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NCAA to loosen ban on college athletes' use of own personas

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.

We recently told readers about a California bill under consideration in the state legislature called the Fair Pay to Play Act. Since then, the legislation has become law and will take effect in 2023. California's move is groundbreaking in the world of collegiate athletics that has for so long been subject to the nonprofit - but powerful - National Collegiate Athletic Association and its requirement that student athletes remain amateurs.

Broadly, the new law will let student athletes in the state use their images and names for profit while still enrolled in school, with the exception that their colleges may not pay athletes to use their identities for promotion of the schools.

As we discussed in our previous post, the legal right to the use of a person's own persona for commercial purposes is called the right of publicity - a kind of intellectual property established and defined in state law. By enacting the law, the state of California, in essence, is challenging the NCAA's long-time insistence on student amateurism without profit.

Now, the NCAA has reportedly taken a unanimous vote of its Board of Governors to let student athletes benefit from "use of their name, image, and likeness in a manner consistent with the collegiate model," according to a new article on IPWatchdog.com. The board committed to a rule change by 2021. As the article's authors note, what this will mean is not entirely clear, given that the "collegiate model" likely refers to amateurism and that amateurism is not consistent with making money from participation in college athletics.

The article also notes that because athletes will be able to exercise their right of publicity, using their "brand" in commerce or intending to do so may enhance their prospect of successful registration of trademarks that identify them, e.g., their name or signature.

We will continue to share information with readers about NCAA actions as it inches toward its self-imposed deadline for changing the rules.

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