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  1. Arun Jaitley  and Arvind Kejriwal seek to compromise the defamation suit at the Delhi High Court.                                                                                         http://www.livelaw.in/jaitley-kejriwal-3-others-file-joint-plea-delhi-hc-compromise-defamation-suit-read-application/
  2. Missing JNU student, Najeeb Ahmed’s mother sues media enterprises for making defamatory statements about him.                                                   http://www.livelaw.in/missing-jnu-ward-najeeb-ahmeds-mother-sues-media-houses-linking-son-seeks-rs-2-2-cr-damages/ 

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

 
 
 
 
 
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  1. Jio Music, the digital music service of the company will be combined with that of Saavn.                                                                                                            https://telecomtalk-info.cdn.ampproject.org/c/s/telecomtalk.info/jiomusic-saavn-deal-india-largest-service/174994/amp/
  2. Cambridge Analytica under the scanner having allegedly manipulated facebook data to affect the 2016 American Presidential Elections. https://www.theguardian.com/news/2018/mar/26/the-cambridge-analytica-files-the-story-so-far

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

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  1. Delhi High Court frames the issues for Arnab Goswami-Shashi Tharoor defamation case. http://www.livelaw.in/tharoor-arnabs-defamation-row-delhi-hc-frames-issues-cross-examination-begin-may-10-read-order/                                                                                    
  2. Srilanks plan on lifting the ban over facebook and whatsapp.                 http://www.arabnews.com/node/1266011/media

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

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Introduction:

If one were to analyse the profit and loss statement of a game developer from 10 years ago and analyse one from today for comparison, you’d be shocked to find how the revenue stream has changed. One would think that a game developer’s primary source of income should be the sales of the games they create[1]. In anideal world (which was 10 years ago) this would be true, but today in the age of loot-boxes, FIFA packs and various other micro-transactions, the truth could not be further away. Companies such as Electronic Arts, Activision-Blizzard and Ubisoft make more money through micro-transactions than the games themselves[2].

The nature of these microtransactions can be divided into three kinds; (i) The most blatant abuse of this system would be when micro-transactions have a direct impact on the gameplay and provide the purchaser with advantage over a person who does not, (ii) The items are purely cosmetic with their purpose being to highlight an aspect which is in vogue at the time or the number of hours spent by each player, (iii) Timed-cosmetics, these are identical to the ones above but are available only for a limited duration, so if you do not get them within the stipulated period, you may never be able to obtain them again[3].

The Supermarket of Microtransactions:

There is a certain degree of understanding in the facts that developers are constantly creating content for the games and hence there is effort going into that creation and thus should be rewarded adequately. The problem lies wherein a customer pays $60 to buy a full game, following which a portion of the experience is locked behind a time wall – which requires an incredulous amount or a pay wall to go thorough Games such as Star Wars Battlefront II and Shadow of War did have become notorious for doing this with their gameplay. To illustrate, if one wanted to play as Darth Vader (Star Wars Battlefront II ) one would require having to play nearly 40 hours without any other unlock to obtain that character, alternatively one could keep spending money to obtain credits which could speed up that process significantly. Shadow of War took this a step ahead, in the sense that it requires a player to purchase these loot-boxes to experience the true-ending of the game[4]. Which says that after spending $60 on a single-player game, the crux of which is the story, you will not be able to experience it fully unless you spend more. People take this behavior of the companies as not only predatory but also violation of the social contract which is assumed to be signed on by the company and the consumer when $60 are paid for the product in question.

Timed Cosmetics Option:

The timed-cosmetics option, although not as bad as the above is still bad for the casual gamer. There obviously is an argument to be made that, those cosmetic items are only there for people who are committed, and it thus acts as a reward to be committed. The problem with this is the level of commitment it demands. Overwatch, arguably the most popular first person shooter on the market right now has timed events every season. A Forbes author, user analyzed the number of skins on offer and the rate at which you can obtain loot-boxes[5]. The revelation was startling; a player could not obtain every timed cosmetic item even if they played for every living minute the event is live for. Which means that even the most committed player of Overwatch, would not be able to obtain every skin unless one spends real money on obtaining loot-boxes to do so. If this is not predatory then I do not know what would be predatory.

Another practice which is albeit questionable but does escape major criticism is that of pure cosmetics through randomized loot-boxes. This system is present in almost every modern day multiplayer game, from DotA, CS: GO to Rainbow Six Siege. The implementation of this system is where the criticism can be made[6]. In Rainbow Six Siege, the system works in a pure RNG-fashion where if you win a match you have a certain percentage to obtain a loot-box and this percentage increases with every match you play and if the roll is right after the win then you can get the loot-box. It’s the most transparent system out there as shows you the percentages and the roll happening. Also, most items that are available in loot-boxes can also be bought with in-game currency which is earned by merely playing the game. Lastly, certain exclusive skins are available for purchase only with real money and that is the same for every player. There is no way to obtain these skins without paying real money and thus leveling the playing field in that regard.

The Las Vegas Effect:

 Forward to the present day, with the release of games like Star Wars Battlefront II and Shadow of War where the complete experience of the game is locked behind a RNG which only spins after money is spent on these loot-boxes. If I was to explain this phenomenon to a non-gamer, a simple question would be asked, “How is this any different from a slot-machine?” and if this is the reasonable-man interpretation of the phenomenon then are such practices gambling? If such practices are indeed gambling, then where are the relevant regulations?

The answer however, is not that simple, in India gambling is outlawed except for three States, Goa, Sikkim and Daman. The distinction made by the Court is that any game, the outcome of which is purely chance based, will be categorized as gambling[7]. If we look at the narrow definition then, then what comes out of these loot-boxes is purely chance based, there’s no skill involved whatsoever and thus should be classified as gambling. The problem lies in the fact that, the item that is obtained out of these loot-boxes do not always have a monetary value attached to it as re-sale is either non-existent or extremely restricted. Only some games such as CS: GO, DotA 2 and Playerunknown’s Battlegrounds have a proper marketplace for selling and buying items from boxes with definite values. In these games however, there is no way to obtain these boxes via spending real money unless you’re buying it from the market, which is fair as somebody has earned them through in-game skill.

The problem begins after obtaining these items, there are websites which allow you to place bets using these items and the ‘bet’ is equal to the underlying value of the item. Minds from within the gaming industry claim that in order for an act to be considered gambling, it should have three elements, (i) Consideration, (ii) Chance and (iii) Prize. When one sees gambling in a traditional sense, you envisage a casino where you give money which is your ‘consideration’ and place a bet, then depending on the game you’re playing (blackjack, roulette, poker etc.) you have a ‘chance’ to win on the bet you placed. Lastly, if you do win, you get your prize, which is your bet multiplied by the odds of winning or the entire pot if it is a game such as poker.

Within the world of online games, these items that are obtained are seen as just pixels on a screen and not the items of value that they are. Therefore, when matters concerning gambling using game items have come up, American courts have ruled in favor of the industry. This exposes the technology literacy of the judicial system and the narrow understanding of gambling. The understanding of many video game lawyers across the world is that the consideration or prize, do not have to be money but merely items of value. It cannot be disputed that these items do not have value, the fact there are people paying real money to obtain these items from a marketplace is evidence enough that it has a certain value attached to it.

The Conclusive Parallel:

To draw a very simple parallel, the act of playing video games and earning these items can be compared to mining cryptocurrency. Both acts require a machine, gaming actually requires a substantial amount human input unlike mining, which requires running of a one line code. If solving of a block within a blockchain is equal to winning in a video game then the cryptocurrency obtained through mining should be identical in value to the loot box obtained for winning. Therefore, making both cryptocurrencies and loot boxes mere pixels on a screen.

Every nation in the world is in a rat race to regulate cryptocurrencies but nobody wants to reign in companies such as Electronic Arts and Activision. Which if allowed to conduct business in the above-stated present manner will eventually lead to the darkest hour in the history of video games. We are the cross-roads where the gamers themselves have to stand-up to this tyranny and decide if their children want to live in a future which has more games like The Witcher 3 or Star Wars Battlefront II.

By: Nirav Bakshi, a final year law student of the 3 year L.L.B program at Jindal Global Law School

Image Credits: http://media.comicbook.com

[1]Will Fulton, Do players really like loot-boxes, or are game publishers forcing them on us?, DIGITAL TRENDS (16 November, 2017), https://www.digitaltrends.com/gaming/do-players-like-loot-boxes/

[2]Joel Hruska, Ubisoft’sMicrotransactions Revenue Just Beat Digital Sales for the First Time, EXTREMETECH (8 November 2017), https://www.extremetech.com/extreme/258638-ubisofts-microtransaction-revenue-just-beat-digital-sales-first-time

[3]Gambling Commission, Virtual Currencies, eSports and social casino gaming – position paper (March 2017), http://www.gamblingcommission.gov.uk/PDF/Virtual-currencies-eSports-and-social-casino-gaming.pdf

[4]Will Fulton, Do players really like loot-boxes, or are game publishers forcing them on us?, DIGITAL TRENDS (16 November, 2017), https://www.digitaltrends.com/gaming/do-players-like-loot-boxes/

[5]Paul Tassi, There Are Not Enough Hours In The Day To Grind For ‘Overwatch’ Anniversary Skins, FORBES (24 May 2017), https://www.forbes.com/sites/insertcoin/2017/05/24/there-are-not-enough-hours-in-the-day-to-grind-for-overwatch-anniversary-skins/#21b5f4957628

[6]Erik Kain, Here’s One Way To Fix Overwatch’s Loot Box Problem, FORBES (25 May 2017), https://www.forbes.com/sites/erikkain/2017/05/25/heres-one-way-to-fix-overwatchs-loot-box-problem/#17244187547d

[7]Manoranjithan Manaymil Mandram v. State of Tamil Nadu AIR 2005 Mad 261

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  1. Boing Boing is being sued by Playboy for disseminating the links to its centerfold pictures.                                                                                      http://www.bbc.com/news/technology-42774878?ocid=socialflow_twitter
  2. NFL team Green Bay Packers gets into trademark dispute regarding the term TITLETOWN MARKS.   https://www.forbes.com/sites/darrenheitner/2018/01/22/green-bay-packers-get-into-trademark-dispute-over-titletown-marks/#320a95d94638
  3. American musician Kid Rock is sued for using the slogan ” Greatest Show on Earth” in promoting his tour.                                                                     https://pagesix.com/2018/01/22/kid-rock-really-has-the-greatest-show-on-earth/
  4. Colombian pop-star Shakira faces tax evasion charges. http://www.dailymail.co.uk/tvshowbiz/article-5298559/Shakira-subject-tax-evasion-enquiry.html

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

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On the 24th of August, 2017, the Indian Supreme Court handed down an important decision concerning image and personality rights. In fact, it deemed the right to privacy as a fundamental right. It has, however, left some important questions open, in particular, the definition of personality rights giving rise to such right to privacy.

Personality rights may be defined as the right to control and profit from the commercial use of one’s name, image, likeness, etc. This right prevents its unauthorized appropriation for any commercial purposes. Commercial utilization of one’s name and likeness has been done right from 1960’s by the likes of yesteryear’s actors and sports persons such as Dilip Kumar and Kapil Dev.

However, the past couple of years have witnessed an increasing amount of litigation regarding personality rights with the likes of actors and musicians famous in India such as Rajnikanth and Sonu Nigam fighting legal battles to prevent the unsolicited usage of their names and likeness – a trend that was repeated this past year, when apparel brand Tommy Hilfiger was marred in controversy over its alleged unauthorized usage of some photographs of Indian actor Hrithik Roshan and his sons as part of a promotional campaign.

The fact that the photographs used in this matter were unsolicited pictures raised not only an issue pertaining to the invasion of privacy, but also whether the concept of image and personality rights needs statutory protection in India. As is true for domain names, which at present can only effectively protected against third-party abuse by means of trademark registrations, there is no existent statutory mechanism to effectively combat the unauthorized commercial exploitation of celebrities’ personality rights.

The advent of social media tools like Facebook and Instagram reflects the commercial importance of these rights. While the likes of Kim Kardashian are considered pioneers behind the advent of social media endorsements in the West, in India, too, this trend is gaining momentum. A number of film stars and sportspersons are now effectively utilizing the commercial scope of their names and likeness, and an emergent generation of public persons whose “celebrity status” derives from other sources are also pursued for endorsements. In an endeavor to keep costs down and remaining dynamic, brand owners recruit fresh and relatively unheralded models and celebrities for endorsements. As a result, individuals such as Radhika Seth, who have an Instagram following numbering in lakhs, are endorsing products by brands such as Freddy Jeans or Nykaa Lipsticks in India.

This shows that it is ever more important to not only understand but to have a well-defined basis to protect the conceptualization of personality rights. Not only global superstars such as Cristiano Ronaldo and Lionel Messi can derive significant revenue from their own likeness, but also young up & comers.

It is indeed vital from a legal perspective to define what constitutes a celebrity who has personality rights in the present day and age. This question is important as the concept of personality rights has evolved as an immense source of revenue for the rich, famous and talented public personas of the world. One could argue, as Harshavardhan Ganesan has done, that there should be some sort of public declaration of the right of personality. That would, in theory, prevent the unsolicited usage of such individuals’ likeness by any prospective infringer. This becomes even more important with the recent decision by the Indian Supreme Court. In theory it would ensure that every individual has a latent right to personality, which he(or she!) may activate if there is a commercial viability to his or her name or likeness. Simultaneously if the government has stringent guidelines holding celebrities accountable for the products they endorse, then an equivalent right should be granted to them protecting the commercial usage of their personality (see the article in WARC Staff here). This would remove the ambiguity that the courts have contended with over the years and have a definite statutory basis to deal with the same.

By: Dhruv Shekhar

This article was previously published by the Kluwer Trademark Blog: http://trademarkblog.kluweriplaw.com/2017/11/28/india-complex-paradigm-image-personality-rights/

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  1. Kailash Kher alleges that the theme song for the Gorakhpur Festival is  copy of his song Adiyogi.                                         https://timesofindia.indiatimes.com/city/delhi/gorakhpur-mahotsav-theme-song-is-a-copy-of-my-adiyogi-kailash-kher/articleshow/62402745.cms
  2. Facebook Allowing Users To ‘Like’ Things Won’t Confer Jurisdiction In The State Where The Webpage Is Viewed: Delhi HC.                                  http://www.livelaw.in/facebook-allowing-users-like-things-wont-confer-jurisdiction-state-webpage-viewed-delhi-hc-read-judgment/

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

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  1. SC Agrees To Hear Producer’s Plea Against Ban On Movie ‘Padmavat’ In Some States http://www.livelaw.in/sc-agrees-hear-producers-plea-ban-movie-padmavat-states/
  2. Indian Singers Rights Association’s Battle Against Restaurants: Delhi HC Directs All Matters To Be Listed Before Same Bench In March                    http://www.livelaw.in/indian-singers-rights-associations-battle-restaurants-delhi-hc-directs-matters-listed-bench-march-read-order/

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

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  1. Ed Sheeran & Tim Mcgraw sued by Australian musicians for copyright infringement. http://www.abc.net.au/news/2018-01-12/ed-sheeran-tim-mcgraw-faith-hill-copyright-claim-australian/9324722
  2. Facebook makes changes to its algorithm to change the way in which it presents information on people’s news feed.                 https://www.forbes.com/sites/keenanbeasley/2018/01/15/how-facebooks-latest-changes-impact-influencers-businesses-the-future-of-social-media-marketing/#3ff4cbc51798
  3. Germany’s new media law aims at regulating the previously uncharted territory of social media.                                                  https://www.theguardian.com/world/2018/jan/05/tough-new-german-law-puts-tech-firms-and-free-speech-in-spotlight
  4. Twitter launched new set of new rules related to how it handles hateful conduct and abusive behavior taking place on its platform.  https://techcrunch.com/2017/12/18/twitter-today-starts-enforcing-new-rules-around-violence-and-hate/
  5. Youtube star Logan Paul suffers immense backlash after sharing the video of a man having committed suicide as part of his vlog.  https://www.theverge.com/2017/12/11/16761984/apple-shazam-acquisition
  6. Lana Del Rey sued by Radiohead for allegedly lifting their hit, ‘Creep’.

//economictimes.indiatimes.com/articleshow/62415709.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppstJudg

  1. Judge dismisses claims of copyright infringement leveled against Taylor Swift for her song “Shake it Off”.                                                                https://abovethelaw.com/2018/01/taylor-swifts-lawyer-does-some-serious-player-hating-in-attempt-to-shake-off-absurd-copyright-lawsuit/?rf=1
  2. Apple acquires Shazam for a deal worth $400 million.  https://www.theverge.com/2017/12/11/16761984/apple-shazam-acquisition
  3. Facebook reveals data on copyright and trademark infringement taking place on its platform.                                                                                                                  http://snip.ly/up9cq?lipi=urn%3Ali%3Apage%3Ad_flagship3_feed%3BsYSutuNFSbOvyqH3HNbMwg%3D%3D#https://www.reuters.com/article/us-facebook-transparency/facebook-reveals-data-on-copyright-and-trademark-complaints-idUSKBN1EC2MZ

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

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  1.  The I&B Ministry bans the broadcast of condom advertisements during prime time Television.                                              https://www.theguardian.com/world/2017/dec/12/india-bans-condom-adverts-during-primetime-tv
  2. Disney Inc. buys the 21st Century Fox’s  for $52.4 billion.  https://www.nytimes.com/2017/12/14/business/dealbook/disney-fox-deal.html
  3. UK High Court rules that TV show formats can be protected by copyright. https://www.out-law.com/en/articles/2017/october/high-court-tv-formats-can-be-protected-by-copyright-even-if-elements-of-the-shows-are-spontaneous-or-changeable/

*Hyperlinks to third-party Web sites are provided solely as a convenience. Such sites are not affiliated with, endorsed by or under India Entertainment Law’s control. This blog neither adopts, endorses, nor makes any representation or warranty regarding, any content on or available through such sites

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