Sports Law: Intellectual Property and Technology
This Week’s Topics:
Player Publicity Rights
Lanham Act Violations
CBC v. MLB Advanced Media and the Legality of Fantasy Sports
Exclusive licensing agreements for sports video games: EA and 2K Deals
NBA2K13 video game and use of licensing contracts for Olympic players
I say some version of this on all of my sports law posts, but it’s truer this week than most. For anyone that has paid attention to the site for long, they know I am studying intellectual property (I know people hate the name, but we’re stuck with it). If people want to know more about IP and sports, I am happy to do it. This will just be a basic overview. Additionally, I encourage you to check out my writing on IP at Music Manumit Lawcast and Open Source Playground.
IP generally breaks down into four categories: copyrights, trademarks, patents and trade secrets. The lines aren’t quite so clear though. Design patents exist, which are similar to copyright, and trade dress. Trade dress has aspects of trademarks. The copyright act has Chapter 9: Protect of Semiconductor Chip Products, which is something like a design patent. For now though, we can focus on the four big ones: copyrights, trademarks, patents and trade secrets.
Sports law can cover all four of the big ones. For example, broadcasts are copyrighted, team and league logos are trademarked, league data about viewership could be a trade secret and inventors can patent sports equipment. I’ll break down each briefly, and then you can tell me if you want more.
In the US (and presumably in all other countries), copyright is federal (Title 17). This was not always the case. It was not until the 1976 Copyright Act that federal law displaced state law. Thus, you may find texts referring to state copyright law.
Once you write something, type something or record something in a “tangible medium,” then you have a copyright. No registration is required. There are literally no formalities, except for recording. Recording is important because this means that you don’t have a copyright in things you say, do or perform, unless you record them in some way. A lot of people seem not to understand this aspect of copyright, so don’t let your friends confuse you with old law and urban legends.
Constitutionally, copyright applies to “writings,” but modernly that has been applied to any recording. The definition of a writing should become more clear as we go through the other three major categories, but suffice it to say that section 102 of the Copyright Act says:
Confusingly, in the US, one can have trademark protection at the state and/or federal level. You can also have protection with or without filing. However, the strongest protection comes at the federal level with filing.
A trademark is not just a logo. The swoosh symbol, is of course Nike’s logo. A word, such as Nike, can also be a trademark and slogans such as “Just Do It” can be trademarks. A trade name is different from a trademark. Nike, Inc. is Nike’s tradename. Ultimately, a trademark is an association in a consumer’s mind, but for now I think it’s fine to think of a trademark as a logo, name or slogan.
Of the four types of IP discussed in this post, patents are the only one that require registration. Unlike copyright and trademark registration, where registration is to a large extent a formality, patent registration is expensive and time-consuming. More than likely, if you are reading this to see if patents are right for you, they aren’t. The cost will depend on how many claims you have and how complicated they are, but generally you are going to pay between $5-10k. On top of the filing fee, for your patent to be worth anything to you, you will need to police infringers and then take the infringers to court. Taking the infringers to a final disposition is going to cost about $3 million on average.
One thing that often confuses people is that they think a patent is a right to practice an invention. It isn’t. There may be blocking patents. At UNH Law there is a basic course in patent law and two basic courses in patent practice (basically, writing and filing patents). The copyright and trademark curriculum have a prosecution course, but it isn’t considered essential and is done together. I say this just to emphasize that patents are complicated and I really can’t do them just in a couple of paragraphs. If you want to know more about how patents relate to sports equipment or other aspects of sports, please don’t hesitate to leave a comment.
Trade secrets are basically what they sound like. You can’t get trade secret protection for cheating on your wife/husband or lying on your taxes. This is not secrets protection. This is trade secret protection. Likewise, you can only get protection for things that are actually secrets. If someone could go into one of your stores are call your office and get the information without signing a non-disclosure agreement, then you aren’t going to be able to protect the information with trade secrets.
There is trade secret protection at the state and federal level, but is primarily enforced at the state level. For probably obvious reasons, you do not file for trade secret protection. You only file a trade secret claim in court after your secrets have been misappropriated.
We also have a class on broadcast rights coming up, which is similar to IP rights, so stayed tuned if this interests you. That may have more sports-specific stuff, but I thought this primer was important in case we had future posts on sports and IP.
If our weekly articles aren’t enough for you, you can follow my professor on Twitter, on SI.com or NBA TV (although the videos on the site seem to have dried up in late 2011).