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September 29th, 2017
September Sports Industry News
Who Owns My College Likeness?
In yet another challenge against universities over compensation for student-athletes, former Ohio State star Chris Spielman has brought a class action against the university and its marketing agency for using Spielman's name and image, and that of other student-athletes, for commercial purposes. In one instance, according to the complaint, Ohio State participated in a for-profit program with a major auto brand (which is not being sued) in which Spielman and other former players were depicted as their collegiate selves on stadium banners featuring the auto brand's logo even though the players did not consent to the use of their likenesses. As Spielman has an endorsement relationship with the local dealer of a different auto brand, the use of his name and likeness was problematic. Spielman alleges antitrust violations based on the unreasonable restraint of trade, false association violations under the Lanham Act, and right of publicity violations under Ohio law. Ohio State has recently filed a motion to dismiss for lack of jurisdiction. Spielman v. IMG College, LLC et al., 2:17-cv-00612 (S.D. Ohio July 14, 2017).
While the courts have upheld the NCAA's rules prohibiting current student-athletes from being compensated for the use of their name, image, likeness, and other rights of "persona" based on the concept of maintaining amateurism, athletes continue to challenge the rules. As shown here, the question of whether a former student-athlete no longer subject to the NCAA's rules can assert a claim to enforce rights in their name, image, likeness, and persona from their college days remains at issue.
Beast Mode Your Own Brand
Professional athletes, looking to profit from their athletic success, will often develop brands in fields such as apparel, sporting goods, and accessories - but may lack the infrastructure to get that brand off the ground. Enter Marshawn "Beast Mode" Lynch, who has teamed up with e-commerce start-up Hingeto to develop an end to end platform for brand development and distribution. The platform will assist athletes from brand design through production to distribution. While this concept allows athletes to control their brands, there could be legal and financial concerns by going on their own, as the athlete will also have to fund, protect, and enforce his or her rights.
Mims the Word
When brands use a certain number of professional athletes from a single sport in a single year for promotional purposes (for example, the use of six or more active NFL players in the aggregate over a year or three or more active MLB players in the aggregate over a year), the brand must obtain a "group license" from the respective athletes' players' union, which has been assigned the athletes' "persona" rights per the applicable union membership agreement. Custom wrist band maker James Mims recently found this out the hard way, as he was sued by the Major League Baseball Players Association for producing wristbands featuring current Major League Baseball players' names and likenesses without obtaining a group license from the union. Although these custom wrist bands have been around since the 1980's and are quite popular among many Major League Baseball players, without having a group license, according to MLBPA, the use of the players' names, images, and likenesses violates California Civil Code Section 3344. Unless settled, a jury trial will occur in the Spring. Major League Baseball Players Association vs. Mims Brandz LLC, LC104840 (Cal. Super. Ct. Nov. 4, 2016).
Mike Tyson's Punch Out?
Boxing legend Mike Tyson sued The Boxing Hall of Fame for the unauthorized use of his name, image, likeness, and trademarks on apparel which feature historical images of "Iron Mike." The Boxing Hall of Fame is allegedly selling, and entering into agreements with third party retailers to sell Tyson-branded goods, which they purport to be "officially licensed." Tyson brings claims for trademark infringement, trademark dilution, and violation of his right of publicity under Nevada law as a result of The Boxing Hall of Fame's use of his name, likeness, registered MIKE TYSON trademark, and unregistered IRON MIKE trademark. Tyson v. The Boxing Hall of Fame, Inc., 2:17 cv 02122 (D. Nev. August 8, 2017). The lesson: even if these are vintage or historical uses of his image and likeness, without authorization, the commercial use can lead to a lawsuit.
Will the Dodgers Strike Out?
A consumer who purchased a number of "50/50" raffle tickets from the Los Angeles Dodgers claims that he was misled by the organization and its charitable foundation when they advertised that half of the gross ticket proceeds would go to the foundation and the other half to the winner of the raffle. The Dodgers allegedly concealed the fact that the team deducts costs from the gross proceeds (such as payments to advertisers and other expenses) before calculating the prize amount. Feeling "ripped off and cheated," the consumer has filed a class action suit against the team and its foundation, alleging violations of California false advertising laws. Friedman v. Los Angeles Dodgers, LLC, BC 674266 (Ca. Super. Ct. August 30, 2017). As with any sweepstakes, contest, or other prize promotion, the offeror may not misrepresent the prize. But when the title is "50/50", even a proper disclosure might not cure the problem.
Noted and Quoted
Defending Your Trademark
Athletes Quarterly recently published Alan Sacks' and Deborah Wolfe's article "Building Your Brand: Smart Moves for Sweat Equity," which discusses the ability of athletes to provide their cache and name "equity" rather than monetary investments.
Want to Learn More?
On October 4 and 5, Christopher Chase attends the Leaders Sports Business Summit at Chelsea FC in London. While in London, Chase will moderate a roundtable on "future-proofing" sponsorship and endorsement agreements.
On October 19, Craig Whitney presents A Review of the Supreme Court's Star Athletica Decision and What Now? at the American Intellectual Property Law Association's Annual Meeting in Washington, D.C.
On October 20, Ned Rosenthal participates in a roundtable discussion at Columbia Law School on the New York State Assembly's bill expanding New York's Right of Publicity law.
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