Athletic Intellectual Property

Intellectual Property plays a vital role in the sports world, where branding, endorsements, merchandising, and media rights are central to the success of athletes, teams, and sporting events. It encompasses a range of legal protections that allow athletes, sports organizations, and sponsors to safeguard their creations and commercial interests. Understanding and effectively managing intellectual property rights is paramount to achieving success in the ever-evolving sports industry.

Types of Intellectual Property

Trademark

A trademark is part of the intellectual property family and protects names, phrases, symbols, and logos in connection with goods or services. It exists to protect a brand. Once a trademark is registered with the U.S Patent and Trademark Office, it allows the owner to license out the item on things such as merchandize or artwork, with legal protection. 

Trademark infringement occurs when an unauthorized party uses a licensed trademark or a mark resembling the licensed trademark. For example, infringement likely occurs when one uses a mark similar to that of its competitor to disrupt business and attract the competitor’s customer base. Infringement may also take place when businesses in unrelated industries use identical or similar marks in an effort to capitalize on other companies’ or individual’s strong brand images.

Copyright

A copyright is also part of the intellectual property family and protects original works of authorship. While a trademark can protect a brand, copyright is more about protecting expression. This can include illustrations, paintings, photographs, musical compositions, computer programs, and even blog posts. A work is considered original when it is independently created by a person (note, a work created through artificial intelligence, such as a poem by Chat GPT, may not suffice) and has a minimal degree of creativity. While only a dash of creativity is needed, it is important to note that certain things like a title, name, short phrase, slogan, variations of font, or a listing of contents do not qualify.

Copyright violations occur when an unauthorized party recreates all or a portion of an original work. The duplicated content does not be an exact replica of the original to qualify as an infringement.  

Publicity Rights

The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, image, and likeness for commercial benefit. Examples of protected rights include a nickname, pseudonym, voice, signature, likeness, or photograph.

While California law now permit amateur athletes to capitalize on their name, image, and likeness, publicity laws serve as the enforcement mechanism to protect against unauthorized uses.

In California, use of a person’s name, voice, signature, photograph, and likeness without permission is covered by statute and common law. Courts have held that in order to prevail, the plaintiff must show (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

Keep in mind, however, that publicity rights are not absolute even if the plaintiff can establish all four elements. That’s because the First Amendment requires a balancing act between the right to be protected from unauthorized publicity and the public’s interest in the dissemination of news and information consistent with freedom of speech and of the press.

Digital Assets

Digital assets are also increasingly recognized as intellectual property. These would include proprietary software code or algorithms, and online digital content. They may also include things like non-fungible tokens (NFTs) and items, such as artwork, generated by artificial intelligence (AI).

Our Legal Services

At Phillips, Erlewine, Given & Carlin, we have a team of experienced Intellectual Property attorneys who understand the unique challenges and opportunities that arise in this arena. We offer a wide range of services, including:

Trademark Registration and Enforcement

We assist clients in protecting their valuable brands through trademark registration. Our team conducts comprehensive trademark searches, prepares and files trademark applications, and handles the enforcement of trademark rights, including combating infringement and defending against baseless claims.

Copyright Protection

Our attorneys are knowledgeable in copyright law and help safeguard the creative works of our clients. From registering original written content and images with the U.S. Copyright Office to protecting those rights in court, we are well-versed in the nuances of copyright law.

Name, Image, and Likeness Rights

We understand the significance of athlete image and likeness rights and can help individuals navigate contracts related to the use of their names, photographs, and personal brand. Our team can assist in negotiating favorable terms for image and likeness rights agreements, working to ensure that our clients can effectively monetize their public personas.

Why Choose Us?

Expertise and Experience

Our firm has successfully assisted numerous clients in the entertainment and sports industries. This includes extensive experience in contractual matters, intellectual property protection, and personal injury claims. We stay up to date with the latest changes in the law and in the industries in which our clients operate to ensure our clients receive accurate and relevant legal advice.

Tailored Solutions

Our approach to whatever sports legal issue that may arise is highly individualized. We strive to understand our clients’ specific business goals and provide tailored solutions to match those objectives. Our dedication to personal attention ensures that each of our clients’ matters receive the best possible legal support.

Client-Centered Approach

At Phillips, Erlewine, Given & Carlin, our clients are our top priority. Our client relationships are based on trust and clear communication. Our team takes the time to understand our clients’ concerns, answer their questions, and guide them through the complexities of their rights. We ensure that our clients are well-informed at every step in the process.

Contact us today to discuss your options.

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