• About Us / Contact
  • Responsible Gambling
This site contains commercial content
SportsHandle
  • US Sports Betting
    • Arizona
    • Arkansas
    • Colorado
    • Connecticut
    • Delaware
    • Illinois
    • Indiana
    • Iowa
    • Kansas
    • Kentucky
    • Louisiana
    • Maine
    • Maryland
    • Massachusetts
    • Michigan
    • Mississippi
    • New Jersey
    • New Mexico
    • New York
    • Ohio
    • Oregon
    • Pennsylvania
    • Tennessee
    • Vermont
    • Virginia
    • West Virginia
    • Wyoming
  • Pending States
    • California
    • Florida
    • Georgia
    • Missouri
    • North Carolina
  • Canada
    • Ontario
    • British Columbia
    • Alberta
  • Sportsbook Apps
    • FanDuel
    • BetMGM
    • Caesars
    • PointsBet
    • BetRivers
  • Tools
    • Sportsbook Bonuses Explained
    • Sports Betting Revenue Tracker
    • Sports Betting Podcasts
    • Partnership Tracker
    • Expected Value
    • Sports Scores And Odds Apps
    • Sports Betting Twitter
  • News
No Result
View All Result
SportsHandle
  • US Sports Betting
    • Arizona
    • Arkansas
    • Colorado
    • Connecticut
    • Delaware
    • Illinois
    • Indiana
    • Iowa
    • Kansas
    • Kentucky
    • Louisiana
    • Maine
    • Maryland
    • Massachusetts
    • Michigan
    • Mississippi
    • New Jersey
    • New Mexico
    • New York
    • Ohio
    • Oregon
    • Pennsylvania
    • Tennessee
    • Vermont
    • Virginia
    • West Virginia
    • Wyoming
  • Pending States
    • California
    • Florida
    • Georgia
    • Missouri
    • North Carolina
  • Canada
    • Ontario
    • British Columbia
    • Alberta
  • Sportsbook Apps
    • FanDuel
    • BetMGM
    • Caesars
    • PointsBet
    • BetRivers
  • Tools
    • Sportsbook Bonuses Explained
    • Sports Betting Revenue Tracker
    • Sports Betting Podcasts
    • Partnership Tracker
    • Expected Value
    • Sports Scores And Odds Apps
    • Sports Betting Twitter
  • News
No Result
View All Result
SportsHandle
No Result
View All Result

No Clarity For Sportsbooks Around Use of Name, Image, Likeness

Courts haven't set limits or rights for such companies

John Brennan by John Brennan
June 9, 2021
in Legal
Caution-Flag-Auto-Race
Share on FacebookShare on Twitter

What are the limits for sportsbook operators when it comes to the use of what are known as the “name, image, and likeness” of professional athletes in marketing and advertising?

The answer, according to a pair of sports law experts who offered analysis during a New York City Bar Association-sponsored webinar on Tuesday titled β€œNIL Rights in a Time of Expanded Sports Betting,” is — we’re not sure.

As laid out by Marc Edelman, a professor at the Zicklin School of Business of Baruch College, courts previously have granted sports businesses free rein when it comes to the use of athletes’ statistical results from performance in games.

In those cases, Edelman explained, the “publicity rights” of the athletes consistently has been trumped by a First Amendment right of fans to access the information. In one case, Edelman added, the fact that professional athletes are “already handsomely compensated” for their performances was cited as a reason they were not entitled to further benefits.

In the 2018 Indiana Supreme Court case of Daniels vs. FanDuel, a court found that publicity rights lose out even when an athlete’s picture is used as part of the distribution of information in daily fantasy sports (DFS).

But Edelman, who advises a number of DFS companies, said he suggests a “modicum of caution” for such clients when it comes to the usage of pictures because it is not yet clear that all courts would rule that same way.

Michelle Marsh, an attorney at the law firm of Arent Fox LLP, agreed.

Sign Up For The Sports Handle Newsletter!
I also want to receive information and offers about online sportsbooks (eg. odds boost, welcome offers)

“The biggest issue is whether you are crossing over from the use of names and statistics into the marketing and advertising realm,” Marsh said. “If you show a particular player on a billboard, what message are you conveying with that information?”

Well, there is at least one limit

Has a limit been found, though, on what such sports businesses can do that must bow to personal publicity rights? It seems to have been found in a 2013 U.S. Third Circuit Court of Appeals ruling that reversed a previous lower-court ruling.

In Hart v. Electronic Arts, the court concluded in a split opinion that “right of publicity interests outweighed Electronic Arts’ use of [former Rutgers quarterback Ryan Hart’s] likeness and biographical information in a college football video game.”

But a related case that now may be heard by the U.S. Supreme Court is a 2020 ruling in Hamilton v. Speight, where the same court ruled that a character in Epic Games’ popular “Gears of War” video game franchise did not misappropriate the character’s likeness from the plaintiff, ex-NFL player Lenwood “Skip” Hamilton.

The video game was the brainchild of a former colleague of Hamilton’s, whose idea was rejected on the grounds of its being too violent. Yet a Hamilton-like character was created anyway.

The name, image and likeness conversation for paying college athletes has spent years focusing on a hypothetical future.

But with at least five states' NIL legislation set to go live on July 1, that future is finally here. https://t.co/pkaS8njdnO

— Axios (@axios) June 9, 2021

Marsh said that while video games are “an imperfect vehicle” in definitively determining the limits of the right of publicity law, “I still would love for the [Supreme] Court to take this case.”

Marsh, stressing that she was speaking for herself and not her employer, said that “the time is right” for the Supreme Court finally to take up a right-of-publicity case — but predicted that Hamilton will lose the case if the nation’s highest court does take up the matter.

Edelman replied, “Like any wise gambler, I try to stay in my lane,” as he declined to offer his own prediction.

Television ads vs. social media posts

When it comes specifically to sports betting and daily fantasy sports operators, Edelman noted a dichotomy between television advertising and social media posts.

“The TV ads seem to be pretty good, having been vetted by large [law firms],” Edelman said. “But advertising on Twitter and all forms of social media doesn’t seem to get treated the same way.”

Edelman said some social media pitches don’t always appear to address the nuances of intellectual property law.

“Those companies might not have the right to use a picture of a player in uniform and a team logo in a way that looks like an endorsement,” Edelman said.

Moderator Andrew K. Patrick, an attorney with Skadden, Arps, Slate, Meagher & Flom LLP, said he has seen that same apparent lack of vetting by such companies on social media.

Edelman and Marsh agreed that in terms of the usage of player likenesses, daily fantasy sports and sports betting operators are walking similar tightropes.

Edelman added that even securing a partnership with a professional athlete doesn’t avoid all potential landmines. He said it’s not clear that an advertisement by a company can include the player in his team uniform if the team itself isn’t part of the deal, for example.

Is there a solution out there?

Marsh said that her “creative solution” would be to allow for athletes to copyright their own images.

As to whether it would help for Congress to step in and create a federal standard that would simplify the issue, Edelman said that “as an academic, I could spend the next year of my life on why we need a federal right-of-publicity law.”

This is another huge day in college sports as Congress holds hearings on a potential national standard for name, image, and likeness rights for college athletes. A patchwork of state laws will go into effect July 1, meaning the NCAA can no longer drag its feet on #NIL rights.

— Wes McKinzie (@WesMcKinzie) June 9, 2021

But Edelman said that the reality is that not only is the current Congress deeply divided on most matters, there already are six widely divergent bills attempting to address the amount of rights that college athletes should have to their name, image, and likeness.

Marsh was somewhat more optimistic, saying that “with the right Congress and a thoughtful leader, a bill could get written.”

Edelman said that in terms of college athletes, a pending Supreme Court ruling this month in NCAA v. Alston could help clarify the limits of collegiate oversight of its amateur players — thus giving more clarity on the issue of names, images, or likenesses.

But for sports betting operators, no such clarity on how far they can go in terms of marketing with references to players and teams seems imminent. They’ll just have to settle for the “caution” flag raised by Edelman.

ShareTweetShare
John Brennan

John Brennan

John Brennan has covered NJ and NY sports business and gaming since 2002 and was a Pulitzer Prize Finalist in 2008, while reporting for The Bergen County Record.

Related Posts

FanDuel $1 billion revenue New York
Analysis

FanDuel Tops $1 Billion In New York Mobile Sports Wagering Revenue

June 5, 2023
inside-fanatics-sportsbook-fedex-field
Industry

No License Transfer Required As Fanatics Begins Move Into New York

May 26, 2023
Load More

Top Stories

colts logo

Source: ‘Pervasive’ Wagering From Colts Player Includes Bets On His Own Team

June 5, 2023
paspa ruling

From PASPA To Present: An Oral History Of The U.S. Sports Betting Gold Rush

May 11, 2023
inside-fanatics-sportsbook-fedex-field

Sources: Fanatics Enters Advanced Talks With PointsBet On Transformative U.S. Deal

May 12, 2023
new york times headquarters

The ‘Risky Wager’ Series From New York Times Was No Hit Piece β€” It’s Reality

May 31, 2023

State Sports Betting Guides

Ohio (U.S. state) flag waving against clear blue sky, close up, isolated with clipping path mask alpha channel transparency, perfect for film, news, composition

Ohio Sports Betting – All Online Sportsbooks, Bonus Offers, and News 2023

by Brian Pempus
May 16, 2023

Downtown Detroit at twilight (Shutterstock)

Michigan Sports Betting – Where To Play, Online Sportsbooks, And FAQ

by Brett Smiley
May 2, 2023

VA captial

Virginia Sports Betting – Where To Play, Online Sportsbooks And Bonus Offers

by Brett Smiley
April 24, 2023

nj flag

New Jersey Sports Betting — Where To Play, Online Sportsbooks, And FAQ

by Brett Smiley
March 22, 2023

pa online sportsbooks

Pennsylvania Sports Betting – Where To Play, Online Sportsbooks And Bonuses

by Brett Smiley
May 3, 2023

Canada Sports Betting Guides

Canada Sports Betting – Best Sportsbook Apps & Bonus Offers

British Columbia Sports Betting – Legal Update, Available Sportsbooks, and FAQ

Ontario Sports Betting – Legal Status And Where To Play

SportsHandle

  • Analysis
  • Casino
  • Features
  • Horse Racing
  • Industry
  • Legal
  • Legislation
  • Lottery
  • Opinion
  • Podcasts
  • Poker
  • Politics
  • Promotions
  • Regulation
  • Sports
  • Uncategorized

Better Collective

This website is owned and operated by Better Collective USA. Trademarks and copyrights referenced on this website are and shall remain the exclusive property of their respective owners and/or licensors. Please be sure to visit the operator’s website(s) to review their terms & conditions. We advise you to read these carefully as they contain important information. Copyright Β© 2023 USBets.com | Better Collective USA
21 Play Responsibly
Gamble Aware West Virginia
Gambling Problem? Call 1-800-Gambler.
GameSense

Search Sports Handle

No Result
View All Result
  • About Us / Contact
  • Responsible Gambling

No Result
View All Result
  • US Sports Betting
    • Arizona
    • Arkansas
    • Colorado
    • Connecticut
    • Delaware
    • Illinois
    • Indiana
    • Iowa
    • Kansas
    • Kentucky
    • Louisiana
    • Maine
    • Maryland
    • Massachusetts
    • Michigan
    • Mississippi
    • New Jersey
    • New Mexico
    • New York
    • Ohio
    • Oregon
    • Pennsylvania
    • Tennessee
    • Vermont
    • Virginia
    • West Virginia
    • Wyoming
  • Pending States
    • California
    • Florida
    • Georgia
    • Missouri
    • North Carolina
  • Canada
    • Ontario
    • British Columbia
    • Alberta
  • Sportsbook Apps
    • FanDuel
    • BetMGM
    • Caesars
    • PointsBet
    • BetRivers
  • Tools
    • Sportsbook Bonuses Explained
    • Sports Betting Revenue Tracker
    • Sports Betting Podcasts
    • Partnership Tracker
    • Expected Value
    • Sports Scores And Odds Apps
    • Sports Betting Twitter
  • News