Posts In "Sports"

Sports




Electronic Arts Fumbles in Lawsuit Brought by College Athletes (again)

College sports is big business.  Student-athletes generate truckloads of cash for their schools, but are prohibited by NCAA rules from sharing in the haul.  In fact, if the student-athlete learns that someone is commercially exploiting his or her name or picture, NCAA rules require the student “to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.”  (Wouldn’t we all have loved to have had that problem in college….)

Given this state of affairs, when Electronic Arts made its NCAA Football games using the likenesses of college athletes, it could not have obtained licenses from the students even if it had wanted to.  That would have violated NCAA rules.  So what happens when EA uses the likenesses of college athletes without permission, makes a bunch of money, and then doesn’t compensate the students?  After graduation, once they are no longer bound by NCAA rules, they all sue, of course!

  Continue reading the full story . . . »

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Leggo My Likeness, Part Four

There are so many fun things you can do with celebrities.  In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cardsmake movies about them using puppets; or even use claymation television to have them fight each other to the death.  But what about including digital representations of them in a video game?

new case reinforces the holding of a previous case which stands for the proposition that you can’t put celebrities in a video game and then have them do exactly what they normally do in real life.  (For example, a game like “Lindsay Lohan:  Escape from Rehab” simply would not work).

Unfortunately, the case also sets a bad new precedent.

The case in question is called Hart v. Electronic Arts and represents a dangerously subtle evolution in right of publicity law.  In a 2-to-1 decision, a three judge panel ruled that various NCAA Football games, made by Electronic Arts (EA), did not “sufficiently transform” the identity of a college football player named Ryan Hart to escape his claim that EA violated his right of publicity.

At first blush, it seems that the 3rd Circuit simply copied the “transformative use test” used by the 9th Circuit.  Upon closer inspection, however, it becomes apparent that the 3rd Circuit took the analysis one step further.

The majority began its analysis by reasoning that “[t]he digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game.”  The majority opinion then chastised EA for seeking to increase profits by capitalizing “on the respective fan bases for the various teams and players” by creating “a realistic depiction of college football for the users.”  However, as the dissenting judge recognized, the inclusion of realistic player likenesses to increase profits should have nothing to do with First Amendment protection.  In fact, by making such a distinction, the result is a “medium-specific metric that provides less protection to video games than other expressive works.”

In his dissenting opinion, Judge Thomas Ambro argued that EA’s use of real people as “characters” in its sports games should be treated the same way as portrayals of individuals (fictional or nonfictional) in movies and books.  (After all, who would want to play Tim Tebow in a football game if you couldn’thave him get down on one knee and start praying?)  Along these lines, when an author writes a historical novel, biography, or other book inspired by or involving famous people, the First Amendment protects the author’s right to realistically portray those people.  The same protection applies to filmmakers.  When Oliver Stone made the biographical film “W,” about former President George W. Bush, an obvious goal of the film was to have Josh Brolin’s portrayal of George W. Bush as realistic as possible to increase the likelihood of satisfied movie-goers.  (Naturally, this required pronouncing the word nuclear “nuke-ya-lure,” and including lines like “Whose job is it, to find these damn weapons?” and “I believe God wants me to be president!”)

To be clear, Judge Ambro does not suggest that the First Amendment should protect all digital portrayals of real people, but simply those in which the likeness, as included in the creative work, has been transformed into something more or different than it was before.  This is the test used by the 9th Circuit.  It is also the test articulated by the majority opinion.

Why, then, did the majority end up with a different conclusion than the dissent?

In a footnote to his dissenting opinion, Judge Ambro observes that when the transformative use test was originally developed, California’s Supreme Court borrowed the concept from the “purpose and character of the use” factor relevant to a copyright fair use defense.  In Judge Ambro’s view, the majority opinion permitted “another fair use factor to creep into their transformative analysis.”  Specifically, he observes that the majority also considered the fourth fair use factor, i.e., “the effect of the use upon the potential market for or value of the copyrighted work.”  Judge Ambro concludes his footnote by pointing out that the California Supreme Court expressly excluded this factor when it originally developed the transformative use test in the famous Three Stooges Case.

Yet, the problem remains; an uninvited fair use factor regarding marketability which has no business in a transformative use analysis.  At least in the 3rd Circuit.

In the meantime, video game developers would do well to heed the message in this case:  It is risky to include super-realistic, digital representations of celebrities or athletes in a video game engaging in their normal behavior.  The safest thing to do is change the celebrity’s actual appearance, behavior, and context in which the celebrity appears.  Changing just one of these things—e.g., context—may not be enough.

For example, in the No Doubt case, simply putting a rock band into a fanciful context like outer space did not render the use of the band’s likeness transformative because the band still looked like the band and still did all the same things the band normally did.  By comparison, Kirby v. Sega taught us that the transformative test is satisfied if you give a celebrity a new name, a new appearance, and the lovable story of having been “dispatched to investigate an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably.”

In the end, what bothers me most about the Hart v. Electronics Arts opinion is a throw-away point raised by an amicus brief.  The section of the brief highlighted by the court reads:

“Under [EA’s] application of the transformative test, presumably no infringement would be found if individuals such as the Dalai Lama and the Pope were placed within a violent ‘shoot-em-up’ game, so long as the game included a ‘mechanism’ by which the user could manipulate their characteristics.”

Why did the court highlight this point?  It seems to imply that a video game cannot realistically depict celebrities in any context, even if their behavior is abnormal or uncharacteristic.  Although the court did not expressly make such a statement, the “concern” it evinced is distressing.

I suppose that if anything is clear, it’s that these judges need to start playing more video games.


Meet Five Celebrities Who Have Had Worse Tax Days Than Yours

In celebration of Tax Day today, we here at Law Law Land offer tribute to our favorite celebrity/IRS run-ins.  Now, lest you think this is just another list airing dirty celebrity tax laundry, think again.  This is a classy publication, as you well know, so if you’re looking for dirt on which celebrities owe what, look elsewhere. . . like here, or here, or here.  Instead, on this national day of tax collection, Law Law Land is pleased recognize five (or more) of our favorite celebrity tax stories of all time… so far.

Honorable Mention:  Timothy Geithner

In our Honorable Mention category of “Really, Are You Kidding Me?,” we recognize former Treasury Secretary (i.e., head of the U.S. Treasury, the folks you make that tax check out to) Timothy Geithner, who underpaid his personal federal income taxes from 2001 to 2004 by failing to report and pay social security and self-employment tax on income received from the International Monetary Fund.  Mr. Former Secretary subsequently amended his returns since he “should have been more careful.”  We imagine he regretted his “unintentional” decision not to report that income when appearing before the Senate Finance Committee during his confirmation hearings to control the United States’ piggy bank.

Honorable Mention:  Nick Diaz

In our Honorable Mention category of “How Dumb Can You Be?,” the award goes to MMA fighter Nick Diaz, who recently announced during a post-match press conference that he has “never paid taxes in his life” and “is probably going to jail.”  Well, if Nick had only read about some of the other people on this list, then he definitely would have seen that coming! Continue reading the full story . . . »


This Is Our Super Bowl Blog Post. Now Come and Get Us, NFL!

[In honor of Super Bowl XLVII — because everyone knows that Roman numerals make everything very distinguished and significant — we’re bringing back one of our most-read, and most personally-favored posts.  Enjoy your SUPER BOWL PARTY, everyone.]

Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the San Francisco 49ers and the Baltimore Ravens.  (And maybe, just maybe, you might have heard something — but probably nothing original — about that whole Harbowl storyline.  Well here’s a little-known wrinkle about it.)

I’m as excited as anyone for the game, which is why, this Sunday, I might try to find a local bar hosting a Super Bowl party. But I’ll probably be out of luck, unless I’m willing to go to a “Big Game” party instead. And if I’m feeling spendthrift — the always-confusing word that sounds like “thrifty” but actually means “profligate” — I might try to pick up a new flat-screen TV at a Super Bowl sale. But unless I’m willing to settle for one of those ubiquitous “Big Game” sales, I’ll probably be forced to stick with what I’ve got.

biggame

Every year, while every sports yak in America is obsessing over Super Bowl scouting reports, every business in America is trying to capitalize on the game. But most of them aren’t using the words “Super Bowl” to do so, and the reason is fairly obvious: the phrase “Super Bowl” is trademarked by the NFL, which is famously protective of its intellectual property. Moreover, the privilege of using the phrase “Super Bowl” in advertising is one of the valuable rights bestowed by the NFL upon its advertisers and promotional partners — which gives the NFL extra incentive to keep freeloaders from poaching the phrase (thereby diminishing its value to potential paying promotional partners).

But what if the NFL is wrong? What if I really could check out the Super Bowl party at my favorite watering hole without them being subjected to the threat of legal doom?

Guess what, folks: I can.

Continue reading the full story . . . »


Why Skip Bayless Should Probably Focus on the Super Bowl and Shut Up About This Whole “Kaepernicking” Trademark Application

So last week, I was on my 173rd consecutive hour of consuming blog articles, news stories, tweets, posts, video interviews, transcripts of interviews, analyses of transcripts of interviews, and opinions on the analyses of transcripts of interviews about Manti Te’o and his imaginary dead girlfriend, when I noticed that something else critical happened in the world of sports.  OMG OMG OMG!  Did you hear that Colin Kaepernick, NFC champion quarterback of the San Francisco 49ers and flat-billed hat enthusiast, recently “trademarked” his signature, tattooed-biceps-kissing touchdown celebration now known as “Kaepernicking?”

Wait, WHAT?!  Does this mean that when I finish this blog, Colin is telling me I can’t celebrate by jumping up from my desk and kissing my beautiful biceps?  Have you seen my biceps?  It’s hard for me to look down at them and not kiss them!  It’s like I have Kate Beckinsale and Jessica Chastain staring up at me from each bicep, lips pursed, like some insane Popeye fever dream.

In my panic, I poured through the incomprehensibly large number of stories about this.  But then I had a thought.  No, not “What am I doing with my life?”  No, not even “What is everyone at ESPN doing with their lives?”  No, my thought was “Wait wait… I’m a lawyer, damn it!  I actually know what all of this means!  These guys don’t!

What’s in a Trademark?

You see, there are times when being a lawyer is like being a sci-fi nerd.  No, not just because girls flinch upon seeing us…  Where a sci fi nerd may get mad that you don’t know that those cool big four-legged walky things in The Empire Strikes Back can be called either an Imperial Walker OR an AT-AT (short for All-Terrain Armored Transports, not to be confused with those cool little two-legged walky things in Return of the Jedi, which are called AT-STs, or All-Terrain Scout Transports…idiot), I often find myself peeved at laymen’s misunderstanding of intellectual property law.  Someone will give someone a funny nickname at a party and follow it up with “you should totally copyright that!”  And I’ll shout “Excuse me!  According to U.S. copyright law, you can’t copyright a short phrase!  In fact, judging by the context, I’m pretty sure you mean that you should ‘trademark’ that, but what does that even mean?  You can’t actually ‘trademark’ something!  You can file an application for registration with United States Patent and Trademark Office and assuming you specify the proper goods and services and submit a proper specimen of use and pay the requisite fees and don’t receive an office action from the USPTO Examining Attorney or an opposition from a third party, you may be issued a registration.  But is that really what you want to go through for that stupid nickname?!  Hey, wait a minute, where’s everyone going?  Come back!”  (See, there’s a reason I don’t get invited anywhere by anyone.  Ever.)

Regardless (or “Irregardless” for you Raiders fans), listening to or reading a sports reporter’s take on trademark law is like Bill Walsh listening to me try to explain the complexities of the pistol formation.  Here’s the thing:  Colin Kaepernick is in no way going to be able to prevent you, me, Alex Smith, Ray Lewis, the Harbaugh Brothers, or any member of the Lingerie Football League’s Seattle Mist from kissing their biceps.  In fact, as applied for, Colin’s application, if it eventually becomes a registration, will only prevent you from the following VERY limited activity:  advertising and selling clothing making use of the word KAEPERNICKING as a brand.  That’s it.  Nothing more.

You see, Colin’s application only covered the word KAEPERNICKING, not the actual celebration.  In addition, in his application, he’s only claiming the exclusive right to use that word in connection with clothing — following the recent trend of athletes attempting to secure their nicknames for clothing (see TEBOWING and LINSANITY).  In fact, he actually applied for several other marks that didn’t get as much publicity:  KAEPERNICK7, KAEPERNICK CK7, KAP7, KAP, and, creatively, COLIN KAEPERNICK.

As much as can be forcibly read into this story by the easily-excitable Skip Bayless (who just so happens to not only be a frat bro of mine, but we also attended the same sports powerhouse), it’s really not a big deal.  Due to the fact that his “trademark” is just a version of his name, he likely wouldn’t need a registration to protect himself — he’s got right of publicity laws on his side.  He probably filed the applications simply because it’s common for unscrupulous types to file trademark applications for terms associated with famous people as soon as those terms get hot:  see BLUE IVY CARTER and LINSANITY.  Having an application on hand will make it easier to shoo those imposters aside.

Will It Even Work?

Of course, as you may have noticed from my room-clearing screed above, just because Kaepernick applies for trademark protection doesn’t mean he’s going to get it.  In fact, given the nature of the marks for which he’s claiming protection, Kaepernick and his lawyers are going to have a lot of e- paperwork in front of them.

  • All of Colin’s applications for marks which include his last name (i.e. KAEPERNICKING, KAEPERNICK7, and KAEPERNICK CK7) are likely to be initially refused by the USPTO because the marks consist of a word that is “primarily merely a surname.”  The USPTO will only allow a registration of a last name as a trademark if the applicant can prove “acquired distinctiveness,” indicating that the public now associates that surname with this particular applicant’s goods/services.  Colin may be able to prove that due to his recent rocket flight to stardom.
  • Colin’s application for COLIN KAEPERNICK is going to be initially refused by the USPTO because in order to acquire a registration for mark that identifies a particular living individual, the written consent of that individual must be on record.  The USPTO doesn’t want someone’s name to be co-opted by some random third party.  Colin will be able to easily overcome this refusal by submitting a short written statement showing his consent.
  • Colin’s application for KAP will almost assuredly be rejected.  While we may recognize that in this instance, KAP is a flawed attempt at shortening KAEPERNICK (shouldn’t it be KAEP?), the problem is that he’s trying to protect it in connection with clothing, which includes hats.  “Cap” is a word used to generically describe hats and, under the law, no one can claim exclusive rights in a generic word.  The fact that it’s misspelled doesn’t help things.  For the purposes of analyzing the generic or descriptive nature of a word, a misspelling is treated the same as the proper spelling.  I think Colin’s going to have much better luck against the Raven’s defense than he is on getting past this refusal.

But Let’s Focus on What’s Really Important

Brain-addling trademark law minutia aside, the point of this overly-angry and uninteresting missive is to convey the fact that trademark rights, at least in the U.S., are limited in scope.  The main purpose is to allow someone to protect a word, logo or slogan (or, in more complex cases, a sound, shape, color or even smell) as it is used on particular goods or services offered by that person or company.  The protection extends only to that particular word as used on those particular goods (except in limited circumstances).  A trademark registration does not allow the trademark registrant to prevent anyone from ever using that word in a sentence ever again.  It certainly doesn’t allow for the prevention of a certain unoriginal touchdown celebration (I miss the good ol’ days).

But you know, when it comes down to it, I really don’t care.  I’m bitter.  Not just because I’m a lawyerbut because I’m a long suffering San Diego Chargers fan.  I LOVE the guy, but I don’t thinkRIVERSING is going to take off any time soon.  At least I can now go back to what’s really important:  the Manti Te’o story.  I’m eagerly awaiting the day (coming soon) when we see a trademark application for the next big sports fad:  TE’OING.

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The Lakers Beat the Who?

Seattle sports fans recently rejoiced when the Maloof family announced that they have (finally) agreed to sell their stake in the Sacramento Kings to a Seattle-based investment group that (spoiler alert) intends to move the team back to the Emerald City.  Considering how well the former Seattle SuperSonics are doing as the new OKC Thunder, coupled with the fact that the Seahawks recently blew what could have been the most amazing comeback in recent memory, who could possibly deny Seattle’s sports fans this fantastic opportunity?

For starters, there are the Sacramento Kings’ fans, who fully appreciate the irony of Seattle trying to poach an existing team while still bemoaning the fact that their Sonics team got poached by Oklahoma City.  Rest assured that Kings fans will stop at nothing to keep the team in “Cowbell Kingdom,” if for no other reason than to continue persisting in their ridiculous fantasy that a “rivalry” exists between the Kings and the Lakers.  (Of course, what’s really going on is an all-too-obvious ploy to support the struggling cowbell industry, which the rest of America — except for maybe The Bruce Dickinson — will just never understand).  Leading the Cowbell Kingdom movement is former Phoenix Suns superstar and now-mayor of Sacramento, Kevin Johnson, who not only has a political science degree from U.C. Berkley, but also blew my 12-year-old mind back in 1994 when he posterized Hakeem Olajuwon.

Just one day after this week’s announcement of the sale, mayor KJ warned Seattle fans:  “Don’t celebrate too early.”  Because if KJ gets his way, the Kings will be staying in Sacramento (and the cowbell industry will be saved).  Such a result would not only devastate the hopes and dreams of Seattle NBA fans, but would also totally obviate all of the hypothetical legal stuff I may or may not eventually get around to discussing later in this article.

KJ’s Plan

KJ’s “Playing to Win” plan has four steps, none of which apparently require the use of complete sentences:  (1) identify local ownership group; (2) identify major equity partner; (3) demonstrate City’s commitment to partner on new downtown arena; (4) demonstrate viability and strength of the Sacramento market.  KJ has also located a prominent Sacramento law firm that is willing to get paid entirely in cowbells work on a pro bono basis to help keep the team in town.

In order to keep the Kings in Sacramento, KJ must ultimately convince the NBA board of governors to reject the proposed sale and relocation plan.  According to the Sacramento Bee (a far more trusted news source than the Cowbell Herald), the Maloofs have a binding agreement with the Seattle-based investors, which would mean that the Maloofs would not be able to change their minds about who to sell to unless the NBA rejects the sale (or the Maloofs want to breach their contract).  According to Fox Sports, however, the “Maloofs are still allowed to receive other offers until the league approves the sale….”  Meanwhile, other observers are speculating that the Kings’ minority owners may have a right to match the Seattle group’s offer — and that, even if the current minority owners are unwilling or unable to do so, new cowbell-loving partners (including business magnate/part-owner of the Pittsburgh Penguins Ron Burkle) could step in and exercise that right by taking over a 7% stake in the franchise that is currently available via bankruptcy auction.

In any event, the NBA board of governors will reportedly meet in New York in mid-April.  At that time, the board of governors will probably hear a relocation pitch from the Maloofs and the Seattle-based investors, as well as a counter-offer from KJ.  KJ’s counteroffer will likely include a summary of his four-point plan (no reports on the anticipated use of complete sentences), and hopefully some additional footage of him posterizing Hakeem Olajuwon.  Hopefully, KJ will have the good sense notto show the board of governors the Bubble Gum Bandits’ corny music video, which supports keeping the Kings in Sac-town.

Legal Challenges

Even if the Kings-to-Seattle move is approved by the NBA, and isn’t scuttled from within the Kings ownership group, two lawsuits threaten the construction of a new 700,000 square feet arena in Seattle.  According to the Seattle Times, the first lawsuit deals with a Washington State Initiative that requires the city to make a profit on any investment in a sports facility.  The second lawsuit seeks to void the contract because the investors failed to complete an environmental impact report and because nonindustrial traffic and development in the “Sodo” area would impair cargo movement.

Although we California lawyers can normally predict the outcome of lawsuits with absolute certainty* these lawsuits are different because they involve topics like the impairment of cargo movement — which, when rigorously analyzed, immediately force us to either take a nap or think of something more interesting before we can complete our analysis.

Even if these lawsuits are defeated, the new arena wouldn’t be ready for at least a few years — which would mean that the team would be back in the aging KeyArena.  Unfortunately, KeyArena is already booked with numerous exciting events such as Seattle University men’s basketball games, WNBA Storm games, Pac-12 Women’s college basketball tournament games, various musical concerts, and last but not least, “Rat City Rollergirls” games.  This means that instead of watching DeMarcus Cousins, Tyreke Evans and Jimmer Fredette, Seattle fans might just get to keep watching the “Throttle Rockets” versus “Sockit Wenches.”

Since I only go to Seattle to visit family and Pike Place Market, you might assume I have no dog in this fight.  But given that (1) as a Laker fan, I must constantly endure Kings fans bringing up the “rivalry” we all know never existed, and (2) I feel dated whenever I listen to Ice Cube’s “It Was a Good Day,” I would actually like to see this move happen.

But, as a German train-ticket collector once told a professor of mine when told by the professor that he was going to a certain city in Germany:  “We shall see.”

* Disclaimer:  This statement is not actually true.