Historically, at the amateur level, one could not be both an NCAA-eligible collegiate athlete and profit from one’s name, image and likeness. Institutions, including those at the collegiate level, and even professional sports organizations raked in billions while athletes received a “free education” and ultimately, where applicable, a player salary. If an athlete was one of the lucky few to make it into professional sports, then and only then could that athlete entertain endorsements, sponsorships and other marketing arrangements. Even then, these select athletes, the marketable ones in particular based upon skill, fandom or something else, had foregone years of being able to take advantage of their brand(s) and secure endorsement deals. Moreover, all too often by that time that once bright, shining star suddenly faded, perhaps due to injury or something else?
The sports world as we know it may be on the precipice of change, however, with the introduction of California SB206, a bill that requires that all California colleges and universities pay student athletes for the use of their name, likeness, and image. While the NCAA, among others, is surely eager to weigh in, what should athletes be thinking about in the event this bill passes and/or one at the federal level does? Here is a list of three considerations for any athlete looking to capitalize off of his/her name, image or likeness:
1. Trademarks and Service Marks – Even before an athlete’s name, nickname, or other distinctive identifier is used to sell goods (e.g. shirts) or services (e.g. entertainment), an intent to use federal trademark application with the United States Patent and Trademark Office (USPTO) can help prioritize one’s rights over a copycat.
2. Copyrights – Like trademarks, copyrights are a kind of intellectual property. While one can secure common law copyright rights, filing to register a copyright in original works of authorship (e.g. literary content, videos, images, caricatures, etc.) can create additional protections and monetization opportunities.
3. Right of Publicity – This common law or statutory right (typically at the state level) provides for of every individual to control the commercial use of his or her name, image, likeness, or some other identifying aspect of identity. With respect to athletes, this can be many things, and it goes to the crux of the amateurism/professionalism debate, not to mention the law mentioned above.
While our attorneys have represented professional athletes, it may not be long before timely advice regarding IP and rights of publicity for athletes starts at a younger age, and long before such athlete is a professional athlete. Athletes and their advisors would be well-served to be thinking about how to lawfully secure, protect, enforce, and ultimately monetize the athlete’s name, image, and likeness…much like institutions have done for their own profit for years. We all may quickly be entering a new era where athletes need not, and should not, wait until “turning pro” to navigate traditional endorsement issues with brands, not to mention understand club and league collective bargaining agreements and restrictions, in order to secure additional compensation, especially if Lebron has his way.