October 29, 2019 will either be remembered as the day that the NCAA signified a major shift in its position on whether college athletes should receive compensation in exchange for the commercial use of their names, images and likenesses, or it won’t. The bottom-line is that it is far too early to tell what the NCAA intended by way of the dissemination of a release titled, “Board of Governors starts process to enhance name, image and likeness opportunities.” It appears that was intentional. Read more “Stop Saying That The NCAA Will Now Allow College Athletes To Profit”
And down the stretch they come! It is a popular saying in horse racing, which was popularized by sportscaster and longtime ABC, CBS, ESPN and NBC voice Dave Johnson. It is also a phrase that is now the subject of a trademark infringement lawsuit pending in the U.S. District Court for the Southern District of New York.
Is it true that no one can own a dance step? That is what video game publisher Epic Games is arguing in a motion to dismiss that it filed on February 11 in a federal case that was brought by Terrence “2 Milly” Ferguson.
By this point everyone has seen the picture of Michael Jordan crying at his Hall of Fame induction, as it is being used on memes everywhere. Can use of this photo in a meme get you sued?
Copyright law grants exclusive rights of an original work to its creator, in this case the Associated Press. Of course there are exceptions that allow for use without permission from the copyright holder. We are going to evaluate if use of the Michael Jordan’s crying face in a meme constitutes as fair use, thus making it not subject to copyright laws.
To determine if use of a work is considered “fair use,” there is a four-part test that a court will implement. First, a court will look at the purpose and character of the original work. If the work is being used in a transformative, not for profit, educational, or personal way, then it favors fair use. If the work is used in a commercial, entertainment, or for profit way, then it favors the copyright owner and will require permission to use. Strong factors that weigh in favor of fair use are for criticism, commentary, and news reporting. Applying this the use of Michael Jordan’s crying face in a meme seems to fall between personal use and entertainment, but these memes are often transformative in context, tipping the first test in favor of fair use.
In the second test, a court will analyze the nature of the work. After the original work is published, the court does not protect the work as tightly. When the original work is unpublished, a court will enforce the copyright to ensure the creator has the right to first publish. The crying Michael Jordan face came from a published photo, thus favoring fair use.
The third factor looks at the amount of work used. If the amount of work being used is large or the heart of the original work, then a court is likely to protect it under copyright laws and would require permission to use. If the work being used is only a small amount or not the heart of the original work, a court is more likely to favor fair use. The crying Michael Jordan face seems to be the heart of the original work because the original picture is largely circulated based on Michael Jordan crying, not because he is speaking at his Hall of Fame induction. For this reason the third factor weighs in favor of requiring permission to use.
The fourth and final factor a court will weigh is the market effect on the original work. A court will look at if the original work is being harmed in any way by the use of the meme. A court is likely to say that the use of the meme does not interfere with the market that the original work is targeted at.
After applying the four factor test for fair use, it seems clear that the crying face of Michael Jordan falls within fair use. However, if the crying face was ever to be used in a profitable way, it could change multiple factors of the four step test and sway a court in favor of protecting the copyright, which would then force user to receive permission from the Associated Press.
Michael Jordan may also have a Right of Publicity claim against those using his image. Right of publicity and misappropriation claims arise from use of ones likeness or persona for commercial purposes. The elements that fulfill a right of publicity claim are: (1) Use of someone’s name, identity, likeness, or persona; (2) through use the defendant achieved a commercial advantage; (3) the use was made without the person’s consent; (4) there is injury to the plaintiff.
The use of Michael Jordan is not in question, fulfilling the first element for a claim against right of publicity. The second element depends on if the potential defendant used the image to gain a commercial advantage. If the defendant used the image in a profitable way it would constitute a commercial advantage and fulfill the second element. The third element is fulfilled if the defendant did not receive permission from Michael Jordan to create the meme. Finally, the fourth element would be injury to Michael Jordan. Michael Jordan would be able to show injury in the form of public perception or lost income.
A successful right of publicity claim by Michael Jordan will largely depend on if the use by a defendant constituted a commercial advantage. As long as the meme is not being used for a commercial purpose, Michael Jordan does not have a strong claim for a right of publicity violation.
Neither the Associated Press nor Michael Jordan currently have strong claims against those creating the memes. However, if someone were to use the meme in an advertisement, he/she can expect to be hearing from both the Associated Press and Michael Jordan’s lawyers.
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).
Here is a sample definition of likeness – name, silhouette, personality, appearance, performance, depiction, portrayal, photograph and voice. It is an integral definition in many licensing agreements where one party hopes to be able to exploit the other party, usually for a hefty fee. What if you were not entitled to just compensation for the use of your likeness by another? On one end, people have a right to control their image and reap a reward when others use it. On the other, free-speech rights under the First Amendment should allow certain uses of likeness without permission in particular instances. Read more “Sam Keller Seeks To Protect Athletes’ Right of Publicity”
Very talented athletes stand to make more money from off field/court/ice/etc. activities than what they earn based on performing in the trade that they are truly qualified. Agents, attorneys, and marketers attempt to find and negotiate these deals for their athlete clients. Often times, those deals are licensing agreements, or at least contain provisions that grant companies a license to use something of and concerning the athletes.
Many states are currently considering new Right of Publicity legislation, which have the potential to limit athletes’ ability to protect their likeness from being used without receiving just compensation.
In Michigan, the legislature will consider whether video games should receive an unqualified exemption from Right of Publicity claims. If all states passed such a law, athletes would have a very hard time trying to secure millions of dollars from video games manufacturers based on the their use of players’ images and likenesses without their permission.
In New York, proposed legislation not only grants an unqualified exemption on video games, but also greeting cards, games that use multiple personalities, calendars, and t-shirts. Athletes stand to make a lot of money based on the licensing of their attributes for video games, but multiply that many times over when you consider t-shirts and other apparel.