One of the things that distinguishes action sports from
traditional sports is the ability of action sports athletes to
express their unique personalities. Action sports typically involve
heightened interaction with fans and crowds and action sports
athletes are allowed, and even encouraged, to develop and publicize
their public personas. Action sports athletes are also skilled at
using technology to convey all of their colorful attributes and
accomplishments, authoring blogs, building fan pages on social
networking sites, and using Twitter and other new media to promote
themselves (think Louie Vito on "Dancing With the Stars,"
Tony Hawk's video games or Bam Margera on MTV's "Viva
La Bam"). Because distinctive personalities play such an
important role in this industry, it seems appropriate for this
"inaugural" article for group Y's website on legal
issues to focus on why it's important for athletes to
vigilantly protect their name and image.
The legal doctrine that protects a famous person's name and
image is called the right of publicity. The laws concerning the
right of publicity can vary from state to state. In general, the
right of publicity prevents someone from using a famous
person's name or image for a commercial purpose without
consent, whether it's in a comic book, video game or domain
name. In some states, the right of publicity also protects a famous
person's voice, persona, and personal information, and in a few
states this right extends to a famous person's name and image
even after death. Because athletes can be very marketable, they are
often the subject of unauthorized exploitation of their name, image
or likeness, and involved in the litigation that results.
One of the most well-known right of publicity cases involved former
professional hockey player Tony Twist, who had a reputation as an
"enforcer" and was known for his violent tactics on the
ice. The defendant was Todd McFarlane, a creator of the popular
comic book series Spawn. MacFarlane, who was a hockey fan, named
several of the characters in his stories after professional hockey
players. One of the characters in the Spawn storyline was named
Anthony "Tony Twist" Twistelli, a nefarious, hideous
looking comic book villain. The real Tony Twist sued McFarlane for
violation of his right of publicity under Missouri law. Although
MacFarlane argued that his Tony Twist character was protected by
the First Amendment, the court disagreed, and a jury awarded Twist
$15 million in damages. Twist reportedly settled for a $5 million
payment from MacFarlane's insurance company.
Two lawsuits were filed recently involving NCAA football and
basketball players and the virtual players in video games who
closely resemble them. Sam Keller, former quarterback for Arizona
State, filed a class action against Electronic Arts and the NCAA
for violating his right of publicity by using his attributes -
jersey number, height, weight, skin tone, hair color, home state,
and playing style (a "pocket passer") - in the NCAA
Football video game, without his permission. The lawsuit also
alleges that the NCAA breached its contract with college players by
licensing their likenesses to Electronic Arts without the
players' permission. The case is just starting, but the
potential damages are substantial. These lawsuits follow a recent
settlement for $26 million involving retired NFL players who sued
the players' union for allowing Electronic Arts to use their
identities in the Madden NFL games without permission or payment.
Just a few weeks ago, Chris Bosh, a member of the NBA's Toronto
Raptors, scored a victory when a court awarded him ownership of 800
domain names including chrisbosh.com, which had been registered by
a cybersquatter.
A complex right of publicity case involving fantasy baseball and
Major League Baseball Advanced Media (MLBAM), the internet arm of
Major League Baseball, highlights how the use of someone's name
or likeness is weighed against the First Amendment's free
speech protection. For several years, CDM Fantasy Sports had
licensed from the Major League Baseball Players' Association
the right to use baseball players' names in its fantasy sports
league. A few years later, however, the Players' Association
entered into a license agreement with MLBAM for the right to use
players' names and playing records. MLBAM then demanded that
CDM Fantasy Sports, and other fantasy sports companies, pay to
become licensees of MLB's fantasy games.
CDM Fantasy Sports filed a lawsuit in federal court in Missouri,
asking the court to rule that its use of baseball players'
names and statistics did not violate the players' right of
publicity, and, even if it did violate their right of publicity, it
could still use the names and statistics without paying a license
fee because they were protected under the First Amendment as
expressive speech. The court noted the differences between
impermissible commercial exploitation of a person's identity
and permissible use of commercial facts and concluded that the
players' right of publicity was not violated because use of the
players' names and playing records "does not involve the
character, personality, reputation, or physical appearance of the
players; it simply involves historical facts about the baseball
players such as their batting averages, home runs, doubles,
triples, etc." Further, the court held that even if the use of
the players' names and playing records were a violation of the
right of publicity, it would be protected by the First Amendment.
This controversial decision was a victory for the First Amendment,
but a blow to the players.
Conclusion
The opportunities abound for successful athletes to
exploit their name and likeness in licensing deals, endorsements,
and personal services contracts, but at the same time they need to
vigilantly monitor how their names and likenesses are being used
and take steps when necessary to make sure such uses are only with
their permission. Athletes can hire companies to monitor the uses
of their names and likeness, both authorized uses and unauthorized
uses, and should act immediately if they become aware of an
unauthorized use. With the growth of action sports, and the
increasing marketability of action sports athletes, the right of
publicity will take on an increasingly important role in protecting
their rights and enabling them to benefit from their distinctive
personalities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
