, characters thus bringing Intellectual Property Rights in the picture.
Rise of Fantasy Sports in India
Before the aid of technology, early fantasy leagues were manually operated and used statistics from media box scores and from weekly information published in newspapers because they were easy to tabulate. The advent of powerful computers and the Internet has revolutionized fantasy games. It helps in reaching many new players and allows leagues to develop their scoring systems and gameplay options.
The fantasy sports landscape in India has witnessed a significant transformation since its launch nearly two decades ago. ESPN-Star Sports launched its ‘Super Selector Fantasy Game’ in 2001, which was amongst the earliest fantasy games in the country to gain user traction. It was soon seen that fantasy sports were one of the most innovative ways of fan engagement. Soon, top league across the globe and India joined the boat and launched fantasy leagues of their own. Today, popular tournaments such as the English Premier League, UEFA Champions League, Indian Premier League, Indian Super League and many others have such fantasy leagues in place.
This concept however was not welcomed with open arms in India. Fantasy sports were linked to being equivalent to that of online gambling. Dream 11 faced a lot of flak initially as their concept included a certain sum of money which the user could win. This specific issue was considered by the Punjab and Haryana High Court in the case of Varun Gumber v. Union Territory of Chandigarh and Ors. This case went on to become a landmark ruling for fantasy sports games in India. It was held that the fantasy sports games being offered by the fantasy sports games operator were ‘games of skill’ under Indian law and did not constitute gambling. Significantly, the Court also recognised the offering of fantasy sports games as a legitimate business activity protected under the Constitution of India. This paved the way for this industry to enter the Indian sports market.
The Partnership of Fantasy Sports & Sports Leagues in India
Some of the prominent players in this segment such as Dream11, MyTeam11, Halaplay, 11Wickets, Starpick and Fantain have also partnered with official sports leagues as their fantasy sports game partner. Dream11, the leader in this segment with 90 per cent of the total market share, is the Official Fantasy Game Partner of the International Council of Cricket (ICC), VIVO Pro Kabaddi League (PKL), Hero Indian Super League (ISL), National Basketball Association (NBA), Hero Caribbean Premier League (CPL), International Hockey Federation (FIH) and Big Bash League (BBL). MyTeam11 has partnered with Pro Volleyball League (PVL) and Pakistan Super League (PSL). Apart from these operators, prominent leagues like Indian Premier League (IPL) run their official fantasy leagues.
The advent of fantasy sports is at an all-time high. The testimony of this fact is that Dream 11 recently won the IPL title sponsorship rights with a bid of Rs 222 crore. They will be replacing Chinese mobile phone company Vivo for a four and a half month deal. Dream11 has been one of the IPL sponsors for a couple of years now. This industry is here to stay and will only go higher. To protect the interests of the consumers and to create a standardized practice. Federation of Indian Fantasy Sports (FIFS), the self-regulatory body was formed in 2017. Fantasy sports deals with a variety of elements which could lead to potential IP infringement suits for these operators. Thus such operators must analyze the interplay with IP laws and examine what shall be licensed.
The interplay of IPR and Fantasy Sports
We live in a highly regulated democratic system governed by the rule of law. Further, at the centre of our democracy is our system of intellectual property laws-copyright, trademark, patents, rights of privacy, and rights of publicity. Although fantasy leagues are a fictional setup, it corresponds with real professional leagues. It deals with statistics based on factual information from live games, players’ names, team’s names, team logos and so on. The dispute lies with which elements are the intellectual property of the stakeholders involved. Also, whether using these elements would constitute an infringement of the rights of stakeholders. The potential IP laws dealing with fantasy sports are; right to publicity, copyrightability of statistics and trademark infringement.
Right to Publicity & Trademark Protection
In Dream 11, if an individual has to make a team of their choice they would choose the best 11 players from the upcoming game. For example, a picture of Virat Kohli would be shown with his value in points. The individual would then see the points and statistics to determine whether to pick Kohli in their team. Would showing Kohli’s picture followed by his statistical records infringe his right to publicity? It is first imperative to know what falls under Right to publicity. It is understood as a right of a celebrity to use, control and forbid the illegal usage of their identity. It includes the celebrity`s name, likeness, and voice, as well as other aspects of their personality. Now, would the player’s publicity rights also include performance statistics, along with their names, likeness, and personal characteristics are unclear. However, this dilemma has been cleared by US courts. It was held that the player did have the right of publicity over their performance statistics. Thus it prevents any commercial use of such elements of publicity rights.
On the contrary, in another case, the Court held that there is a significant public interest in the information conveyed by the league and that the use of a celebrity’s likeness to promote a related product would not be violative of their publicity rights. There is ambiguity with the usage of publicity rights. But this ambiguity arises when these player statistics or images are used for commercial gains. Fantasy sports operators can argue that usage of such elements of publicity rights would only be for nominative use. Nominative use would be permissible as far as the player’s image or statistics are reasonably necessary to identify the player. Nominative usage arises as a necessary consequence of the usage of facts by fantasy sports game operators. Often, such usage survives despite publicly available player statistics being converted into “fantasy points” or similar ratings in the fantasy sports game.. Thus such usage, when done for nominative use and with proper license it would not constitute as IP infringement.
The use of registered trademarks as logos and names by fantasy sports game operators may also be covered under the defence of nominative fair use or denominative use. The defence is applicable in cases where a mark is used by a third party merely to identify the product of the registered trademark’s proprietor. In the case of fantasy sports, the trademarks are neither used in an unfair manner, nor in a detrimental manner to the registered Trademark. They are mere means to represent the player and thus do not create any confusion for trademark infringement.
Copyrightability of Sports Statistics
It is common understandingthat using the player’s image, names, likeness, and biological information require licenses from individual players or their unions. Fantasy sports operators also need to take a license for using team names and team logos. But would the usage of statistics which involves information about the game-play and attributes, require licenses as well? The passing accuracy of a footballer may be mere numbers or factual information for a layman. However, for a fantasy football manager that is essential information to make decisions of choosing that player. Statistics or facts have been of existential importance to the operation of fantasy sports games since their origin. This information may be derived from from a particular source or publicly available data. Such facts may invite a copyright infringement claim from the proprietor. Thus, the determination of copyrightability of facts becomes crucial.
The well-settled principle is that facts are not copyrightable under the Indian Copyright Act. Only a creation of work using skill, labour, and capital that is more than a copy of original work is copyrightable. However, the Copyright Act does protect “compilations” , as they are considered to be literary original work. A compilation would only lead to copyright infringement if they are reproduced in the exact same format. Fantasy sports operators, in this case, have a way out as the statistics they produce are not mere compilations. They use raw data which is publicly available and compile them which is later converted to fantasy points. Such use would make it an original literary work and thus these statistics would not lead to infringement.
Watching or following sports through the lens of fantasy games has brought many new fans that had never been fully immersed in supporting a club, or been regular followers of the game. The overall concept of this game is based on “outsmarting” your opponent, using your knowledge. As a result of this, as more followers/fans were attracted to the game, it created interest among different stakeholders such as leagues, clubs, sponsors and media. The emergence of this phenomenon provides an additional spark for a large number of people. They feel empowered by having the option to be something more than just an “armchair” general manager. The rise in the number of fantasy sports operators shows how it is one of the most effective means of fan engagement. New brands have been entering the market and already established fantasy sports operators have seen an all-time high. Fantasy sports platforms are all about statistics. There is a lot of analysis done by the experts including the player’s analysis, the team analytics, the data gathered in real-time and the user’s data. With Dream 11 having managed to get themselves out of a legal tussle regarding gambling, has paved the way for new entrants in the industry. However, there is one constant legal ambiguity hovering over these fantasy sports operators. That is of IP infringement claims coming their way. It is always better for these operators to have authorized licenses in place and keep their functioning infringement free. Appropriate measures are taken in IP protection of such fantasy games initially to save a lot of hassle in the future. Every small element of fantasy sports could be subject to IP infringement. But with necessary steps taken, fantasy sports could take fan engagement to the next level.