Numerous people want to work with (or claim they work with or know) professional athletes. You may see the names of athletes and their pictures on websites and promotional materials and think to yourself ‘I wonder if that athlete really uses that product’ or ‘I’m surprised that athlete is associated with a company like that.’ However, the unauthorized use of an athlete client’s name, image, or likeness may have consequences for your client you may not realize.
Athlete’s Names, Images, and Likenesses are Valuable
Think about your favorite celebrity, teammate, or business mogul. It is likely that each has at least one endorsement deal paying them significantly for being associated with the product. They pay for the right to use names, images, and likenesses of identifiable people admired by the public so their brand can be more noticeable.
Your athlete client’s name, image, and likeness are their property. They can sell the rights to its use and they can choose to use it in any way they want. If your athlete client is in a players’ union, it is likely the union can use their name, image, and likeness and all players within the union will get paid as the pooled rights are licensed out to companies. However, your athlete client also has the right to capitalize on their individual name, image, and likeness individually.
Many players use their name, image, and likeness for local commercials, to benefit a charity, or to help raise money for another 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 charge a premium for its use.
The value varies widely. Michael Jordan’s endorsement will be more valuable than an undrafted rookie, and today some internet celebrities endorsement deals can be more lucrative than the top players in each sport because the companies paying for the endorsements are looking to a specific demographic. If your athlete has influence, that influence has value.
Who Uses Athlete’s Name, Image, or Likeness Improperly?
Imagine if you represent an athlete or entertainer who went to the same barbershop for every haircut as a kid. Once he/she made it big he signs an endorsement deal with Super Cuts paying your client several hundred thousand dollars per year. When your client goes home, they still run into the people at the barbershop, but now he has a contract for the exclusive right to say Super Cuts is your client’s official hair care center. The barbershop owner may be proud of your client’s success, but that does not give them the right to use your client as a part of a marketing campaign.
Other scenarios common for athletes and entertainers regarding the unauthorized use of their name, image and likeness occur when an acquaintance uses your athlete client’s pictures on their business website regardless of whether or not they have conducted business with your client.
The public likes to use professionals who have ties to the perceived ‘rich and famous’ and the use of your client’s picture on their website can help generate business for the person who may have met your client only one time.
Finally, there is one other type of person that use your athlete client’s name, image, or likeness without approval. These people are the con artists. They will claim they have worked with a number of high-profile people, playing their odds that they will not get caught. These are the people who will copy a picture off another website and put it on their marketing materials and lie to other people about their clientele.
What Are Your Rights When Someone Uses Your Name, Image, or Likeness without Approval?
When (not if) someone uses your athlete client’s name, image, and likeness in an unauthorized manner, you should take immediate action to remedy this situation. This is important for several reasons:
It Decreases the Value of an Endorser: If your client is negotiating endorsement deals, those brands will do a tremendous amount of homework on the brands your client is currently involved with now or in the past. They will do a full due diligence investigation into your athlete client’s image and the public’s perception of him/her. When these brands see your athlete tied to a low-dollar low-quality product or company it will immediately decrease the amount they are willing to spend for your client’s endorsement.
They will see that your client and those working for him do not take his/her image and public persona seriously because your client is allowing him/herself to be associated with a sub-par company/product.
These companies will also question your client’s business acumen. If you were aware of the use of your client’s name, image, and likeness and failed to get an agreement in writing or overlooked the usage without attempting to have it stopped, a brand will be weary of dealing with your client because of a concern you will not take action in the future if the value of their contract with your athlete client is threatened by another sub-par brand using your image.
It will likely tarnish Your Athlete Client’s Public Perception: You are the company you keep. If your client allows him/herself to be associated with a brand or person who is not reputable, even if your client is not actually working with that brand or person, your athlete client will take the hit for it. It is of vital importance for young athletes, entertainers, and entrepreneurs to be aggressive to put an end to it when others are using their image. An athlete’s lawyer should have a cease and desist letter ready to go out to create a document trail in case further action needs to be taken so that these young professionals do not suffer the consequences the remainder of their career.
3. It Will Waste Your Client’s Time: Often, an unauthorized user of your client’s name, image, and likeness will use a picture of your client that they did not take. This means, they have violated your client’s rights (right to publicity) and the photographer’s rights (copyright) to the image. Often, companies like Getty Images are paying a photographer for the rights. Getty and other intellectual property companies aggressively defend their intellectual property and they will go after those who do not pay for the use of their images.
When these lawsuits occur, the subjects in the image may be required to be deposed as a witness. If your client is required to sit in one of these depositions, it will likely be a hassle and only cause your client stress; taking your athlete client’s focus away from their sport. This is unnecessary when it could have been taken care of early in the process by an adept athlete attorney.
It May Cause Contractual Harm: If your athlete client has current sponsors, they will make sure the rights they are paying your client are not being used by anyone else. If they are, the sponsor may terminate a lucrative endorsement deal or sue your client if you do not take the steps outlined within the endorsement deal to remedy a situation of unauthorized use. For these substantial endorsement deals, it is imperative to remain vigilant and quash anyone who may threaten your client’s endorsement money before larger issues arise.
It Can Get Your Athlete Sued: That’s right. Someone using your athlete’s name, image, and likeness without permission can get your sued. How? Think about someone who sees an ad featuring your athlete client’s name, image, or likeness and that becomes their motivating factor for using the product or service being offered. If and when the customer discovers your athlete client is not actually affiliated with the company, their lawyer may file a lawsuit against the company or individual who used your client’s name, image, or likeness and include your client as a defendant. Why would they sue your athlete client? Money. Athletes are often seen as easy targets, and regardless of the success of the claims on the merits, a lawsuit naming your athlete client will cost them money to defend and damage to their reputation.
As you can see, it is critical for athletes, entertainers, and other high-profile people to work with attorneys who will follow the usage of client’s name, image, and likeness regularly and take steps to protect it. Good sports and entertainment attorneys working with individuals will be able to determine quickly if action should be taken, which actions should be taken, and how to best protect these clients throughout the process.