I contributed a chapter called “How Trademark Protection Intersects with the Athlete’s Right of Publicity” in a new book called In the Arena: A Sports Law Handbook. Its publication, in true bar association fashion, was secretly announced last week. Seeing, however, as how someone named “Packing Slip” sent me two copies in a plain-brown box, I guess I am allowed to tell you about it. That association would be the New York State Bar Association, whose Continuing Legal Education Publications published it so that you and I may continue our legal educations. You can buy the book here for cheap or you can send me $100 for an autographed copy; $125 if you want it to be my autograph.
The editors are the versatile, charming and, if I may say, rather handsome David Krell, and the phenomenal Elissa Hecker, whom I thank for extending to me the opportunity to contribute to the work. Here is a list of the other contributors.
Some excerpts from my chapter:
Athletes, their teams, and in some cases even their themesâ€”think â€œLinsanityâ€ or â€œThree-Peatâ€4â€”are brands. Those who generate such sports brands and wish to maximize their value must cultivate and protect them. Professional athletes engage marketers, publicists, accountants and strategists to protect the benefits of a lifetime of effort by anaging their brands. No brand-management lineup is complete without a lawyer who thoroughly understands how and what the law will and will not do to protect and optimize sports starsâ€™ valuable personas.
Never before have intellectual property rights and what may be called their â€œemanations and penumbrasâ€ protected more economic activity than they do today. Chief among these â€œemanationsâ€ is the prohibitive cost to most defendants of litigating bona fide defenses to aggressive, and often meritless, claims of infringement. This situation trengthens the enforcement value of these legal claims, albeit in an arguably perverse way.
Yet, while athletes and their management, including in many cases their personal lawyers, are at once more conscious of intellectual property, some seem as confused as ever about how the traditional forms of intellectual property protection (copyright, trademark and patent) operate to protect intellectual property and, where appropriate, brands or â€œbrand equity.â€ In fact, the legal regimes for protection of celebrity both within and outside of traditional intellectual property are not only widely misunderstood; they are themselves in a state of confusing flux, making familiarity in this specialized field an absolute requirement for any lawyer advising pro athletes about branding.
This chapter will address classic intellectual property protection of the persona, mainly via trademark, as well as general principles of the evolving and state-specific doctrines of publicity and privacy rights. Except where necessary to explain the state of the law as it exists, this presentation will eschew discussion of the historical development of the respective types of personality protection under the law.
You just knew I’d ruin it, didn’t you? But no, there is some interesting new stuff from me in there, if I don’t say so myself, including a bit of special treatment concerning protection of names — the main “brands” for most athletes* — as well as a section about autographs. I am sure the other chapters are at least as good, probably better; now that word has leaked of the publication of In the Arena, perhaps we will hear more about it.