CC Image Courtesy Flickr User Velo_City
While there is high demand to license the publicity rights of professional athletes for use in products such as apparel and video games, obtaining these licensing rights can be a confusing process because of the many players, corporations, and organizations involved. In the past, the process was so overwhelming to some major licensors, such as the players of the National Basketball Association (NBA), that they sold their group licensing rights back to their respective athletic associations rather than managing the rights themselves. A Seattle-based startup company launched last week purports to offer a new model for granting these group licenses. Playmark, Inc., claims to offer a Web-based portal for interested parties to license the rights of National Football League (NFL) players for various commercial applications.
NFL players have not sold their publicity rights back to the NFL. That means that the NFL itself has the rights to license team names and logos, but not the images, likenesses, and signatures of NFL players. The scope of the NFL’s licensing rights has been a subject of recent litigation (notably in the Supreme Court case American Needle, Inc. v. National Football League, 130 S.Ct. 2201 (2011)).
The National Football League Players Association (NFLPA) acts as a union for NFL players and has a subsidiary, Players, Inc., that is responsible for the marketing and licensing of groups of players. See Parrish v. National Football League Players Association, 2008 WL 3287030 (N.D.Cal., 2008). Individual players still have the ability to license themselves as individuals, make appearances, make endorsements, and sign autographs, but Player’s Inc. approves licenses involving six or more players.
This licensing process has not always been streamlined for the NFLPA or its players. In 2008, a group of retired players sued the NFLPA, claiming that after signing Group Licensing Agreements (“GLAs”) with the NFLPA they did not get a fair cut of proceeds from their group licenses. See Parrish, 2008 WL 3287030 (N.D.Cal., 2008). Rejecting the NFLPA’s motion for summary judgment, the court noted that both the NFLPA and the individual retired players had signed licensing contracts with the same company at least once, creating a complicated fact pattern that precluded ruling as a matter of law.
Enter Playmark. Licensees can use the company’s website to craft projects and submit bids to licensors, according to Playmark. Licensors then review the bids, approving or rejecting the licenses. The concept is that through the use of the online platform, licensing can be simplified. This simplification of the licensing process apparently appealed to the NFLPA:
“We really wanted to make the licensing process streamlined and accessible for people no matter what your resources are … This space is really ripe for something that demystifies intellectual property rights and licensing,” said Keith Gordon, president of Player’s, Inc.
As Parrish indicates, there is much licensing confusion that such a website could alleviate. Typically, a business seeking a license from a group of professional players would have to call the player’s association with an inquiry, proceed through an exchange of phone calls and e-mails, and eventually meet in person, most likely with their attorneys. And as in Parrish, companies might make ad hoc licensing agreements with players that might not be represented by the player’s association. This time-consuming process can be cost-prohibitive for small businesses seeking licenses.
Gordon, the Player’s Inc. president, has said that the Playmark scheme “makes it possible for thousands of app and game developers, independent artists, agencies and businesses of all sizes to gain immediate access to the intellectual property rights of NFL players.”
One startup business that has already used the website to obtain a license is StarStreet, a sports stock market site, according to Playmark. The ability to obtain an official license from the NFLPA allowed StarStreet to start adding official signatures and images to its website.
One of the most intriguing aspects of Playmark’s platform is the ability of a licensee to relicense assets that they create on the platform. As an example, EA Sports is relicensing the 3D Player Models used in the popular game Madden in hopes that other businesses will be able to use the models to create non-competitive products, such as toys and collectibles. This new approach to licensing might create a secondary market for assets created using licensed rights.
It will be interesting to see if Playmark can deliver, and whether this approach could be adopted for licensing of rights to other content, such as music or movies—particularly in making licensing more accessible to smaller operations.
* Staff Writer Alicia Hoffer contributed to this report. She is engaged to an employee of Playmark.
Washington Journal of Law, Technology & Arts 