[This post is authored by SpicyIP intern Sonisha Srinivasan. Sonisha is a 4th year law student at School of Law, Christ (Deemed to be) University, Bangalore. She is keenly interested in Research, Intellectual property Law, and Media and Entertainment Law.]
When “Cricket” meets “Copyright”, sometimes even “Breakfast [podcast] shows” are bowled out. This is in the context of an interesting dispute that involves “The Grade Cricketer” podcast hosted by Sam Perry and Ian Higgins, which had been running a show previously known as “The Big IPL Breakfast”. The Grade Cricketer has reportedly received a legal notice from the Board of Control for Cricket in India (BCCI) demanding the removal of certain images and logos used in their video content and to also change the name of their show. This marks a new dimension in BCCI’s strategy, demanding the removal of images and logos, and not unauthorized clips and videos. It is quite clear from an earlier post by Nikhil Purohit here that uploading clips of sporting events with comments could come under fair dealing under Section 52(1)(a) of the Copyright Act, however, mere reproduction without any comment will be subject to Copyright infringement claims. Section 52(1)(a) of the Copyright Act outlines that certain acts do not amount to infringement, including “fair dealing” in any work not being a computer programme, for criticism, review, and reporting of current events.
The IPL media advisories provided here and here allow usage of images for only “editorial” and not “commercial” purposes. While BCCI claims that the usage herein is commercial, another interesting question that pops up is whether categorizing such use by the podcasters here as “commercial” disqualifies the application of fair dealing under Section 52(1)(a)? It would be more apt to interpret the IPL advisories in a liberal manner so as to maximise the ambit of Section 52(1)(a). In order to understand if a work is “commercial” or not under the Copyright Act, we go back to the first element of the 4 factor test, used in the US and incorporated by Indian courts as well, for interpretation. The first one is “nature of work”, which in this case is a satire podcast that constitutes criticism or review protected under Section 52(1)(a)(ii). It is pertinent to note that The Grade Cricketer videos have featured sponsorship placement for Big Basket, an Indian online grocery platform. Reportedly, these ads have been cited by BCCI to explain the commercial nature of the podcast. However, adopting a similar analysis done here by Nikhil Purohit, the aforementioned direction seems like a distant chain of causation, whereas the purposes of the stills from the matches are for reviewing the performances of the players and to undertake discourse about the game. Thus, merely having an ad in this context will not make the use commercial.
In a digital world today, where commentaries and reviews are sought after, the purpose of “Big IPL Breakfast” was essentially to review and discuss the match. The podcasters contend to have been doing this consistently for the past 5 years, serving a “public commentary function”. Deriving an interpretation from an analysis previously done by Nikhil in the Newslaundry case here, the allegedly infringing work should be such that the focus of attention must be on the newly created work and not the original work. Thus, the show as a whole is the focus and not just the image/logo, allowing a liberal approach to what comes under “review/criticism” under Section 52(1)(a)(ii).
Another possible defence is Section 52(1)(a)(iii), according to which “reporting of current events or current affairs” is fair dealing and exempt from copyright infringement. This would be applicable subject to the clear restrictions set out in the IPL news reporting advisories and on proving that the use fell under the ambit of this provision. This would hold true despite a liberal interpretation adopted as clarified in Nikhil’s Newslaundry post above.
Another angle to this is the applicability of “nominative fair use” under Section 30 of the Trademarks Act. The nominative fair dealing allows the unauthorized use of a trademark by others, in this case by “The Big IPL Breakfast”, to describe a product or service when no other phrase can accurately describe it. So, in a video concerning the IPL tournament, using the name of the tournament or the names of the teams should technically be allowed under this defence. This defence is explained and analyzed in detail here and here.
However, the “Grade Cricketers” have removed all the videos using the term “IPL” and the name of the teams and have now come up with a hilarious response to BCCI’s threat, instead of contesting it before the Courts of the law. The podcasters known for their cheeky commentary on the gentlemen’s game have substituted “IPL” with terms like “the really big T-20 tournament” and have resorted to hand-drawn caricatures of players instead of their images.