The opportunities to market and commercially profit from sports go far beyond selling tickets for admission. The public fascination with sports and sports figures fuels the industry that garners millions even billions in revenue. In addition to their salaries, big-shot athletes have tremendous financial opportunities through endorsement contracts with companies eager to have the athletes promote their products. In most cases players earn more through endorsement contracts than salaries and team benefits. For professionals in the creative industry generally, the most substantial sources of revenue lies in reaching a national, even international, audience through broadcasting coverage and the reporting of sports events through audio, visual, print and virtual mediums. Royalties from licensing authorized merchandise sales of sports memorabilia. With the lucrative market sports provides, other businesses, entrepreneurs, and individuals are eager to capitalize on the public’s interest by providing services, products, or information – sometimes in competition with those directly involved in the sports industry or simply because of the investment of the sports industry.
IP comes in simply because in the business of sports, the value the players, teams and owner hold, and the product essentially sold are intangible. An athlete’s reputation and performance may enable a vast earning potential in endorsements. Returns on the investments made by the players, team and leagues in establishing quality sporting competitions and creating fan interest and loyalty are realized through corporate sponsorships and through valuable licensing contracts authorizing rights to broadcast team or league games and to market merchandise bearing the team’s name, logo, or distinctive style. Protecting these intangible assets is of paramount concern for all involved in this sport business- the owners, athletes, teams, leagues, sponsors, event producers, and player associations (sports industry). The valuable yet intangible rights of the sports industry are at risk when outsiders seek to profit unfairly from the sports industry’s investments. Determining what constitutes a legitimate, as opposed to unlawful, commercial use by outsiders involves examining the legal rights of the various parties. IP laws have developed to establish the ownership and property rights in such intangibles, yet extremely valuable, assets. These rights includes individual (1) athlete’s right to publicity i.e to control and profit from the commercial use of the athlete’s identity (such as name, nickname or image), (2) trademark protection for team names, logos, symbols, and other distinctive marks in the area of sports merchandising, advertising, and naming rights, as well as the scope of rights to restrict others from broadcasting, reporting, or otherwise profiting from the sporting events and other sui generis rights within the auspices of IP. These issues have become more complicated and relevant with the emergence of new technologies. This article will only attempt to discuss the right to publicity of an athlete.
IP RIGHTS OF ATHLETES- RIGHT TO PUBLICITY.
In the creative industry, the status and popularity of an individual is as valuable as the art itself when it comes to exploiting the accruing rights. Accomplished athletes and sports figures are celebrities and/or legends in the eyes of the public. These athletes often stand to profit as much or more from their image and fame through lucrative endorsement contracts as they do from their professional salaries. Michael Jordan, for example, more than doubled his $31 million salary in 1997 playing for the chigago Bulls, earning $47 million in endorsement contracts with companies such as Nike, Mcdonalds, Gatorade, and MCI, to name a few. Upon announcing that he was leaving Stanford University to become a professional golfer, Eldrick “Tiger” WoodS signed endorsement contracts worth an estimated $70 Million before he had played in his first tournament as a professional. LeBron James similarly began his NBA career out of high school with a $90million shoe contract with Nike. Before the emergence of Floyd Mayweather with yet an unascertained figure, Tiger Woods remains the best paid athlete whose numerous endorsement contracts garner him over $110 million annually. Next are the likes of finnish formula One driver Kimi Raikkonen, basketball legends Michael Jordan and Kobe Bryant, Manny Pacquiao, and David Beckham all earned over $40 Million a year in endorsement. Venus and Serena Williams broke record for female athlete endorsement deals. In 2002, Venus Williams signed a $40 million contract with reebok, the highest endorsement fee ever paid (to the best of my information) to a female athlete in the history of sports. A year later, Serena surpassed that record in a reported five year, $50 Million deal with Nike. In 2009, fellow tennis player Maria Sharapova took the lead as the highest paid female athlete with $70 million in endorsement deals and an annual income of $24 million although only $1million earned from the prize money. The demise of one’s image leads to a correlative plummet in an athlete’s commercial marketability. After news of Tiger Wood’s marital infidelity became public, Gillette, Accenture, AT&T, Golf digest, and Gatorade no longer saw value in using Woods’ image to promote their products. It is estimated that Wood’s transgressions have cost him an estimated $180 Million in personal earnings, and his sponsor between $5 and $ 12 billion in shareholder value. OJ Simpson had a similar story with a career that hit the rock after reports of his misconducts.
Sporting figures are concerned not only about maintaining a semblance of privacy, but also protecting their image from exploitation by others. The pertinent question sought to be answered from this article is whether and to what extent the law limits the commercial use of an athlete’s identity by others. Should an athlete who has become a public figure be entitled to preclude others from using his name nickname, image, picture, or distinctive reference without consent or remuneration to the athlete. Due to the dearth of the requisite legal framework in Nigeria vis-a-vis statutory provisions and decided case law, reference will be made to the common law position with reference US and UK case laws. In ALI v PLAYGIRL, INC, the plaintiff Muhammed Ali, a citizen of Illinois and until recently the heavyweight boxing champion of the world, has brought this diversity action for injunctive relief and damages against defendants playgirl, Inc, a California Corporation for alleged unauthorized printing, publication and distribution of an objectionable portrait of Ali in the February, 1978 issue a playgirl Magazine (“playgirl”), a monthly magazine published by playgirl, Inc, and distributed in New York State by independent. The portrait complained of depicts a nude black man seated in the corner of a boxing ring and is claimed to be unmistakably recognizable as plaintiff Ali. Alleging that the publication of this picture constitutes, a violation of his rights under Section 51 of the New York Civil Rights law and of his related common law right of publicity, Ali now moves for a preliminary injunction, directing defendants playgirl, Inc and independent to cease distribution and dissemination of the February, 1978 issue of playgirl Magazine, to withdraw that issue from circulation and recover possession of all copies presently offered for sale and to surrender to the plaintiff, any printing plates or device used to reproduce the portrait complained of. For the reason which follows and to the extent indicated below, plaintiff’s motion for a preliminary injunction is granted. In determining the cause of action it is pertinent to take a look at the substantive law upon which the cause of action was predicated. Section 51 of the New York Civil Rights law provides thus:
“ any person whose name, portrait or picture is used within this state for the purposes of trade without the written consent (of that person) may maintain an equitable action against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injury sustained by reason of such use”
The defendants raised the defence of newsworthiness of the information which was rejected by the court as that was not established. The defendants conceded that there was no consent but however contended that even if Ali’s likeliness is determined to be unauthorized and for trade purposes, the statutory right of privacy does not extend to protect “ someone such as an athlete who chooses to bring himself to public notice, who chooses, indeed, as clearly as the plaintiff here does to rather stridently seek out publicity”. In rejecting the defendant’s contention. The court held that “ plaintiff may have voluntarily on occasion surrendered his privacy for a price or gratuitously, does not forever forfeit for anyone’s commercial profit so much of his privacy as he has not relinquished”.
The distinctive aspect of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or persona. This common law publicity right is analogous to a commercial entity’s right to profit from the “goodwill” it has up to its name. Thus, the interest that underlies protecting the right of publicity is the straightforward one preventing unjust enrichment by the theft of goodwill. Accordingly, the right of publicity is usually asserted only if the plaintiff has achieved in some degree a celebrated status.