by JSEL | Nov 19, 2019 | Highlight
The National Football League and Major League Baseball’s players associations have entered into a deal with RedBird Capital Partners to maximize profits from player likenesses, the Wall Street Journal reports. This agreement is a major milestone in cross-sport partnerships, as it “marks the first time players unions have joined forces across sports in this way.” With the amount of money that the players and RedBird are putting together, the possibilities are likely endless. I would recommend players focus on replicating the success of athletes like JuJu Smith-Schuster in reaching new fanbases across different platforms to truly see the biggest gains from this new arrangement.
The RedBird deal creates a new company called OneTeam Partners LLC—the company will look to facilitate revenue generation from player portrayals. Bloomberg notes that “[t]he sports unions will have 60% of [OneTeam’s] equity, with RedBird taking the rest.” These intellectual property rights are no joke; from video games to trading cards: usage of player names, images, and likenesses is the cornerstone of various sports products that third-party companies offer (Bloomberg cites Electronic Arts and Nike; while WSJ mentions Sony and Panini America). As the frequent JSEL reader knows, the NCAA has recently taken note of how important these name, image, and likeness rights can be for players.
That the NFL and MLB players are coming together demonstrates a shared understanding among players that pooling resources can have a profoundly positive impact on the overall bottom line. NBA players just “reclaimed their group licensing rights in the last round of labor talks with the league,” and could therefore be next in line to join. One could also imagine a scenario in which other players (such as those in the Women’s National Basketball Association, Major League Soccer and on the U.S. women’s national soccer team) join OneTeam, and the WSJ article states that some are already slated to be OneTeam investors.
RedBird will pool an initial investment of $125 million with annual revenue from the two players associations to get the company going. The players associations make roughly $120 million per year from standard licensing agreements—the players “will still receive their standard annual payouts from the deals, but RedBird will use the funds to invest in other opportunities.” The well-financed company will begin to pursue various opportunities, and in so doing, I would encourage the dealmakers to “Be like JuJu.”
Building a fanbase is key to financial success in the age of athlete celebrities on social media. One great example of this phenomenon is JuJu Smith-Schuster, a young wide receiver for the Pittsburgh Steelers who has already established himself as the third-most popular NFL player on social media. Smith-Schuster’s superstardom is actually no surprise when you consider how he has creatively expanded his potential fanbase past just Steelers or NFL enthusiasts. Smith-Schuster is a well-known Fortnite player and was part of a record-breaking 2018 Fortnite stream (with hip hop artists Drake and Travis Scott, along with streamer “Ninja”) that garnered over 600,000 viewers. As a result, he is reaching consumers that many other NFL players never would.
Smith-Schuster’s example is one to follow. NFL players should look into their contracts with Electronic Arts and see whether Madden NFL has the exclusive right to their portrayal in video games. If so, OneTeam could perhaps figure out a way to structure a limited use arrangement in which the players can become bonus characters in games like Fortnite or other popular titles. For example, maybe Call of Duty could add—as an in-game purchase—an unlockable Lamar Jackson character with turbo speed and extra distance/accuracy on grenade throws (thereby exposing Jackson to CoD players who might otherwise not ever hear of him or interact with him or his likeness in any meaningful, goodwill-inducing way). CoD has already included NFL players Le’Veon Bell and Alejandro Villanueva in a prior game, but it doesn’t appear they are playable characters. Another possible crossover would be encouraging more players to start streaming certain non-sports video games on Twitch, with a special card reward in Madden Ultimate Team (MUT) for those who subscribe to the player’s stream. Related to this, perhaps OneTeam cuts a deal with Panini and Electronic Arts to start putting special cards in actual trading card packs, redeemable for virtual cards on MUT (thus encouraging trading card buyers to buy and play Madden with this new found favorite player, and vice versa).
RedBird may have struck gold with this investment, if player rights stay as lucrative as they have been. With the right awareness of how to build fanbases up over time, OneTeam should be a highly profitable endeavor.
“JuJu” by Brook-Ward is licensed under CC BY-NC 2.0
Eli Nachmany is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2022).
by JSEL | Oct 25, 2019 | Highlight
Electronic Arts (EA) CEO Andrew Wilson recently expressed interest in bringing back the once-popular NCAA Football video game franchise, if the legal framework governing college athletics changes in such a way that would permit its existence. Wilson made the comments at the WSJ Tech Live conference in California, favorably citing a newly signed California law that, starting in 2023, would allow college athletes to profit off of their name, image, and likenesses. The hope is that such a law could “clear the way” for NCAA Football’s return. To be sure, the NCAA opposed the California law and prefers to solve the issue of athlete compensation on its own terms.
EA Sports, a division of EA, last released NCAA Football in 2013—reporting indicates that the game was immensely “popular, ranking behind the FIFA soccer game and the NFL Madden game among EA Sports’ titles[.]” In 2013, the NCAA allowed its licensing deal with EA Sports to expire, citing “the current business climate” and litigation, like the Ed O’Bannon lawsuit, that challenged the revenue scheme related to the usage of college players’ names, images, and likenesses in broadcasts and video games.
The NCAA Football franchise is definitely still on the minds of some at EA Sports headquarters. As Business Insider recently pointed out, EA folded some college football gameplay into its latest installment of Madden NFL—Madden 20—but safely included it in a pre-set, scripted mode (QB1: Face of the Franchise) which does not allow for player customization.
It seems unlikely that EA Sports would spite the NCAA and bring back some iteration of NCAA Football with only California schools. After all, EA jeopardizing its relationship with the NCAA could complicate future efforts to re-introduce NCAA Football in full if the legal landscape settles in such a way that creates the conditions necessary for the franchise’s return. Further, given the opposition to the California law from “[t]he University of California system, California State University schools, Stanford and USC[,]” it would be quite a reversal for the schools to come together and make their own deal with EA Sports for a video game, independent of their governing body.
The possibility of NCAA Football returning is sure to excite football fans and sports gamers (this author included). However, given the uncertain legal future of compensation in college athletics, it remains too early to tell if the once-prominent video game franchise will be making its way back to the shelves of local game stores anytime soon. If profit is any incentive, however, there certainly appears to be a deal waiting to be struck here.
Image: Photo a day project: December 2005, Jenny Lee Silver, CC BY-NC 2.0
Eli Nachmany is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2022).
by hlsjrnldev | Oct 30, 2018 | Highlight
Pharrell Williams has sent President Donald Trump a cease-and-desist letter for playing his song, ‘Happy’, without authorization at a rally. The move comes in the wake of the tragic shooting at the Tree of Life Synagogue in Pittsburgh.
The letter penned by Williams’ lawyer, Howard King, states that “on the day of the mass murder of 11 human beings at the hands of a deranged ‘nationalist,’ you played his song ‘Happy’ to a crowd at a political event in Indiana. There was nothing ‘happy’ about the tragedy inflicted upon our country on Saturday and no permission was granted for your use of this song for this purpose.”
The letter goes on to call out the incident involving usage of the song for both copyright infringement and trademark infringement, and denies permission for Trump’s general usage of any of Williams’ music going forward – “Pharrell Williams is the owner of the copyright in “Happy”, with the exclusive right to exploit same. Pharrell has not, and will not, grant you permission to publicly perform or otherwise broadcast or disseminate any of his music. The use of “Happy” without permission constitutes copyright infringement in violation of 17 U.S.C. § 501. This also violates Pharrell’s trademark rights under the Lanham Act.”
Trump has received several similar cease-and-desist letters in the past for using music without permission at public events from representatives of artists including Aerosmith, Prince, R.E.M., and Queen.
Merve Ciplak is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2022).
by hlsjrnldev | Oct 28, 2018 | Highlight
On Monday, October 22nd, 2018, Tracy Chapman slapped Nicki Minaj with a copyright lawsuit. In her complaint, Chapman alleges that her song “Baby Can I Hold You” was sampled in Minaj’s song entitled “Sorry” without Chapman’s permission. Beginning in June 2018, Minaj and her representatives made multiple requests to license “Baby Can I Hold You,” which were all denied by Chapman. Despite the denials, Minaj leaked “Sorry” to Funkmaster Flex, a radio DJ, who then teased the song on social media, and also played the song on the radio on August 11, 2018. After Funkmaster Flex played “Sorry,” listeners reproduced the allegedly infringing work and published it on multiple websites.
Chapman said that Minaj used the “most recognizable and memorable” portions from “Baby Can I Hold You,” and stated, “This action is necessary to redress Maraj’s disregard and willful infringement of Chapman’s rights under the Copyright Act, and to ensure that her misconduct is not repeated.”
Although Minaj has not made “Sorry” available for sale, music copyright lawyers believe Chapman has a strong case and that Minaj will probably want to settle. 17 U.S.C. § 504 of the U.S. Code provides that a copyright infringer is liable not only for actual damages, but also statutory damages if a court finds that the infringement was intentional. While it may be difficult to calculate actual damages without sales to reference, Chapman’s allegations make a strong case for finding Minaj liable for statutory damages.
“’The elements of copyright infringement are access and substantial similarity,’ says Henry Gradstein, who won a $43 million settlement last year against Spotify, on behalf of songwriters. ‘If they took 50 percent of the composition, they obviously had access to it; if they tried to negotiate a deal and they didn’t get it, that’s copyright infringement 101.’”
Not only do the choruses of the two songs share similar melodies, but also Minaj repeats identical lyrics from Chapman’s “Baby Can I Hold You.” Exhibit 1 in Chapman’s complaint is a comparison chart of the lyrics of the two songs that highlights how Minaj’s chorus entirely consists of lyrics taken from Chapman’s composition. “‘It’s a strong case for Tracy Chapman, because it’s a wholesale lift of the lyric as the centerpiece of Minaj’s track,’ says Bill Hochberg, who works with the Bob Marley estate.”
The lawsuit also alleges that on July 10, 2018, one of Minaj’s representatives emailed a letter to Chapman’s managers, admitting, “In the song… [Minaj] has used interpolations from” Chapman’s song. Minaj also tweeted multiple times about “Sorry” and her licensing issues with Chapman. On August 11, 2018, Minaj tweeted, “Sis said no” – an apparent reference to Chapman’s continued denial of permission. Hochberg pointed out that this particular tweet could go over poorly with a jury, since Minaj seemed to have admitted publicly that she knew that Chapman rejected her request.
Hochberg says, “Overall it’s an embarrassment for Minaj and the case probably settles quickly with an exchange of money and Chapman retaining her artistic integrity by not allowing the song to be released, and at Queen Minaj’s palace, maybe some wrist slapping or perhaps head rolling in the aftermath.”
Ashley Park is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
Image: Eva Rinaldi creator QS:P170,Q37885816, Nicki Minaj 7, 2012, CC BY-SA 2.0
by hlsjrnldev | Apr 20, 2018 | Highlight
In 2016, Take-Two, a video game company that is the creator of the NBA 2K series of video games, was sued by Solid Oak Sketches, a company who owns the copyright in several NBA players’ tattoos. Solid Oak argued that the video game series, which seeks to simulate the NBA, infringed on their copyright because the tattoo designs were featured in the game without their consent. These tattoos appear on players like LeBron James, whom the plaintiff argued doesn’t have the authority to grant Take-Two permission to use their designs in the game. This case is still pending in New York federal court.
On April 18, 2018, Take-Two was hit with another tattoo-related lawsuit, this time over their inclusion of professional wrestler Randy Orton’s tattoos in the WWE 2k game. Plaintiff Catherine Alexander argues in her complaint that these tattoos, which contain a bible verse design, a dove, a rose and skulls, are original and expressive and easily recognized by members of the public. In 2009, Alexander contacted WWE about their use of Orton’s tattoos on merchandise they were selling. The WWE offered Alexander $450 “for extensive rights to use and reproduce the tattoo designs on WWE products,” but Alexander refused. Since then, Alexander argued that the WWE 2K video games have reproduced Orton’s tattoos in their games. Though Alexander only registered the tattoos in 2018, she argued in the complaint that Take-Two “knew or should have known” that the tattoos were “copyrighted works” of “original authorship.”
Alexander’s argument will likely hinge on the whether or not Take-Two actually copied her tattoos in their WWE 2K games. The court will have to determine if there is substantial similarity between Orton’s tattoos and the tattoos as they appear in the game. As these games are supposed to represent real players, its likely that these tattoos were reproduced in a way to “make them seem as close to real-life as possible.”
Previously, a judge has ruled that tattoos are copyrightable, and furthermore, NFL players are now advised to get copyright waivers or licenses from their tattoo artists. Take-Two, however, will likely argue, as they did in the NBA 2K Lebron James tattoo litigation, that their use of the tattoos is protected by the fair use doctrine, or the “de minimis” use doctrine, “which allows for a tiny amount of work to be legally used.”
Image: Megan Elice Meadows, Randy Orton at Wrestlemania XXX, CC BY-SA 2.0
Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).
