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.
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.
Brian R. Socolow is a partner at Loeb & Loeb LLP. He represents organizations in the sports industry and other businesses. He is based out of the New York office and can be reached at firstname.lastname@example.org.
Permission for article reprint has been granted.