Showing posts with label personality right. Show all posts
Showing posts with label personality right. Show all posts

Wednesday, May 24, 2023

Indian court refuses injunction of fantasy cricket league in unlicensed use of player names, likenesses

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In case about fantasy sports, the Delhi High Court in India ruled in late April that satire, news, and art must enjoy protection from right-of-publicity liability.

The case involves athlete likenesses in fantasy sport leagues. Plaintiffs are a Singapore-incorporated fantasy sport provider that invested big money to develop non-fungible token and other electronic products making licensed use of the names and likenesses of co-plaintiff cricket athletes. The defendant business operated a less fancy but "explosive[ly]" popular online fantasy league service using the players' name and likenesses without licenses.

The court determined that Indian law does recognize right of publicity, inspired in part by the example of statutory tort actions in the United States. Accordingly, "passing off" is essential to infringement, the court held, meaning that customers must reasonably understand the defendant's proffered product as bearing the subject's endorsement. 

The court denied preliminary injunction. In the instant case, evidence was lacking that the defendant made such a representation or that reasonable users made such a mistake. To the contrary, the defendant online disclaimed any affiliation with or license from the depicted players.

The court also recognized a constitutional dimension to the position of the defense in the case, opining that "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 case is Digital Collectibles Pte. v. Galactus Funware Technology Pte., 2023:DHC:2796, CS(COMM) 108/2023, 2023 LiveLaw (Del) 345 (Delhi High Ct. Apr. 26, 2023) (India), decided by Judge Amit Bansal, who holds an LL.M. from Northwestern University.

HT @ Lakshmikumaran & Sridharan.

Friday, May 12, 2023

German court protects political satire in 'fake interview'

Katrin Göring-Eckardt
Heinrich-Böll-Stiftung CC BY-SA 2.0

In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.

Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."

The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick (TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").

Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.

The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.

The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.

Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.

TE also reported the outcome of the case.

Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do

Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.

For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.

Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.

Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.