Ed O’Bannon

In what would be a change of NCAA policy, former NCAA athletes may soon be entitled to receive compensation for the use of their name or likeness.  Currently, former NCAA athletes are not allowed to gain royalties from the NCAA whenever the organization or member schools use athletes names or likenesses for profit on items such as video games, DVD’s or promotional items.  When an NCAA athlete signs on with a school to participate in athletics, they must sign a waiver, giving the NCAA the rights to the name, image, and likeness while they are a student athlete and beyond.  Former UCLA basketball player Ed O’Bannon aims to challenge this policy and gain royalties for all former football and basketball student athletes from the past and future in the class action lawsuit Ed O’Bannon v. NCAA filed in U.S. District Court for the Northern District of California.  For a full discussion about the case see Michael McCann’s article at:    http://sportsillustrated.cnn.com/2009/writers/michael_mccann/07/21/ncaa/index.html

The NCAA’s main arguments will be, if the former players are compensated for the use of their image and likeness, it would go against the NCAA’s policy of having amateur athletes, that the athletes waived their rights when they signed the required NCAA forms, giving the NCAA the rights to the images and likenesses and that if the players did not wish to play for an NCAA institution they had a choice not to sign the required forms.   O’Bannon will argue that this case is only involving former student athletes who are no longer are bound by the NCAA bylaws and that the forms giving the NCAA the right to all images and likenesses violate the governments Sherman Act due to a restraint in trade.

This case will set a precedent for all future and past NCAA athletes.  Both sides have valid arguments and I am sure the all present and future NCAA athletes will be watching closely as they all have a vested interest in the outcome.

Jammie Thomas-Rasset

A jury last week determined the decade old question of just how much money a song is worth if it is illegally downloaded.  The jury’s answer:  $80,000 per song.    Jammie Thomas-Rasset was accussed of illegally downloading 1,700 songs through the file sharing program Kazaa, although she was only prosecuted by the Recording Association of America (RIAA) for illegally downloading 24 songs.   Thomas-Rasset alleged that other people in her family may have been responsible for the downloads, she replaced her hard drive because it was broken and not because of illegal downloads that would have been found on it, and that she never received any sort of cease and desist orders despite the plaintiffs producing such evidence that such messages had been delivered.  http://technology.timesonline.co.uk/tol/news/tech_and_web/article6534542.ece

The RIAA said that they tried to settle the case with Thomas-Rasset for a sum of $3,000-$5000 but she refused to settle.   Thomas-Rasset was the first person to refuse to pay a fine and challenge the RIAA in court.  The RIAA, however is still willing to settle the case despite winning a $1.92 Million verdict.

The RIAA is taking the high road on this case and doesn’t want to alienate music fans.  By settling the case for a small sum, the RIAA will deter people from infringing on music, but not alienate fans at the same time by looking like some kind of ogre.  The RIAA said they are moving away from suing individuals for infringment and are trying to work out arrangement with internet service providers to take action against infringers.

Ms. Thomas-Rasset was extremely ignorant and misinformed by her lawyers that she had any chance of winning this case.  The evidence was too concrete and stacked against her from the beginning.  When a case can be settled for a couple thousand versus having to potentially pay millions in damages and lawyer fees, it doesn’t make any sense to try the case.  This is why most rational people settle their infringement cases and move on with their lives.

For a play by play analysis of how the trial went down, check out:  http://arstechnica.com/tech-policy/news/2009/06/jury-selected-in-thomas-retrial-shockingly-law-abiding.ars.
Seattle entertainment lawyer

Tony La Russa

The name, image, and likeness of a celebrity or sports figure is viewed by the courts to be the intellectual property of that particular individual.  With the creation of Twitter, Facebook and other social networking sites, individual’s intellectual property in their names  have the possibility of being infringed upon in a new medium.  Tony La Russa, the St. Louis Cardinals manager, is the first well known celebrity or sports figure to sue Twitter for the actions of an individual who used a name or likeness that didn’t belong to them on a Twitter page. http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202431321477&rss=careercenter

La Russa alleges that an unknown person had been tastelessly using his name and image, tweeting from an account named “TonyLaRussa.”  La Russa’s suit claims that the impersonator is ruining his reputation among other things.  In order to win a case for trademark infringement La Russa would have to prove that the average viewer of the fake Twitter page would confuse the postings as being those of the actual La Russa.  Therefore, because of the nature of the posts (making fun of his drunk driving, and a Cardinals pitcher who had died earlier) it is unlikely that the average person would be confused that the actual La Russa made the offensive “tweets.”

La Russa could have also brought some torts claims against the individual posters who made the tweets for misappropriation of his name and likeness and being portrayed in a false light.  The false light claim would have the best chance to succeed as he would have to prove (1) publication, (2) of views he doesn’t believe, (3) which are objectionable to reasonable person.  Misappropriation of name or likeness requires a person to use another’s name or image for profit which did not happen in this case.  The outcome of a suit of this type would probably be up to a jury to decide.

Celebrities and athletes should be careful in suing their own fans and those that actually follow their careers, especially if any damage is minimal as it is in this case.  Suing fans of the game, could cause a backlash and project a negative image upon a person or sport.  La Russa should have accepted that Twitter agreed to remove the page from the site and move on with his life.  This is a frivolous claim that he will probably lose.

UPDATE 7/7/09:  La Russa pulls Twitter suit –  http://www.law.com/jsp/article.jsp?id=1202432045385&rss=newswire

Welcome to the Symmes Law Group, PLLC’s – Sports, Entertainment & Trademark Lawyer Blog.  This is an interactive blog that details current events in sports, entertainment, and trademark law as well as discusses legal issues and projects that are currently being undertaken by Seattle trademark lawyer Richard Symmes and Symmes Law Group, PLLC.

Symmes Law Group strives to build long-term relationships with our clients throughout the Seattle metro area as well as around the world by offering unparalleled personal service.  If you are need of a legal representation in association with your trademark or entertainment matters  please contact Symmes Law Group, PLLC today at [email protected] or call 206-682-7975 to set up an initial consultation.

 Social networking sites such as Facebook and Twitter have made a profound impact on the world of sports, especially in the past few months. Some leagues and sports teams have taken the stance that postings should be censored or eliminated, which could violate an individual’s First Amendment freedom of speech rights. 

Twitter is a social networking site in which users post real time updates in 140 characters or less for their followers to read.  Coincidentally many athletes and individuals involved in the sports world have decided to become involved in the Twitter revolution and publish their thoughts online for everybody to see.  The phenomenon has affected the NBA the most.  When Milwaukee Bucks forward Charlie Villanueva decided to Tweet at halftime during a game last month, he was heavily criticized by his head coach Scott Skiles who has since banned Twitter from the locker room. http://nba.fanhouse.com/2009/03/17/skiles-no-tweeting-in-the-locker-room/  The coach’s argument was that tweeting during half time gives the appearance that his team is not focused.  Other popular NBA personalities such as Shaquille O’Neal and Dallas Mavericks owner Mark Cuban have climbed aboard the Twitter bandwagon and post about such things as new endorsement deals to bad officiating. Cuban was fined 25K when he criticized the officiating in a game last month.  http://nba.fanhouse.com/2009/03/28/mark-cuban-rips-refs-on-twitter/

Facebook is a hugely popular social networking site in which users can reconnect with old friends, share pictures, and also start and join fan groups such as the group “John Wall Please come to NC State!!!!”  There are several groups on Facebook that attempt to encourage a recruit to attend a particular school.  However the NCAA has taken objection to fan groups on Facebook that could influence a student athlete to choose one school over another and believes that the groups violate NCAA rules.  The NCAA has attempted to take action against individuals who start groups such as the one mentioned above.  Such action could include refusing to sell tickets to individuals who start such groups and dissociation from an athletic program.  http://seattletimes.nwsource.com/html/collegesports/2009021968_facebook11.html

This begs the question, should the NBA, the NCAA and other sports governing bodies be able to limit an individual’s First Amendment freedom of speech rights. 

The NBA is a private entity who employs and regulates individuals who must abide by the NBA’s collective bargaining agreement and team rules.  As a private entity with their own set of rules and regulations, the organization may limit what employees and those associated with the league may say.  The team’s are who is paying an NBA players salary paystubs and if the players don’t like the rules, then they can play somewhere else.  If the NBA felt that Twitter was a problem, they could add a rule banning it from locker rooms and limit the content to non NBA activities if they felt that the tweeting was getting out of hand.  At the moment the NBA has not indicated that they will seek to limit the use of Twitter among those associated with the NBA.  In Cuban’s case, criticizing an official in any medium whether online or not when you are an NBA owner is grounds for a fine. 

The NCAA is also a private entity, however many universities are public and cannot limit the speech of individuals as long as the speech does not fall into a regulated category such as being obscene or inciting violence.  A University may always refuse to sell tickets to whomever they please or choose not to let an individual participate in University sponsored events.  However any other action taken that could limit speech would not be allowed.  Therefore if an individual seeks to start a Facebook group and has no intention of attending a game or interacting with a University they have little to worry about in terms of getting in any serious trouble as they are not governed by the NCAA.  However the NCAA could decide to punish schools who allow such groups to be formed.  I have trouble seeing how these types of groups will be regulated in the future unless the NCAA forces Facebook to restrict such groups by threatening to pull all NCAA related content from Facebook, such as March Madness Brackets or other fan groups.

With Twitter and Facebook still in their infancy it will be interesting to see how they evolve and continue to influence the world of sports and entertainment.

I have never really understood the purpose of the entertainment venue pat down and search.  I am all for safety, but if searches are going to be conducted, they should be done right.  Not using metal detectors and searching every purse and bag only holds up lines to get into venues and the majority of searches, especially at sporting events is a waste of time.  If a person really wants to sneak in a weapon it’s not hard, simply stick the weapon down ones pants.  Last I checked full body cavity searches aren’t part of the entertainment experience, well not yet anyways.

In San Francisco a couple of 49er fans have had enough and sued the 49ers.  The fans claim that the pat down searches violate their right to privacy.  The California Supreme Court ruled last week that such a search may violate a person’s right to privacy.     http://www.law.com/jsp/article.jsp?id=1202428738944&rss=newswire.  The case was remanded back to the California Superior Court due to an insufficient record.  The lower court must determine whether the search measures put in place have a specific purpose and whether that purpose in narrowly tailored, meaning the searches must be less intrusive than alternatives.

The NFL instituted a pat down search policy in 2005 which could be in jeopardy.  I am somebody who on rare occasions carried out similar search policies while working for the NBA’s Seattle Sonics and I can tell you that these policies are unjustified, carried out half assed, and cause fans to get restless if they are subjected to waiting in long lines due to searches after a game has started.  In some cases while I was working, the policies were completely abandoned right before tipoff due to the long lines and complaints.  A professional franchise doesn’t want to risk losing season ticket holders due to the searches so they may cave in or often times most of the searches are being conducted by temp event staff workers who don’t feel like getting yelled at by fans.

If the NFL or any other entertainment venues wants to conduct searches, they should use metal detectors.  Metal detectors are more effective in identifying weapons, less intrusive, and won’t hold up lines during events.  In the 49er case the team will argue that the NFL policies are necessary in order to assure safety, but they may have trouble in arguing that the policies are being carried out in the least intrusive manner.  The issue will be whether a less intrusive manner such as metal detectors would cause a substantial burden on the team.  A substantial burden may come in the form of finances and if it a less intrusive policy costs a lot more money, then it may not be viable.  The ruling in this case will affect all entertainment venues nationwide.  You better believe that all major sports and entertainment organizations will be paying very close attention as to the result of this case.

Eminem

A trial that will help define what percentage of digital royalties an artist is entitled to has finally arrived after a two year journey through the judicial process.   Rap artist Eminem and his publishing company FBT Productions have sued Universal Music Group for $1.6 Million in alleged unpaid royalties.  Digital royalties are earned by an artist whenever music by that artist is downloaded online or through a ring tone for example.  The percentage of royalty payments that an artist and label will receive are usually included in an artists contract.  However for artists and labels that have been around long before the digital revolution arrived, determining who gets what percentage of the digital royalties becomes a concern.  Before ipods and ringtones became mainstream there were no contract clauses in an artists contract discussing digital royalties.  The dispute between Eminem and Universal seeks to define whether the digital music will be considered a license or a further distribution of the music.

“Eminem’s lawyers argue that downloads should fall under the “licensing” agreements that cover physical releases such as CDs and vinyl records, but Universal Music Group says they are governed by “distribution” arrangements, which have lower royalty rates.  Whereas an artist might split licensing royalties 50-50 with their label, under distribution rates they often earn less than 30%.” http://www.guardian.co.uk/music/2009/feb/25/eminem-universal-digital-royalties-lawsuit

“If you give the music to a third party without cost to you, like manufacturing or packaging, that’s the same as a licensing agreement,” a member of Eminem’s legal team explained to The Wrap magazine. “[Universal] are characterising it as something else.” http://www.guardian.co.uk/music/2009/feb/25/eminem-universal-digital-royalties-lawsuit

I have to side with Eminem on this one.  Universal is not actually distributing any of the music, they are just allowing a third party such as iTunes to put the music on their servers.  There is no difference from releasing an actual CD and releasing a CD to the Internet.  If however Universal played a major role in getting the music into a third party’s hands and actually “distributed” and marketed the music, then Universal could come out victorious.  The affect on other artists may turn out to be a case by case issue, hinging on whether a label significantly distributed and marketed the music.  In the end I think this will be a major win for all artists worldwide who have never been able to take advantage of all of their digital royalty rights.

UPDATE:  Eminem loses case to UMG http://www.thewrap.com/article/1750.  This is a big blow to musicians worldwide.  I am sure this issue will come up again and if anything the public is more aware of the issue.  As a consolation Eminem did receive $159,000 in accounting errors from the payment of royalties.

Warner Bros. is set to release the film “Watchmen” on March 6, 2009 despite a recent district court decision that ruled in favor of Twentieth Century Fox (Fox) having intellectual property rights in the film.  Fox acquired the rights to the popular but dark-themed graphic novel “Watchmen” in 1986.  Fox then conveyed those rights to a company controlled by Lawrence Gordon, the films producer, but maintained the right to distribute the first film based on the novel.  http://www.reuters.com/article/industryNews/idUSTRE4BT1P720081230

Fox has sought an injunction against Warner to prevent the release of the film, however a judge is set to issue a decision on the matter on January 20th where he will also consider whether Warner has to pay any damages to Fox if they release the film.

Under 17 U.S.C 103 of U.S. copyright law, the owner of a copyright has the right to reproduce and make derivative works of an original work.  In this case Fox owned a copyright to make the first film based off of the Watchmen graphic novel.  The film is a derivative work and therefore Fox should be entitled to damages.  An injunction is unlikely as Warner Bros. already has invested $120 Million in creating the film.  A delay in release would provide no benefits to either party as no money would be earned from the project.  I would expect the parties to reach a settlement decision before the January 20th ruling.  If no settlement is reached Fox will most likely be entitled to share in the profits from the film as a damages award.

Here is a link to the Watchman movie trailer:   http://www.youtube.com/watch?v=E4blSrZvPhU

UPDATE – Warner Bros. and Fox have settled their dispute – http://www.law.com/jsp/article.jsp?id=1202427549210&rss=newswire

Coldplay

Joe Satriani

Guitarist Joe Satriani brought a plagiarism suit last week in Los Angeles against the band Coldplay for allegedly plagiarizing his song “If I Could Fly.”   Satriani claims that Coldplay used the same melody progression in their song “Viva La Vida.”‘  http://www.mtv.com/news/articles/1600890/20081208/coldplay.jhtml

The songs can be heard together here:  http://www.youtube.com/watch?v=1ofFw9DKu_I  So do you think the songs are the same?

Proving a plagiarism claim in music is extremely difficult, therefore Satriani will face an uphill battle.  Satriani as the plaintiff has the burden of proof to show that copyright infringement occurred.  In order to prove copyright infringement a plaintiff must show (1) that he owned a valid copyright to the song and that (2) copying of the song occured.

Under the first element Satriani will be able to show that he owned a valid copyright in his song “If I could Fly.”  A copyright is established the moment the work has been completed and I am assuming that he also registered the copyright with the federal government, gaining more protection and the ability to sue in Federal Court.  Therefore Satriani owns the reproduction rights as well as the rights to prepare derivative works.

The second element, copying, will be harder to prove.  In order to prove copying Satriani must show (1) access as well as (2) substantial similarity.  In order to prove access the plaintiff can show either that there is a particular chain of events between plaintiffs work and defendants access to that work or that the plaintiffs work has been widely disseminated.  In this case Satriani’s song has been widely disseminated through mass distribution and radio play.  Therefore this element would be met.

Next Satriani would have to prove that there is a substantial similarity between the two songs.  This is done through extrinsic and intrinsic tests.  An extrinsic test would prove concrete elements such as similar notes and lyrics which is done through expert testimony.  An intrinsic test looks at whether an average person would find the total concepts of the works to be substantially similar.  This can be done through surveys and polls of average people.  If there is a high degree of access shown then there is a lower standard for substantial similarity.  In this case it is very likely that Coldplay had access to the Satriani song. The outcome  will come down to expert testimony and the views of the general public to determine if copying occurred.   So I ask again, do you think, there is copying involved?    If yes then it is likely that Satriani will win his case as the courts ruled in Newton v. Diamond (2002) that a musical note sequence of 6 or more notes was copyrightable.

Coldplay will counter these allegations and state that their song was an independent creation, wherebye the group independently came up with the song on their own.  This would be hard to prove because they would have to show that they had never heard the Satriani song, which has been widely distributed.  If Coldplay tries to argue fair use, that would fail because they are using the song for profit and allegedly copied significant amounts of the Satriani song.

It will be interesting how this case turns out.  I would venture to guess that the parties will settle their dispute due to the fact that an average person would probably find that there is a similarity, the same melody and notes were most likely used, and it would be easy to prove that Coldplay had access to the Satriani song.

I was recently hired by my colleague Chuck Humphrey over at www.gambling-law-US.com to research whether or not www.centsports.com engages in illegal bookmaking.  CentSports operates an interactive website in which the company gives players 10 cents of start up money in which to bet on sporting events.  If a player reaches $20 in winnings they may cash out their winnings if the company has enough funds to pay them off.  So the question is, is CentSports engaging in making an online sports book?

In order for an illegal book to be made, gambling must be involved and in order for an activity to be considered gambling the activity must consist of (1) Prize, (2) Chance, and (3) Consideration. The prize and chance elements would clearly be present, however the question is whether any consideration is involved.  Consideration is defined as a bargain for exchange, meaning both parties have to give something up or take a risk when making a bet.  It can be argued that centSports players are not taking any kind of risk since they are not betting with their own funds, only the funds that were deposited in their accounts by CentSports.  Furthermore they are not guaranteed to any winnings.  They will only be paid if centSports has the funding.  Therefore CentSports is most likely not engaged in illegal gambling, however a case could certainly be made for the other side.

Does CentSports violate NCAA bylaws?

CentSports is very popular across college campuses nationwide.  The website is a social networking tool and allows friends to compete against one another online and determine who has the best winning percentage when placing bets.  The NCAA membership has adopted specific rules prohibiting student-athletes, athletics department staff members, and conference office staff from engaging in sports wagering (Bylaw 10.3).  NCAA national office employees are also prohibited from engaging in sports wagering.  A violation of this law could cost a student athlete their athletic eligibility to play sports in college whereas NCAA employees would most likely be terminated.

The NCAA rules are similar to state law rules that prohibit gambling and sports wagering.  The NCAA member colleges and universities have defined sports wagering as putting something at risk – such as an entry fee – with the opportunity to win something in return.  With CentSports no entry fee is required and nothing of value is given up since the entry fee is provided and there is no guarantee of any payouts.  By definition no wager has been made.  Therefore I do not believe CentSports would violate NCAA rules as there is no consideration present, however the NCAA recently published an opinion on the matter which is discussed below.

UPDATE, 3/28/09 – The NCAA’s Agent, Gambling and Amateurism Activities division recently weighed in on whether CentSports violates NCAA Bylaws.  They have determined that the free 10 cents given to players is in fact considered “something of value” due to the potential payout down the road.  It is the policy of the NCAA that they do not want anybody associated with the NCAA to be involved in any sort of gambling, even if it is questionable as to whether the activities are actually gambling.  If you are an NCAA student athlete or employee of the NCAA you should refrain from using websites that engage in any sort of gambling or wagering, even if there is no guarantee of a payout.  The NCAA’s opinion on CentSports can be read in the AGA’s March 2009 newsletter available at:  http://www.ncaa.org/wps/ncaa?ContentID=6685

For more information contact Seattle Attorney Richard Symmes.