Brandon Leopoldus, Esq.

Athletes Need to Protect Their Intellectual Property Before Somebody Else Does.

In this digital age of marketing, individual athlete branding has not only become a necessity, but also an increasingly lucrative additional stream of revenue.  Methods of athlete branding range from athlete logos, to catch phrases, and hashtags that identify with athletes.

Many people want to work with (or claim they work with) professional athletes, entertainers, or celebrities. Some businesses and service providers place pictures of notable people on their websites and promotional materials and some of the notable people featured may think "I don’t mind" or "I don’t want to do anything about it."  However, the use of your name, image, or likeness may cause problems if used inappropriately.

The Value of a Name, Image, or Likeness

Think about your favorite celebrity, teammate, or business mogul.  It is likely that each of these people
have at least one endorsement deal, compensating that person for being associated with a brand.  These brands pay for the right to use names, images, and likenesses of identifiable people admired by the public and they want to make sure their investment is protected, and the notable person should as well.

A person’s name, image, and likeness is their own property.  The rights to its use can be sold or used (or not used) in any way the owner chooses.  If you are in a players’ union, the 
union and the league generally have a license to use it; however, members of these unions retain the right to use it on their own as well.  Many sports personalities use their name, image, and likeness for commercials, to benefit a charity, or to help raise money for another good cause.  All of these scenarios are great if the individual chooses to permit the use.  Sometimes high-profile people will allow their name, image, and likeness to be used for no cost, and at other times they may charge a premium for their use.

Rights Thieves

Regardless of intent, brands cannot use a person’s name, image, or likeness without permission. Even if a notable person frequents a business, uses a product, grew up with the owner, or is friends with people working in the business, the business needs permission to try to capitalize on using a notable person’s name, image, or likeness in a marketing campaign.  If a business does not get permission from a notable figure to use their picture, they can’t use it.

The Ramifications of an Unauthorized Use

When a notable person’s name, image, or likeness is used in an unauthorized way, there are a number of negative consequences for the notable figure if the situation is not resolved.

Decreased Value: If a brand is in negotiations with the notable figure, and sees that the celebrity is tied to a low-dollar low-quality product or company, it can be expected that the brand will immediately decrease the amount these brands are willing to spend on the endorsement.

Tarnishing the Image: Notable personalities are held to a higher standard for the brands with which they associate themselves. It is of vital importance for athletes, entertainers, and entrepreneurs to be aggressive to put an end to it when others are using their image without permission so others will not take advantage of them in the future.

Additional Stress and Lost Time: Often, an unauthorized user of 
name, image, and likeness rights use pictures they did not take. They have violated your rights (your right to publicity) and the photographer’s rights (copyright) to the image.  Companies who own the actual picture used may be aggressive in defending their intellectual property and accordingly may sue the unauthorized user. When these lawsuits occur, the subjects in the image are required to be deposed.  When taken care of when discovered, an attorney can often keep a celebrity out of a lawsuit and focused on other things.

Contractual Harm: If a notable person has current sponsors, they will make sure the rights they are paying you for are not used by anyone else. There are several memorable cases of celebrities and athletes who have had lucrative endorsement deals terminated because they failed to protect their endorsements, and let a friend, family member, or a business use their name, image, or likeness in violation of their negotiated endorsement.

Lawsuits: That’s right. A notable person whose name, 
image, or likeness is used without their permission may end up as a defendant.  How?  A person who sues over a product or service may sue all parties involved, regardless of their level of fault – that includes spokespersons. Notable figures and brands should each conduct significant due diligence on one another to determine if each party is willing to take on the risk of doing business with one another.

It is critical for athletes, entertainers, and other high-profile people to work with an attorney who will protect their name, image, and likeness and take the appropriate steps to protect the various business deals that depend on those persons' intellectual property being policed to keep each side safe.