One of the most publicized legal issues in Sports Law today deals with athletes’ right to publicity, and the infringement on these rights by companies seeking to capitalize on player names, images, and likenesses. The elements of a Right of Publicity claim vary from state to state, but there is a good deal of overlap among the states regarding this hot-button issue.
The Right of Publicity makes it unlawful to use someone else’s identity for commercial advantage without permission. This applies whether the likeness is that of a celebrity or not. Plaintiffs need not have used their own names or likenesses in the past, such as by endorsing products or doing commercials. The Right of Publicity extends beyond the misappropriation of a person’s name or likeness, to voice, performance style, and even former names. Right of Publicity is often confused with other related aspects of law, such as copyright and trademark. The historical origins of copyright, trademark, and Right of Publicity, however, demonstrate distinctions with regards to policy and rationales for the interests that each is designed to protect.
The Right of Publicity has little to do with copyright. According to 17 U.S.C. § 102(a), copyright applies to the bundle of rights one acquires in “original works of authorship fixed in any tangible medium of expression,” so the exclusive rights held by a copyright owner apply to the work itself. The complicated part of this is that Right of Publicity and copyright considerations can simultaneously be implicated in a single usage. For instance, an advertisement featuring an athlete’s picture may require authorization from the photographer for the copyright use, and from the athlete for the Right of Publicity use. Because these are wholly distinct claims with independent parties charged with standing to assert them, federal copyright laws generally will not preempt a state-based, Right of Publicity claim.
Like a trademark, however, the Right of Publicity can function as a quality assurance to a consumer, especially if an athlete maintains self-imposed quality standards and exercises discretion in licensing publicity rights. Also, proprietors of both trademark and publicity rights seek to prevent others from reaping unjust rewards by using the mark or athlete’s fame. Given these occasional parallels, overlap is inevitable. But as a general proposition, the Right of Publicity stands apart from both trademark and copyright law, as a distinct body of law, with its own underlying principles and history of precedent.
Perhaps the most high-profile case involving athletes’ Right of Publicity today involves Ed O’Bannon, a former basketball player who was a starter on UCLA’s 1995 National Championship team, and the NCAA Basketball Tournament Most Outstanding Player of that year. O’Bannon, along with many other athletes, filed a lawsuit against the NCAA and the Collegiate Licensing Company, alleging violations of the Sherman Antitrust Act and of actions that deprived him of his Right of Publicity. O’Bannon asserted that his Right of Publicity was violated because his likeness was used in an Electronic Arts (“EA”) video game without his permission. Although the game didn’t use his name, it featured a UCLA player who played O’Bannon’s power forward position, while also matching his height, weight, bald head, skin tone, jersey number, and left-handed shot. EA and The Collegiate Licensing Company, both original co-defendants with the NCAA, departed from the case and finalized a $40 million settlement that could net as much as $4,000 to as many as 100,000 current and former athletes who had appeared in EA Sports basketball and football video games since 2003.
College athletes are in a particularly tough situation when it comes to Right of Publicity, because NCAA regulations prevent current NCAA athletes from receiving compensation for the commercial use of their names and likenesses. The NCAA constitution and bylaws create a contract between the NCAA and its member institutions. Although student athletes aren’t technically parties to the contract, they are considered third-party beneficiaries. The NCAA’s bylaws restrict the commercial use of athletes’ names or likenesses by third parties, and thanks to this restriction, current college athletes can’t exploit their rights of publicity the way professional athletes do. When students agree to play for their schools, they consent to the bylaws of the NCAA and thus to the NCAA’s exploitation of their persona. The NCAA contends that student-athletes assign their rights of publicity to the colleges or the NCAA, in exchange for a scholarship and the right to play for the school.
This area of the law seems to find its way into headlines on a routine basis, and it is continually developing with regards to sport and entertainment law. At HEITNER LEGAL we can help secure and protect your Right of Publicity. Additionally, we can help you license your Right of Publicity to someone else for monetary gain.
In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir 2013).