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California law would let college athletes sell their images and names

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

At our law firm, we represent people who are fighting to protect their exclusive right to use their persona commercially under state right-of-publicity law. The law encompasses an individual's right to use their own "name, voice, signature, photograph, or likeness" for business purposes.

We also defend people, businesses and organizations against suits accusing them of violating someone else's right-of-publicity by wrongly using their personas.

In an interesting twist on this right, the California legislature has been considering a law that would let student athletes at the college and university level profit from the use of their personas, including images and names, while they are still in school. This might allow them to license their personas for merchandise or enter endorsement deals.

If passed, this would conflict with National Collegiate Athletic Association guidelines. The California bill is called the Fair Pay to Play Act, which would make it illegal for athletic conferences and leagues as well as schools in the state to penalize students who make money from their own images while still enrolled. Schools would not be allowed to pay students, however, for using their names or likenesses to promote their schools.

According to FindLaw.com, the NCAA opposes the bill, not surprisingly. The FindLaw blog questions how the NCAA would respond should the legislation become law.

We will keep an eye on this law, including how the right of publicity protected under this law might intersect with other claims often asserted in a right of publicity lawsuit, including false advertising and trademark.

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