Image Rights: Feeding the Hungry Sponsors
Sports has
evolved from an extra co-curricular activity to a booming industry over the
last 50 years. The sports industry generates large funding and financial
turnovers which creates a financial market on its own. In the middle of this
entire gigantic industry remains the soul of sports, which is the athlete. In
competitive sports, every athlete carries the goodwill and brand of that sport.
Speaking of brands, it is common to read about athletes creating and maintaining
their image rights. This concept of image rights is very much part of that
earlier-mentioned sports industry above. Some athletes gain much financial
income from their respective image rights.
On the other
hand, an increasing number of
corporate companies have come to realize the potential of being associated or
connected to the sports industry. Major brands like Coca Cola, McDonald’s and
Samsung have constantly invested in sports sponsorship to ensure that their
brand is seen to be connected to sports brands. This hunger that corporations have to
link up with sports has become a driving force for the creation of a win-win
situation for both parties. In
all of this, sports lawyers have a unique role in bridging the gap between
these demanding corporations and their desired sports.
In Malaysia,
the concept of image rights and its use in the sports industry is a foreign
topic, an income-inducing opportunity
unseized by many local athletes. However, with the rampant growth of
globalization, a failure to properly manage one’s image would significantly
hamper the individual’s ability to take control of possible additional income.
It is especially relevant to sports athletes who have been granted celebrity
status which may be used as a gauge of the athlete’s
worth in the market. An example would be Datuk Lee Chong Wei.[1] His income is based mainly on his competition winnings
but he also earns lucrative income by controlling the use of his image in
endorsement deals with the likes of ‘100 Plus’ and ‘Yonex’.
In order to
get a clearer definition of image rights in the sports industry, a panoramic
comparison of image rights in the
United Kingdom (UK) and the United States (US) has to be made. In the UK, there
is no specific statutory provision for a right to one’s image, nor has it been
expressly adjudicated within common law.[2] However, image rights is interlinked with the
law in regards to intellectual property rights that protects creations. There
are two aspects to the protection of image rights, which are to protect a
person's right to privacy and a person's ability to commercially promote
oneself. [3]
Prior to the US case of Haelan
Laboratories, Inc. v. Topps Chewing Gum, Inc.2,[4]
the right to privacy first protected individuals against the unauthorized use
of their likeness for commercial purpose. It was developed in the Haelan[5]
case where it formed the basis for the right of publicity.[6]
This right provides that every individual has full control over the commercial
use of their identity which includes their name, voice, signature and photograph.
It aims to prevent unauthorized and uncompensated exploitation of an individual's
image. Because of this, US is deemed to be the forerunning country for
protecting an individual's image rights. However, the First Amendment to the US
Constitution limits the right to publicity[7]
in an attempt to form a balance between the aforementioned right and the right
to freedom of expression. This is considered to be a necessary amendment to
prevent infringing the freedom of press.
How are Image Rights
Protected?
As there is no specific law for image rights,
intellectual property law aids in protecting an athlete's image rights through
various means, for example: through the law related to trademarks and passing
off.
Trademarks
are recognizable insignias or words used to identify and differentiate a
particular product from another, also indicating its source. Trademarks are
registered to allow legal action to be taken if the trademarked
brand is used without permission. In relation to image rights, athletes can
register their name or their signature as trademarks. This however does not
include their image. An example would be the world renown footballer, Paul
'Gazza' Gascoigne who trademarked his nickname 'Gazza', bringing about the
Gazzamania fandom. These trademarks are protected under various trademark laws
like the US Lanham Act and the UK Trade Marks Act 1994.
Another means of protection
is through the law of passing off. Where trademarking is a precautionary
measure, the law of passing off is a post-conflict step. As celebrities, it is
common for an athlete’s image to be used in endorsement deals. An unauthorized
use of the celebrity's image to endorse a product is considered passing off. It
must be proven (1) that at that point in time, the individual had a significant
amount of goodwill or reputation and (2) that a significant amount of the
general population would mistake the false endorsement as a genuine endorsement
by the celebrity. The athlete will then be entitled to compensation under the
law of passing off.
The Role of
Lawyers in Marketing Image Rights
Malaysia applies similar law
to that of UK whereby an athlete’s image rights are protected via trademarking
their name. In addition to trademarks for individual athletes, sports teams
like the JDT Football Team or the KLBC Badminton Team may take steps to
register the team brand. This is where sports lawyers with intellectual property
knowledge enter the picture.
Once the brand names are
registered, it is encumbered upon relevant characters or teams to promote the
brand commercially. Co-branding efforts or selling of the brand to corporate
organizations are examples of commercializing an athlete’s image rights. Sports
lawyers are involved in each stage of trademarking and marketing the said brand
whereby they may also act as marketing advisors cum publicity agents.
Despite being a relatively
uncommon field of practice in Malaysia, sports law is in great demand in
Western countries. Sports lawyers draft and formalize commercial contracts
between parties, ensuring the athlete is legally protected. In this modern age
where having a significant presence on social media would greatly enhance the
athlete’s brand, it is the sports lawyer’s duty to advise the athlete how to
manage social media sites and the content that appears on their page. They
filter the content to be posted on the site and advise the athlete on
politically correct means of managing conflict. In terms of marketing efforts,
a commercial post is planned and timed by the lawyer for maximum impact.
The commercial benefits of
controlling one’s image is evident when analyzing football
giants, Manchester
United. Their nickname ‘The Red Devils’ has received much global recognition
from corporations and fans alike. The strategic marketing of that name is a
significant factor as to why they are ranked No. 1 on Forbes 2016 list of the
World’s Most Valuable Sports Teams with a gross value of $1.86 billion.[8] The commercial team together
with the sports lawyers of Manchester United have successfully developed their
brand and image rights, forming beneficial commercial partnerships with a diverse
group of elite brands (ie. Nike and Adidas). The ever-growing desire of certain
corporate companies to be associated with successful sports clubs as mentioned
earlier above, drives this economic pursuit for sponsorship through the image
rights of the club, the team and/or the athlete.
In summary,
the driving force behind a successful union between the corporate and sports
sector is actually the demand potential sponsors generate by their need to be
constantly fed. The relationship between the sectors has become so congruent
that the absence of one would greatly impact the commercial wealth of the
other. In order to satisfy this ever-growing hunger, image rights in the sports
industry have to be properly created, registered and commercialized. Nonetheless,
despite the hunger of sponsors, the many commercial opportunities they seek
would be non-existent if it were not for the sport itself and the role the
athlete plays. The centerpiece of the sports industry has always been and will
always be the winning goal shot in by the athlete, the winning point scored at
the final buzzer, fulfilling their principal intent of achieving victory. The
spirit and soul of sports shall always remain paramount.
By Richard Wee & Samuella Kong
[1] Jeffri Cheong, “Is your Image worth anything?” <http://www.skrine.com/is-your-image-worth-anything>
accessed 7 July 2016
[2] InBrief.co.uk, “Is there a Right to Protect your image under UK
Law” <http://www.inbrief.co.uk/human-rights/image-rights/> accessed 7
July 2016
[3] “Is there a Right to Protect your image under UK Law” by
InBrief.co.uk <http://www.inbrief.co.uk/human-rights/image-rights/>
accessed 7 July 2016
[4] 202 F.2d
866 (1953)
[5] 202 F.2d
866 (1953)
[6] Luca Ferrari and Stella Riberti, “Comparing How Image Rights Laws
Apply to Sport in the US, UK and Europe” (British
Association for Sport and Law, 22 December 2015) < http://www.lawinsport.com/articles/item/comparing-how-image-rights-laws-apply-to-sport-in-the-us-uk-and-europe>
accessed 7 July 2016
[7] Luca Ferrari and Stella Riberti, “Comparing How Image Rights Laws
Apply to Sport in the US, UK and Europe” (British
Association for Sport and Law, 22 December 2015) <http://www.lawinsport.com/articles/item/comparing-how-image-rights-laws-apply-to-sport-in-the-us-uk-and-europe>
accessed 7 July 2016
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