Digital Collectibles V. Galactus Funware Technology

Rario, that sells, purchases and trades officially licensed ‘Digital Player Cards’, along with 5 cricket players who have licensed their personality rights to Rario, filed this suit against Defendants that operate online fantasy sport (OFS). These Digital Cards are NFTs sold by the Plaintiffs. The Plaintiffs’ grievance against the Defendant arises from their sale of NFTs that use the likeness of the cricket players.

“In the absence of a specific legislation, the right to publicity cannot be an absolute right in India.”

Refusing to grant an injunction, the Court has made significant observations affecting the jurisprudence surrounding personality rights in India. The court noted that the violation of the right to publicity must be considered on the touchstone of passing off and weighed against the fundamental right to free speech.
Hence, for the right of publicity to be infringed, it would have to be shown that there is misappropriation of the goodwill / reputation.

The court has also applied the principle of transformative use to hold that a work that contains significant number of transformative elements or creative contributions, it would become a protectable expression rather than an infringement of personality rights.