Copyright Reclamation For Songwriters Should Extend To Publicity Rights … – Forbes

Posted by Google News | Industry News | domingo 27 octubre 2013 12:44 am
YMCAしている像たち Statues of YMCA

YMCAしている像たち Statues of YMCA (Photo credit: Yuya Sekiguchi)

An obscure provision of the United States copyright law allows a creator of music a right to recover control of that creation after 35 years even when that creator signed away his or her rights. These “termination rights” were pursued with success by the former “policeman”, Victor Willis, for his contribution in writing the hit song “YMCA”. He was the lead singer in the group Village People that gained international fame in the 1970’s disco era.  This law went into effect in 1978.

A creator of music thus has copyright protections, which are a form of intellectual property. Another form of intellectual property is publicity rights – i.e. rights to one’s own name, likeness, images, autographs, and other unique characteristics of persona. This year judges in two high profile federal cases have proclaimed that former NCAA student athletes have publicity rights, and that even existing student athletes can assert those rights as a matter of law against those who use their images without their consent. Both judges held that the First Amendment rights of expression cannot defeat those publicity rights as a matter of law (i.e. no variance in factual findings will alter that conclusion).

While clearly there are differences between copyright protections and publicity rights protections, including but not limited to the fact that copyright protections rest on several grounds, constitutional, judge-made case law, and statutes, while publicity rights are established from common law, the similarities outweigh the differences. In both circumstances the creators clearly have protectable IP rights. They also arguably signed away some or all of those rights. Neither appear to have signed away those rights forever, (although the NCAA claims waivers implicitly did so).

A law can add clarity not save time over litigation. The strength of publicity rights involving former and existing student athletes is likely headed to the US Supreme Court. Congress has often enacted legislation in response to Supreme Court decisions. It would not surprise me to see federal legislation that declares that once the student-athletes’ eligibility to perform in intercollegiate athletics expires; he or she can still recover a share of the revenue generated after a certain period of time. The legislation could, for example, state that 5 years after a football player’s eligibility expires, he can receive royalties from the use of his name on jerseys in a revenue sharing arrangement with the university.

If the university is no longer generating sales from his name, likeness, autographs or images, the player ought to be able to start his own business or partner with others to benefit from his skill.  EA Sports, a defendant that has settled with the student athletes has already stated it may pursue arrangements with players in the future, apart from the NCAA. And perhaps the law will require a revenue sharing arrangement with the university since it too invested resources and provided the opportunity for the player to develop those skills.

Either scenario is more fair-minded than simply never allowing a player to receive a penny from the near full-time activity of playing college football or basketball, even after his playing days are done when the universities generate millions annually from that skill. That is what the NCAA has maintained and that is why the NCAA has been sued by former and current student athletes. Other defendants have settled with the players, leaving the NCAA alone to fight its Titanic battle of inequities and exploitation. While the NCAA has vowed to take this issue to the US Supreme Court, it may find peace in stipulating to at least sharing future revenue when the student athlete no longer plays college sports.  There is more certainty and clarity from legislation as I describe than the costly, lengthy and uncertain reliance on judicial opinions at various levels of the court system. Let the legal wars cease and clarity begin.


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